LEGAL PROFESSION OUTLINE I. Introduction A. if violate a professional rules1. disciplinary apparatus- reprimand or disbarment 2. could be sued by client- ―you acted negligently toward me (client), you didn‘t do what is proper under profession and I was damaged by it‖ B. Rules that govern lawyers are adopted by courts, courts have power to regulate lawyers and decide which ones to adopt 1. Sometimes courts strike down legislation that try to regulate lawyers b/c out of their power: a. P. 2 Ex: Wisconsin- leg tried to pass statute that had CLE requirement for lawyers trying to be guardian – struck down b. Ex: PA- Court struck down leg about regulating lobbyists, b/c this statute regulates all lobbyists that include lawyers and leg cant regulate lawyers (since has been updated) 2. Will strike down when court thinks leg is inconsistent w/ its powers. They have power to determine when it is inconsistent C. Source of Rules 1. ABA Model Rules of Professional Code 1983 a. Adopted by 45 states b. Revised 2002, 2003 c. States‘ laws on ethics is not uniform 2. Ethics Opinionsa. don‘t have same force that rule has, not like a law, just someone‘s opinion issued by ABA or something about how a rule should be interpreted in certain situations, answers to certain questions 3. State Disciplinary Authoritya. can call when have ethical question, can talk to lawyer and tell you what to do 4. note- neither 2 or 3 binding, but can show acted reasonably: a. Ex: call State Disciplinary Authority and ask if can accept client, they said it was ok, get sued anyway. Their advice not binding in court, but good that you followed, not malpractice b/c acting reasonable careful way- the way a reasonable prudent lawyer would act 5. Restatement D. Professionalism 1. certain level of competence and ability 2. Professionalism movement is chief manifestation of codes of professional responsibility 3. Codes are about describing lawyers role over and above what modern rules are (rules only say what bare minimum is)
a. Ex: In Pa- recently adopted Code of Civility If violate, cannot be disbarred. Not enforceable by any disciplinary body but if violate court will i. Ex: A lawyer should refrain from acting upon racial/gender bias- this is not in Rules, but is in Code of Civility ii. Ex: a lawyer should address opposing counsel w/ Mrs. Mr. Ms instead of he/she II. LAWYER- CLIENT RELATIONSHIP A. Is there a Client here? 1. client- to whom as an atty do you owe your duties too a. Ex: mom and son come in for estate plan and son tells you what mom wants. She doesn‘t speak. Problem is she is your client and not your son. You are working in her interest, doing work for her Son dictates what mom wants in willwrong. Mom is client, her will. mom is client, you must ask her: i. what is son doing here? ii. Should talk to her one on one iii. Is she competent- to make these decision b. Always focus on who you are working for 2. Client you might not think are clients a. Ex: chat board. i. Post on it I have this case. Lawyer writes back and says you have case but statute of limitations expired. What if then person doesn‘t do anything, and statute has not yet expired. Then real statute does expire, do they have case against lawyer for breaching duty of care? For purposes of duty of care, client expected that lawyer was providing legal services. Could be source of liability ii. Can write disclaimer – ―this is not legal advice‖. Is this protection? i. Can be.But if person reasonably believes lawyer is providing legal services and lawyer has taken action to lead person to believe that they are receiving legal services- duty of care ii. Still widely used but not necessarily bullet proof b. Ex: lawyer at party i. asked by someone at party, I am having prob w/ wife. Lawyer gives advice that is detrimental and wrong. Can ―client‖ sue?
What if person told file this and do this. If person say I reasonably believed I was receiving legal services and lawyers actions led me to believe this. – probably then lawyer had duty of care iii. What should lawyer have done/? i. ―Well this is a general answer, but come see me‖ c. ―potential client‖i. Ex: Togstand- W comes in and talks to lawyer, he says, I don‘t think you have a case. I‘ll talk to lawyers if I think you have a case I‘ll call you, he does nothing in actuality. Wife goes to another lawyer, he says she does have a good case, but statute of limitations passed in mean time, she sues first lawyer under malpractice i. Malpractice- breach of a duty of care owed to a client; negligence theory, lawyer did not act in way a reasonably prudent lawyer would act ii. First lawyer counters: she was never my client. She never signed retainer, never paid, there was no duty owed by me to her. iii. Outcome- probably did have reasonable ground for believing she was given legal advice by a lawyer ii. Rule 1.18 Duties to Prospective Client i. Owe duty of confidentiality iii. Case law- if someone is prospective client, you give owe them duty of care as to legal advice subject they are seeking i. Ex: lawyer represents GM, lawyer has own website, a GM employee writes and emails lawyers in response to website saying I want to discuss w/you an employment discrimination suit w/GM. ―client‖ does not know that lawyer represents GM. can lawyer tell GM? – 1. YES- person who wrote in was not a client, I owe them no confidentiality duty or duty of care at any time 2. NO- What if website says ―employment discrimination law‖then would be that lawyer is encouraging people to communicate people, and thus has to uphold confidentiality to those who write in
3. If no website- lawyer has no obligation 4. If yes website and has solicited w/in it- then lawyer has to maintain confidentiality duty B. Elements of the Relationship 1. Competence a. Competence is first rule in Model Rules: requires lawyers to provide clients w/ ―competent‖ representation, defined to ―require the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation b. Rule 1.1 have knowledge and skill necessary for legal representation i. EX: lawyer misses statute of limitations- this would be breaching duty of care, but probably wont get 1.1 i. Rule 1.1 disciplinary, usually more than 1 mistake- usually a pattern, or something particularly egregious ii. Ex: Lawyer recently out of law school, get personal injury case – can take the case as long as you can reasonably believe you can learn enough to adequately prepare i. Comment 2 and 4- can take case as long as you have legal skills or ca acquire legal skills iii. Ex: Can you charge client extra hours you spend learning extra skills?i. NO, client assumes lawyer has certain level of competence. (what lawyer w/these skills, normal standard) ii. Unless client has agreed to specific charge over and above what lawyer w/these skills would charge 2. Confidentiality and Atty/ Client Privilege a. Rule 1.6 i. Protects information relating to representation i. Ex: client‘s g/f tells something to lawyer about client. Info did not come from client, it came from someone else. Does it matter who information come from? NO- still protected. Protects information relating to representation. Doesn‘t matter where/whom info came from. If it relates to representation it may not be disclosed. ii. Duty does not extinguish even after relationship has terminated
Usually any information you learn as a result of representation is usually protected i. Ex: Client wants to draft a will. Client also mentions he has just shot his wife. Does this relate to representation? YES ii. Ex: lawyer does defense work. Client gets probation, including that he cannot go into a bar. Lawyer becomes a DA. Lawyer walks into bar and sees former client, clearly in violation of probation. Can lawyer go to office and tell info to office? 1. No- no matter lawyer/client relationship over when lawyer learns info. 2. Issue is still- does it relate to representation? YES- you know he is in violation b/c you are his lawyer, so this relates to representation iv. Ex: lawyer for J. Smith. Go to bar and someone else tells you info about J. Smith, not knowing you are his lawyer. You must still keep this info confidential, b/c concerns representation- NO matter he didn‘t know you were the lawyer v. Ex: lawyer go home and tell spouse what happened. Tell them b/c think so bizarre. Violation? YES violation- no exception for social disclosure i. Although probably never issue unless harm comes to client as a result, or your spouse tells someone ii. NO violation if don‘t tell your spouse names, use hypothetical b. Breach of 1.6 i. If violated, lawyer can be disciplined ii. Client can sue: i. For Malpractice- lawyer did not deliver duty of care and there were economic costs consequence. Atty. breach caused economic cost damage 1. cannot recover for non economic damages here for malpractice ii. For breach of fiduciary duty- my lawyer did not act to me as a fiduciary should, did not act in way consistent w/ fiduciary relationship. 1. Can recover for non-economic losses
2. EX: woman hires lawyer and he knows she has emotional problems. He solves her law problem, but takes advantage of her problem and develops sexual relationship w/her. She cannot recover on malpractice, but can of breach of fiduciary duty 3. EX: lawyer for case where Coke truck driver goes thru stop sign and hits school bus and kills kids. Lawyers for Coke interview driver and say he is their lawyer and later they get him separate lawyer. They then turn over his statement to DA. Driver sues for and award damages for breach of fiduciary duty from lawyers who were his lawyers at that time, he recovers for mental distress damages. c. Disclosure i. Rule 1.6 (a) ―a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph b.‖ i. the Doesn‘t matter who told lawyer ii. Doesn‘t matter when learned. if information lawyer learned its protected iii. Rules doesn‘t terminate even after relationship terminates iv. broad scope- anything lawyer leans by reason of fact that client has come in 1. EX: can learn in bar, can learn when talking about taxes and about killing wife v. purpose of rule that mandates confidentiality is to facilitate client to tell everything, lawyer can choose what is relevant 1. EX: ―I need a will b/c I killed my wife‖ – this related to representation, not really about will, but still facilitates communication, so still confidential information ii. Disclosure as to email- Is sending out a document disclosure?
i. EX: if lawyer sends information about representation by email to someone he is allowed to send to, is this a violation if it is an unencrypted email? 1. NO- very few cases for risk of interception. No need, send to secure source. Theoretically possibly, but rarely done. ii. EX: if you sent email to location where others had access to it, then maybe here would be violation iii. Metadata- MS word document with all changes made in it. Someone can see can see who else got, who saw it and when, how many revisions, what revisions – firms now scrubbing that info when transferred. 1. if a lawyer has a document for client and someone has this metadata infois this violation of 1.6 iv. Track changes- if turn off before sent, then turned on when sent, can see it all. So must clear all metadata before send. v. Must do what a reasonably prudent lawyer would do 1. Can be ethics violation for lawyer to not scrub and remove metadata. vi. Cannot make it look different w/ different fake metadatavii. Is it violation to not tell client about metadata? No, not yet… iii. Cell phone disclosure- Talking on cell phone and others hear?- must prove someone heard and for civil must prove client suffered damages 3. EXCEPTIONS- TO DISLOSURE 1.6 CONFIDENETIALITY a. 1.6(a) a lawyer shall not reveal information relating to the representation of a client unless: (1) the client gives informed consent, (2) the disclosure is impliedly authorized in order to carry out the representation or (3) the disclosure is permitted by ¶(b). b. No disclosure unless client gives informed consent i. ―informed consent‖- the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of an reasonably available alternatives to the proposes
course of conduct, reasonably available alternatives to the proposed course of conduct c. No disclosure unless disclosure is impliedly authorized in order to carry out representation i. Ex: lawyer asks other lawyers for advice d. No disclosure unless permitted by ¶(b) – ―lawyer may reveal information relating to the representation of a client to the extent that the lawyer reasonably believe necessaryi. Reasonable belief/ reasonably certain ii. To prevent…. (1.6(b)(1,2,3) iii. Permitted not mandatory i. “may reveal”- lawyer does not have to disclose. ii. Comment 15 :says permits but does not require, up to discretion, a lawyer decision to NOT disclose does not violate rule e. Public policy exceptions 1.6(b)(1-3) i. Rule 1.6(b)(1)- to prevent reasonably certain death or substantial bodily i. EX: client says I‘m going to kill someone today. Lawyer knows he‘s serious, reasonably believes he will. ii. Applies even if actor is NOT client 1. Ex: my bf is going to do this… iii. Doesn‘t matter if bad conduct is a crime, just needs to be conduct that will result in death or injury iv. Ex: p. 16 AIDS one. g/f hires lawyer to help her b/f in jail. b/f tells lawyer he has AIDS and not to tell g/f b/c she is paying. b/f is client here, one lawyer is providing services. Lawyer owes him that confidentiality. Is disclosure necessary to prevent reasonably certain death or reasonably certain bodily injury?- we cannot say that, we do not know if she will become HIV positive. It is a severe risk, but is it reasonably certain bodily injury?? v. Ex: client says to lawyer in FL, judge gives possession of house to wife. Client says, I‘m going to burn it down b/c mad wife got it. Lawyer asks what is my obligation? Lawyer calls disciplinary authority in FL, asks if he can disclose- they say yes (she can be in house and be injured).
1. But can lawyer be reasonably certain? Can he asks- do you really mean that? Does lawyer have reasonable basis for believing that? If have doubt, ask discipline authority in advance. Withdraw from case, and tell wife. 2. ―reasonable belief‖- tough language vi. Ex: client says I murdered these missing women, they are in cave. Lawyer checks it out, they are in cave. Lawyer negotiated w/ DA and says ―my client is willing to confess. Assuming he confesses to murder and assume that he can help you uncover certain info about missing women- assume I can give you location info, can you give me life in prison instead of death?‖ so basically pleading guilty, get life sentence and will tell location. Bodies in cave for months and never tells anyone. vii. Was lawyer permitted to disclose under 1.6(b)(1)- NO, death has already occurred. Key concept in 1.6(b)(1) is to prevent Rule 1.6 (b)(2) – to prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to financial interests or property of another and in furtherance of which the client has used or is using the lawyer‘s services i. Instated in wake of Enron and such, no rule before this ii. Permits disclosure to prevent financial fraud iii. Preventative only; from client from committing financial fraud iv. ―In furtherance‖ – additional requirement 1. EX: client comes to lawyer and says I want you to represent me, and fyi I am going to submit false financial documents. If lawyer says no, I am not going to represent you. Lawyer now knows client is planning to commit financial fraud in future, may even know he has found someone else to help him go ahead w/his plan. a. Can lawyer go ahead and disclose?.
vi. vii. viii.
b. NO, services have not been used yet c. Rule says ―and in furtherance of which the client has used or is using the lawyer‘s services‖ Only when client has abused lawyers services by using lawyer‘s services to further his fraud. Must be using lawyer‘s services in furtherance to commit financial fraud [NOTE- this is not rule for PA. omits ―in furtherance‖] EX: lawyer starts to represent client, then client says, after lawyer has been using documents client says they were forged false financial documents. In this case, after has used, lawyer can disclose. YES EX: Client comes in asks you to help them w/fraud, you must say no I am not permitted to represent you 1. Ex: [Comment 7 to 1.6] client comes to lawyer and says, I want to commit this stock fraud, it‘s a big deal. Here‘s what I need you to do. Lawyer is working on deal and knows whole thing is fraudulent. Lawyer is only permitted to disclose. 2. However, Comment 7 says: ―although paragraph (b)(2) does not require the lawyer to reveal the client‘s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent.‖ See Rule 1.2(d) and 1.16 3. Rule 1.2(d) ―A lawyer shall not counsel a client to engage or assist a client in conduct that lawyer knows is criminal or fraudulent,‖― but a lawyer may discuss the legal consequences of any proposed course of conduct w/client and may counsel or assist a client to make a good faith effort to determine
validity scope meaning or application of law‖ a. ―knows‖ – denotes actual knowledge of the fact in question, but actual knowledge may be inferred from circumstances (1.0(c)) b. Whether or not disclose, see 1.6 c. Technically can represent client on other matter, but you would be fool to 4. Rule 1.16(a)(1) - ―a lawyer shall not represent a client or where representation has commenced shall withdraw from the representation from the a client if: a. (1) the representation will result in violation of rules of professional conduct of other law b. EX: lawyer learns day before trial closing arguments everything is fraudulent, much pressure to just let it go. But it is a violation of professional ethics to go ahead b/c it is assisting client w/crime or fraud. Can be sued in fraud case by other party b/c you are part of fraud, b/c you as lawyer actively gave other party false documents knowing they would rely on them. Rule 1.6(b)(3) ―to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client‘s commission of a crime or fraud in furtherance of which the client has used the lawyer‘s services‖ i. Ex: client comes to for defense of stock fraud and he tells you things that are not know. Can you disclose it to mitigate consequences? YES
ii. Ex:[comment 8]- already fraud happened before representation, loss can be prevented, rectified or mitigated by disclosure Only a few jurisdiction mandate disclosure Ex: lawyer licensed in PA and NJ. Lawyer in PA is a rep for a PA corporation in negotiation. Halfway thru client tells lawyer we have submitted false documents. Lawyer is licensed in PA and NJ. i. Can lawyer disclose in PA- YES, PA has equivalent to rule, but doesn‘t have to. PA Permits ii. Can lawyer disclose in NJ?- YES- NJ requires to disclose. iii. Does lawyer have to disclose? (PA says doesn‘t have to, NJ says does have to) iv. Which one controls? Ask- what jurisdiction did lawyer‘s conduct occur in, unless predominant effect is in different jurisdiction 1. Rule 8.5(b)(2) Choice of Law―in any exercise of the disciplinary authority of this jurisdiction (meaning NJ in hypo b/c he would be disciplined in this jurisdiction) the rules of professional conduct to be applied shall be as follows: a. (2) for any other conduct, the rules of the jurisdiction in which the lawyers conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer‘s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer‘s conduct will occur.‖ 2. So- if lawyers conduct occurs in PA, then PA rules. OR if predominant effect is in NJ- then NJ rules. In this hypo- hard to tell.
v. Wisconsin mandates for economic fraud. NJ mandates f. What to tell clients about disclosure i. Could say ―we are completely confidential, unless we are required to do so by statute or your consent ii. ―it is important we have all important info. All info you give us will be fully confidential except as required by state ethics boards‖ iii. Could put in retainer agreement iv. Say NOTHING, but… i. Rule 1.4(b)- a lawyer shall explain a matter to the extent reasonable necessary to permit the client to make informed decisions regarding the representation ii. Probably even w/this rule, you do not need to tell them about your duty to disclose or ethical rules about it. Can probably just say nothing g. PRIVILEGE i. ―privileged information‖- ‖- information protection by the law of evidence; i. protects communication between a lawyer and client by denying courts power to force client or lawyer to communicate info. ii. In criminal cases, privileged info also enjoys 6th Am. Protection as part of right to counsel iii. Virtually all privilege info under rules of evidence will also be ethically protected ii. Privilege=in judicial proceeding is protected, protects what would otherwise be relevant eviendce. iii. Requirements: i. Communication ii. From the client iii. To the lawyer iv. Seeking lawyer‘s services(advice, assistance) iv. difference between privilege and 1.6: privilege protects smaller amount of info i. -anything that is privileged will also be subject to rule 1.6 non-disclosure. ii. -but, what is protected by 1.6 is not necessarily privileges. v. ―ethically protected info‖- information protected by rules of ethics; aka ―confidential info‖ or ―secrets‖ i. Much information ethically protected will NOT be w/in atty client privilege b/c source
of information was not the client or its agents (could be protected by work-product) ii. Lawyer whom court orders to reveal ethically protected info but not privileged info will be required to require to reveal on pain of contempt 1. If same lawyer had voluntarily revealed info, might be guilty of disciplinary violation unless permitted under Rule 1.6 Lawyer has same ethical duties to person client as client who is entity (corporation, labor union, government, partnership) i. Privilege protects communications between entity client and its counsel against forced disclosure outside entity (no matter when counsel is in house or not) Still debated: whether identity of those persons w/in an entity client whose communications w/entity counsel will be protected as ―privileged‖ – (larger this group, more ability of entity clients to keep info secret); i. Ex: lawwyer represents corp. the corp is sued by p. lawyer contacts x, the salmamger of corp and says what happened? X says…. Then someone tried to take x‘s deposition and says, what did you tell the lawyer? Lawyer says this is what happened in the transaction of the lawsuit. Is that privleelged? 1. if lawyer represents x and x is sued: that is classicially preivleved. Was toldf or puspoes of getting advice, assistance 2. if lawyer reps corp and asks x what happened? Lawyer that rep corp does not per se rep the corps employees. Here, x is not the client, not directly represented ii. 2 tests: iii. ―control group test‖ – whether lawyer‘s communication was w/ person in control group of entity 1. : focuses on who its made by. very limited. Only the senior management
that control the corp and thus are deemed to be the corp‘s. 2. ask as to each employees-were they senior management guiding the affairs of the corp 3. US Supreme court does not like the control test. 4. Policy: concerned about zone of silence a. EX: 6th cir. held when using control group test- ―privilege did not apply to communications by officers and agents not responsible for directing corporations actions in response to legal advice for the simple reason that communications were not the client‘s‖ iv. ―subject matter test‖-looks at nature and purpose of information imparted to lawyer, not merely identity of source 1. Focuses on information. info given to lawyer for purpose of the lawyer giving advice or assistance to the client corp regardless of who its made by. 2. Policy-er want people to be free to talk with lawyers, etc v. Restatement § 73- ―organizational client‖corporations, unincorporated associations, partnerships, trusts, estates, sole proprietorships, and ―other for-profit or notfor-profit organizations‖. Privileged info is communication is: 1. between an agent of the organization and a lawyer or lawyer‘s agent and 2. the communication concerns a legal matter of interest to the organization. 3. Irrelevant whether the lawyer or the employee initiated the communication Privilege just protects communications You can always ask the employee about the underlying facts. You can ask if have dics relevant to bring offcials.
But cannot say what did you say to the corps lawyer about…. Upjohn v. US- In house atty send questionnaires to employees and conducted interviews. IRS wanted answers to questionnaire, atty said not- privileged infor i. 6th circuit applied the ―control group‖ test that privilege applies only to communications by officers and agents responsible for directing the corps actions in response to a legal advice. So, found no privilege because the employees here were not clients. ii. Here, the S.Ct. found the control group test insufficient. The Supreme Court held that communications between an employee and counsel for the corporation are privileged when the following factors are present: (1) the communications were made at the direction of corporate superiors in order to secure legal advice from counsel; (2) the information was not available from upper echelon management; (3) the communications concerned matters within the scope of the employees duties; (4) the employees were aware that they were being questioned so that the corporation could obtain legal advice; and the company kept the communications confidential. iii. IRS still able to interview employees on own, just couldn‘t get survey answers Samaritan v. Goodfarb- . Kid died in surgery. A good samartian hospital lawyer investigated and asked its paralegal to interview 3 nurses and a technician who were there when it happened. They all signed a form to accept legal rep from Samaritan;s legal dept. The paralegal summed the interviews in a memo and submitted it to corp counsel. Child and parents brought action against the Pheoniz hospital and the Dr‘s. 2 years later was the deposition of the employees---and they did not remember what had happened. P wants now wants the interview summaries. i. Court applies own middle ―Goodfarb test‖ i. Policy of goodfarb case: we don‘t want to create a zone of silence. Donlt want a
subject matter test that prevents interviews of witnesses from being disocverd. We do however want intermediate test. ii. If the employee is not the one whose conduct gives rise to potential corp liability--then its better to consider them a witness as opposed to a client. iii. Here, the employees were just witnesses iv. Samaritan case was overruled as to civil cases. Now-in ariz comm. privileged if for purpose of giving legal advice Restatement position: Regardless of who initiates the communication privilege communication between an agent of the org and a lawyer and the communication concerns a legal matter of interests to the org. i. Ex: What if employee talks with lawyer after he ahs been terminated but regards info from when he was employee and is for advice/assistance in representing corp?= NO Privilege Exceptions to Privilege i. Self-defense 1. Code: reveal if necessary to defend himself against accusation of wrongful conduct 2. Rule 1.6(b)(5) : may reveal confidential info to the extent the lawyer reasonably believes necessary to establish a defense to a crim or civil claim against him 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/5 ii. Collection of fees: both code and rules. Permitted to reveal to the extent necessary when they sue to collect fees. iii. Waiver: client may waive the privilege. Explicit or implicit. The lawyer has to preserve the privilege for the client. 1. Is inferred when the client puts the confidential communication in issue in a litigation. (
2. Ex: I did this because my lawyer told me to waiver 3. Waived by revelation of all or part of a confidential communication 4. Generally can‘t say I waived it just to the gov and not as far as anyone else. 5. Once you waive the privlege--you‘re done. You can‘t take it back. 6. Some case law says no such thing as limited waiver. 7. Ex: What about when lawyer reveals to an expert? Violation of 1.6? no. impliedly authorized in order to carry out purposes of ep. You do ot waive the priv by disclosing it to expert. 8. Ex: What if lawyer talks to a pr person? And in the course of this, the lawyer discloses communications from the client. Has the lawyer as agent of the client waived the privileged by disclong it to pr expert? There is confciting case law on this. Page 49 a. Argument that its necessary today for public image b. Argument that this conversation goes beyond stuff relating to the clients legal position. iv. Crime Fraud Exception- To Privilege 1. Privilege does not apply to communication to further crime or fraud 2. Fraud will be applied broadly 3. Hypo: client goes to lawyer and client says I have this great scheme to defraud a bank, I have prepared this statement of assets, its false, but I want you to be my lawyer and presents these statements to bank. I will pay you a lot. Basically client asking to transmit statement to bank a. 1) can lawyer act for client?-
i. NO, if know it is to further a crime, then cannot. ii. Rule 1.2(b) lawyer cannot assist client in crime/fraud b. 2) if lawyer wishes to, is lawyer now permitted to disclose to banks? i. Yes. If reasonably certain ii. Rule 1.6(b)(2)- to prevent crime from happens; applies to potential clients too. iii. Note- cannot under 1.6(b)(3) b/c has not used lawyers services in furtherance of this fraud. (b)(3) – allowed to disclose to mitigate if client used client‘s services in furtherance of fraud/crime c. 3) if a 3rd party relevant to lawsuit seeks to question lawyer on what the client told the lawyer or get documents that client gave lawyer i. Privilege does NOT apply. Not privileged if communication was intended to further a crime or fraud ii. Not permitted disclose under 1.6(b)(2) or (3). Not enough, must have used services in furtherance of in (3). iii. Done in judicial proceeding, do not use Rules. iv. Purpose of communication was
to further crime or fraud. Did not use lawyers services in furtherance of crime or fraud. Lawyer cannot use privilege. v. 1.6(b)(6) Can disclose privileged info in compliance w/ court order. 4. EX: client has been arrested, comes to lawyer and says I did it, can you defend me Can lawyer defend him? a. YES- you are not assisting them in crime or fraud, just assisting w/defense b. You cannot permit client to get up on stand and lie, permit perjury. Cannot permit brother to lie as client‘s alibi. c. Communication client makes to you are privileged. Giving them a defense is not furthering crime or fraud, just putting state through its test of v. IDENTITY AND FEES exception 1. Identity of client, amount of fees, source of fees not privilege b/c said substance of them not about legal advice. 2. Ex: committed hit and run, I want you to defend me? Go to cops but do not tell them my name. then DA wants to know what client‘s name. told us you represented someone, what is their name? a. Can you tell DA?- YES. Name is not privilege info. vi. Last Link Exception 1. if the info about the identity, money or whatever be the last link to client to crime, then the prosecution cannot obtain vii. Public Policy Exception (not held up in court)
1. When privilege attaches, and there is overriding public concern, privilege still survives 2. ex: vince foster was Bill and Hillary‘s atty. he committed suicide, prosecutor tried to get his files on atty communication w/ Hillary b/c those files relating to communication between Hillary and Foster will help resolve public issue. a. These communications were privileged, no crime fraud exception. Atty (ken Starr had no evidence there was crime or fraud, communication privilege) 3. ex: Stewart- stewart sitting w/ wife in car. She is killed. Stewart says a black man came and shot and killed her, later unravels and probably he made up whole thing up and he was involved in having her killed. Stewart commits suicide. DA wants to go to stewart‘s atty (b/c they suspect Stewart‘s brother who was involved in set up to kill wife). DA wants to subpoena atty and atty records as to conversation atty had w/ Stewart about the matter. a. Although DA will argue, crime fraud exceptionmurderer at large. But still privilege b/c stewart went to atty about his defense, not about furthering crime/fraud b. DA will argue public policy (that important prosecution going on) should override privilege. c. Court rejects this public policy exception 4. AGENCY a. Lawyer is an agent for the client. Therefore client is bond by what lawyer does, w/in scope of employment b. Lawyer can act for client in scope of lawsuit.
Lawyer lets statute of limitations slide, does something negligently. Client faces consequences ii. Ex: Taylor v. Ill- Taylor‘s atty in order to gain a tactical advantage did not disclose identity of a witness, court refused to let witness testify. Taylor sued, claimed violation of his rights under 6th Am. Compulsory Clause, court says NO- lawyer has authority, client must accept consequences of lawyer‘s decision. Sanction is against client b/c lawyer is agent iii. Ex: Cotto v. US- client‘s lawyer blunders, but in our adversary system… acts and omissions of counsel are visited upon in civil case..‖ c. Client Remedies i. Sue in malpractice ii. Disciplinary action against lawyer- rule 1.1 duty of competence i. Usually not disciplined against this unless pattern of behavior th iii. 6 Amendment- Ineffective Assistance of Counsel, did not get due process rights- lawyer‘s mistakes so bad didn‘t get effective assistance of counsel d. Scope of Representation i. Rule 1.2(a) and case law- give client unqualified right to decide whether to settle a civil matter or enter plea in criminal matter ii. What if settlement. Lawyer agreed to settle case, but client makes fundamental decisions about representation. iii. Client can give lawyer authorization settlement in advance (i.e. take anything over $200,000) but if client doesn‘t give lawyer authority, is client bound by settlement lawyer took? i. if client never gave lawyer authority, lawyer‘s agency authority does NOT give lawyer right to settle w/o consent. No inherent power to do this. Need actual or apparent authority. ii. can give actual authority OR apparent authority- makes someone else think agent has authority. iii. ―inherent agency power‖- (§8A) few courts have held lawyers have ―inherent power‖ to settle in certain circumstances; power derives soley from existence of agency
relationship for protection of persons harmed by or dealing with server or other agent. Client can withdraw power by explicit communication iv. ―apparent authority to settle‖- Created b/c client has said or done something that has led other party to conclude reasonably, though mistakenly, that lawyer has actual authority to settle; sometimes lawyer may have apparent power to settle w/o actual or inherent authority. –if you are challenging that authority, you have burden of proof v. iv. Vicarious Admission- blind client by lawyer‘s statements i. Ex: ford is being sued in design defect case. (big case) in case, jury finds for P on design defect issue and have separate trial on punitive damages. Assertion is that Ford knew of design defect but put it on market anyway. Lawyer for Ford says in this punitive damage portion- yes, we knew about it, didn‘t act properly, but once we saw it caused injuries we tried to do the right thing. Then lawyers against Ford will say look- admit that you knew about it and didn‘t do anything. Is this statement admissible? YES, bind client by lawyer‘s statement. Lawyer has admitted certain facts 5. FIDUCIARY a. Lawyers owe fiduciary duty to client. Means there is a special relationship pf trust and confidence which fiduciary must adhere to. Must act consistently w/ this relationship of trust and confidence b. No rule that says lawyer has fiduciary duty. So if violated, b/c cannot be disciplined according to rules for this breach. c. Does come into play in civil lawsuits to sue lawyer for breach of fiduciary duty i. Different from malpractice (lawyer was negligent, didn‘t exercise level of competence a lawyer would); here ii. Fiduciary duty, even if no out of pocket damages, can still be sued b/c didn‘t act as fiduciary to client i. Out of pocket and pain and suffering damages ARE allowable
ii. Ex: (repeat from above) lawyer represents woman for social security case. She is vulnerable, he starts sexual relationship w/ her, taking advantage of her emotional vulnerability. She wins Social Security case, so she cannot sue him for malpractice (acted like competent lawyer, not negligent). YES, can sue of breach of fiduciary duty b/c he violated her trust and confidence iii. Ex: (repeat from above) Coke driver gets in accident, Coke retains new lawyer, old lawyer gives info to DA. Coke suffers no out of pocket damages. Sued for breach of fiduciary duty b/c breach of trust and confidence. 6. LOYALTY & DILIGENCE a. Loyalty i. underlies 1.7 , but no rule that mandates loyalty. Underlies conflict of interest, but NO separate duty of loyalty ii. Requires lawyer to pursue and be free to pursue client‘s objective. iii. Prevents lawyer from acting adversely to former client in matters substantially related to former representation iv. Duty of loyalty applies only to lawyer‘s professional relationship- EC 7-17. lawyer‘s representation of client does not constitute an endorsement of client‘s political, economical, social or moral view or activities- rule 1.2(b) b. Diligence i. Obligation to pursue client‘s interest w/o undue delay ii. Prior Code- ―lawyer should represent client zealously w/in bounds of the law‖ iii. Rule 1.3 Lawyer shall act w/ reasonable diligence and promptness in representing client i. ―zeal‖ [comment 1 p. 38] – ―lawyer should pursue a matter on behalf of client despite opposition obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client‘s cause or endeavor. A lawyer must also act w/ commitment and dedication to the interest of the client and with zeal in advocacy upon
the client‘s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for the client… lawyer‘s duty to act w. reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process w/ courtesy and respect.‖ ii. Prior code talked about zealous, now downgraded to sentence in comment, and said lawyer need to every advantage. iii. Attitude change. Lawyer is no longer the zealous advocate. 7. DUTY TO INFORM AND ADVISE a. Rule 1.4 Communication i. (a) a lawyer shall: i. (1) promptly inform the client of any decision or circumstance w/ respect to which the client‘s informed consent, as defined in Rule 1.0(e) is required by these Rules ii. (2) reasonable consult w/ client about means by which the client‘s objectives are to be accomplished iii. (3) keep the client reasonably informed about the status of the matter iv. (4) promptly comply w/ reasonable requests for information v. (5) consult w/ client about any relevant limitation on the lawyers conduct when the lawyer knows that the client expects assistance not permitted by Rules or other law 1. Lawyer must explain to client can‘t help in situations when cant help b/c helping would be assisting in crime/fraud ii. (b) lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation i. Duty to explain a matter ii. [comment 5]1. lawyer should review all important provisions w/ client before proceeding to an argument 2. Lawyer should explain general strategy and prospects of success and
ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others 3. Lawyer not expected to described trial or negotiations strategy in detail 4. Lawyer should fulfill reasonable client expectations for information consistent w/ duty to act in client‘s best interest, and client‘s overall requirements as to character of representation. iii. [comment 4]- client calls should be promptly returned or acknowledged b. Malpractice- when lawyer doesn‘t do what lawyer normally supposed to do i. Rule 1.4 lays out what lawyer is normally suppose to do ii. P must show: i. standard of care breached AND ii. damages (that he would have won if lawyer had not breached standard of care; if lawyer had not been negligent) 1. to show damages- what you would have recovered, bring in experts to say range of recover would have been $xx-$xxx iii. Ex: failure to lay out settlement offer. This can be malpractice, especially when client doesn‘t get as much iv. Ex: Nichols v. Keller- Nichols injured severely on job, collects workman‘s comp. lawyer does not tell him about his 3rd party suit options. Statute of limitations expires on 3rd party suit expires. P sues lawyers for malpractice i. YES malpractice- there was duty of care that was breached in this case, lawyer had duty to tell P about 3rd party suits ii. Lawyer is one who has knowledge, clients are inexpert, in articulate c. When client comes in, you must assume they are asking you- what are my rights.‘ d. Lawyer has duty to advise lay person of other alternatives if appropriate i. if lawyer does not know enough about other alternatives, lawyer should tell client there are other
alternatives, you have a claim, here is a referral or go see another lawyer for this aspect of your claim ii. lawyer can limit representation- RULE 1.2(c); lawyer can also say- ―my practice is limited to this‖ i. rule 1.2(c)- ―lawyer may limit scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent‖ 1. lawyer can limit scope of representation if limit reasonable and client gives informed consent C. AUTONOMY OF ATTORNEY AND CLIENT 1. Autonomy of the Lawyer a. Olfe v. Gordon- Olfe hired Gordon to handle the sale of her real property. She told Gordon she was willing to take back a first mortgage but only a first mortgage. Gordon negotiated a contract that provide for a second mortgage and led Olfe to believe it was a first mortgage. Olfe lost more than $25,000 i. In general, atty may be liable for all loses caused by his failure to follow w/ reasonable promptness and care the explicit instruction of his client ii. Atty‘s honest belief that instructions were not in the best interest of his client provides no defense for malpractice suit iii. P doesn‘t have to present expert testimony, won as matter of law ii. Ex: P. 72 ―Mrs. Niceperson‖ Other lawyer wants me to agree to an extension. I know that unless he files w/in 3 days, extension wont matter. I want to tell him so he can protect his client and not get thrown out of court. iii. Normally lawyer does not have to ask client for permission to allow continuance. i. Lawyer has inherent authority to do certain things, (constructing closing, openings, granting a continuance) iv. Why does he have to consult client here?- b/c CLIENT WINS if don‘t tell other lawyer i. Client relieved of litigation and expense if don‘t tell client ii. Argument that client makes decision- b/c this is a fundamental decision. What is more fundamental than winning/losing
iii. Even if client doesn‘t have right, doesn‘t client have right to know what lawyer is doing on case under 1.2(a) and 1.4(b); lawyer not protecting interest enough v. At minimum should tell client- I intend to this, if client objects then say, fine I will remove self 2. Autonomy of the Client a. Ex: p. 79 Client offered very low offer for divorce settlement. Lawyer certain they can do better. Client says no, take it, feels too guilty. i. Cleint‘s decision. However, sometimes we have impaired clients who cannot make decisions about whether or not to accept. This is not case here though ii. Under 1.4(a) (b)- lawyer has duty to explain how horrible offer is iii. *Under 1.2(a)- client is one who makes ultimate decision iv. *Could also withdrawal- have right to withdrawal under certain circumstance i. Rule 1.16- rules governing withdrawal ii. 1.16(b)(4)- lawyer may withdrawal from representing client if -the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement v. *Could also make sure it all goes in writing. Record reflects that you explained to client and client took horrible offer any way to protect lawyer from malpractice b. Rule 1.2(a) Scope of Representation and Allocation of Authority between Client and Lawyer i. lawyer shall abide by a client‘s decision concerning the objectives of representation and, as required by Rule 1.4, shall consult w/ client as to means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out representation. A lawyer shall abide by a client‘s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client‘s decision, after consultation w/ the lawyer, as to a plea t to be entered, whether to waive jury trial and whether the client will testify‖ i. Other than here, lawyer shall consult w/client as described in 1.4 ii. Spells out difference.
1. Lawyer consults w/ client for important decision 2. Client makes fundamental decisions ii. Client has right to decide what jury gets i. D has right to decide whether lesser included offenses should be submitted to jury ii. Ex: People v. Petrvich- D went against lawyer‘s instruction to let jury choose murder or manslaughter. D wanted jury to choose guilty, not guilty or not guilty b/c insanity. Jury convicted. D claimed decision belonged to lawyer, not him and trial judge should not allow to prevail. Court disagreed, said he was attempting to minimize risk of conviction, must face consequences of his decision 3. Clients with Diminished Capacity a. Guardian Ad Litem- evaluates for himself what is in the best interest of his client-ward and then represent clientward in accordance w/that judgment b. Rule 1.2(a) - Ordinarily lawyer should ―Abide by client‘s decision concerning objectives of representation‖ and Rule 1.3 act w/reasonable diligence in representing client i. Client makes ultimate decision 1.2(a) ii. Lawyer consults w/ client as to means under 1.4 c. Ex: client comes in, 80 yr, old woman, 50 yr. old son, come in for estate planning. Son does all talking about what she wants. i. First focus on who is your client- MOM, not son. son almost shouldn‘t be there. 1.1 ii. Malpractice- you didn‘t do what mom wanted iii. Son shouldn‘t be there Also potential of losing atty client privilege, 3rd parties who are not necessary to representation can make you lose privilege iv. If unsure of mom‘s mental state, 1.14 d. RULE 1.14 CLIENT W/ DIMINSHED CAPACITY i. ―(a) when a client‘s capacity to make adequately considered decisions in connection w/ a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship w/ client ii. (b) when lawyer reasonably believes that the client has diminished capacity, is at risk of substantial
physical or financial or other harm unless action is taken and cannot adequately act in client‘s own interest, the lawyer may take reasonably necessary protective action including consulting w/ individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of guardian ad litem, conservator or guardian‖ i. Client can have capacity for some sorts of things, but can lack capacity to understand other things. Must judge diminished capacity ii. [Comment 1]- treat w/ respect iii. [Comment 2]- allow to family be present, when necessary for iv. Client can have capacity for some things v. Ex: client can sign consent to estate plan, might not have capacity to run own business vi. Protective Actions lawyer can take : Hard to tell if client has capacity to consent, not up to them to decide. Ok if lawyer reasonably believes in diminished capacity, substantial risk, and client cant act in own interest, then lawyer can take protective action. 1. Ex: if mom comes in by self and think there is question to her capacity. Mom is client. You can take protective action by talking to other individuals. 1.14(c) tells you this is NOT a violation of 1.6. protects privilege. vii. Who to talk to- family members, medical professional [comment] viii. If necessary, you can take last step and seek guardian ad litem- client cannot make decisions, so you are sub someone in who can ix. [comment 7]- guardian ad litem is traumatic, last resort situation x. Even though says ―may‖ and not shall, lawyer should do it if thinks necessary to avoid malpractice xi. Rule is not controlling, in situation, this is what reasonably prudent lawyer would do, take care of client- malpractice
―(c) information relating to representation of a client w/ diminished capacity is protected by rule 1.6. when taking protective action pursuarnt to ¶ (b) , the lawyer is impliedly authorized under 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect client‘s interes i. [comment] -[representation may not effect applicability of privilege] 4. Lawyers Representing Children a. Done in 2 situations i. (1) when state has brought against parents for abuse, lawyers are appointed to represent children ii. (2) custody cases, mom has own lawyer, dad has own. Kid might need one on nature of case. Court has discretion to appoint one b. Does lawyer act in accordance w/ client‘s decisions (even though child has diminished capacity) or in way lawyer believes is in best interest of client? – NO CLEAR ANSWER i. Ex: p. 84, mildly retarded daughter, parents fighting over custody. Client wants to live w/ her dad, lawyer didn‘t advocate this b/c he thought she had diminished capacity. i. court says ―ordinarily atty should abide by client‘s decision‖. Lawyer‘s duty is to do what client wants. ii. Court will decide, not lawyer- not their job iii. if someone is incompetent does not mean client cant make all decisions, can still make some. iv. Primary duty of lawyer is to protect the client’s rights, generally advocate any decision made by client. v. However if lawyer believes decision is against best interest and client has diminished capacity, then lawyer shall ask court to have guardian ad litem appointed 1. Lawyer should tell judge, there is a difference between what client wants and what is in best interest (don‘t give details). Give child a guardian, let them decide child‘s position and I will advocate whatever that turns out to be in court iii.
Ex: rape case, client tells lawyer but client doesn‘t want to tell anyone else about what happened. What is lawyer to do? i. Court says, ordinarily duty of lawyer is to follow directions of client 1. some child abuse reporting statutes that would mandate certain individuals to report it 2. some of these statutes explicitly exclude lawyers. (not Mississippi) ii. Ethics advisory board- do what kid says. However if you think this is not in best interest, ask court to bring in guardian who will make decision of whether not this can be disclosed. You as lawyer will then answer to guardian c. What do you say to court? i. Disclose w/o too many details. Just say there is a difference between what client wants and what I think is in best interest of client. ii. Ex: DE case said, since lawyer for child is court appointed, lawyer is really an officer of the court and child is not a client. Thus no confidentiality privilege. iii. Ex: lawyer for client is called and asked in a criminal proceeding against client what lawyer‘s impression is of client‘s competence. Is this privileged? i. State argues no, just asking impression not communication ii. Court says YES it is privileged as nonverbal communication D. TERMINATING THE RELATIONSHIP 1. Client can terminate lawyer for any reason or no reason, client has absolute right a. For employed lawyer (in-house counsel)- lawyer is salaried paid employee of client. If there are statutes that prohibit an employee from being fired (i.e. race discrimination), then maybe lawyer can sue employer for violation of this federal statute. Lawyer is protected like any other employee who cannot be fired for this under statute. b. For Indigent criminal, D has no per se right to lawyer b/c lawyer appointed by court, not hired by D i. Sometimes even a hired lawyer (client tries to fire lawyer in middle of trial, and wants continuance, ii.
court can deny this right b/c would prejudice trial in interest of justice) If in middle of trial, and impeding justice (consequent delay, consequent prejudice to other side) court wont let client fire lawyer
2. (2) Fees. a. Hourly - If client fires lawyer, lawyer entitled to fees earned up to hours worked b. Contingency i. If lawyer fired w/o caused, no justifiable reason for firing, how does lawyer get paid on contingency fee? – i. majority rule: where lawyer fired w/o cause, lawyer gets quantum meruit. Wait till end of case and lawyer gets compensation based on services until firing, determined by court ii. Texas rule: if fire lawyer for no reason, lawyer still gets contingency fee. Bad- acts as deterrent for clients in exercise of their right of firing lawyer. Here penalizing them for exercising their right to fire. iii. CO rule- get quantum meruit if agreement told client that client would later be responsible for quantum meruit ii. If lawyer fired w/ cause i. Lawyer may not get the fees that the lawyer would get in a w/o cause case. ii. lawyer may lose his her rights to quantum meruit. Lawyer might be penanlized. Maybe 3. Fee expectancy - Protection for Lawyer if lawyer is entitled to fees a. Lawyer has fee expectancy i. ex: lawyer does all work, then client fires him and gets brother lawyer to do it for free b. charging lien- lawyer has protected interest in any sums subsequently recovered in matter lawyer worked on and was entitled to fee i. Ex: lawyer may have right to quantum meriut, and you have charging lien in any proceeds recovered in that matter. ii. To get money, statute lays it out. i. Usually write to other lawyer now representing and say I have charging lien in this case, protect my lien. ii. If second lawyer doesn‘t pay out to first lawyer, second lawyer is now liable
c. Retaining lien- lawyer had right to retain client‘s files until lawyer paid. i. Now exception rule 1.16(d)- now lawyer must disclose papers unless permitted by state law that allows retaining lien. ii. PA – can have retaining lien unless would cause substantial prejudice to client (this would always happen though) 4. TERMINATION BY LAWYER a. Rule 1.16- lawyer shall, mandatory termination, layer has to withdraw i. 1.16(1)(a)- ―lawyer shall withdraw from representation of client if representation will result in violation of rules of professional code or other law‖ ii. Ex: client tells lawyer documents fraudulent. I cant represent you, b/c if I did would violate 1.2(d), this would be conduct of fraud. So cannot represent. Also if did- counter to your interested (criminal prosecution, civil lawsuit). If continue to represent and transmit false documents, lawyer would be violating 1.2(d) by assisting client commit fraud. If continued, would be violating rules of professional conduct. Must withdraw under 1.16(a)(1) 1. Can lawyer disclose?- look to 1.6 b. 1.16(b)- permissive disclosure- lawyer may, lawyer can withdraw. 1.16(b)-― lawyer may withdraw representing client if: i. 1.16(b)(1)- ―lawyer needs no reason as long as no material adverse effect, lawyer can withdraw‖ i. Lawyer can withdraw if withdrawal can be accomplished w/out material adverse effect on interests of client‘ ii. Rarely relied upon, b/c always adverse effect- client has to get new lawyer ii. 1.16(b)(2)- can withdraw if ―client persists in course of action involving lawyer‘s services that lawyer reasonably believes is criminal or fraudulent‖‖ i. Difference between this and (a)(1) is (a)(1) is ―lawyer knows‖ lawyer must withdraw; here ―reasonably believes‖ then can withdraw 1. ―knows‖ – actual knowledge, or under circumstances you believe lawyer knew
2. ―reasonably believe‖- lawyer may withdraw 3. Ex: if lawyer has reasonable belief, does lawyer have duty of further investigation? NO 4. if reasonably believed but did not know, still can assist client, but stupid to iii. 1.16(b)(3)- can withdraw if ―client has used lawyer‘s services to perpetrate crime or fraud‖ i. Emphasis on past, rather than ongoing . 1. If something is clearly passed, lawyer can withdraw iv. 1.16(b)(4)- can withdraw if ―client insists upon taking action that lawyer considers repugnant or with which lawyer has fundamental disagreement‖ i. Don‘t have to take case if you think it is repugnant 1. look at 6.2(c); 2.1 ii. can put own values ahead v. 1.16(b)(5)- can withdraw if ―client fails substantially to fulfill an obligation to lawyer regarding lawyer‘s services and has been given reasonable warning that lawyer will withdraw unless obligation is fulfilled‖ i. About non-payment of fees ii. If client doesn‘t pay, lawyer says ―I will withdraw if you don‘t pay‖ and client still doesn‘t pay, lawyer can still withdraw iii. Remember if in litigation, still needs court‘s permission. 1. If timing of motion coercive, court may deny motion to withdraw vi. 1.16(b)(6)- can withdraw if ―representation will result in an unreasonable financial burden on lawyer or has been rendered unreasonably difficult by client‖; OR i. Bad will, client is just a pain- they are unpleasant, obnoxious. If they make life unreasonably difficult, reason for withdraw vii. 1.16(b)(7)- can withdraw if ―other good cause for withdrawal exists‖ i. Subject to (c). if want to withdraw, need courts permission c. 1.16(c)- applies when a matter is in litigation, then lawyer has to obtain approval from judge in order to withdraw.
―lawyer must comply w/ applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating representation‖ ii. Applies under 1.16(a) (mandatory withdraw) or 1.16(b) (permissive withdraw). i. only applies when matter in litigation, if not in litigation, can just send withdraw letter ii. brings up confidentiality issue 1. [comment 3]- the court may request explanation for withdraw, while layer may be bound to keep confidential facts that would constitute explanation. Lawyer‘s statement and professional consideration require termination for representation ordinarily should be accepted as sufficienta. lawyer might say to judge ―professional reasons require termination of this case‖- this should be enough for judge to accept as sufficient b. 1.6 permits disclosure to prevent crime or fraud, so might be allowed d. 1.16(d)- ―upon termination of representation a lawyer shall take steps to extent reasonably practical to protect client‘s interest, such as giving notices to client, allowing time for employment of other counsel, surrendering papers and property to which client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers related to client to extent permitted by other law‖ i. About that lawyer must surrender papers ii. Here b/c prior there was common law concept called ―retaining lien‖- that said lawyer could retain all papers until client paid. This idea now out of date in most states. In PA, still exists unless using it would cause substantial prejudice to client (it would, so no lawyer will ever try to use it) 5. What does lawyer say when wanting to withdrawal? a. Use 1.6 for guidance about what you can disclose i.
b. Most lawyers still will want to keep amount of disclosure and harm to client as minimal as possible and will not disclose a lot so don‘t harm client c. Some courts will ask for details d. What do you say to other party? i. Just say you are making motion to withdraw. Do not give details b/c if do seriously prejudicing interest of client 6. Ambiguous Termination a. When client still thinks they are lawyer i. Ex: estate planning. Lawyer draws up estate plan to client, sends plan to client. Sends client bill. Client pays bill. Lawyer continues to send client newsletter, which discuss among other things tax law. They never send client any info that estate plan should change b/c tax law changed. Client dies, estate never changed. Heirs sue lawyer for malpractice b/c lawyers did not advise him of tax changes i. Can non-client sue lawyer?- yes, when class that would have been benefited by the advice, they can sue for malpractice b/c lawyer didn‘t tell them that it was necessary to change estate plan b/c of tax laws ii. Representation over? 1. Lawyer says: estate plan, sent, bill paid. I was not on any retainer 2. Heirs say: lawyer led him to believe there was on going relationship b/c continued to send him out newsletters ii. Ex: p. 88; IBM case b. If holding out that relationship continues, works to lawyer‘s detriment. c. to eliminate this problem, lawyer could: i. Send out termination letter (not done a lot, don‘t want to end relationships, want them to keep coming to you) 7. Most relationship terminates b/c work ends 8. Termination by DRIFT a. It is in lawyer‘s interest to see to it that relationship is terminated b. If client reasonably believes relationship continues, lawyer may owe duty to client to advise client appropriately, and if doesn‘t do so, may face civil liability
Ex: laywer sends client newsletter. If client thinks lawyer still their lawyer, then lawyer owes still duty of competence, care and must advise client on updates on law. If doesn‘t can be liable. c. If lawyer thinks it terminated, but client not, lawyer can be held responsible for not advising client on various events that can occur 9. [comment 4] to 1.3 Diligence- clarify in writing that relationship is over a. Lawyer should clarify matters and make sure it is terminated. Should do so in way that doesn‘t impair the marketing, such that client will never contact lawyer again. b. ―unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusions all matters undertaken for a client. If a lawyer‘s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If the lawyer has served a client over substantial period in a variety of matter, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer fives notice of withdrawal. Doubt about whether a client lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client‘s affairs when the lawyer has ceased to do so.‖ III. Protecting the Client Lawyer Relationship Against Outside Interference A. COMMUNICATING WITH A NOTHER LAWYER‘S CLIENT 1. Rule 4.2- ―in representing client, lawyer shall not communicate about the subject of representation w/person lawyer knows to be represented by another lawyer in matter, unless lawyer has consent of lawyer or is authorized to do so by law or court order‖ a. ―person‖ not ―party‖- includes represented person who were not parties in litigation, such as witnesses and parties to a negotiation b. Communication must occur while lawyer is ―representing client‖ i. Lawyer who is not acting in representative capacity is not foreclosed by this rule from talking to another lawyer‘s client about the matter one which the other lawyer is representing the client c. [comment 8] Communicating lawyer must know that person w/whom she is communicating is represented by another lawyer on subject of communication.
―knowledge may be inferred from circumstances and that a lawyer cannot evade the requirement by closing eyes to obvious‖ ii. Ex: client involved in car accident. No complaint has been filed yet. Client says, I know other driver has insurance, here is her info. Lawyer calls other driver, asks her version of incident. Later on insurance company appoints that person a lawyer and he moves to strike info you got as violation of 4.2. i. Lawyer for P argues didn‘t know other driver was represented, and at time of communication they were not represented 1. ―lawyer shall not communicated w/ a person lawyer knows to be represented‖ 4.2 ii. D will argue since lawyer knows he had insurance, he knows he will eventually have lawyer. And whole point of 4.2 is to protect right to counsel.(policy reason for 4.2) Fact that insurance company has not yet appointed him one yet should not deprive him to right to counsel iii. Court says: if not represented at the time, then communication ok. Ok even if know other side will get lawyer. Lawyer needs to know that person to be represented at that time d. [comment 4]-Communicating lawyer is only forbidden to communicate about the “subject‖ of the other lawyer‘s representation e. [comment 4] ] can talk to person if you don‘t represent opposing party. ―this Rule does not preclude communication w/ represented client who is seeking advice from a lawyer who is not otherwise representing a client in the matter‖ i. Ex: A client comes to you and says I am represented by this lawyer but I don‘t think he is doing a good job. Can I talk to you about this? i. YES You are NOT representing a client 1. ―in representing a client, lawyer shall not talk about subject matter of representation‖ ii. Wise?- maybe not f. cannot talk even if other party calls you. [comment 3] i.
g. consent of other lawyer or is authorized to do so by law or by court order needed to talk. Other client CANNOT give consent i. [comment 6]- lawyer who is uncertain whether communication is permissible, try to obtain a court order. Lawyer may seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example where communication is necessary to avoid reasonably certain injure ii. When communication otherwise NOT ok, court can order it to prevent injury h. [comment 8]- lawyer cannot evade the requirement of obtaining consent of counsel by closing eyes to obvious i. Ex: real estate developer, negotiating space for tenant. Both real estate developer and tenant have lawyers. Real Estate developer‘s Lawyer sent draft to tenant‘s lawyer, no response, so he calls tenant directly and asks about matter i. Lawyer has violated according to 4.2 by contacting tenant j. Ex: personal injury case, each have own lawyer. P‘s lawyer calls D directly and says lets work something out. What would be a fair settlement i. Lawyer has violated 4.2 k. Consequences for violating 4.2: i. Lawyer could be disbarred ii. Lawyer could be disqualified from case, evidence will be barred l. Policy reasons for 4.2 i. Protecting other client from giving away information, from saying things that they should not otherwise say ii. If permitted this- deprive person who is represented of all benefits of representation of counsel (to advise, and tell what to say and what not to) 2. Misconduct Rule 8.4 a. a) it is professional misconduct for a lawyer to: violate or attempt to violate Rules knowingly assist or induce another to do so, or do so through the acts of another b. Ex: business deal gone bad. Each hire private counsel. P counsel hires private investigator who, under some subterfuge, to go ask D about directly about subject matter of litigation . can lawyer send the detective? i. NO , he is using private detective to do something he cannot do, he is getting PD to do it for him
Private detective might be able to things other than communication i. Can videotape ii. Can observe iii. But cannot communicate about subject matter of representation w/o consent of lawyer (b/c lawyer cannot, so agent of lawyer cannot) c. Ex: matrimonial divorce case. Each spouse represented by counsel. H says, let me talk to my W, we can work this out i. This is ok. Clients can talk to each other ii. But if H asks, what should I ask her about. Lawyer says, asks her about this asset, what he found about it, asks he what she thinks about the language in the agreement, etc. lawyer is telling client what to ask her i. Here not permissible- lawyer is directing client what to say. Therefore this is another violation of 8.4(a), instead of using detective, you are using you client to talk to other client about relevant events w/o their lawyer‘s consent ii. Lawyer is giving direction about what to ask about very specific aspects of issue- direct violation. Since lawyer cant ask about specifics, client cant when lawyer tells to iii. But if H says, can you give me some background/ advice on the law before I go talk to other client. i. Some court says lawyer cannot give any advice about forthcoming talk b/c this would 4.2 and 8.4(a) ii. Other courts say ok, b/c client directing it iv. But if H is the lawyer in this matrimonial case. Lawyer says I want to talk to my wife, she is represented by counsel. Can I w/o violating 4.2.? i. Courts split: ii. Some courts: If look at rule, 4.2 says applies to ―lawyer who is representing a client‖- I am not representing a client when I am a party. Therefore 4.2 doesn‘t apply, I can talk to client iii. Other courts say, if permit would defeat policy rationales. W would be deprived from right to seek counsel. d. Ex: from above, lawyer represents P, lawyer sends draft agreement to D‘s atty. no response. What can I do?
ABA says you can send client there to find out what‘s up. Say to your client : ―As far as I know, they might not have draft, you are free to talk to them and find out‖ ii. Note- this may be bad advice b/c could be seen as directing client to talk to other party 3. How does 4.2 apply to entities? Ex: Niesig v. Team I- P falls on scaffolding. Sues (not employer, b/c workers comp). P‘s lawyer wants to interview other employees who were on job that day. He wants to do ex parte interview b/c figure they are coemployees, will be sympathetic and will tell more w/ less lawyers present. They are trying to protect job, wont want to say anything bad in front of anyone else. Company is represented by counsel. Lawyer thinks permitted to interview under 4.2. but not positive, so lawyer asks court to determine this a. If other employees were represented by counsel, then def would be violation of 4..2. They are jut construction guys, don‘t have own lawyer here b. D argues cannot interview these guys w/o lawyer consent. i. D argues that b/c they are part of company, communication w/ them is deemed to be communication w/ represented defendant. (which would be prohibited) ii. Corporations only act through individuals (it is a legal fiction, not a person) iii. So at least some of employees can have status such that communication w/ them is communication w/ represented corporation c. Courts have several approaches to solve this: i. (1) Upjohn approach- any employee of corporation is deemed represented by corporation‘s lawyer for purposes of 4.2. i. Comes from privilege. Contact between employee and lawyer is privileged. In Upjohn, department of justice tried to get transcripts from records of employees. They were not allowed b/c privileged- any communication from any employee is privileged if it is about subject of litigation. (this is broadest possible approach, everything becomes privileged practically) ii. Stemmed from this we get = contact from any employee is deemed to be contact w/ represented corporation and thus in violation of 4.2- broadest possible application
iii. Court rejects this in Niesig, we will not adopt broadest possible approach, b/c then we basically eliminate informal pretrial discovery, this would not be good iv. Helps bring down costs of expensive depositions v. Gives other lawyer outline of what to do vi. Most courts reject this approach ii. (2) control group approach- for purposes of 4.2, only employees who are deemed to be part of corporation are those who are in control group. i. Least protective approach ii. In Niesig- if adopted this, lawyer would be able to talk to construction employees b/c they are not in control group. Rejected this approach iii. Control group is determined on facts of each case iv. This is narrowest approach, severely limits which employees you can contact v. most courts reject this approach iii. (3) comment 7 to 4.2 approach- prohibits communication w/ i. (a) a constituent of organization who supervises, directs or regularly consults w/ organizations lawyer concerning the matter OR ii. (b) People who have to sign off on organizations w/ respect to matter iii. (c) People whose acts or omissions to matter may be imputed to the organization for the purposes of civil liability (like an agent) iv. Niesig- HERE, yes can contact if use this approach d. Ex: applying 3 approaches fellow employee of Coke truck driver who hit a kid in truck, P lawyer want to informally contact driver and passenger witness and want to do so w/o obtaining consent of Coke‘s lawyer. Can they? i. Is contact w/ them deemed to be contact w/ represented corporation i. Upjohn- no contact, blanket ii. Control- yes, contact both b/c neither in control iii. Comment 7- do they have authority to act as agent, NO. will their conduct be. Driver‘s conduct could lead to criminal litigation- so
cannot contact him. But passenger is just witness, his conduct is not imputed to corporation, so can contact witness e. 4.2 doesn’t apply at all when person contacted is former employee of corporation i. Comment 7- ―consent of organization‘s lawyer is not required for communication with former constituents‖ i. As long as at time you contact them, they are not employee, 4.2 will not apply, no matter what their position had been at time of incident 4. Rule 4.3 Contact w/ unrepresented persons a. ―in dealing on behalf of client w/ person who is not represented by counsel, a lawyer shall not state or imply that lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer‘s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict w/ interest of the client‖ b. Happened in Niesig, so even though ok under 4.2, not under 4.3 c. Cannot explain anything to other person if in controversy d. Ex: matrimony cases. There is tendency to want to give advice to an unrepresented party. Cannot give advice if there is a possibility of conflict. Should just advise them to get a lawyer. No need to prove advice is inaccurate, once possibility of conflict, cant give advice 5. Restatement §102- even when communication permitted, lawyer must not seek ―information that lawyer reasonably should know the nonclient may not reveal w/o violating duty of confidentiality to another imposed by law‖ a. When talking to someone you are permitted to talk to, but when talking and ask, what did you tell to corporation‘s lawyer about what you saw that day? b. That info may be privileged c. Ex: Lawyer for corporation interviews DeTrea employee. If court adopts Upjohn, for privilege purposes, this info would be privileged for evidentiary purposes, cant get this info. (note, a court can adopt Upjohn for privilege and Comment 7 for 4.2 reasons) i. Can talk to employee about events
Cannot talk to employee about what they said to corporation lawyer; would be violation of Rules to ask about privileged communication Doesn‘t matter who initiates, if you know its privileged, or reasonably should know its privileged you cant ask and don‘t let them tell you
d. 6. Criminal Matters a. Criminal cases- who is prosecutor‘s client? – ―THE PEOPLE‖ b. Prosecutors client is not witnesses, not victim- Defense counsel free to attempt to speak to unrepresented witnesses. They can refuse interview though. i. Ex: employee of police department. Charged w/ sexual harassment. You want to interview police departments. City is represented by pros. can pros. contact employees of city? ii. Comment 5- communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate w/ gov. iii. Communicatiosn w/ governmental entity decided same as communications w/ corporate entity, but there is constitutionally protected right to communicate w/gov. not sure extent, so as a result, might be more broad c. Ex: D counsel wants to contact chief complaining witness, assuming they would talk to defense counsel, does 4.2 operate to prohibit this contact? NO i. NO. Complaining witness is not represented by another lawyer. ii. Other lawyer in this matter is prosecutor for state. iii. Only prohibited if witness has hired own counsel d. Ex: proceeding underway, investigation of particular person accused for particular crime. That person is represented by counsel, can prosecutor contact that person w/o getting consent from that defendant‘s counsel? Can prosecutor send out investigators to contact that defendant w/o consent from their counsel i. 4.2 if look at it literally, would suggest NO, not unless has consent from D‘s counsel. ii. If D is corporate entity- then prosecutor cannot contact employees of corporate entity who are covered under [comment 7] iii. If prosecutor cannot do it, then prosecutor cannot do it through agents (8.4(a)) b/c would be acting thru
agent to accomplish same purpose that they cannot do iv. However, [comment 5] ―communications authorized by law may also include investigation activities of lawyers representing governmental entities, directly or through investigating agents, prior to commencement of criminal or civil enforcement proceedings‖ i. If contact prior to commencement of criminal proceeding, contact ok ii. So if no indictment yet, prosecutor can contact defendant w/o consent of lawyer b/c 4.2 has not kicked in iii. Once indictment commenced, no contact w/o consent e. Federal Atty. Prosecutors i. At one time, federal atty generals tried to say 4.2 did not apply to federal prosecutors i. Janet Reno said it was inapplicable to federal prosecutors ii. Then, after this Congressman McDade, thought (after aquitted from raqueteering) thought it be better that they have 4.2 apply to federal prosecutors as much as they apply to state prosecutors. i. Wipes out Reno Rules ii. McDade Amendment- Lawyers for federal government shall be subject to State laws and rules and local Federal court rules governing atty in each State where such atty engages in that atty‘s duties to the same extent and in same manner as other attys in that state B. Improper Acquisition of Confidential Information 1. TESTERS a. Ex: Give tester a profile (job, marital status, age, etc.) and give minority applicant exact same data. Then would see if discrimination. b. If you send in tester at time there is lawsuit against entity you are testing, then lawyer is basically trying to do what cant do via a tester. (8.4 issue) c. Some courts permit tester, doesn‘t violate 4.2 b/c public purpose involved. d. Another issue, person who is sending in is someone who is lying about who he is, thus atty sending someone in who is going to lie. Even if done b/c litigation (no lawyer )
8.4 (C) says as lawyer cannot be guilty of dishonesty or misrepresentation whether representing client or not e. Ex: Gidatex- law firm sent testers, posing as interior decorators, to talk to sales clerks and tape record conversations about what firm believed was violating client‘s trade mark. Court held under rule 8.4(c) Hiring investigators is accepted investigation technique not misrepresentation 2. 8.4(c) ― it is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit or misrepresentation‖ a. Rule NOT limited to lawyer representing client, can be applied to lawyer n any circumstances b. Applies to private life, general catch all- many times will act as sole basis for action against lawyer i. Ex: lawyer engaging in business transaction on his own, can be guilty of defrauding business transaction c. 3 of the terms are dictionary, general definition term. There is no Code definition (deceit, dishonesty, misrepresentation) i. Opens the door for subjectivity, for a judge or disciplinary board to put in their own notion of what is dishonesty, deceit, misrepresentation d. Fraud- fraudulent under that substantive or procedural law of the jurisdiction and has a purpose to deceive i. Add ―and has purpose to deceive‖ – so lawyer has to be aware of it ii. Needs to be more than mere negligence (b/c some state law might not have this) 3. 8.4(d)- ―it is professional misconduct for a lawyer to: engage in conduct that is prejudicial to the administration of justice‖ a. Again, very vague, subjective. It leaves room for court to say I think this is prejudicial to administration of justice to do this b. It doesn‘t permit system to function in fair, orderly way – very broad 4. Erroneously Disclosed Privileged Information a. Ex: consumer class action case , D‘s lawyer comes up w/ 200 cartons of document. D‘s lawyer also contains 2 cartons of privileged information. Make a mistake. What happens if privileged information is erroneously disclosed? i. Evidentiary issue- you now have documents that are communications from client to D‘s lawyer. P‘s lawyer wants to use.
Basic concept is it waived? (the privilege)- can lawyer who erroneously produces it, waive privilege? i. Can argue, lawyer is agent of client and has waived it by producing it b. Some – ask courts permission before you look at documents c. 3 views on waiver from lawyer i. (1) can never be waived. To be waived must be intentional, and since never would give privileged material intentionally, no waiver i. Some courts hold ―never waived‖ – disclosure that was merely negligent can never effect a waiver b/c a fortiori, holder of privilege lacks subjective intent to forgo protection ii. (2) strict accountability view- always waived. You produced it, was your responsibility, once it has been published it is waived i. Some courts have ―always waived iii. (3) majority- middle view focuses on factors ; Some courts use ―middle test‖, court looks at: i. 1) reasonableness of precautions taken to prevent inadvertent disclosure ii. 2) amount of time it took producing party to recognize error iii. 3) scope of production iv. 4) extent of inadvertent disclosure v. 5) overriding interests of fairness and justice vi. Does totality of factors, court can rule either that inadvertent disclosure has affected waiver of privilege or privilege remains in tact d. Ex: What if you have these documents that you shouldn‘t. Must you tell other party that you have them? i. YES Rule 4.4(b) ―a lawyer who receives a document relating to representation of lawyer‘s client and knows or reasonably should know that the document was inadvertently sent shall notify the sender‖ i. Just must notify other party ii. [comment 2] – rule does not say if have to return document take additional steps; also still unknown if privilege waived iii. [comment 3]- some lawyers may choose to return a document unread, while not
required to return, decision to do this is matter of professional judgment reserved for lawyer ii. 1.2(a)- it is client‘s decision. Lawyer should tell client, and client will tell what to do. (is this in conflict w/ comment 3?- which suggests this is reserved for lawyer) i. Client probably should know b/c what if client disagrees w/ lawyer‘s preference to send it back and wants to fire lawyer? e. Misdelivered Fax i. As far as waiving privilege, there is a disclaimer usually, cover page that says ―this is for A, if you are not A, do not read and send back‖i. Precautions ii. Not a finished communication, privilege never attaches (only 1 sided communication) 1. Ex: personal injury case, W sues for loss of consortium. Calls other lawyer by accident and leaves voice mail. Leaves an incriminating messages ―Brad this is X, let me know if I can sing w/ my group again, I don‘t want to make no more mistakes cause they‘re going to be following me now‖ a. P‘s lawyer says this is privileged info b. D will argue privilege doesn‘t apply, crime/fraud exceptionif you communicate w/ lawyer to further crime or fraud, privilege doesn‘t apply. c. Court says- never a finished communication, no privilege. He never really communicated w/ lawyer. ii. Under factor test, want to have strong disclaimers indicating never intentional waiver- privilege still in tact iii. Other lawyer will argue, cannot call this privilege b/c never reached other party FINANCING LEGAL SERVICES A. Rule 1.5 Fees 1. (a) cannot charge fee that is unreasonable
a. In PA- cannot be clearly excessive b. Issues of reasonableness of fess come up in disciplinary context and civil suits i. Ex: atty sues for amt due under fee agreement, client says its not enforceable b/c clearly excessive c. Hourly billing i. Ex: Fordham- hires lawyer to represent son in DUI case. Lawyer tells client, his son has this issue. They talk, lawyer explains he is good and competent lawyer but has no experience in DUI cases, but thinks he can learn and do good job. Father highers lawyer and hourly fees end up totaling $50,000 i. Clear hours/time were put in. no question as time, stipulated. And as for fee basis comes up to $50,000 ii. This is very high fee, DUI cases usually $1000-$10,000 (at absolute highest) iii. Result of case is successful, son gets off iv. This is disciplinary proceeding, court finds fee as clearly excessive, court imposes sanction of public censure to be entered into county court 1. Sanction- can range from private reprimand (letter to disciplinary board) all the way to disbarment or suspension for period of time v. Defenses: 1. P.134 ―a fee is protected if no bad faith/ overly reaching‖- Court said no, good faith is not a defense 2. Client agreed to this- client was fully aware that lawyer would have to learn area and fully aware of hourly charge. a. 1.1- lawyer can take a case when doesn‘t know area, just must disclose. Did this here b. Court said fact that client knew mitigates fact that fee unreasonable i. Test is whether fee is clearly excess, not whether client knew about and agreed to fee
vi. Disciplinary found fee was clearly excessive. vii. For lawyer‘s time, what does he end up getting? 1. $50,000 b/c only disciplinary proceeding? NO- would violate rule of professional conduct 2. Try to get the reasonable fee. As much as you deserve quantum meriut a. Problem- doesn‘t deter lawyer from asking for unreasonable fees, since can get quantum meruit if unreasonable 3. 1.5(a)(3) fee customarily charged in locality for similar legal services viii. (1) there is no good faith defense ix. (2) if client acquiesces, no matter x. (3) understanding factors of 1.5(a) and how to plug in to determine if fee unreasonable 2. 1.5 (a) Factors of reasonableness a. Ex: : I‘ll pay you a lot more than anyone else for you to be my lawyer. Court will look at certain factors to support this fee agreement i. 1.5(a)(1) time and labor required, novelty and difficulty of questions involved, skill requisite to perform legal service properly ii. 1. 5(a)(6) nature and length of professional relationship w/ client iii. 1.5(a)(7) experience, reputation and ability of lawyer or lawyers performing services iv. Still clearly excessive? i. Look at specific issue. Will (a)(3) still control? ii. If simple issue, (a)(3) will probably control 3. Splitting Fees a. Ex: lawyer needs to fit in 3 clients in 1 day in courthouse. Can he bill all 3 clients 4 hours each, b/c spent 4 hours in courthouse? NO i. Cannot bill all 3, must split up 4 hours ii. Done b/c billed on hourly basis, you did not spend 12 hours, spent 4 (4 x 3). You cannot bill more than 24 hours a day b. Ex: lawyer on plane for client A for 6 hours. While on plane, does work for client B for 3 hours. Can lawyer bill for 6 hours travel time for A and 3 hours for B? (9 total?)
NO- can bill both, but must split it up (3 and 3 or whatever) c. Ex: Hypo: lawyer spends 30 hours representing client A on difficult tax issue. Client B comes in w/ exactly same question. If lawyer is billing on hourly basis for 30 hours worth of work when it really only takes 1 hour to apply to this case? Cannot bill client B for 30 hours. If you tell B, I am billing on hourly basis, then you must bill only for hours you spent i. Another way to get around this is to not bill on hourly basis- agree to set fee beforehand ii. As far as 1.5 is concerned fee just need be reasonable, need not be hourly iii. Would it be excessive to charge flat fee of $5000 (was $6000 when spent 30hrs for 200/hr.) lawyer does 1 hr. of work and bills $5000. is this justified under 1.5? i. Look at factors under 1.5 to justify1. 1.5(a)(1) - time and labor required, novelty and difficulty of questions involved, skill requisite to perform legal service properly 2. 1.5(a)(3)- fee customarily charged. (if can find this, unique case) 3. 1.5(a)(7)- experience, reputation and ability of lawyer or lawyers performing services B. Flat Fees & Reasonableness 1. Usually simple, smaller matters, (ex: uncontested divorce, DUI, smaller bankruptcy) 2. Lawyer is taking risk that amount of time proves not unduly excessive 3. Could be found unreasonable depending on circumstances a. Ex: Utah firm wanted to bill clients for legal services for estate planning and asset protection on % basis. We will bill you 1% of total assets you own on yearly basis for estate planning and asset protection. Sent to Utah bar, i. Bar said no. violated 1.5 b/c no relation between work done and amount of assets ii. 1.4(b)- there‘s an obligation to explain to client‘s sufficient so they can make informed decisions about representation. iii. Bar said flat fee may be ok in extraordinary circumstances, but would have to explain this and other methods of billing to client first 4. also- look at 1.5 for factors of unreasonableness- see above
C. Contingent Fess and Reasonableness 1. Most are for personal injury cases 2. Unreasonable fee example: Ex: Police brutality case, lawyer will get 1/3. will be suing city. City decided to settle for 5. million. Lawyer not allowed to get fee b/c settle didn‘t result of anything lawyer did. It turns out to be unreasonable in context 3. Most contingency fees are reasonable 4. Some states cap contingency fees a. Ex: NJ has tight cap on personal injury cases 5. usually take contingency fee b/c will get more on this than would on hourly basis a. maybe would be unreasonable if slam dunk liability case and fee just unreasonable, contingency too high. If chance of liability so clear, contingency fee that is normal standard could be unreasonable- but no court has taken this position yet 6. Rule 1.5(b) ―scope of representation and basis or rate of fee and expenses for which client will be responsible, shall be communicated to client preferably in writing, before or w/in reasonable time after communicating representation, except when lawyer will charge regularly represented client on same basis or rte. Any changes in basis or rate of fee shall also be communicated to client‖ a. There must be fee agreement, preferably in writing before lawyer begins representation b. Don‘t have to be in writing- (PA says must be in writing)but to lawyer‘s benefit if in writing i. Rejected in writing requirement b/c: i. if forget to reduce it to writing, don‘t want possibility of disciplinary action – ii. also civil contest, if get into dispute w/ client, will have already violated rule by not putting in writing, so client will say- it violated the rule, therefore it cannot have civil enforcement, I don‘t have to pay. c. ―any changes in basis or rate of fee expenses shall be communicate to client‖ i. If making post-retainer change ,you have conflict of interest between your interest (making change go through) and client‘s interest and rule 1.8(a) which has certain requirements d. [comment 5] if lawyer knows more extensive services will be required, cannot let client think original amount paid will be sufficient when you know it wont be 7. Rule 1.5(c) fee may be contingent on outcome of matter for which service is rendered
a. (c) fee may be contingent to outcome of matter for which service is rendered, except in matter in which contingent fee is prohibited by ¶ (d) or other law. Contingent fee agreement shall be in writing signed by client and shall state method by which fee is to be determined, including percentage that shall accrue to lawyer in event of settlement, trial, appeal, litigation and other expenses to be deducted from recovery and whether such expenses deducted before or after contingent fee calculated. Agreement must clearly notify client of any expenses for which client will be liable whether or not client is prevailing party. Upon conclusion of contingent fee matter, lawyer shall provide to client written statement stating outcome of matter and if there is recovery, showing remittance to client and method of determination b. Must be in writing signed by client c. Must specify whether must specify whether expenses are to be deducted before or after the contingent fee is calculated i. ex: damages is 390,000; expenses 60,000. fee is 1/3. if expenses deducted first. 390,000- 60,00= 220,000 (1/3)= 110,000. if take 1/3 first. 390,000(1/3) = 130,000-60,000 =200,000?? DO THESE CALCS AGAIN d. no matter what you chose, just must specify e. if not in writing, have disciplinary violation and client can challenge fee b/c not in writing at all 8. 1.5(d) prohibits contingency fee in certain situations a. Domestic relations i. conflict between lawyer and client (lawyer wont want to settle b/c fee would be higher) ii. lawyer has stake in matter ,might do things unethical to make sure D wins to get fee iii. risk of unethical behavior. iv. Less wealthy party can get order for contingent fees v. exceptions i. [comment 6] back support- ok b/c does not implement same policy concerns 1. ex: I am owed 40,000 on back alimony. Lawyer can take on contingent fee b. bonuses p. 146- if I recover 10,000 for you for your property division I get x amount. Some courts say illegal contingency fee. TN case said ―the % taken is certain, only amount is uncertain‖ when client agrees to pay something, fact that there is % additional- not condition) c. criminal
conflict of interest- if lawyer wants acquittal, would do this instead to get win and fee bargain; ii. might do something unethical to win and gain fee i. why distinguished from tort cases?- none really, just risk of unethical in criminal defense is somehow less socially acceptable than in tort case iii. if cannot afford one, court will appoint one for you, no need for contingency d. contingent fees used to not be allowed at all. Allowed so people who had legit cases, who could not otherwise afford lawyer and would have no case can now get lawyer 9. 1.5(e) division of fees a. (e) division of fee between lawyers who are not in same firm may be made only if: i. (1) division in proportion to services performed by each lawyer OR each lawyer assumes joint responsibility for representation ii. (2) client agrees to arrangement, including share each lawyer will receive, and agreement is confirmed in writing AND iii. (3) total fee is reasonable b. Ex: someone comes to you and they are client in another matter who has huge personal injury case. You don‘t do personal injury cases. You want to refer to someone who does. Can you get any money for referring to another person? i. Yes- if client agrees to it, in writing and fee reasonable AND If division in proportion to services performed OR lawyer assumes joint responsibility c. Ex: if lawyer refers is and says I want 1/3 of your 1/3. client not even affected, would be ok. If i. agrees this is proportion to services performed or assume ―joint representation‖ i. what does this mean? Do you have to go to proceedings ii. PA Rule- ―a lawyer shall not divide a fee for services w/ another lawyer not in firm unless client does not object and fee is not excessive‖= straight out referral, very friendly to referring lawyer 10. Safe keeping Property a. Rule 1.15 SAFEKEEPING PROPERTY i. ―1.15(a)A lawyer shall hold property of clients or third person that is in a lawyer‘s possession in connection w/ a representation separate from the
lawyer‘s own property. Funds shall be kept in a separate account maintained in state where the lawyer‘s office is situated or elsewhere w/ 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 5 years after terminations of representation‖ ii. ―1.15(c) a lawyer shall deposit into a client trust account legal fess and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred‖ iii. Erects a wall between lawyer‘s funds and client‘ funds Ex: if client pays you funds in advance ,those fund are not lawyer‘s money. Lawyer must deposits in separate client trust account that has funds paid in advance to be withdrawn by lawyer only as fees are earned or expenses incurred Ex: retainer fees i. 1.15 (b) ―lawyer may deposit lawyer‘s own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose‖ i. If put in own funds in trust account not w/this purpose- violation of 1.15(a) Does permit to withdraw as earned i. EX: Lawyer earns money and stays in trust account, lawyer decides not to withdraw funds as earned i. Lawyer has violated ethical rules under 1.15 b/c what lawyer has done is intermingle lawyer funds w/ client‘s funds. Once the fees were earned, at end of the month they became the lawyers and thus his money was intermingled w/ clients‘ b/c just let it stay there ii. You have responsibility to withdraw your funds from clients to prevent intermingled Ex: Warhaftig- Only charges client for fees he actually earns. He puts advance money in trust account, but takes money out before he has actually earned those fees. He puts back into trust account if never earned. Says does this b/c has cash flow problem i. Violation of 1.15(a) and (c) – disbarment in NJ
i. Some courts hold on sanction = 1.5(a) and (c) violation ii. If no one lost money, but back unearned money- maybe just suspended for a year (not in NJ- disbarment) ii. 11. INTEREST GAINED FROM CLIENTS p.120 a. Paid in tiny amounts by clients, but all their fees go into 1 mixed account, gains interest- what to do with ? i. IOLTA- take the interest from all these small accounts and put interest into another account and apply it to state needs of other purposes i. –challenged b/c taking money from citizens w/o any hearing or showing, for state purposes ii. –S. Ct. upheld Washington IOLTA statute b/c said if interest money could generate net interest, then do have to put into client‘s account. 1. if was generating net interest, would go back to client 2. Really not any net taking otherwise iii. b. So if could generate net interest- keep in separate individual client account, if so small then keep in mixed account where interest will be used for IOLTA 12. RETAINER FEES a. The non-refundable fee p 139 b. Minimum fee of 5 and this is non-refundable c. In one case he charges 10 and 2 days after the payment the client discharges the lawyer and the lawyer refuses to pay back the 10 i. The court of appeals says that this is void as against public policy ---- because it compromises the right to sever the relationship with the lawyer ii. A lot of cases have followed cooper d. The ethical violation in Cooperman is the lawyer is always the agent of the client and thus must be working for the client the rule is 1.5A—A FEW AGREMENT SHALL NOT BE CLEARLY UNRESONABLE- IF THE FEE VIOLATES PUBLIC PILICY 1.5A SEEMS TO BE THE CLEARST WAY TO FIND A VIOLATION e. Implication in a Cooperman jurisdiction f. Ex: Dui case and the lawyer says flat fee 15,000 after a week the client seeks to discharge the lawyer and the lawyer says this is the full sum
The lawyer is still discharged before the goal is achieved and the client wants a refund of the unearned fee, it is unearned because the lawyer was discharged before the lawyer does what he was hured to do. In this case the DUI ii. A lot of jurisdiction have said any non refundable assepect is unrefundable – g. Pa is the minority – non-refundable fee not so bad i. P.143 3rd circuit opinion Ryan v Butera – i. upheld a non-refundable aspect ii. In pa a non-refundable fee agreement is not per se bad 13. Civil Recoverya. take normal fraud and where if you recover, P gets damages plus no atty fees, in many of these cases, you can take facts and turn it into a cause of action for treble damages plus atty fees i. Civil liability aspect of federal statute ii. Extremely important tool for Plaintiffs iii. Very general cause of actions that will fit a lot of cases D. COURT AWARDED FEES 1. Courts are often called upon to determine size of fee that must to paid to a successful plaintiff‘s counsel by the defendant or from the fund recovered for the class 2. ―lodestar‖- number of hour reasonably expended on litigation multipled by reasonable hourly rate a. Judges should exclude hours that were not reasonably expended b. Supreme Court has refused to permit % fee enhancements exceeding lodestar based on results 3. When lawyers represent class win a judgment or settlement that yields fund for payment to class, courts are empowered to award atty fees from fund a. Courts can apply lodestar approach or aware % of amount recovered b. Courts can award ―risk multiplier‖- increasing fee by multiplying lodestar by number greater than one to compensate counsel for risk of loss or for particularly skillful work E. MANDATORY PRO BONO HOUR 1. Rule 6.1 VOLUNTARY PRO BONO PUBLICO SERVICE a. ―Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal
services per year. In fulfilling this responsibility, the lawyer should‖ 2. NOTE should professional rules deal with this or should political deal with this? 3. specify hours? ABA specifies 50, and spells out how should be spent (a) and (b) a. spell out what they have to do? ABA specifies under 6.1(a) and (b) i. (a) provide services to those w/ limited means or organizations that are for persons w/ limited means ii. (b) provide services through/by no fee or reduced fee to people in (a), participate in activities for improving law iii. Contribute to organizations that provide legal services to persons of limited means. b. Compared to PA rules?- by services and activities for improving law, and financial support to groups that are like Community Legal Services. Do this by providing legal service, work in activities that strengthen law (Bar associations) or financial support- these are aspirational, no amount specified for anything c. Real problem, but rules not mandatory and in PA- useless law 4. mandatory or not? a. Most states no, ABA says should b. This is not mandatory language (most of rules are this way), this is aspirational language c. Some states- mandatory reporting. Not required to do anything, but must record what you actually did to satisfy pro bono i. Mandatory reporting will encourage this aspirational effort (probably made public) d. Colorado rejected mandatory reporting b/c said first step towards mandatory pro bono F. Who Gets the Money? 1. Rule 1.17- lawyer or law firm may sell their practice; permits it a. Still not common, clients do not like this. Value of purchasing does not assumes repeat businesses. (would have repeat business value in dentist practice, dry cleaning, etc.) clients reluctant to go back b/c stranger bought business that happens to be in same location as last owner b. Conditionsi. (1) seller must cease to engage in practice of law in that jurisdiction ii. (2) entire practice sold to lawyers (PA- single lawyer)
iii. (3) clients notified 2. Rule 5.6 Restrictions on Right to Practice a. ―A lawyer shall not participate in offering or making: i. (a) a partnership, shareholders, operating, employment or other similar type of agreement that restricts right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or‖ i. if they are giving them a share of future income, can law firm condition share on non-compete clause? ii. This rule says No – cannot do this noncompete clause iii. Reason [comment] 1 – interferes w/ client‘s right to pick a counsel iv. Exception- if retiring lawyer, can implement non-compete clause ii. ―(b) an agreement in which a restriction on lawyer‘s right to practice is part of the settlement of a client controversy‖ b. Always good to have agreement as to economic consequences c. Is partner who leaves entitled to future interests of firms, look at agreementi. yes if retiring; ii. no if covenant not to compete 3. Ex: Leaving a law firm a. Would want to take clientsi. Must inform clients you are leaving and tell them they can follow or stay or choose another lawyer ii. Cannot tell clients to follow them- cannot steal clients. (cant tell them this firm sucks) i. Giving firm bad reputation b. Have obligations to tell current c. Have right to solicit past clients d. Have right to tell where you are going e. Use rule 1.17 f. Cannot solicit clients secretly; cannot lure them away i. Firms (or other lawyers) who secretly solicit employees violate fiduciary duties and trade secrets act in that state 4. Ex: 2 lawyers, but not w/in same firm a. If 2 or more lawyers work on case but not w/in firm- Rule 1.5(e)- allows division of fee in proportion to services performed by each lawyer or if each lawyer assumes joint responsibility for representation use rule 1.5(e)
Client must agree after being told each lawyers share ii. Agreement must be in writing iii. Total fee must be reasonable b. Some courts allow quantum meruit for referral fees CONCURRENT CONFLICTS OF INTEREST A. Client- Lawyer Conflicts 1. Rule 1.7- default rule 2. Rule 1.8- certain situations that may be COI, and tells lawyers how to act in certain way to permit, other parts absolutely prohibit situation a. Rule 1.8 lists very specific situations where there are or maybe COI between lawyer and client (gifts, business transactions, sexual relations) b. Start w/ this rule to determine if specific rule about situation c. Then go to 1.7 3. Rule 1.7- default rule between dealing w/ COI between lawyer and client. Analyze here if not dealt w/ in 1.8 a. (a) prohibits representation if concurrent conflict of interest, defines concurrent conflict of interest if: i. (1) the representation of one client will be directly adverse to another client; or ii. (2) there is a significant risk that the representation of one or more client‘s will be materially limited by the lawyer‘s responsibility to another client, a former client or a third person or by a personal interest of the lawyer. b. (b) if cannot represent b/c of (a), still can under (b), if all 4 conditions of (b) are met. Conditions: i. (1) lawyer reasonably believes lawyer will still be able to provide competent and diligent representation to each affected client; ii. (2) representation not prohibited by law iii. (3) representation does not involve assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal iv. (4) each affected client gives informed consent, confirmed in writing c. [comment 15] unconsentable under (b)(1) if based on circumstances lawyer cannot reasonably conclude that he will be able to provide competent diligent representation i. Rule 1.1 Competence ii. Rule 1.3 Diligence
ex: mediation and represents both P and D. mediation not a proceeding before a ―tribunal‖ under 1.0 or (b)(3), but still may be precluded under (b)(1) d. [comment 14] unconsentable b/c representation prohibited by law (b)(2) i. Ex: some states prohibit lawyer from representing more than 1 D in capital case 4. Ex: Hypo 1: betting against client: lawyer is one of a team of lawyers representing a very high profile celebrity defendant. Trial in early stages, lawyer goes to Las Vegas during a break and sees a casino w/ Sports Book and has odds on whether client will be found guilty or innocent, odds are 10-1 in favor of innocent, lawyer puts $$ on favor of guilty. He no longer can represent client. b/c betting against client. a. (1) does 1.8 hit this – NO b. (2) what about 1.7- there is a concurrent conflict of interest exist if there is significant risk of representation of client will be materially limited by… a personal interest of the lawyer i. HERE- yes, concurrent conflict of interest ii. Yes- significant risk representation will be materially limited- YES lawyers conduct will be limited to win, incentive to throw the case iii. 1.7(b)- notwithstanding a conflict of interest a lawyer can continue to represent client if ((1)-(4) are all met) i. (4) ―each affected client gives informed consent in writing‖ 1. HERE- Lawyer tells client I bet 10,000 against, but I am only 1 man on this team is ok if I continue to represent you? Client says fine. According to rule (b)(4) even when COI, can still represent client, if among other things, client gives informed consent (b/c of (b)(1)) ii. (1) ―lawyer reasonably believes lawyer will be able to provide competent and diligent representation to each affected client‖ 1. Near impossible- how can you expect to be diligent when have COI; lawyer couldn‘t possibly make this belief in hypo 1 2. If HERE- client is found guilty, you will def be sued by client
c. Steps: i. First- look at 1.8 to see if it deals with this situation. ii. Second: if 1.8 does not apply, use 1.7. the general rule. Application of it can be complicated iii. Third: Determine if genuine concurrent conflict of interest i. Conflict of interest if there is significant risk that representation of client will be materially limited by lawyer (1.7(a)(2)) 1. Significant risk- objective judgment. HERE- yes iv. Fourth if conflict of interest- lawyer shall not represent client, except as permitted in (b) v. Fifth (b) ― a lawyer may represent client if‖ i. (4) ―each affected client gives informed consent conferred in writing‖ ii. Or (1) ―lawyer reasonably believes that lawyer will be able to provide comptent and diligent representation to each affected client‖ 1. HERE- no, not reasonable belief under these circumstances. Objective measure 5. Ex: Hypo: same as above but lawyer bets 100,000 on acquittal a. First nothing in 1.8 b. Second 1.7 – is there conflict of interest i. Is there significant risk that representation of client will be materially limited by lawyer (1.7(a)(2)) i. HERE- yes. If plea bargain offered, best interest might to accept plea. But lawyer‘s interest is directly opposed- this would be guilty, it is not acquittal, he loses 100,000 c. third under (b)(1) i. issue is different- ―lawyer reasonably believes that lawyer will be able to provide competent and diligent representation to each affected client‖ ii. HERE –different. Lawyer can arguable say can still provide competent representation definitely until plea bargain offered. (might even say no significant risk under (a)(1)) iii. Might be ok to represent client b/c nothing impairing representation until plea is offered d. (b)(4) ―each affected client gives informed consent conferred in writing‖ i. ―informed consent‖ agreement to proposed course of conduct after lawyer has communicated adequate
information and explanation about the risks and alternatives i. No writing requirement in definition, but 1.7(b)(4) says need to be in writing to confirm informed consent 1. Informed consent can be oral, and have writing just saying ―I consent‖ w/o putting in any of the terms 2. Should be in writing anywaydocument in record, there, can use against client. If not in writing, client could say- ―you never told‖ 3. [Comment 20] ii. HERE- what would you say to client about risks/advantages? i. Tell client you bet money on acquittal. ii. Tell client if plea bargain were to occur, it could be to my monetary advantage to not have you accept it iii. If plea bargain were to occur, I might have to withdraw and you might have to get new counsel b/c then there would be COI 6. Business Relationships a. RULE 1.8 CONFLICT OF INTEREST (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: i. (1) transaction and terms are fair and reasonable to client, fully disclosed and transmitted in writing in manner that can be reasonably understood by client; ii. (2) client is advised in writing of desirability of seeking independent counsel and given opportunity to seek independent counsel iii. (3) client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer‘s role in the transaction, including whether the lawyer is representing the client in the transaction‖ b. 1.8(a) is not prohibiting. It says unless… ; other parts of 1.8 strictly prohibit c. Ex for 1.8(a) : lawyer represents client in anti-trust litigation, lawyer needs new building. Client says I have just the place for you. Lawyer negotiates w/ client in purchasing building i. Step 1: 1.8
i. 1.8(a)- a lawyer shall not enter into a business transaction with a client unless… ii. If lawyer messes up on writing parts, even if fair and everything else met, client can still argue COI; client can argue this was not enforceable b/c writing requirement not meant. Argue rule was not followed, breach of fiduciary standard of care (these rules state standard of care, if do not follow them, breach of fiduciary duty- need deterrent here) iii. Civil liability, no per se relationship. But need deterrent, so even though no per se relationship, still can impose civil liability b/c need deterrent (b) ―lawyer shall not use information relating to representation of client to disadvantage of client …‖ i. [comment 1] doesn‘t apply to standard commercial transactions (ex: lawyer can buy TV from client at store client works at) P.194 post-retainer fee agreement-lawyer tells client, I‘m going to have to change fee agreement. I‘m raising it. Some commentators this is under 1.8(a). if agreement changes deal, this is business transaction A normal fee agreement is not subject to 1.8(a) when lawyer is taking property as a fee (stock) then it does become subject to 1.8(a) i. In this situation, use 1.8(a) and 1.5 (i.e. reasonable fee, need to tell client of various advantages, get informed consent confirmed in writing, tell them about possible conflict of interest down the road) ii. Ex: Possible future COI- lawyer has 300,000 in stock, lawyers interest as part owner might be different than company‘s interest i. Reasonableness determined at time is made Ex: Is taking money from opposing client as part of settlement something ―adverse to client‖? - didn‘t tell client i. If you propose settlement to client and say x amount. Plus x amount legal fee – then ok ii. But didn‘t tell client about legal fee b/c COI i. If told client, maybe client would say no, I want them to give me money w/o your fee, maybe I‘ll get more. ii. At this point there is significant limitation on representing client, cannot go ahead and
continue to represent w/ o consent under (a)(1-3) i. Relationship continues until it is abandoned. Applies even when lawyer not in atty/client relationship – as long as client this he is dealing counsel who will act w/ standard of care (still apply 1.8(a)) even if no specific representation at all going on at that time j. Ex: When lawyer director of corporation and asked for advice i. Lawyer might not give best advice for corporation ii. Rule 1.7 [comment 35]- a lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the 2 roles may conflict. The lawyer may be called on to advise the corporation in matter involving actions of the directors‖ i. Consider frequency of these situation, intensity of conflict, effect of lawyer‘s resignation, potential legal advice from another lawyer ii. If there is a material risk that the dual roles will compromise the lawyer‘s independence of professional judgment, the lawyer should not service as director or should cease to act as their lawyer when COI arises iii. Lawyer should advise board that in some circumstances matters discusses at board meetings while lawyer there may not be protected by atty/client privilege iv. Lawyer should advise COI situations might make lawyer recuse self as director, or might require lawyer or firm to decline representation 7. Full Disclosure – ex: when lawyer and former client become adversaries- lawyer must disclose and get consent lawyer must not only disclose nonrepresentation, but also disclose every circumstance and fact ―Which the client should know to make an intelligent decisions concerning the wisdom of entering agreement‖ i. Lawyer must treat client as if advising client in deal with someone else. ii. No matter terms set by client (Neville), lawyer still needs to explain all advantages and all disadvantages iii. Ex: Hypo: suppose lawyer not representing client. Lawyer is going to buy building from client, not
representing him on that matter, representing him on unrelated matter Does 1.8(a) apply? i. YES: 1.8(a) prohibits conventional arms length deal between client and lawyer. You owe the client a duty, and client will rely on you for certain fiduciary standard. No matter if business transaction not related to 8. 8.1 (c) gifts ―A lawyer shall not solicit any substantial gift from a client including testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship‖ a. This is absolute prohibition NO GIFTS b. Conflict is so severe, does not permit lawyer to consent, if lawyer accepts gift, so severe, we will not even let client consent to this c. ―prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client‖ i. Can‘t prepare gift unless client and lawyer related ii. Absolute prohibition iii. This is even non-solicitiation, (def cannot solicit it) even if client says, I want to give you a gift, will you prepare my will? – NO, cannot do it iv. Lawyer or person related to lawyer- someone who lawyer maintains close familial relationship d. ―For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship‖ i. prepare gift to lawyer‘s girlfriend – probably not e. When can lawyer accept a gift? (hasn‘t prepared gift) i. Get another lawyer to prepare the instrument ii. Other lawyer has duty to advise the client, it is their responsibility now to advise them (have you considered this, do you have other relatives, etc.) iii. Lawyer cannot solicit or prepare iv. Lawyer cannot get other lawyer in firm though to prepare it- conflict of one lawyer is imputed to other lawyers (rule 1.10) i. 1.8(k)- ―while lawyers are associated in a firm, a prohibition in the foregoing
paragraphs (a) through (i) that applies to any one of them shall apply to all of them‖ ii. Need to get someone outside of your firm f. EX: What if made will that gifted to lawyer, then later client wants to change part that has nothing to do w/ lawyer‘s gift, can lawyer now make change that doesn‘t affect his gift? i. Arguably should be ok ii. Look to 1.7(a) and if COI, see if can do it under 1.7(b) b/c 1.8(c) might not apply g. ―substantial‖- related to client. i. Ex: If client has 10,000 and wants to give 5000. this is substantial, if client has 1,000,000,000 and wants to gift 5000 might not be substantial 9. 1.8(d) media rights ―prior to he conclusion of the 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 representation‖ a. Ex: criminal case. D says I‘ll give you media rights. D will now have ability to turn case around to make it attractive if now have right to sell story to highest bidder. b. ―prior to conclusion of representation‖- even if sell afterwards, client must consent under 1.6 10. RULE 1.8(e) financial assistance ―A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: a. (1) lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and i. No advertising using clients i. Note- nothing wrong w/ advertising, just informing people about availability of a service ii. use to be when lawyer took case on contingent fees, was suppose to charge client for ―costs‖- win or lose you are responsible for costs but then lawyer would send letter and would say ―contact me whenever‖ – fiction- client never ended up paying for costs anyway iii. now- lawyer may advance costs and make payment contingent on outcome. If lose, I‘ll reimburse you. This is now permitted, repayment contingent on outcome b. (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client
Don‘t even have to say this is cost and contingent on outcome c. Key part of rule is that ―shall not provide financial assistance‖ i. Ex: client has personal injury case, I have no money, rent is due. I will take first settlement. Lawyer CANNOT ―lend‖ money to client to tied them over (for rent, medical expenses, clothes for court appearances) ii. ex: lawyer maintains apartment and client loses home. Lawyer may not be able to offer apartment, b/c might be considered financial assistance. iii. Criticism: client doesn‘t reach best result – denies access to poor. Defendants, (insurance companies, corporations) just drag it out, so client cannot afford it. iv. Supported: if lawyer allowed provide moneyi. Lawyers buying clients- competition between lawyers, not on merit ii. Lawyers profiteering- charging 15% interest d. Exceptions: i. Some states have humanitarian Assistance Rule – lawyers allowed to make small donations to client (for living, medical, to bring lawsuit) give money outright; small amounts only ii. CA- says you can make loans, doesn‘t limit amount (usually greater in $$ than Humanitarian Assistance) , but has to be repaid and has to be made after client already has employed lawyer (so no competition) iii. OH- lawyer can guarantee loans, but cannot advertise it iv. Notes CA and OH larger amounts, but have something in it to prevent lawyer competition 11. 1.8(f) accepting compensation from someone other than client ―Lawyer shall not accept compensation for representing client from one other than the client unless : a. (1) Client gives informed consent b. (2) There is no interference with the lawyer‘s independence of professional judgment or with the client-lawyer relationship; and c. (3) Information relating to representation of client is protected as required by 1.6‖ d. Ex: mom pays lawyer to represent son, mom cant know anything 12. 1.8(h) limited liability agreements ―a lawyer shall not: i.
a. (1) make an agreement prospectively limiting the lawyer‘s liability to a client for malpractice unless the client is independently represented in making the agreement; or‖ i. Cannot have client waive malpractice unless client represented by independent counsel that waives this ii. Ex: I want to protect client from malpractice claims, I will put into agreement that client cannot b. (2) ―settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given reasonable opportunity to seek advice of independent legal counsel in connection therewith‖ c. It is ok for lawyer to do malpractice settlement but not arrange waiver of malpractice claims from client against them in advance i. In settlement situation, client knows there is wrong at this point and knows rights. And will be advised to get counsel but doesn‘t have to ii. If waive malpractice rights under agreement, client might not know understand this d. [Comment 14]- p. 104 ―this paragraph does not prohibit lawyer from entering into an agreement with the client to arbitrate legal malpractice claims provided such agreements are enforceable and the client and the client is fully informed of the scope and effect of the agreement‖ i. Ok for lawyer to make agreement with client that says if malpractice claim, must agree to go to arbitration ii. Problem: lawyer can probably choose arbitration arena favorable to them e. Does lawyer have duty to tell client they blew statute of limitations? i. Argue yes, duty to disclose, even malpractice 1.4(b) 13. 1.8(j) sex w/ clients ―lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when client lawyer relationship commenced‖ a. Ok if having sex before lawyer/client relationship started i. Note- if prior existing sexual relationship, there can still be conflict (see 1.7) b. Reason: lawyer violates fiduciary relationship, trust issue c. This is non-consentable i. Prior to adoption to this rule, some states allowed to consent d. Also- what constitutes a ―sexual relationship‖? e. Corporations - What if lawyer represents a corporation and deals w/ high level CEO and has sex w/ CEO, is CEO
deemed to be the client for purposes of this rule? – some states have specific rule on this? f. Prohibition does not apply to someone else in firm, if lawyer having sex w/ client he cant represent client, but someone else in firm can (1.8(k) specifically leaves out(j)) Related Lawyers and Significant Others a. Ex: p.201- H wants to represent P, W wants to represent D. (both from different firms) b. At one point. 1.8 said lawyers who were related w/in a certain degree couldn‘t be direct adversaries unless clients consented (former rule 1.8(i))i. concern was that there could confidentiality issues and economic issues: i. Ex: if H wins, gets contingency fee of 30,000 if W wins, gets hourly fee of 400. (would let H win) c. In 2000, Replaced w/ [comment 11] under 1.7 – there may or may not be a conflict. i. ―when lawyers represents different clients in same matter or ins matters substantially related, are closely related by blood or marriage, there MAY be a significant risk that client confidences will be revealed and that the lawyer‘s family relationship will interfere with both loyally and independent professional judgment. ―as a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation, thus a lawyer related to another lawyer (e.g. as a parent, child, sibling, or spouse) ordinarily may not represent a client in a matter where the lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom lawyers are associated‖ i. ―when lawyers represents different clients in same matter or ins matters substantially related, are closely related by blood or marriage, there MAY be a significant risk that client confidences will be revealed and that the lawyer‘s family relationship will interfere with both loyally and independent professional judgment.‖ ii. Ex: if lawyer doesn‘t tell client and says I didn‘t have to tell client. His argument
would be that there was no significant risk that representation would be materially limited. (rule 1.7) 1. Understood that I as lawyer do not communicate w/ spouse about matters and client d. But [comment 11]- goes on to say that ordinarily, client has to knowi. ―as a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation, thus a lawyer related to another lawyer (e.g. as a parent, child, sibling, or spouse) ordinarily may not represent a client in a matter where the lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom lawyers are associated‖ e. In ex, should disclose and get consent anyway f. Some states dealt w/ informed consent that went beyond this i. Ex: CA- lawyer has to disclose if other lawyer is related, close w/ her, or has intimate relationship w/ her ii. Ex: Michigan- lawyer must tell client if co-habitant w/ opposing counsel. g. Ex: if just in intimate relationship, not married or related. Do you need to disclose? i. Would it result in significant risk that representation will be materially limited? ii. Maybe should disclose just in case 15. Gender Race Religion a. Ex: p. 206 lawyer told can no longer go on case, b/c in South and she is Jewish woman and firm thinks this will prejudice jury. How do you deal with this? i. Assume conduct of law firm doesn‘t violate any statute or rule.( If it violates discrimination, substantive employment statute prohibit discrimination, then cannot do it- end of case) ii. Ask- does it violate specific ethical rule? iii. As a general proposition, the ABA model Rules are very weak on dealing w/ and regulating racist/sexist conduct by lawyers. The only thing even involved is rule 8.4(d)- that it unethical to impede
administration of justice, one comment says racist/discriminatory conduct impede administration of justice iv. Here- probably no violation. No violation of any specific rule b. Might say if you cooperate w/ racist/sexist attitude is being racist/sexist c. Law firm here might say no, we are not doing that, we don‘t value racist/sexist attitude d. Can you make a decision to let this woman be part of defense team w/o consulting client i. YES i. 1.4(b) must explain matters to client so client can make informed decision ii. 1.2(a)- consult w/ client about the means iii. 1.7- is there a conflict between client‘s interest in getting home free and lawyer‘s interest in acting in a way that doesn‘t cooperate w/ racist and sexist conduct. Conduct may limit lawyer‘s representation ii. HERE- client had concurred she should not be used. e. What do here: i. (1) let client know ii. (2) determine if COI, if yes (prob here) need to get client‘s consent to continue representation iii. (3) withdraw if don‘t get consent i. In this case, would have to then not take any cases from the deep South 16. Ex: Imputation under 1.7 Hypo: lawyer hired by client to sue GM; recovery would be very substantial. Lawyer has a very substantial percentage of assets in GM stock. He owns a lot of GM stock. Lawyer doesn‘t tell client this. a. Is there a COI between lawyer and client conflict? i. Step 1: rule 1.8- nothing ii. Step 2: 1.7(a) significant risk representation will be materially limited? – YES iii. Step 3: 1.7(b) i. Step 3A 1. can client consent under 1.7(b), is this consentable under 1.7(b)(1)- that lawyer can reasonably believe that he can provide competent, diligent representation- arguable, maybe ii. Step 3B-at least informed consent under 1.7(b)(4);
If lawyer concludes that he can do it under 1.7(b)(1) or doesn‘t even tell client and doesn‘t get consent under 1.7(b)(4); and says- ―I wont represent you, but my partner will. Is this ok? i. Rule 1.8(k) Imputation.- if lawyer cannot do it under 1.8, partner (or any lawyer in his firm) cannot do it. His COI is imputed to firm. But HERE- no 1.8 conflict. Is there imputation under 1.7? YES under 1.10(a)- principle for imputation under 1.7 i. Rule 1.10(a) ―while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.‖ ii. EXCEPTION: Unless: ―unless the prohibition is based on personal interest of prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm‖ iii. [Comment 3]Where prohibition barring lawyer is based on personal interest, other lawyers are not imputed out 1. Ex: example of ―personal interest‖political belief, religious belief, cultural belief iv. ex: client is abortion provider and lawyer is pro life. lawyer is conflicted out b/c her beliefs would influence lawyer and would not contribute to monetary recovery for this client. If lawyer is conflicted out, other lawyers can still represent client b/c personal objection that conflicts lawyer out 1. narrow exception HERE in GM ex from above-- is this personal conflict? Money interest? i. Only this individual lawyer has money, but b/c firm is closely associated w/ lawyer, they will be influenced and will not want to advocate for him to go down tube- so still imputed conflict HERE ii. [Comment 3- ] ―… if an opposing party in a case were owned by lawyer in the law firm and others in the firm would be materially
limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm B. Client-Client Conflicts 1. Criminal Cases L representing 2 D’s a. Ex: 2 guys both charged. Both want (L) lawyer to represent him. Each says I am not guilty. Each say the government made this up, witnesses are fake. Or, I didn‘t do it, I don‘t know who did. Conflict of interest w/ 2 concurrent clients i. Analyze under 1.7 (a)(2) ―there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer‖ ii. Client 1 may try to implicate Client 2 iii. Plea bargain might be issued to one condition he testifies against other iv. Witness, for one he is fine. No need cross exam even. Under other, witness is terrible and need to break down witness under cross b. Analyze under 1.8(b) if find to be significant risk under (a) c. [Comment 8]- the mere possibility of subsequent doesn‘t even require disclosure or informed consent. Only tell when COI there, at that moment, can take case d. [Comment 23]- ordinarily lawyer should decline to represent more than 1 co defendant and ordinarily risk so great lawyer should decline i. There is always a significant risk ii. If there is, then presumably comment 23, under (b)(1) lawyer cannot represent e. However, there are cases where lawyer represents 2 co-def b/c not violation of 1.7, i. when in criminal case , and what is involved in libertyii. analyze under 1.7. i. make argument can do it if get consent and then under (b)(4) both consent and under (b)(1) says I reasonably believe I can represent each of you. ii. Comment 23 though 1. ―ordinarily lawyer should decline to represent more than 1 co-def.. b/c potential for COI is so grave‖
f. So can lawyer represent 2 clients in criminal case? i. YES Not absolute prohibition ii. Don‘t though- comment 23- suggestion ―should‖ iii. Need to argue under 1.7 g. Ex: What if lawyer does represent 2 criminal co-def and things go wrong Client wants to sue now for malpractice: i. Majority : must prove innocent to collect damages. Client needs to prove innocence, even if proves lawyer screws up, if you are guilty you are guilty, no damages unless prove you were innocent i. Can say I was denied 6th am. Rights b/c counsel took case b/c of conflict of interest, this conflict hurt me and thus I was denied 6th am. Right to counsel ii. Client must show lawyer had actively conflicted interest AND COI affected case outcome 2. Civil Cases a. Ex: P sues D and both represented by same lawyer. Lawyer cannot do this, under 1.7 it says i. (a)(1)―there is concurrent conflict if representation of one conflict will be directly adverse to another client‖ ii. CANNOT get in under (b) b/c (b)(3) ―the representation does not involve the assertion of a claim by one client against another client represented by the [same] lawyer in the same litigation or other proceeding before a tribunal‖ iii. And not under (b)(1) ―lawyer reasonably believes lawyer will b able to provide competent and diligent representation to EACH affected client‖ b. Ex: HYPO: Lawyer‘s both partners same as above, but since lawyer cant represent both, can he have Partner represent D and he will represent P? NO i. Is Conflict imputed? YES ii. under 1.10. b/c lawyer‘s conflict will be imputed to other lawyers in firm c. Ex: Lawyer sues client on unrelated matter Hypo: Lawyer represents X on environmental matters. Client comes to lawyer and wants lawyer to sue X for him for personal injury action. (X‘s truck hit Client). Lawyer already represents X for unrelated matter i. Under 1.7 does it pose any bar?- YES concurrent conflict of interest ii. Would there be a concurrent COI? YES
i. Comment 6: ―Absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when matters are wholly unrelated‖ iii. Protected interest i. NOT confidential info- lawyer will not learn any confidential information relating to personal injury lawsuit when lawyer is their environmental lawyer ii. ([comment 6]) Interest protected is that client can feel betrayal, less loyalty and will undercut client/lawyer relationship. iv. -example of directly adverse representation, so would need consent i. 1.7(a)(1) – directly adverse, so go to (b) ii. Under 1.7(b)- can lawyer obtain consent to continue both representations/ 1. 1.7(b)(4) must be in writing 2. 1.7(b)(1) must be something that is consentable – reasonably believe can represent both w/ diligence and competence- probably yes 3. 1.7(b)(3) n/a iii. So yes concurrent conflict under 1.7(a), but ok under 1.7(b) v. Note- if lawyer is barred anyway, rest of firm is barred under 1.10(a) vi. If get written consent, what does personal injury client need to know?i. Personal injury client needs to know lawyer represents X in environmental representation. ii. Personal injury client might not use lawyer b/c might know lawyer will not sue as vigorously b/c lawyer stands to make a lot of money from environmental matter iii. So need to get written consent from both clients 3. Big Firms and COI Problems a. Ex: If big firm takes case and later issue arises usually in disqualification context , firm represents D, P moves to disqualify firm saying I am current client) i. Motions to disqualify- you cannot represent me based on 1.7 or 1.9 i. Happens a lot
ii. Sometimes court say even if COI, will not automatically disqualify lawyer, up to ethical authorities b/c we think disqualification is unjust and we wont do it iii. So disqualification is how COI is raised, but usually will not go down this way b. Big firm can have consent agreement. i. To protect itself, a big firm might be able to have provision in retainer provision to obviate being disqualified out when it wants to retain option to sue on unrelated matter ii. At time you retain client, client agrees that he waives COI if client is sued on an unrelated matter by party represented by this firm iii. This is a waiver of COI challenges – iv. Waiver of COI challenges not always enforceable i. Can later argue enforceability by saying client did not understand ii. How can you give ―blanket waiver‖ to all future COI matters? iii. If client however, is sophisticated and dealt w/ lawyers before and waiver is limited (ex: if you are sued on unrelated matter) then might be ok iv. General, Blanket waiver will be much less likely to be upheld, even w/ sophisticated client c. Hypo: hired to sue an affiliated client of corporation you represent. Lawyer is not per se barred i. if barred from suing current client on unrelated matter, there is no per se rule of suing affiliated client on unrelated matter ii. Comment 34- not barred from accepting representation unless the i. affiliate should also be considered a client ii. Understanding between lawyer and organization that lawyer would avoid adverse representation to affiliate OR iii. Lawyer‘s obligation to organization or new client likely to limit materially lawyer‘s representation of other client 4. CROSSING A CURRENT CLIENT a. Ex: The lawyer is representing someone else and wants to cross-examine a current client
Lawyer is representing client A and client B is going to be a witness lawyer must cross examine B, who is a client in a different matter, ii. Cross examination by its nature is adversarial iii. this is a concurrent conflict of interest under 1.7(a) and the lawyer can only represent if can comply w/ conditions of 1.7(b) i. It is consentable under 1.7(b)(1) but under 1.7(b)(4) you would need the consent of both clients iv. [comment 6] absent consent a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when matters are wholly unrelated i. However, simultaneous representation in unrelated matters of clients whose interest are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict on interest and this may not require consent of the respective clients v. [comment 6] directly adverse conflict arises when lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client—testimony will be damaging to client who is represented in lawsuit 5. REPRESENT MULTIPLE CLIENTS ON THE SAME SIDE IN CIVIL LITIGATION a. Ex: P‘s are both passengers in the vehicle and they are both hurt, ample insurance. Is there a conflict of interests so that you need their consent --i. DOES NOT SEEM TO BE A CONFLICT HEREdoes not seem to be a problem under 1.7(a)(1) i. Maybe need consent probably not ii. If there was not enough insurance to cover both then you might have a problem conflicting concurrent interests i. Now there is a conflict that is consentable and then the conflict comes up and you now can not determine that you can reasonably represent both so you have to get out of at least 1 ii. There is really no general resolution as to who whom you can get out of and who not
6. POSITIONAL CONFLICT - Can the lawyer take different position on behalf of different clients a. Basically arguing one position on behalf of one client and then the opposite side a week later b. The justification is I am advocating the position and this is the most that can be said for that side c. [comment 24] – there is no per se rule that you can not take inconsistent position. i. Lawyer can take inconsistent legal positions in different tribunals at different times on behalf of different clients, no matter advocating position for one client might create precedent adverse to the interests of other client represented in unrelated matter ii. COI though if lawyers‘ action for one client will materially limit the lawyer‘s effectiveness in representing another clients in a difference case iii. It is factor oriented iv. The more a precedent can hurt one client the bigger the problem it can be 7. CONFLIT OF CLIENTS IN A NON-LITOGATION CONTEXT a. Ex: [comment 7 ] L represents seller for business transaction. L also represents buyer in another unrelated matter- have to get the consent of both parties i. Because you may be tempted to go easy on the side the buyer cause you don‘t want the buyer to fire you in the other case b. Multiple parties on same side of transactional work can be clear concurrent conflict of interests under 1.7 i. Ex: people come in to form a corporation 3 people each contributing a corp and they are employing the lawyer to draw up the corporate doc. You rep all 3 and they are all on the same side. All kinds of problems can come up – salary , stock options so on ii. Ex: Multi generational estate planning i. Parent grand parent and grand son come in all 3 have interests and they can have different interests on different point iii. Ex: Preparing a pre nuptial —probably can rep both sides c. [comment 30] Privilege does NOT attach between clients i. The law of privilege is the communication of either party to the lawyer is privileged against a 3rd party ii. However, if A and B latter sue each other neither of them can assert the privilege against the other .
i. Sometimes A and B will discuss matters together, sometimes individually though ii. Ex: If A says to B ―give me a document you sent to the lawyer‖ B must give it to A d. What if you have a duty of confidentiality for one client but a duty to disclose to another i. P. 251 – says in this situation authority is divergent ii. Some- Restatement- there is always a duty to disclose and if they say something confidential, the lawyer will have a duty to disclose that to the other client i. If you can disclose – the case law then you know what you are supposed to do ?? iii. You can handle this problem by agreement to handle this potential problem i. You get clients to agree to a waiver of confidentiality e. Common Interest Rule : Joint Defense i. common interest rule -when parties are working in a common interest, a statement from a party to a lawyer that is not theirs but working on a common interest is still privileged i. Ex: Lawyer A represents Client A and Lawyer B represents Client B. Client A tells Lawyer B something- this is privileged even though lawyer B is not A‘s lawyer ii. The case book on p 245 f. Standing and COI i. Ex: The lawyer reps 2 def in the same case, the prosecutor seeks to disqualify the lawyer on conflict of interests i. What is the problem with the prosecutors standing? ii. he does not rep any one iii. some courts say the only person that can raise a disqualification motion is one represented or formally represented 8. INSURANCE TRIANGLE a. Lawyer is paid by the insurance company to represent on of their beneficiaries. Thus Lawyer owes certain duties to insurance company, but in case of COI, lawyers‘ primary duty is to who client represented i. Can be overlapping, but when conflicting interest, an agent cannot serve 2 masters, serve client first, insurance company 2nd
b. Ex: Insurance companies wanted to send info about case to 3rd parties expeditors to determine whether money well spent, to advise on how we should spend money in future. i. Court stated- if this information relates to the case, then it is confidential and cannot be disclosed w/o consent of client. ii. Insurance money can of course send relevant info to lawyer iii. Lawyer owes duty to insurance company to let it know how litigation going c. Ex: insurance company adopts management policies w/ respect to litigation, does lawyer have obligation to follow these polices – courts have said obligation of lawyer is to client and if lawyer believes representation requires divergence from policies, then it is up to lawyer to not follow them if not in best interest of client i. Can create problem for lawyer, might not be used for future litigation for insurance company d. Ex: hypo: there‘s a big verdict against insurer, can insurer sue lawyer for malpractice? i. Lawyer will say I didn‘t represent you. ii. NO- insurance company is a ―client‖ for that purpose. Just b/c priority to real client, insurance company is secondary client e. Ex: Hypo: lawyer is hired by all-state to represent Smith. Lawyer is then hired by someone else to sue Allstate on completely different matter. Allstate says you cannot sue me on an unrelated matter w/o my consent (1.7(b)). i. But lawyer says- I‘m not your lawyer, Smith is. There fore I can sue you w/o your consent ii. Court says NO- Allstate is also you client, they are not a stranger, you owe them certain obligations C. Advocate Witness Rule Rule 3.7 1. (a) ―A lawyer shall not act as advocate at trial in which the lawyer is likely to be a necessary witness unless: a. (1) the testimony relates to an uncontested issue; b. (2) the testimony relates to the nature and value of legal services rendered in the case; or c. (3) disqualification of the lawyer would work substantial hardship on client d. shall not -(a) is prohibition 2. (b) 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” a. Anti imputation clause
EX: lawyer A does all pretrial work, for messy matrimonial case and it becomes obvious he will be witness. His partner B does trial work. This is ok, A can be witness b. (b) also has exception- unless precluded from doing so by rule 1.7 i. Ex: P v. D. lawyer A is called as witness, and he will be highly damaging to P case and the partner B represented P i. Say partner A couldn‘t be witness, and impute B under 1.7 ii. Here- interest of B could be materially, adversely impact client b/c will not want to destroy partner who is a witness iii. But normally not imputation, but 1.7 might raise COI SUCCESSIVE CONFLICTS OF INTEREST A. PRIVATE PRACTICE 1. Is a lawyer barred from taking a current client, b/c the lawyer previously represented somebody who is a conflict of interest? a. If were concurrent- no couldn‘t under 1.7 b. But now a former client… does the fact that someone on the other side was a former client prevent you from taking an adverse position to them Rule is 1.9 2. Ex: Hypo: lawyer represents Dr. X in drafting a partnership agreement w/ Dr. Y. after agreement done, and all relationships terminated, Dr. Y comes in and says I want you to represent me in suing X , your former client. a. HERE under 1.9, i. can lawyer represent Dr. Y? YES- but only if not the same or substantially related ii. HERE- NO, b/c these are same and substantially related. At issue is agreement again i. Interests are materially adverse- suing X b. If did, would have disqualification motion 3. Rule 1.9(a) lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related in which that person‘s interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing a. Have rule 1.9 b/c don‘t want to risk confidentiality issues (if substantially related, would be at issue) i. Would argue lawyer cant give away confidential information b/c would be in violation of 1.6, but we don‘t trust lawyers, so have this rule 4. Ex: ANALYTICA v. NPD
a. FACTS: Malek works for NPD, they want to give him 2 shares, they say get someone (lawyer) to take care of this and arrange this. Lawyer needs to look very closely to see what value of the 2 shares. Malek gets Fine to do this. All done. Then Malek forms Analytica. Then Analytica sues NPD on anti-trust action, use Fine‘s firm as lawyer again. NPD uses 1.9 to disqualify Fine. NPD argues we were previously a client of Fine in this situation, and b/c we were a client of Finei. (1) we were client of Fine in original negotiations ii. (2) this anti trust lawsuit is substantially related to first iii. (3) Fines lawsuit is imputed from b. RATIONALE: i. (1) was NPD a client of Fine?- YES i. law firm says that NPD represented by Fine. Lawyer performs legal services for someone- they are a client by representing in effect NPD and Malek. ii. Court says YES -theoretically Fine only represented Malek, but concludes they represented NPD too, b/c in same situation ii. (2) are 2 substantially relatedi. prior representation was determining 2 shares of stock to help determine compensation for employee, ii. second was anti- trust action, iii. Court says YES- substantially related iv. Legal theories do not matter, what is important – look at nature of relationship based on what information is involved 1. HERE- Fine in dealing w/ NPD would in valuing stock, would ask about profitability, general economic stuff- same thing for anti-trust litigation information a. Type of information involved is substantially related c. Substantial relation i. Emphasis on type of info i. (1) Depends not on info of legal theories but of type of information- is information itself same. ii. Emphasis on could the lawyer have learned (not DID)
i. (2) If lawyer could have obtained substantially related confidential information; not DID lawyer obtain infotest is was nature of relationship as such that lawyer could have obtained confidential information 1. What information would normally be obtained? 2. Have this rule, b/c no way to know what lawyer did actually know, cannot ask lawyer flat outconfidentiality threatened if ask him exactly what info did you learn ii. Ex: lawyer represents Dr. X in partnership agreement, year alter Dr. X- he is getting a divorce. Dr. X‘s wife comes to lawyer and wants to sue Dr. X in divorce. What will be involved will be economic issues (alimony)including info about value of practice will be substantially related to both- information is the SAME. Focus not on legal theory. Could lawyer learn same thing from first representation that would be relevant in second? i. To actually focus what was actually learned would destroy the protection of confidentiality ii. Ask what would reasonable lawyer have learned, asked about, etc. iii. Point is about any info- not about quantum. 1. We just ask : was there any info that could have been learned [comment 3] if the info could have been learned in first representation, but would have been rendered obsolete by passage of time, then not a disqualifying factor, i. if all info learned in first representation is now public knowledge, then not disqualifying factor EX: hypo: lawyer represents corporation in employment representation matters. That stops. Employee from that corporation that lawyer previously represented, comes to lawyer and wants him to sue corporation for specific employee discrimination i. Would depend on facts
ii. Ex: if employee‘s claim involves same supervisor lawyer has defended when this same supervisor was accused- then YES, substantial relationship iii. Ex: no specifically on point, b/c first representation did not involve any one person lawyer had contact w/. so lawyer never dealt w/ supervisor named here. But dealt w/ sexual harassment cases previously w/ this company and is dealing with one here too 1. Corporation can argue there is still substantial relationship b/c ―play book information‖- lawyer knows enough about company‘s practices and knows enough about corporations‘ general ways of defending sexual harassment cases 2. [comment 3]- where prior representation gives insight and understanding and it is peculiar, then can be disqualification. a. General knowledge of client‘s policies and practices ordinarily will not preclude a subsequent representation. 3. So if lawyer has insights that a lawyer off the street would not have, then this could be disqualification d. disqualification suits i. Ex: Lawyer sues former client, and former client says you cannot sue me, you represented me before, court should disqualification i. Courts usually reluctant to grant disqualification 1. More costs to P 2. Delay 3. Results in no lawyer of choice to P ii. some courts will not disqualify unless lawyer actually learned information. Even if violated 1.9 (could have learned) we will just refer to disciplinary board. But will not disqualify unless actually learned ii. p290 non-clients may not have standing to move to disqualify
i. ex: pros. seeks to disqualify D‘s lawyer. Can pros. move for disqualification? NO 1.9 is designed to protect clients, not lawyer. Pros. does not have a ―Client‖ 1. would do this if 1 lawyer 2 co-def. and down the line 1 says ineffective assistance of counsel b/c lawyer should not have taken on both 5. Who is former Client? a. ex: Analytica- company cooperated fully w/ lawyer and employees. Corporation was former client and YES protected under 1.9. court also said even if corporation was not a former client, it would still be protected b/c corp. gave information would have given as if were client b. Common Interest Privilege‖ assume common interest between a lawyer and non-client. Non-client has same interest as lawyer’s client. That information from nonclient can be privileged i. non client get same protection sometimes from 1.9 if have common interest w/ lawyer‘s client ii. Someone who is not a client, but gave info to lawyer that is intended to be confidential and shares interest w/ client – is treated same as former client under1.9 iii. ex: lawyer represents trade association. A member of trade association who is not a client, gives lawyer information so that lawyer can help achieve the end. The member of the trade association who gave the info is treated a former client under 1.9. b/c info given confidentially for purpose of achieving common interest. c. Ex: p.286 hypo: Divorce action H is primary wage earner. W interviews 5 top matrimonial lawyers about case. And then goes to 6th. Has discussed case with top 5. decides on 6th. H then retains one of the 5. W moves to disqualify on basis that 1.9 applies. W claims she was a former client of lawyer H detained. i. For W to win, she must argue she is a former client. – she does not to show she paid, just needs to prove the she reasonably believed lawyer was performing legal services for them, then she is a client for that purpose. i. Did top 5 lawyers perform legal services for W? what do you need to know? ii. Talk about strengths of her case, ―here is what you can expect in alimony- property
division, don‘t change the locks, etc‖HERE- lawyer IS giving specific legal advice ii. So depending on what lawyer says during interview to perspective client may be enough to disqualify lawyer under 1.9. even though doesn‘t result in retainer agreement, it could be enough to create lawyer/client relationship for purposes of 1.9 iii. H would argue: i. She only went to top 5 to conflict them out. ii. But would have to prove bad faith – very hard iv. Court would probably be sympathetic to lawyer in this situation and look at kind of information that was sought. (not literally apply 1.9, if did client would have advantage). i. Courts apply ―different rule‖ than 1.9formerly ii. NOW- use Rule 1.18- deals specifically w/ prosepective clients 6. RULE 1.18 DUTIES TO PROSEPECTIVE CLIENTS a. ―(a) a person who discuss w/a lawyer the possibility of forming a client-lawyer relationship w/ respect to a matter is a prospective client b. (b) Even when no client/lawyer relationship ensures, a lawyer who has had discussion w/ a prospective client shall not use or reveal information learned in consultation except as tule 1.9 would permit w/ respect to information of a former client‖ i. It doesn‘t protect a prospective client as much as a former client under 1.9 c. ―(c) lawyer shall not represent a client w/ interest materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful o that person in matter, except as provided in ¶(d) . if a lawyer is disqualified from representation under this paragraph, no lawyer in a firm w/ which tha lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in ¶(d)‖ d. Note- under 1.9 just has to have info a lawyer could have obtained e. Here 1.18- lawyer has to have received info that could be significantly harmful to be disqualified
Even if significantly harmful, you can still be not disqualified if : i. (d) lawyer‘s law firm can continue to represent if lawyer is screened out ii. AND affected client and prospective client give consent f. Screened- shut isolated lawyer out of everything, might deny lawyer access to files i. Def. 1.0 ―situations where screening a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.11, 1.12. or 1.18‖ g. (d) should get that consent under (d)(1) so other side has opportunity to say that lawyer did not follow all steps under (d)(2) h. [comment 5]- Can also procure a waiver- that no info given in preliminary interview is held as confidential or that no information given to lawyer will prohibit lawyer from representing someone else (this is a limited advanced waiver, better chance of being upheld. 7. HOT POTATO DOCTRINE:- you cannot withdraw from 1 client in order to permit you to sue the client. When lawyer tries to turn a 1.7 case to a 1.9 case a. Ex: Hypo p. 287: L represents X on small matter. Can Lawyer represent Y in suing X on larger unrelated matter/ i. Yes if can get consent. If do not- violation of rule 1.7 ii. Ask: i. Does this present a COI ii. Is it a COI w/ concurrent (1.7) or former (1.9) clients, iii. HERE- NO concurrent- use 1.7(a)(1)- directly adverse, cannot sue concurrent client on an unrelated matter b/c directly adverse i. Lawyer cannot represent Y while continuing to represent X, b. Ex: Hypo addition: Since lawyer cannot represent Y in suing X unless get X‘s consent, and I cannot get X‘s consent. So I will withdraw from X under 1.16. if lawyer withdraws- now what? i. Use 1.9- X was a former client. Cannot represent if new representation is the same or substantially related matter. ii. HERE- unrelated so ok under 1.9(a) – however court do not allow this under the Hot Potato Doctrine
c. HOT POTATO FROM 1.16- normal withdrawal is not allowed under 1.16 when trying to turn a 1.7 case into a 1.9 case i. Remedy: Can get client to sign advance consent that says it agrees lawyer to withdraw so it can sue client. ―I will represent you but only if you permit me to withdraw in order to represent someone where there would otherwise be a conflict‖ i. Needs to be limited ii. Why would a client ever agree to this?shouldn‘t, probably wont sign this ever d. EXCEPTION Ex: [comment 5] to 1.7 hypo: Lawyer represents X who is suing Corp. Corp. gets taken over by another corporation, a corporation who lawyer already represents. Normally lawyer not able to drop one of clients like a hot potato to keep representation of other. But comment says: i. You might be permitted to withdraw from either one. You cannot permit to keep representing X suing a now current client ii. Ex: p. 289 comment 4- lawyer represents Client 1 on different matters for 14 years. Not on anything specific right now. Client 2 says I want you to help me sue Client 1. (on something unrelated to anything lawyer represented Client 1 on before) 1.7 or 1.9? i. If 1.7- like suing current client. If you represent someone for long time, they still might be current client – have right to continue to believe that they are your lawyer. 1. If does qualify as current client, under 1.7 then cannot do it. ii. If is 1.9 then former client and can do it 8. APPEARANCE OF IMPROPRIETY a. Conflicts under 1.9 and 1.7- courts would ask ―is there an appearance of impropriety?‖- does NOT apply anymore. Not in model rules anymore b. However, in terms of judicial ethics, there is ABA Code of Judicial Ethics – one of the key rules is that when discuss judge‘s conduct, the judge shall avoid activities that case unreasonable balance to act impartially. c. Ex: P. 660 Disqualification of a Judge i. (1) a judge shall disqualify himself or herself in a proceeding in which the judge‘s impartiality might
reasonably be questioned, including by not limited to where:.. d. Ex: P. 664 Extra- Judicial activities:A judge shall conduct all of the judge‘s extra-judicial activities so that they do no: i. (1) cast reasonable doubt on judge‘s capacity to act impartially as a judge; ii. (2) demean the judicial offices; or iii. (3) interfere with the proper performance of judicial duties B. IMPUTED DISQUALIFICATION AND MIGRATORY LAWYERS (see handout) 1. Ex: L Lawyer works at A firm. She represents Dr. Pill in his partnership negotiations w/ Dr. Pusher. When negotiations are concluded, neither L nor Able represent Pill any further. Dr. a. Ex: #A Pusher comes back to Able firm, he asked L to represent him in suing Dr. Pill b/c of dispute concerning partnership agreement? i. Can L represent Dr. Pusher? NO- 1.9(a) unless gets consent b. Ex: #B Pusher comes to X, different partner in Able firm. i. Can X represent Pusher? NO b/c L still in firm, she cannot represent Pusher under 1.9(a) and thus whole firm is imputed out under 1.10(a) c. Ex: #C Suppose by time Pusher comes to X, Lawyer has already left Able firm and now working at another. i. Can X now represent Pusher since L left? ii. YES. At time Pusher comes to X there is no lawyer in firm who is bared by 1.9(a). therefore no imputation principle under 1.10(a)(1) in n/a. iii. However, now use 1.10(b)- must as whether any lawyer remaining in firm has confidential information? i. RULE 1.10(b): ―when a lawyer has terminated an association w/ the firm, the firm is not prohibited from representing person unless: 1. matter is substantially same/ related AND 2. any lawyer in firm has information protected by 1.6‖ iv. Migratory lawyer takes the taint w/her. If taint, migratory lawyer takes it, unless someone else in firm has confidential information. v. Ex: What if Louise leaves firm and no one else in firm has any information about Pill, but firm has 16 boxes of files relating to Dr. Pill. Does fact that they
have files mean that they have information relating to Dr. Pill? i. Some firms- no info, ok as long as no one sees them and we keep them under lock and key. 2. Does the migratory lawyer carry a taint? a. Ex: #A :L leaves Able and goes to Z firm. Dr. Pusher comes to her and asks her to represent him in lawsuit against Pill growing out of partnership agreement? i. Can lawyer represent Pusher? ii. NO. not w/ o Pill‘ consent. Lawyer barred by 1.9(a) b. Ex: # B Can anyone else in Z firm represent Pusher? i. NO not under 1.10(a) ii. Note- number of firms would allow Z firm to represent Pusher if L is ―screened‖ c. Some states do not accept this lawyer carries the TAINT RULEi. Ex: PA says we will not impute out whole law firm. We will say that if infected lawyer is screened then we will not impute out new law firm. ―screening principle‖- when lawyer becomes associated w/ new firm, new firm may not be able to represent someone in substantially related matter unless: i. (1) disqualified lawyer is screened from any participation in matter and is apportioned no part of fee there from; and ii. (2) written notice is promptly given to the appropriate client to enable it to ascertain compliance w/ provisions of this rule ii. Screening- defined under 1.0 i. Policy basis for screening b/c big firms do not want to be imputed out and b/c lawyers want to be able change jobs (big firms can effectively screen- locks, access codes. Etc) ii. Model Rules reject screening b/c we don’t trust the lawyers1. clients give confidences, we want to protect clients, we don‘t trust firms to screen on own. 3. Migratory lawyer moves to new firm carries conflict with him and imputes new firm a. Difficult b/c when hiring new lawyer, would want to ask ―Who do you represent?‖ and this could be a 1.6 violation b. What happens when lawyer moves from old firm to new firm?
If lawyer who is barred by 1.9(a)- is old firm still barred after lawyer moves? NO i. No under 1.10(b)- law firm is not longer barred unless a lawyer in firm retains confidential information c. If 1.9(a) lawyer barred and moves to new firm, is new firm barred? i. Yes. 1.10(a) case, but some states don‘t follow Model Rules and say new firm is not barred if new firm screens out lawyer w/conflict who just joined. (see more above) 4. Ex: CROMLEY v. BOARD OF EDUCATION p.294 a. Facts: lawyer represents school district, then joins firm that represents D. Firm screens him out and adopted screening mechanism such that no one has accessto any information he has about school district. b. Rationale: some courts might say, new firm may be barred under ethics rules, imputed out under 1.10(a)(1), but for disqualification purposes, we don‘t have to absolutely follow the ethics rules, we can adopt different tests c. TEST for some states: i. Assume state follows model rules, says new firm imputed out, no screening. ii. A court might say though for disqualification purposes- you may be disciplined under disciplinary rules, but if you have screen in place ,we will not disqualify we will follow own policy judgments d. Under Model Rules, this would be violation, would be imputed out under 1.10(a)(1)- don‘t care if adopt screen i. But here, even if state follows Model Rules, we will allow a screen for disqualification purposes. (can still disciplined by ethics violation, but not disqualified) i. Thus saying if violate ethics, Model Rules, in some way in a trial court will usually feel has to sanction him in some way, however doesn‘t have to like here. e. What else could lawyer do (in Cromley) if firm would be imputed under 1.10(a)(1) i. Lawyer could withdraw ii. Hard if in litigation need (1) reason ,and (2) court‘s permission iii. If continues to work for old client but not on behalf of new firm-- > Conflict of interest. Lawyer will not work zealously to make sure his new firm wins, lets them win
5. Presumption of Share Confidences (do not need to use this terminology for test) a. Reason 1.10(a)(1) imputes out firm is presumption that lawyer will share confidences. b. Shared confidences underlies 1.10(a)(1) c. Some states allowed presumption of shared confidences to be rebutted by showing a screen d. ―Screened‖ i. Either focus on mechanics-(lock up files, affidavits) ii. Look at size of firm-If very small, 3, courts will be less likely to find there is effective screening iii. Must be erected right away 6. Taint on Summer Associates/ Paralegals a. Rule 5.3(a) ―w/ respect to nonlawyers employed or retained by or associated w/ a lawyer: a partner and a lawyer who individually or together w/ other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure the firm has in effect measures giving reasonable assurance that the person‘s conduct is compatible w/ the professional obligation of the lawyer‖ b. Ex: Hypo- lawyer worked on stuff over summer, can law firm be tainted by ―new lawyer‖ OR what about paralegal? i. So new lawyer and paralegal need to act like lawyer and cannot work c. Catch- alls i. Rule 8.4(c) i. ―lawyers conduct cannot engage in conduct involving dishonesty, fraud, deceit or misrepresentation‖ ii. Rule 8.4(d) i. ―lawyer shall not engage in conduct that is prejudicial to the administration of justice‖ iii. Used when lawyer talks to paralegal when knows she knows about adverse party from prior job, used b/c sometimes other rules wont work C. GOVERNMENT SERVICES 1. Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees a. 1.11(a)(1)-(2) ―a lawyer who has formerly served as a public officer or employee of the government is subject to 1.9(c) and shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives
its informed consent, confirmed in writing to the representation‖ i. So if you worked on a matter personally and substantially in government, you cannot work for that client in practice ii. If former lawyer is disqualified under (a), then whole firm is disqualified unless screened iii. One of 2 places ABA permits screening (here, 1.11 and 1.18- not in 1.9) b. 1.11(d) limit on conduct of gov. based lawyers based on earlier private representative i. (d)(2)- you cannot negotiate for employment w/any person who is involved in a matter except for law clerks- can do it if get requisite consent (give judge notice and get him to sign) ii. (d) deals w/ lawyer who is currently public employee ETHICS IN ADVOCACY A. 2 VIEWS: 1. (1) trial are search for truth 2. (2) Trials are adversary system and not search for truth, but used to resolve a controversy 3. Each of these views will produce different rules when adopting ethics rules B. Are lawyers morally accountable for their clients? 1. Do rules allow lawyer to interject their private belief system into representation of the client . a. As lawyer, you can choose whether or not to accept case (ones you might offended by) b. There are obligations to appointments rule 6.2 Accepting Appointments i. ―A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: i. (a) representing client is likely to result in violation of the Rules ii. (b) representing client is likely to result in an unreasonable financial burdened on lawyer or iii. (c) client or cause is so repugnant to lawyer as to be likely to impair client – lawyer relationship or the lawyer‘s ability to represent the client‖ c. Rule 2.1- lawyer can advise client on anything- can use own moral (―this is wrong‖) when doing this
IF do case – stuck w/ it- rules now tell you how to handle it d. Client that lawyers represent creates issues (i.e. criminals, terrorist, tobacco company)- should not be criticized, lawyer‘s role is to represent and advise and operate w/in rules C. Truth and Confidences 1. Rue 3.3 Candor Toward Tribunal a. See 1.0 for def, of tribuna b. Ex: hypo: In litigation, lawyer asked by judge if he submitted all documents to opposing client. Lawyer says yes I did. But he didn‘t really b/c some extremely harmful to client. i. Rule 3.3 violation ―lawyer shall not knowingly make a false statements of material fact or law previously made to tribunal by law ii. Also 4.1(a) in course of representing client, lawyer shall not knowingly make false statement of material fact to a 3rd person- more broad iii. Also 8.4(c) – engage in conduct involving dishonesty, fraud, deceit or misrepresentation HERE- 3.3(a)(1) directly on point, use this c. Ex: Hypo: Lawyer represents criminal client, at sentencing stage. DA asked if prior convictions, says no, doesn‘t see any. Lawyer for D knows there are some, does lawyer need to say this? i. Rule 3.3(a)(3)- NO under this rule as long as lawyer has not offered any false statement- ok i. No under 3.3(a)(1)- no, b/c lawyer not making the statement (would be different if judge asked D‘s lawyer or asked if he agreed w/ Prosecutor) ii. no under 8.4(c)- engage in conduct involving dishonesty, fraud, deceit or misrepresentation HERE-not dishonest conduct, so Keeping silent is ok ii. if client lied- then would have to say something iii. this shows- this rule was not made w/ ―trial as search for truth‖ view in mind iv. NJ does follow search for truth – you cannot withhold material fact if no will mislead tribunal. d. Ex: Hypo: client has died, but lawyer fails to disclose b/c wants to settle i. Treated as violation of 8.4(c) definitely and maybe 3.3(a)(1) i.
8.4(c)- dishonest, clearly subject to disciplinary action. You made statement- this is implied representation. When showing up in court you are making statement ―I represent Client‖ – but you don‘t, client is dead. Making false representation that you represent living client iii. 3.3(a)(1)- implied representation 2. Rule 3.3(a)(2)- lawyer shall not knowingly fail to disclose to tribunal legal authority in the controlling jurisdiction known to lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel a. Lawyer doesn‘t disclose direct adverse authority- violation b. Also, when lawyer doesn‘t tell client there is adverse authority to case they will be relying on.- violation of 1.4(b)- duty to explain matter to client sufficient for client to make decision about representation c. ―directly adverse authority‖- p. 398. when there is an opinion directly on point, counsel has obligation to disclose when knew about existence of case d. To prove one ―knew‖ of existence of case is that lawyer had been involved previously of that case or that his office had been (i.e. public authority- his DA office had been involved in that case) i. P. 398- judge says, ―a competent lawyer would know of it- so you should have‖i. Probably not correct ii. ―know‖- actual knowledge or knowledge inferred from circumstances. Meaning circumstances as such that you had to have known it. Lawyer cannot shut her eyes to it. (reckless) if you had to shut your eyes to it- then you knew it. iii. ―directly adverse‖ is broader than ―controlling‖ 3. Rule 3.3(a)(3) Client has lied- a lawyer shall not knowingly offer evidence that the lawyer knows to be false. If a lawyer, the lawyer‘s client or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter , that the lawyer reasonably believes is false‖ a. If client will not comply, lawyer has obligation to tell tribunal b. This is for civil or criminal c. This is a ―knows‖ rule- lawyer knows to be false 4. (3) Client Plans to Lie
a. Ex: Hypo: I know light was red, I‘m going to say light was green. i. Cannot just let him do this, under 3.3(a)(3) you‘d be offering testimony that was false. ii. Under 1.2(d) you‘d be assisting fraud. iii. Ethically under 1.4(b) tell client I cannot do this for you, I advise you not to do this. b. Ex: If client says I am going to do this anyway, you cannot act as lawyer and permit client to do this. i. Withdraw?- conventional response, when lawyer knows client will lie, and I cannot change his mind they will say I will not handle this situation, I am going to withdraw 1.16. if in litigation need court‘s approval- say professional reasons compel me to withdraw. ii. If you withdraw and client goes to someone else and just lies (doesn‘t tell them he will)- does first lawyer have further obligation? c. Ex: you have withdrawn from case, do you now have any obligation when you know client is going to lie w/ other lawyer? i. Conventional answer: NO – you don‘t represent client, no mandatory obligation to do anything. 5. Rule 3.3(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal a. Seems that there is authority you need to disclose b. Note- this rule is new. It should only apply when lawyer still representing someone. ―intended fraudulent conduct‖ i. doesn‘t apply if no longer representing client ii. If client intends to lie, you’ve withdrawntraditionally you have no duty to alert tribunal (could argue new language of 3.3(b) changes that, but probably not intended to mean this)- bottom line, don‘t apply 3.3(b) when lawyer has withdrawn c. Can the lawyer tell the tribunal?- answer lies under 1.6 b/c what you are doing is saying, client has given me info that relates to representation, client does not want it known, has not consented to disclosure, can I disclose- see 1.6 d. Ex: Hypo- client plans to lie in a criminal case. Comes out in same way, i. Nix v. Whiteside p.340- here, Whiteside is being charged w/ murder. Went to apt. of Love. Whiteside though Love had gun. Whiteside stabs Love and
kills him. During all conversations w/ atty. Whiteside says I believed he had gun, but never saw it, but certainly believed it, acting in self-defense. During trial- Whiteside tells lawyer I am going to say I actually saw gun i. Lawyer says I cannot permit you to do this, if you say this, I will tell judge this is perjury 1. Lawyer says in alternative I will withdraw as your lawyer. ii. Trial continues- Whiteside testifies never saw gun. He appeals on basis of ineffective assistance of counsel- to prove, he says lawyer told him not to testify and I will withdraw if you do this. iii. Court says NO: need serious error and prejudice. Error is not per se shown by failure to follow professional rules. iv. But court says lawyer made no error anyway- he acted properly w/in Rules. (majority view) e. Majority view: So thus- in criminal cases, Rules apply same as civil f. Minority view: exception for criminal cases : criminal defendants have right to testify, but since so much more is at issue, w/ respect to perjurious testimonyi. (1) lawyer may not ask questions where the answers will be perjurious. – cannot elicit perjurious testimony So what lawyer should do (in this jurisdiction), ii. (2) should say ―is there anything else you want to tell jury?‖ and then client can tell jury whatever, in perjury. iii. (3) Lawyer then in closing arguments, lawyer may not advert to what he knows was perjurious g. ―Knows‖ and ―knowingly‖. i. Lawyer reasonably believes is false- lawyer doesn‘t know something is false, but reasonably believes is false i. Lawyer can withdraw under 1.16(b)(2) ii. all this implies lawyer CAN (if not D) and HAS TO (if D) offer it even if reasonably believe it is false. i. If reasonably believes and doesn‘t withdraw- lawyer CANNOT refuse to offer the evidence if from D
lawyer HAS TO OFFER IT. If it is of Defendant 2. Lawyer can also refuse to offer if from those other than defendant iii. Only mandated if you ―know‖ – cannot offer evidence you know to be false iv. Knows‖ and ―knowledge‖ To get around this, some lawyers do not ask clients if committed crime i. If ask them – they may tell you, once they tell you they did it, it doesn‘t mean you cannot defend them, but it does mean you cannot permit them to testify perjurioulsy. ii. Risk though in NOT asking what happened 1. Could be violating rule – not getting information to conduct the case 2. If you don‘t ask what happened, not getting info. h. Does lawyer have obligation to investigate?- no i. If client says something that really indicates they have lied or intends to lie, then self protection would seem that you should investigate further b/c maybe If don‘t investigate might have your eyes closes ii. You have no duty to investigate, but there is a danger when someone tells you something where it is clear what they are saying is not truth D. Witness Preparation 1. Nothing wrong with it- not to prepare witness for testimony would be improper 2. Let them know what you will ask and what can be anticipated on cross a. Sometimes called ―coaching‖ b. Can also prepare for deposition 3. Obviously a danger— a. A lawyer could tell the witness what to say i. ―you told me light was red, say it was green‖- not ethical, 3.3(a)(3) b. A lawyer could suggest what witness should say and not concerned whether or not truthful i. Ex: prepare witness, give them paper ―remember to say you saw THE NAMES ON THE BAGS, remember the names you saw are not the only ones, but these are the only ones you saw, and you never saw anything that said warning or danger. Do not say you saw 1 brand more than another, be
confident all brands there. If there is a mistake on work history report state that girl who wrote it down was mistaken.‖ i. Here lawyer is saying ―here‘s what to say‖ no matter if true or not ii. Violation of 8.4(d) conduct that interferes w/justice c. Problem when do not focus on whether or not truthful i. Ex: client comes in. lawyer says let me tell you the law. Or ―if light was red you‘re in trouble, if light was yellow you are ok‖ i. basically saying- ―if say this, you will be in trouble. If you say this you wont be.‖ ii. This is what‘s good, this is what bad iii. Some people say no – you are entitled to tell client what law is, and want to know what happened on this particular incident. 1. But saying ―here‘s facts that help you, here‘s facts that wont, now you tell me your set of facts‖- could be telling them what to say ii. But if stay w/in 3.3(a)(3) and do not tell them to liefair game as preparing witness Literal Truth p. 362 a. If something is true, then it is not perjurious b. The law of perjury- p. 364 perjury- will false statement, under oath, regarding facts material to the hearing. i. Ex: p. 364- this one is ok i. ―Do you have bank account in Swiss banks?‖ ii. ―No‖ iii. ―have you ever‖ iv. ―the company had one‖ v. ―have you had nominees who have bank accounts in Swiss banks‖ vi. ―no‖ vii. ―have you ever‖ viii. ―no‖- not perjury, he changed subject, never asked if he personally ever did. ii. Not ok if know what questionnaire meant when made a mistake i. Ex: questioner said 1991, witness knew he meant 1990. but answered no, but he was held to have understood that questioner meant 1990-
literal truth arguably is not perjurious (Bronston) but if witness should have understood that questioner misspoke, then could be perjurious 5. Cross Examining the Witness a. If really a search for truth- no cross exam allowed if truthful witness b. Can you cross examine a truthful witness to suggest they are incorrect as to what they were testifying to 6. Appeals to Bias Rule 3.4(e) a. Rule 3.4(e) the lawyer may not in trial allude a matter the lawyer does not reasonably is relevant b. Ex: P sues Honda for defective design. P‘s lawyer asks Honda‘s expert why Honda red, white, blue- American flag. P‘s lawyer says ―This is not about Pearl Harbor, and them saying it is not about American being lazy and stupid‖ i. NH Supreme Court reverses c. Ex: someone suing company in VT, and lawyer says they come up here from N J all time – trying to allude out of state bias- again violation of 3.4(e) 7. Boundaries of Proper Argument p 374 -375 a. Lawyer may allude to a matter that lawyer believes will not be supported by admissible evidence, b. Ex: Westerfield i. FACTS: 7 year kidnapped, assaulted murdered. Westerfield is charged. Girls body not found for a while. While Westerfield has been arrested and charged and before body found, his lawyers go to DA and say ―if we were able to tell you where her body was, would you agree to not seek death penalty.?‖DA ponders this, and on occasion, DA agrees- we will not seek death penalty, you will plead guilty to murder and have life sentence, trial avoided. ii. HERE- DA is pondering this, i. implicitly in this that Westerfield told his lawyers he committed murder (b/c otherwise how could they make this suggestion to DA) and (i.e. that he definitely did it) ii. before she decides, police find body and we go to trial, DA knows with big probability that Westerfield committed crime. 1. Everyone except jury knows he has committed crime- anyone who knew about offer would know this
iii. When girl‘s parents testify- Westerfield‘s lawyers cross examine them and picks on their sexual open lifestyle to suggest their could have been people in house that could have committed crime iv. Is this ethical ? arguing for false inferencewhen know this is not the case 1. All legal experts said proper, lawyer able to argue for false inference in criminal defense case and under duty of competence to do this, you argue for whatever inference you can reasonably argue for that can be under circumstances 2. Could say violation of 8.4interference w/ administration of justice- but say no, it is ok 3. Prosecutor CANNOT argue for a false inference b/c they have a higher duty to seek the truth c. p.378- unclear for civil litigant i. 8.4(d) could show violation ii. But never has there been case where lawyer found in trouble for arguing for false inference i. In Westerfield- girl had been dead in depreciable period of time, and it was at issue, b/c D had alibi for some of that period. So D had experts that testified that date she died was May 5 – same day he had alibi. ii. Westerfield ‗s lawyers know experts are wrong (b/c know he killed her thus wasn‘t on may 5)- but they permit witness to testify to info they know is not true. 1. Is this permitting false testimony under rule 3.3(a)(3)?- no 2. Not violation to allow witness to testify to what they think is truthfully, but erroneously. iii. Ex: Caveat- Michigan case where D went out and manipulated tire treads and expert testified was not D‘s car. D mislead witnesses (changed car that expert examined). E. FRIVOLOUS POSITIONS 1. Rule 3.1 Cannot assert a frivolous reason
a. Ex: Civil if someone appeals a result where you have Legal Aid Agency defending someone one and if appeal will win, b/c of procedural matter but reason for appeal is frivolous. b. Ex: Criminal. In criminal case. Lawyer for D, lawyer can take action to make sure all necessary elements in case are established 2. Rule 3.2 Delay a. Delay- Don‘t let D‘s stall. Defendants stall all the time, especially insurance companies. b. Ethical question is whether lawyer acting in good faith with some substantial reason other than delay 3. Payment to Witnesses Rule 3.4(b) a. Rule 3.4(b)- only cannot offer an inducement to a witness that is prohibited by law b. PA rules go further, and represent answers to questions under Model Rules i. You can pay an expert witness for coming into court – fee to expert ii. You cannot pay a fact witness for coming into court and testifying iii. You can pay a fact witness‘s expenses (airplane, hotel, expenses) iv. PA rules say that you can pay a fact witness to compensate them for their ―loss of time‖i. not a fee, just work compensation ii. Ex: ―I am losing five days of work, give me $500‖ v. You cannot pay any witness in PA a contingent feei. Ex: If we win you get this, if we lose you get nothing 4. Ex- Parte Communication to Judge/ Juror Rule 3.5 a. Rule 3.5(b) you cant communicate ex parte with either a judge or juror or prospective juror unless authorized by law or court order i. Ex: lawyer hired investigative agency in picking jury, they interviewed members of jury pool to assist P‘s lawyer in picking jury- prohibited under model rules. It is making ex parte contact w/ juror during proceedings. i. Doing it through investigator same as doing self 8.4(a), so still violation of b. Rule 3.5(c) You can contact jurors after trial unless the juror i. (2) has said leave me alone or ii. (3) involves a misrepresentation, coercion, duress or harassment or communication prohibited
c. Ex parte communication w/ judge prohibited unless about scheduling matters i. Usually also means cannot w/ judge‘s law clerk either ii. Ex: lawyer hands judge a motion, that same day deposits motion in mail for other party- violation for ex parte rule- b/c getting info to judge right away, other side wont even get letter till days later. Some judges will regard as violation. 5. Signing Affidavit violations a. Ex: sign this, I‘ll get notary to notarize it later. i. wrong- point of notorization is that notary saw signer says ―yes this person appeared, proved to me they were person and this is what they were saying‖ ii. Ethical violation 8.4(b) and (c)- dishonest conduct (for (c)) and (b)- law violation 6. Restricting Practice Condition Rule 5.6(b) a. ― a lawyer shall not participate in offering or making, an agreement in which a restriction on the lawyer‘s right to practice is part of the settlement of a client controversy.‖ i. Ex: lawyer and cient suing GM, complicated design defect case. GM says we will settle, but GM says lawyer you will agree to not represent anyone else that sues us GMi. rule says you are not allowed to make this agreement REAL EVIDENCE A. Physical evidence that would be relevant in a trial that the lawyer comes into possession of or observer 1. Different for civil and criminal 2. 3.4(a) – A lawyer shall not (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; 3. 8.4(d) – the lawyer shall not engage in conduct that interferes with justice being carried forth --- this is a catch all B. APPLICATIONS 1. Ex: Hypo Some one comes to lawyers office says I shot some one here is his gun here is his wallet not one knows anything a. Q1 – can the lawyer take and keep the gun and wallet b. A1- this is a criminal act and obstruction of justice and unethical under 3.4(a) i. 3.4(a) l A lawyer shall not (a) unlawfully obstruct another party‘s access to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; ii. In a criminal case this is easy there is a criminal statute it is unlawful obstruction of justice. iii. The fed statute and the PA statute unlawfully obstruction of justice in a criminal statute applies to destroying or concealing evidence even if there is no arrest and no investigation.. i. no need for a criminal investigation just that one might be brought 2. Obstruction of justice statue are very broad 3. Sometimes lawyer can hold the evidence for a reasonable amount of time to test it C. People v Meredith p 412 1. Facts: Lawyer‘s investigator gets wallet and brings it to the lawyer. The lawyer can not keep it what should the lawyer do with it a. The lawyer turned it over to the police this seems to be the unanimous rule 2. Issue here is the prosecution asks the lawyer where did you get this evidence from a. He said I found it behind the D‘s house b. Given the existence of the turn over obligation what can the prosecution ask in terms of where the physical evidence comes from c. policy issue -when ever defense counsel just turns over the evidence, lawyer loses privilege when asked about way he got it 3. You may not take and keep the evidence a. If you take and turn over the evidence, the location of where you found evidence must also be revealed to prosecutor (ft. nt. 8 ) b. on cross the prosecutor can not ask how did you come to know where it came from i. Prosecutor has a right to know where it was from but know how it got there D. OBSERVATION IS PRIVILEGED Split on reveal - def hands it over there is a split on whether you must you revel that D offered it to you. 1. Ex: Client comes and says here is the gun. You say- if I take it I must turn it over. So can you say to client take it home and lose it? --a. NO can‘t do this rule 3.4(a)- you cant counsel someone to unlawfully conceal or destroy… 2. Is the client obligated to turn it over to the police? must you tell the client this ?
a. NO The lawyer is entitled to make an observation about evidence from what client says not real evidence until lawyer touches evidence b. Ex: case where the lawyer saw bodies in a cave. seeing the bodies were privilege c. Ex: If you know the gun is in the trash you can probably just leave it there probably not duty to remove it from the trash 3. Civil Cases ??? a. Civil case in this situation are more difficult because no obstruction of justice statue b. Document retention policy --- courts routinely have policy about destroying documents. routinely have policy about destroying documents. So OK if it is routine to destroy documents c. When destruction of documents is in relation to a civil law suit. i. Ex: We are being suit please remind you employees about the document retention program ii. Ex: You think you client is going to be sued and you say destroy all documents, there is a filled suit but no discovery yet i. 3.4(a) uses the word unlawfully 1. If in a civil case they say did you have docs about this and you say yes and then they say what happened and you say we destroyer the evidence the jury can draw adverse inferences against you NEGOTIATIONS AND TRANSACTIONAL MATTERS (421-426, 435448) A. There is no specific rule for negotiations – just apply standard model rules in negotiations context. Generally 2 issues: B. (1) how far can lawyer go in assisting client in negotiations1. Hypo client wants to commit crime or fraud a. Ex: (either matrimonial- client says I have $300,000 but I want to hide it from spouse; OR b. EX :client applying for bank loan but my documents are fake) c. Can lawyer assist client? No i. Depends on whether lawyer knows ii. Definition of crime i. Refers to state law ii. Conduct has to be intent or purpose to deceive iii. Definition of assist- give aid or support
Lawyer is prohibited from preparing agreement when client has premised fraud (either by documents, etc) i. In this case, if know client has done thislawyer cannot assist client. d. Ethical duties i. (1) 1.4(b) – explain what it is going on, say I cannot do this ii. (2) 1.16(a)- withdraw iii. (3) 1.6 – disclosure- can you disclose? i. Is there an obligation to disclose once you are out of the picture? 1. NO- Always discretionary- ―may‖ ii. Can you disclose- yes under 1.6 iii. ―Noisy withdrawal‖- p 435- not permitted to disclose for fraud formerly, but what you could do is withdraw and withdraw documents you submitted falsely. 1. – this concept is now passé b/c under 1.6 you can disclose if you services have been used iv. (4) Must you disclose? i. Once you are out of picture, no obligation to disclose anything ii. You can opt not to tell under 1.6 iii. [comment 10] to 1.2- in some circumstances you may not be able to just get out and keep mouth shut, might have to disaffirm document. – extraordinarily controversial 1. Must disaffirm document, withdrawal not enough iv. State variation 1. Ex: (p. 75 of suppl )- NJ requires disclosure to prevent client from substantial fraud 2. Also see Michigan, mass, Idaho; nj; fl- see p. 74- mandate disclosure v. Academic Argument- 4.1(b) may not just withdraw, must disclose – means there is affirmative observation to disclose – do not use this on test C. (2) what can lawyer say in negotiation process? What checks are there? 1. (1) 4.1(a)- cannot make false statement 2. (2) 8.4(c) – cannot engage in conduct deceit, dishonesty, misrepresentation…
3. Ex: Hypo: lawyer says in negotiation ―my client has plenty of money so my client can meet franchise requirements‖ – but client doesn‘t – violation of 2 rules a. What about puffery? i. Ex: Hypo: lawyer says ―my client has instructed me to not take anything less than 100‖ (really client said ―anything above 100 ok‖) ii. Is puffery incorporated- by its nature it is false statement iii. [comment 2] 4.1- Estimates of price or value is like parties intention- some types of puffery are permitted, but that is very limited to statements that are really understood by everyone in context as not really meaning anything iv. When each statement is false- some authority will say this is not permitted b/c other side will accept as statement of fact D. Unrepresented Persons Rule 4.3 1. Rule 4.3 In dealing on behalf of a client w/ a person who is not represented by counsel- A lawyer shall not state or imply that the lawyer is disinterested. 2. When the lawyer knows or reasonably should know that the unrepresented party misunderstands the lawyer‘s roles in the mattera. the lawyer shall make reasonable efforts to an unrepresented person, other than the advice to secure counsel if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. 3. Ex: Hypo: unrepresented must sign deed to give property to spouse. Unrepresented sees it is quitclaim deed and wants to know about it- wife‘s lawyer can explain it to him- YES a. Already agreed to transaction, incidental legal questions being asked b. Clear and no conflict of interest 4. Ex: Hypo: unrepresented H about to sign settlement for divorce. He asks W‘s lawyer ―is this a good deal for me?‖a. NO lawyer cannot answer- unclear, and conflict of interest b. This requires advice, there is conflict of interest between 2 spouses. 5. If give advice to unrepresented party- have in writing – I am lawyer, I represent X, not you. 6. But cannot give advice if position of your client and other party are in conflict 7. Ex: FLORIDA BAR v. BELLVILLE
a. FACT: Bellville‘s client vs. Cowan is 83, has 3rd grade education. Agreement has his house being sold. This was not discussed in oral agreement. Cowan learns about house. b. Rationale: it is unclear. But assume Bellville did not draft agreement that threw in Cowan‘s house when Cowan hadn‘t agreed to it (if did, assisting in crime or fraud) but assuming lawyer didn‘t know, Florida Bar uphold discipline – suspend Bellville for 30 days. i. Lawyer understands other party doesn‘t understand his role- lawyer must explain this ii. Lawyer represents opposing interests and the opposing party may be unfairly induced to rely on atty‘s advice iii. Lawyer did not adequately explain to Cowan that he didn‘t represent him iv. Atty must explain he is representing adverse interest- explain his role i. Atty must explain adverse terms so opposing party knows adverse affect and knows deal is unfavorable to him— 1. [this is wrong outside FL– b/c atty cannot give advice to other side. Even if see other atty has messed upno obligation to tell law to them ] 2. Did court do this b/c sees it is bad deal, doesn‘t like lawyer for letting it go through w/ it when other side unrepresented- just that court is prone to find atty took advantage of unrepresented party v. SOME lawyers will not like to take case when other side not represented, b/c courts might favor that side 8. Ex:NEAL p. 439 a. FACTS: Neal commits sadistic triple homicide, going to do it again, calls police, they do not know his location. Says he wants to talk to public defender. Assistant DA gives false name and pretends to be public defender and goes through terms of surrender (wanted to be isolated and get cigarettes and get own lawyer) b. HOLD: Atty is brought to court c. RATIONALE i. 4.3 dealing w/ unrepresented party- it means what it says ii. 8.4(c) – misrepresentation- this is powerful, broad clause that includes much conduct 9. Ex: FIER INSURANCE EXCHANGE v. BELL
E. When can you keep silent OR when is it misrepresentation? 1. Ex: Virzi- Lawyer represents dead client. Violation b/c implying client is alive 2. Ex: Addison- lawyer negotiating bills. Lawyer discovers hospital only knows about clients‘ 100,000 policy (doesn‘t know about 1,000,000 policy) so hospital is willing to cut client break b/c thinks only has 100,000 policy a. Lawyer says nothing –ends up being disciplined b. Alternative (becker’s view)- if client didn‘t conceal anything and lawyer didn‘t lie and didn‘t explicitly say ―this is the only policy‖ or ―under circumstances of this policy my client cant afford much‖- no misrepresentation – should be ok F. QUESTIONING OR THREATENING CRIMINAL PROSECUTION p. 447 1. Code ,but not rules, forbids lawyer to threaten criminal prosecution in order to gain an advantage in civil matter 2. Ex: Lawyer says to opposing party : ―If you don‘t meet these demands – I will report you‖ a. Claims must be genuine.- made in good faith and founded in fact- lawyer really could go to DA and make criminal matter b. If lawyer making them up- then deceit, dishonesty, misrepresentation 8.4(c) 3. Ex: Hypo #1: matrimonial. W settling property agreement w/ H. W‘s atty says if you don‘t agree to these terms, I will tell DA that you sexually assaulted my daughter (your step-daughter) 1 year ago. 4. Ex: Hypo#2: A‘s car vandalized by B. A‘s lawyer says here is bill for 3000. if you don‘t pay we will report action of vandalizing property to police 5. EX: Hypo #3: hotel clerk gets assaulted by dominant movie star. Lawyer for clerk says to movie star, my client lost a few days of work, he has great emotional trauma and great pain and suffering. Distraught someone he revered would hit him. If you don‘t pay us we will report to DA. 6. Extortion- someone is guilty of theft if he obtains property of another by threatening to accuse other criminal offense. a. Defense- that property obtained was honestly obtained for harmed done in circumstances to which accusation relatesi. If property is restitution for harm done from offense- then ok b. Apply to hypos from above: i. #1- definitely extortion b/c crime and property completely unrelated
#2- not extortion – b/c classic defense example. Claim made in good faith (act claimed of believe to have occurred) and the restitution sought is in good faith related to the harm done under the circumstances #3 where claim is not easily quantifiable. What is ―pain and suffering‖ and ―emotional distress‖ damages for real. Wouldn‘t be extortion if you have good faith belief that amount sought is reasonable compensation for harm done. – it is reasonable amount based on harm that was done i. In this hypo- probably not in good faith beyond assault ii. If domestic violence- probably could get money for these types of damages as a reasonable amount
7. Rule 8.4(b) a. ― it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness or fitness as lawyer in other respects‖ i. Not ethics violation for all criminal acts – must adversely affect lawyer‘s ―honesty, trustworthiness or fitness as lawyer in other respects‖ ii. Some argue any criminal act would adversely affect lawyer‘s fitness to practice law- but Rules do not agree w/ this iii. So extortion might not be a violation of Rules, but not definitely 8. Code said a lawyer may not threaten criminal prosecution in order to gain an advantage in civil matter a. Rules rejected this provision b/c sometimes extortion was ok b. Some states added it back i. Question w/these states – does this apply when it is not extortion? –not clear ii. Usually in states that have Rules as written- ask if extortion and plug into 8.4(b) and see if fits iii. In states that added back this Code provision- that it is violation to threaten prosecution- does this mean something that doesn‘t rise to level extortion still punishable now by these states‘ Rules?- not clear i. Extortion is obtaining property under threat LAWYERS FOR ENTITIES A. Who is a client? Rule 1.13(a) 1. When represent Corporation, you deal w/ officers, but 1.13(a)you represent organization, not its individual officers
2. 1.13(a) ― a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents‖ 3. 1.13(f)- ―in dealing w/ an organization‘s directors, officers, employees, members shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization‘s interests are adverse to those of the constituents w/ whom the lawyer is dealing‖ a. Ex: hypo: officer from corporation goes to lawyer and says ‗I ran into some trouble and I took $200,000 from company‘s funds. I intend to pay it back.‘- he has no authority to do this. i. Lawyer should say ―I don‘t represent you, I represent the organization‖- Miranda analogy. ii. Can lawyer go to head of cash in corporation –the CEO and tell them what employee told him/ YES i. Yes, lawyer has no confidentiality duty to officer who told him. And this is why lawyer stops officer and explains to him that he is not a lawyer for officers ii. Can lawyer just stop the officer and not tell anyone? Or does lawyer have obligation to tell corporation? YES- must tell corporation 1. Rule 1.4(b)- explaining matters to client so client can make decisions pertaining to representations iii. Since lawyer owes no duty to confidentiality to officer, can lawyer call the press? NO 1. Rule 1.6- duty of confidentiality to corporation – this is information obtained during representation and relevant to corporation 4. 1.13(g) Lawyer is NOT prohibited from representing directors, but must use Conflict of Interest a. ―lawyer representing an organization may also represent any of its officers, e employees, members shareholders or other constituents, subject to provisions of 1.7 (COI). If the organization‘s consent to the dual representation is required by Rule 1.7 the consent shall be given by an appropriate official duty of the organization other than the individual who is to be represented, or by the shareholders‖ b. Ex: Hypo: officer comes in and asks lawyer to represent him. Use concurrent clients. If officer wants lawyer for private injury case- no COI, ok
c. Ex: Hypo: I am selling shares. Purchaser alleging fraud. Completely wrong. Can lawyer represent corporation and officer accused of fraud i. 1.13(g) says you can subject to 1.7 i. According to 1.7 – yes we do have COI- that there may be limitation to representation of one. ii. Yes significant risk of COI- b/c officer accused of fraud, corporation may be accused later to under circumstances. iii. Lawyer could take case, but if risk develops then lawyer needs to get out under 1.7(b)(1) b/c interests so diametrically opposed iv. Probably not a good idea to represent both v. Corporation might want to hire new lawyer for this employee1. So lawyer can represent both for possible joint offenses, but probably shouldn‘t d. Ex: Hypo: officer being investigated by government and gov subpoenaed docs and officer says its privileged. Issue will be whether the officer was represented by the atty for the corporation, the corporation may or may not have own privilege. Officer arguing privileged documents b/c representation by lawyer. i. Answer: p 563- will determine whether employee represented by lawyer. 5 prong test- look up 5. Partnerships- when lawyer represents partnership, does he represent general partners too? a. General partners- have partners to conduct business, liability unlimited b. Limited partners- put in some money, cannot conduct business, limited liability c. Lawyer doesn’t represent limited and majority finds doesn’t even represent general partners d. Ex: Hypo: lawyer represents entity. Entity is run and owned by 3 people. General rules is lawyer represents entity and not the people. However where lawyer works so intimately w/ owners/officers there is more of a risk and thus lawyer implicitly represents individuals i. Majority- even in closely held corporation 3 owners/directors and lawyer works intimately w/ them. Lawyer represents entity
Court can hold as matter of fact in certain circumstances lawyer represented individuals- will usually only be in closely held corporations 6. Wrongful Conduct By an Employee Rule 1.13 a. Rule 1.13 – deals w/ lawyer‘s obligation for corporate wrong doing b. 1.13(b) mandatory obligation to report up, unless lawyer finds it is not in best interest of corporation i. As to what is reported: lawyer ―knows‖ ii. There is no further duty, as soon as lawyer reports up, lawyer need to see what action/ results of report are- his only obligation is to report up i. Some critics find this too strict- we can work w/ client w/o mandatory reporting and clients wont talk to lawyers ii. Other critics argue it doesn‘t go far enoughonly triggered if lawyer ―knows‖ not if lawyer reasonably believes, etc. c. 1.13(e) ―if lawyer reasonably believes he has been discharged b/c of disclosure‖ – he must report up to make sure highest authority is informed of his discharge or his withdrawal i. If he is discharged or resigned b/c of his actions of under (b) or (c) he must report this up d. 1.13(c) – expands disclosure i. Lawyer can make disclosure regardless of 1.6 ii. Does 1.13(c) give lawyer any greater authority than lawyer already has under 1.6 YES i. Under 1.6 lawyer is permitted to disclose confidential information only when client has used lawyer‘s services ii. 1.6 does not let lawyer disclose whenever he wants, only when client has in effect drawn lawyer into net by using his services in furtherance of crime or fraud iii. Under 1.6 must be for crime or fraud that will injure someone else iv. 1.13(c) doesn‘t have that type of authority 1. Can disclose if highest authority refused to act 2. And lawyer feels will result in injury to corporation v. 1.13(c) permits disclosure where crime or fraud will injure organization itself iii. ―except as provided in (d) if,
i. (1) despite the lawyer‘s efforts in accordance w/ ¶ (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or refusal to act that is clearly a violation of law, and …‖ ii. (2) the lawyer reasonably believes that the violation is reasonably certain to result in a substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to organization‖ B. Sarbanes Oxley p. 489 1. The lawyer‘s ethics: Congress said that the SEC had to adopt rules regulating the professional conduct of lawyers who practice in front of SEC, and SEC developed rules regulating professional conduct of lawyers practicing in front of them. a. Defined very broadly ―lawyers who practice before the commission‖i. These rules affect lawyers for large corporations b. Broader reporting up obligation i. Requires lawyers to report evidence of material violation (complex definition) of securities law or breach of fiduciary duty or similar violation by corporation or any agent of corporation ii. Just needs reasonable belief c. Lawyer may have additional duties as result of reporting up d. Lawyer has permissive disclosure provision to commission under certain circumstances 2. Imposes restriction on government and how they go about their corporate affairs 3. Imposes tremendous net worth on corporations that require much more expense and time in carrying out activities 4. Some corporations have gone private so they are not subject to Sarbanes-Oxley a. C. Retaliatory Discharge 1. Ex: Hypo : Lawyer is in-house counsel and finds out company is making defective dialysis machines. Reports up and tells employer you better shape up. He is fired and then reports to FDA and he now sues for retaliatory discharge 2. Damages can be substantial
3. Background: this is in house counsel. If a whistle blowing employee is discharged AND that employee has an express or implied contract of employment that employee is basically protected. (lawyer or non lawyer) a. ex: assume express contract w/ tenure employment. That kind of contract will specify when the employee can be discharged- generally under one like this is for cause, and whistle blowing is not cause i. so lawyer can only be fired by terms of contract and disclosure whistle blowing is not cause b. ex: implied contract- I never had contract, but many documents that said if I performed satisfactorily I would enjoy long employment w/ company- and I wouldn‘t be discharged except for cause. And whistle blowing is not cause for termination c. at will employee- When employee does not have express or implied contract – either party can terminate at any time for any reason i. As TN case says, an ―at will employee‖ who is not a lawyer, most states have adopted retaliatory discharge doctrine– p.477 ii. ―At-will employee may NOT be discharged for: i. (1) attempting to exercise a statutory or constitutional right OR ii. (2) any other reason which violates a clear public policy evidenced by a unambiguous constitutional, statutory or regulatory provision‖ 1. if discharge ―in violation of public policy‖- too ambiguous must be evidenced by… 2. added b/c every time someone gets fired don‘t want them invoking thisa limit on employer‘s right to discharge 3. Must be anchored by something provable in a clear, regulatory, statutory or constitutional provision 4. so tort is called ―tort of retaliatory discharge‖ when employer discharges against public policy evidenced by provision 5. does a lawyer who is an employee have same right of retaliatory discharge action of an at will non-lawyer employee? a. NO- b/c lawyers are constrained by duty of confidentiality.
Lawyer has to testify what client said to him to prove his tort and this would be breach of confidentiality i. P 478 – will undermine lawyer/ client confidences and other rules will prompt them to make this disclosure – ii. would not tell lawyer anything b/c he would be whistle blower, w/ protection and would need to breach confidence to prove his tort b. This court (TN) rejects these rationales- if lawyer is permitted by state law or required to make this disclosure, lawyer should be protected from discharge. i. Lawyer can bring claim for retaliatory discharge when disclosure in compliance w/ ethics rules ii. Can lawyer in tort for retaliatory discharge case reveal confidential information- can he reveal what client and he said to each other? i. First cases that permitted lawyer to sue for retaliatory discharge said no, cannot reveal confidential information- thus difficult for lawyer to prove his case ii. Trend today 1.6(b)(5)- can reveal information… to establish claim or defense 1. Usually applies to fee fights 2. TN says also applies to retaliatory actions c. so Conclusions: i. There is right of retaliatory discharge ii. Lawyer can bring out communications that are confidential b/c of 1.6(b)(5) D. Mandatory to report other lawyer‘s misconducts sometimes 1. Ex: Hypo what if lawyer discloses her lawyer boss was not licensed and never took MPRE a. Mandatory to act b. That counsel be licensed is strong public policy c. Reporting lawyer is protected w/ retaliatory discharge d. In-house counsel doesn‘t always need to be licensed to represent corporation in particular jurisdiction- just need to give advice to client, cant appear in court 2. Rights of Associates Rule 5.2 a. (a) ―a lawyer is bound by the Rules of Professional conduct notwithstanding that the lawyer acted at the direction of another person‖ i. Lawyer is responsible for conduct even if acting at instruction of another
b. (b)‖a subordinate lawyer does not violate the Rules of that lawyer acts in accordance with a supervisory lawyer‘s reasonably resolution of an arguable question of professional duty‖ i. if arguable question, and you go to superior and says do it this way, you are protected as long as superior gives you reasonable solution for arguable question, if their order was unreasonable and you had to act under direct order – no matter , it is wrong ii. Reporting obligation is even tougher- do you have obligation to report- YES c. Ex: Hypo: when associate needs to report lawyers in firm are not complying w/ rules of ethics. i. Should insist upon compliance, otherwise you could get in trouble d. If associate is fired for insisting upon compliance w/ ethical rules, does associate have tort action for wrongful discharge? i. Yes if state recognizes this tort for at will employees for non lawyers ii. some states will not recognize this cause of action for an associate in a corporation but might for a law firm (ex: NY) CONTROL OF QUALITY: REDUCING THE LIKELIHOOD OF PROFESSIONAL FAILURE A. Bar exam 1. Quality control mechanism for getting admits to the bar 2. The theory is you must have a certain amount of knowledge to practice 3. The other quality mechanism is the inquiry on your character 4. Respect to admission to the bar and bar application you must be honest and accurate a. Ex: student, admitted that he had past criminal record, bar made an inquiry and decided that a significant number of years had passed and there was no problem w/ admitting him to the bar i. at one time if you had ―immoral sexual conduct‖ this was relevant to character- now not at all ii. people who have had psychological issues/other issues used to be asked about that, now stricken under ADA B. Transient Lawyers and Multi-jurisdictional Firms p. 562-565 1. Quality control for people who practice law in a particular jurisdiction in which they are not licensed
2. Lawyers who practice in a jurisdiction which they are not licensed a. Ex: JACKMAN - lawyer licensed in Mass. Moves to NJ and practices there for 7 years before being found out 3. Sanctions a. States have statutes that prohibit unauthorized practicing of law- persons who are not licensed to practice law in this state cannot practice law in this state- makes it a crime if they do b. Applies to lawyers licensed somewhere else and non lawyers c. Set forth penalties d. Usually make it criminal offense- misdemeanor- not felony usually e. P.585 other lists of decisions. Lawyer found guilty of practicing in violation of UPA statute and found to be guilty of misdemeanor 4. RULE 5.5 a. Rule 5.5(a) – (a) ―A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so.‖ i. a lawyer who practices in a state w/o a licenses violates ethical code of state in which she is licensed i. Ex: Jackman- he will be disciplined in Mass (where was licensed). He can be suspended or disbarred ii. Fee Forfeiture i. Ex: Jackman- his fee should be forfeited. He earned it, but earned it in violation of public policy in NJ b. 5.5(b) ―A lawyer who is not admitted to practice in this jurisdiction shall not : i. (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; OR ii. (2) hold out to the public or otherwise represent that the lawyer is admitted to the practice law in this jurisdiction‖ iii. a lawyer not admitted in to practice in this jurisdiction shall not represent that he is licensed to practice in this jurisdiction i. 8.5(a)- allows in Jackman for NJ to discipline him
How can this happen? He is not licensed in NJ, and 5.5(b) say Mass. Will discipline him. 1. Mass will be able to disbar him 2. NJ will be able to forfeit his fees and may be able to be prosecute him 3. NJ ethics might be able to have some- deny admission application to NJ bar for 1 year. Might say if you ever want to practice here for real we will hold it against you 4. Injunctions/ contempt of court for violating ethics rule? In NJ? iv. Both of these provisions were added at same time2002. how they will be enforced is unclear v. P. 464? SC purports to lawyers who sent advertises in SC b/c violated rules about advertisements, they got letter of caution c. 5.5(a) ― or assist another to do so‖ What about nonlawyers who do activities that relate to legal work? i. [Comment 2]- lawyer doesn‘t prohibit from employing paralegal and delegating functions so long as he supervises work and responsibility ii. [Comment 3]- lawyer can give advice to non lawyers whose work requires knowledge of the law (social workers, accountant) iii. Can give advice to non lawyers and tell them what law is and how they should approach 5. GEOGRAPHICAL EXCLUSION -What is the ―practice of law‖grey area a. In litigation generally, the question when you are practicing in a state in which you are not licensed to do so is to eliminate problem by being admitted in a case ―pro hoc vice‖- admitted to try this case b. Allows lawyers to practice all over country, admitted by court pro hoc vice for this event/ trial c. Possibilities where you cannot practice in state for which you are not licensed d. Biggest problem for transaction lawyer i. p. 565 there is still issues for lawyers in litigation who are licensed in 1 state and have legal activities in another state ii. Ex: have case in PA, but interview witness, do deposition in NJ, OR arbitration in NJ- but entire case would take place in PA
ex: transactional lawyer, go to MD to interview witness, there is no pro hoc vice to admit you to go do this, negotiate, draft a document, etc. iv. thus it is necessarily vague (as long as not set up ―practice‖) e. Limits on ―practice‖ i. Ex: Birbrower v. Superior Court p. 574i. Facts: NY law firm, representing CA business involved w/ another CA corporation. Contract between said must apply CA law. They travel to CA on a number of occasions, negotiate w/ other party, file a demand for arbitration in CA, interview potential arbitrators. Later deal is settled, against advice of lawyers. CA corp. client refused to pay NY and said fee forfeiture b/c not licensed to practice in CA ii. Held- Birbrower forfeits fee for part of work done related to CA activities ii. ―practice‖i. doing and performing services in court of justice ii. - giving legal advice, services, preparing contracts iii. ―In CA‖ – what about when lawyer was in state once or twice doing ministerial actions, argued fee was forfeited but at least 1 or two should give a de minimum exception. B/c literally if you give legal advice once, that is a violation = practice iv. is there de minimum exception? i. Here- not necessary to decided b/c there substantial ii. But court holds, mere fortuitous or attenuated contacts will not work v. ―In‖ What if not in state- send telephone, fax, text msg. i. Ex: What if lawyer in NY but communicated and practiced law many times this way, does fact lawyer never set foot in Ca mean that lawyer is engaged in practice of law 1. P 577- could mean yes. CA court said no matter if in state by computer 2. Birbrower set off shock waves- held the law means what it says. 3. ―practice‖ is broad definition.
4. ―in‖ is broad, can mean not even set foot vi. Might have de minimus exception vii. Arbitration transactions are not an exception viii. Reactions to Birbrower i. Movement for National Bar Admission Exam – where if admitted in one state, admitted else where 1. Idea we will cure Birbrower problem by this- everyone credited everywhere ii. Problems: 1. Some states are protective, restrictive. What about those who are already admitted 2. States have legitimate interest in testing for competence in OUR law, could this national test incorporate this? 3. As far as character- we want to make sure applicants meet OUR character test iii. Instead Model Rules were changed to permit certain activities that were allowed cross state to NOT constitute ―practicing law‖ in violation b/c w/o certifications f. All of issues identified by Birbrower still exist, but now exceptions carved out by 5.5(c) 6. 5.5(c) ― A lawyer admitted in another US jurisdiction and not disbarred or suspended from practice in any jurisdiction may provide legal services on a temporary basis in this jurisdiction that : a. (1) are undertaken in association w/a lawyer who is admitted to practice in this jurisdiction and who actively participated in the matter; b. (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction if the lawyer or a person the lawyer is assisting , is authorized by law or order to appear in such proceeding or reasonably expected to be so authorized‖ i. Pending proceeding, hasn‘t happened yet- will develop- where I expect I will be authorized to be the lawyer c. (3)
d. (4) just ahs to be reasonably related to your practice in a jurisdiction where you are admitted – VERY BROADbiggest exception 7. 5.5(d) a. (1)‖ are provided to the lawyer‘s employer or its organizational affiliates and are not services for which the forum requires pro hoc vice admission OR i. that is in-house counsel- can provide legal services to the employer even though are not admitted to the jurisdiction ii. They cannot misrepresent b. (2) ―Are services that the lawyer is authorized by federal or other law to provide in this jurisdiction‖ i. Lawyer is licensed by federal law. (income tax, bankruptcy) admitted to federal court, licensed for services in federal law- you can provide those services in a state. C. (shorter version of ―B‖ from above‖ . Regulate the control of the practice of law in a jurisdiction to person who are not licensed to practice in that jurisdiction 1. Transient lawyers- licensed to practice somewhere, but not in that jurisdiction a. Methods of control Sanctions i. (1)Unauthorized practice of law statute- make it a crime of various sorts, usually a misdemeanor ii. (2) fee forfeiture – lawyer has sued client for payment of fee, client says you were acting in violation of law- therefore fee is forfeited. A valid result if found lawyer practicing w/o license iii. (3) Rule 5.5(a)- can be sanctioned by state where they are licensed iv. (4) 5.5(b) and 8.5(a)- state where lawyer not licensed can apply disciplinary rules- doesn‘t make much sense. How can you discipline non-licensed lawyer in your state 2. What is the practice of law? a. If lawyer is in your jurisdiction, lawyer can advice to client about law in another state. b. Ex: I am lawyer in PA, client asking about validity of provision of will in CA. I am free to advise client as to CA law, and I am not practicing law in CA. it‘s when I go to CA there is a problem. When I am in my state, I am ok. Must be competent to do so, i. 5.5 (d) and (c) made a lot of exceptions for lawyer who practice elsewhere to practice in that jurisdiction
However a lawyer can still be engaged in unathroized practice of law if lawyer not engaged in exceptions of 5.5(c) and 5.5(a) c. 5.5(d) a lawyer who is admitted elsewhere, a lawyer can provide legal services if authorized i. Ex: lawyer only practices federal income tax. Are you authorized to practice federal income tax in any state i. b/c some other body is regulating it ii. or does it mean allowed to in any jurisdiction w/o being licensed in the state D. F. Unauthorized Practice of Law 1. Lawyers who are admitted elsewhere, but not licensed in this jurisdiction 2. Persons who are not even lawyer What about no-lawyers? People who have never gone to law school. To what extent can they practice law? a. A non lawyer who practices law in a UPL jurisdiction violates UPL- unauthorized practice of law 3. ―practice of law‖- very broad definition a. TX= giving advice or rendering services requiring legal skill or knowledge; doesn‘t just mean appearing in court b. Certain activities by non-lawyers clearly are practice of law: appearance in court, representing someone, usually prohibited. Some w/ respect to documents, can be viewed as the practice of law. Sometimes court sthough will create exceptions or exemptions b/c even though activity could be viewed as practice of law, are not b/c of public policy i. Ex: sometimes do not need lawyer for residential house closing (other people do the paper work) ii. Ex: brokers who do activities that could be viewed as practice of law, but ok b/c public policy law permits it iii. Ex: uncontested divorces. Would be practice of law, but for public interest court will permit it i. Oral communications necessary to fill in the blanks c. What will happen is organized bar will challenge any activity that could be practice of law (to knock out competition AND to protect the public as justification for enforcement activities) d. Public policy reason for other side: i. Cheaper for public ii. Also first amendment issues: you will have people who sell services online. Sellers of software have first amendment right to sell their stuff. Usually
doesn‘t violate UPL statutes to do so. Commercial seller s are protected by 1st am. i. Say not practice of law, b/c not advice ii. Now- more than advice. It is now a virtual conversation iii. This shows- paralegal might be not ok, software she uses might be ok iii. Sometimes state leg/ statutorily crafted things lawyers are only permitted to do. Then sometimes court find this not ok, b/c leg. doing something only exec branch can do i. Ex: public adjuster. Can go to someone who will negotiate w/ insurance company if you have fire, etc. Ind. Said ok, limited class of service competing w/ lawyers. Permits nonlawyers to practice law, we are only ones who do this. If we want this to be ok, only we as judges can do it- not legislature. E. E. Supervisory Respsonisbility p. 592 1. Lawyers supervising other lawyers and non-lawyers Rule 5.1 2. Rule 5.1(a) ―A partner in a law firm, and a lawyer who individually or together with other lawyers possess comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyer s in the firm conform to the Rules of Prof. Conduct‖ a. Some big firms have ethical professionals, meetings seminars, partners that just do ethical work b. What do small firms do? 3. Rule 5.1(b)― a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct‖ 4. Rule 5.1(c) ― A lawyer shall be responsible for another lawyer‘s violation of the Rules of Professional Conduct if: a. (1) the lawyer orders or, with knowledge of the specific conduct ratifies the conduct involved; OR b. (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action‖ c. Lawyer has responsibility d. Someone w/supervisory has a responsibility e. A lawyer can be held liable for those he supervises 5. Rule 5.3 Responsibilities regarding Non-lawyer assistant
a. Make sure non lawyer (paralegal) doesn‘t do anything a lawyer cannot do b. Ex: nonlawyer might breach confidence, lawyer must tell nonlawyer not allowed to c. 5.3 (a)-(c) tracks 5.1 6. Rule 5.2 subordinate lawyer a. If told not to do so, but do anyway- you violate ruled b. Exception 5.2(b) you are acting in accordance w/ supervisors command CONTROL OF QUALITY: REMEDIES FOR PROFESSIONAL FAILURE A. MALPRACTICE AND BREACH OF FIDUCIARY DUTY 1. -who is the client question 2. TOGSTAD V. VESLEY, a. FACTS: law firm minn 1980: she/p was paralyzed after a medical procedure. 14mths alter she had consultation with partner miller of the firm. After initial consultation, he said he did not think she had a claim but that he would talk to his partners about it. Attorney/d never called back. After the state‘s 2 year stat of limitations expired, the togstads/p brought a legal malpractice claim against miller for giving them erroneous advice and not telling them of the 2 year stat of lims. b. HOLD/ RATIONALE:-jury found miller committed malpractice and awarded over 600,000 in damages. i. -milller and his firm appealed.-Result: affirmed ii. -a retainer is not required for attorney-client relationship that may give rise to a malpractice claim. 3. -essential elements of malpractice claim a. (1) atty /client relationship: i. (a) Client reasonably believes lawyer is providing legal services or will provide legal services. ii. (b) Lawyer knows or should know of clients belief iii. crux of this is the provision of advice by attorney that he either knows or should know will be followed by the person to whom he provides the advice. This does not require actual retention iv. in Togstad p sought and obtained legal advice from miller. It was reasonable for miller to have expected p to have followed his advice, and they did. i. -as a result, for purposes of malpractice claim—an attorney/client relationship between p and d existed. b. (2) that the d acted negligently/breach of duty of care/ or in breach of k
What is the required standard of care? i. mere error in judgment is not malpractice ii. what an ordinarily prudent attorney would do before rendering legal advice in a case of this nature, minimal research was necessary here iii. if lawyer further specializes within the profession, he must meet the standards of knowledge and skill of such specialists 1. Ex: if giving opinion as to whether there is an action---then should at least check on hospital records, etc. you don‘t have 2. to give an opinion—you can turn it down. But if you do give opinion should check records and consult expert. 3. Togstad - was breach of duty of care, breach of ordinary care and diligence c. (3) that such acts were the proximate cause of the p‘s damages i. that but for the d‘s conduct, the p‘s would have been successful in the pros of their medical malpractice claim ii. generally ―but for‖ test. iii. Togstad- if he was not negligent, then she would have followed up with a suit and would have won d. (4) Damages i. if you did have a successful case then you were not damaged. ii. value of the case, likely range of recovery in her medical malpractice claim 4. Fraud: punitive damages -Breach of fiduciary duties: an alternative theory to malpractice (malpractice is breach of duty of care) a. conceptually you can breach fiduciary duty without breaching duty of care in rep the client. i. ex. If lawyer says I am your lawyer and you give him the info and then that lawyer discloses it to another. i. you don‘t really think about malpractice here. You think of it as breach of fiduciary duty to client. Violated 1.6. 5. 3rd parties as ―client equivalents:‖ 623-624:
a. Ex: hypo lawyer reps client a in making will. The purpose of will is to reduce tax to heirs. The lawyer messes up and ignored some basic tax laws. The heirs then sue the lawyer in malpractice. i. -the heirs are not clients. i. -some states would say-you are not client so he owed you no duty of care—so no malpractice ii. -but-the tendency is to say that if the lawyer had acted properly for the client-then these people would have benefited and their benefit was the whole point of the will. So court permit malpractice suit here. b. -just know that in some cases noncleints may be able to sue for malpractice such as cases in wills and opinion letters. 6. Vicarious liability 625-626: a. Law partners, like other partners, are responsible or each others professional failures within the scope of the legal partnership. b. Ex. If lawyer borrows money from client and does not pay back, the partners may be sued. Even though not supposed to borrow money---point is that the borrowing lawyer was obligated to tell his client to seek ind counsel and that loans should be secured. His failures to do so were failures of him as lawyer advising his client--i. b/c these failures occurred within scope of legal partnership, responsibility for his negligence was properly charged to his partners. c. If a lawyer over-bills---all partners liable even if did not know d. Liable for negligent supervision, had no system in place to id breaches of ethics, etc i. This is what inspires people to chose limited liability partnerships: the entity remains responsible for all partners but each individual‘s liability is limited. B. B. PROVING MALPRACTICE 1. use of ethics rules and expert testimony 626-629: a. p/former client has to prove d/lawyer either violated a duty of care or breached fiduciary or other duty b. generally call another lawyer, etc to testify as to what below standard of care c. some defaults so obvious that even a lay person can say so d. further, you may want to introduce ethics rules—so jury can take into consideration, etc.
e. Do you need an expert? i. YES- In many cases you will since the knowledge of standard of care is likely outside of jury‘s knowledge. f. Remember many malpractice, breach of fiduciary duty do not rest on violation of proff rule. But some do. g. Violation of rule is not per se malpractice/breach of duty of care: i. 3 positions ii. (1) majority: but most states say its relevant and is evidence of the duty of care if the rule had to have also been intended to protect someone in the position of the p. iii. (2) Some states says violation of rule is conclusive iv. (3) Some states say is rebuttable presumption 2. CAUSATION AND DEFENSES: 633-649: a. -is a ―but for ― test i. -in a civil transaction case the but for proff could be harder. Viner v. sweer case. b. -have to show either: i. -the p would have gotten a better deal if lawyer not negligent ii. OR the p would not have entered into the deal at all(the bad deal). c. PA rule: malpractice in pai. not to explain to a client basic legal principles that control a deal/involved in a settlement agreement and ii. the client is then hurt because the lawyer didn‘t explain those principles. iii. in PA cannot sue lawyer in malpractice on his advice on amount of how much to settle for. C. Malpractice (summary) 1. Elements: a. Atty client relationship b. Breach of duty of care c. Causation i. General rule for causation- has to be essentially in a broad sense that atty malpractice (breach of duty of care) caused damages. ii. ―but for‖ test- it was only b/c of atty malpractice that damages resulted iii. In civil litigation and civil transactional work iv. In criminal cases for causation – there is no causation unless the D proves that D was innocent of the charge
i. Ex: P. 641 D is charged w/ 2 felonies. He is represented by an atty, same one for both cases there are 2 separate trials. D tells lawyer, that there is a speedy trial issue- he is very educated about law- and says atty you should make that contention. Lawyer makes that contention and loses, he makes appeal on both cases. On 1 appeal gets reversed. On Appeal 2 lawyer forgets to make speedy trial point and conviction gets affirmed. Had it been made in each appeal, D would have won. (b/c same speedy trial facts issue for both cases and won on Appeal 1) 1. D sues lawyer for malpractice 2. Court says if you apply ―but for‖- it was atty‘s malpractice, D would have won. However, causation is determined differently in criminal cases ii. To prove causation would have had to prove actual innocence. 1. You were guilty, it was your fault that is why you are serving time, atty‘s malpractice may have contributed to you serving time, but if you are guilty real reason is you iii. D must at least show conviction is reversed or vacated before can go through w/ malpractice action iv. If the verdict is guilty, unless D reverses the verdict or proves actual innocence, we will not examine collateral issues v. In criminal cases 1. majority rule D must prove actual innocence in order to maintain malpractice actions 2. Minority rule- D must rule that his conviction was reversed or vacated before going on to malpractice action 3. Ex: US atty makes offer to D‘s lawyer that she will get transactional immunity if she testifies against other. Atty never tells D, she pleads guilty in plea bargain (if she pleads guilty, they will not prosecute her
husband different offer) . Gets light sentence. Thereafter she learns about absolute immunity offer, only reason I plead guilty was b/c of pressures of wanting my husband at home. She sues lawyer for malpractice about offer of transactional immunity, a. court says NO – you must prove innocence, you cannot here b/c you plead guilty. D. Damages 1. P. 651 2. Whether or not non-monetary losses are compensable (humiliation, etc.) E. Discipline (part D) 1. Dishonest and unlawful Conduct a. Ex: Warhaftig- lawyer uses client‘s funds in advance , violated 1.15 b. Ex: Austernc. FACTS: lawyer represents someone selling condos. Lawyer wants to close deal as soon as possible. Client reaches deal w/ purchasers. Lawyer knows that there will be an escrow account and clients will put $10,000 in escrow to fund whatever additional work needs to be done. Clients writes a check for $10,000 for escrow. Austern (Lawyer) and other lawyer of buyers will manage escrow account. Then client later tells atty – FYI there is no money in the escrow account. I made a worthless check to help a deal go through and gave it to atty who will manage this account. Austern doesn‘t tell anyone that check is worthless, keeps it, doesn‘t deposit it1 month later, Client gets $10,000 from another source and Austern does deposit check to open up legit account. i. – no one is warned, worked exactly how supposed to, but somehow found out that Client had worthless check and that Austern knew about it d. RATIONALE: Disciplinary proceeding against Austern i. Found liable ii. Sentence: public censure iii. Violation was 1.2(d) assisting client in criminal fraudulent act, client has given check he knows is worthless and permits the closing to go through and doesn‘t do anything to stop it and lets others assume there is something in account (note – this is most
relevant rule, however on exam be most inclusive as possible, best answer would list everything) he got check AND THEN completed the closing. i. Also could be 8.4(c)- violation to engage in conduct that is deceit, misrepresentation, fraudulent or dishonest 2. Acts Justifying Discipline a. Ex: inflating bills, making false state of material fact of law i. Violation of 8.4(c) ii. There is an ethical duty to report misconduct i. P. 841 lawyers can deceive other lawyers w/in own firm iii. 8.4(c) has no limitation about representation, any kind of deceit in lawyer’s private life too i. Note -4.1(a) has to be in course of representing a client (limitation) b. Ex: Tape recording telephone conversation lawful as long as 1 party knows it is being ok (federal law) i. Some states require both parties to be aware of taping for it to be lawful ii. Ex: lawyer tapes telephone conversation between lawyer and someone else, lawful under federal law, not under state law i. 8.4(c) violation? – b/c clearly deceit if lawyer asked if being taped and says no, or if lawyer says I am not taping this conversation ii. If no indication about taping- NOT deceitful, not misrepresentation iii. Is it dishonest? 1. Not a legal concept, it is an ethical, moral concept2. When you have a general word and specific words, you interpret general words as specific work- so heredeceit would = dishonest 3. Other opinions interpret dishonest to have different, broader meaning iv. HERE lawyer has violated state criminal conduct, whether ethical violations 1. Must interpret in context, here is it deceit, fraud- NO, no misconduct under 8.4 for narrow interpretation. Maybe yes for broad interpretation of dishonest
8.4(b) commit a criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness or fitness as a lawyer in other responses i. Here yes lawyer commited criminal act, but is it one that reflect adversely on lawyer‘s character, honesty or fitness? ii. One could argue – YES definintely if it is a criminal act it must iii. One could then argue –NO, there is a disticintion b/c if that were true rule would say that and not have to add that it must be criminal act adversely reflects… iv. So here- some could argue it did adversely affect lawyer‘s fitness iv. Ex: lawyer says to client, why don‘t you call X and tape conversation i. 8.4(b) yes criminal act, but lawyer didn‘t do it, but would be in conspiracy, aiding and abetting-0 but have to analyze based on adverse reflection ii. 8.4(c) yes dishonest iii. 1.2(d) yes violation v. Ex: lawyer taping conversation w/ someone else and didn‘t tell them. Act was legal under federal and STATE criminal law. So no criminal act. Which of any of rules would apply? i. 8.4(c) dishonesty (said ABA originally) ii. Then- ABA changed mind, as long as didn‘t violate state law and as long as lawyer didn‘t tell person that it was NOT being recorded, then it was oK,- no violation c. EX: prosecutors permit a witness to lie in court, or when prosecutors makes false charge against witness in order to get witness credibility to get info from D i. not allowed 8.4(c) ii. and something else? P. 683 about lying to tribunal 4.1? 4.3? 4.4? d. EX: lawyer calls trade association in order to get info, he is pretending to be doctor. i. bar association brings action and disciplined under violation of 8,4(c) ii. To what extent can lawyer use deceit to do undercover in pending lawsuit? i. 8.4(c) ii. 4.1(a)
iii. Prohibits false statements to 3rd party in course of representations . there is information that these rule will apply literally even if using the deceit to uncover info about ongoing or pending litigation iv. Oregon- it is not professional misconduct for lawyer to advise clients or supervise lawful covert activity - including use of misrepresentations lawyer thinks fraud will take place- can do when done for purpose of obtaining information which lawyer reasonably believes in good will show violation of laws v. Other states allow misrepresentation for public policy purposes e. EX: What if lawyer talking truthfully, but to entity employees that are represented i. 4.2 violation 3. Lawyer’s private life p.691 a. 8.4(c) and (b) can apply to lawyer‘s private life i. 8.4(c) can apply to drug use, business conduct, domestic violence (has been held to affect lawyer‘s fitness, etc- 8.4(b)) ii. 4.1 cannot apply b. How extensive should rule govern lawyer‘s private life? i. 8.4(c) and (b) are broad i. MA Version of 8.4 – forbids lawyer to engage in any other conduct that adversely affects his or her fitness to practice law 1. this language is in there b/c Mass doesn‘t believe 8.4(b) and (c) go far enough- we want it to apply to ANY conduct (not just fraud or certain crimes) ii. some states think these rules TOO broad b/c do not give lawyer any notice 4. Racist and Sexist Conduct- Sanction a. in course of rep client, is usually toward other lawyer b. Mostly seen in deposition b/c no governing officials there i. Conduct during deposition can be basis for going before court and asking for sanction 5. Defenses a. Free speech argument- can say whatever b. Doesn‘t have sufficient gravity for this sanction c. Ethics rules
Not many- only response was in 1990s [comment 3] to 8.4(d) ―a lawyer may not engage in conduct that is prejudicial to the administration of justice ii. Ex: lawyer says vial sexist conduct. Is this prejudicial to administration of justice? i. Narrow interpretation- must show some actual prejudicial effect, that deposition taking was affected ii. MAJORITY: Broad interpretation- is this the kind of conduct that is consistent w/ a sound system of administering justice. Conduct that is prejudicial to system of administering justice, no need to show adverse affect- is this conduct good for system? Can judicial system tolerate it ? 1. HERE_ no iii. So 8.4(d) doesn‘t seem to apply to lawyer‘s private conduct, (only 8.4(c)). This conduct must interact w/ judicial system in some way. iv. W/ respect to racist and sexist conduct, [comment 3]- lawyer who ―knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic statue violates ¶8.4(d). when such actions are prejudicial to administration of justice – very broad, can include racist or sexist conduct. Protected category is very broad. d. Rule 3.5(d) ―lawyer shall not engage in conduct intended to disrupt a tribunal‖ i. Must you show actual intent- no, just show disruptive conduct e. Failure to report misconduct p. 700 Rule 8.3 i. Rule 8.3 requires lawyer to report misconduct of other lawyer ii. ―(a) a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer‘s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority‖ iii. Lawyer must ―know‖ – protecting lawyer, otherwise would say ― lawyer who reasonably believe‖ iv. Lawyer must report to someone who will investigate it v. Mandatory obligation to report
i. Mandatory not permissive. Mandatory b/c lawyers reluctant to report friends, partners, etc. ii. Georgia- says a lawyer ―should‖ , not mandatory there vi. The violation must raise a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer i. Ex: lawyer goes to party and sees lawyer friend selling drugs. Must he report? 1. 1) is there a violation of professional ethics by selling drugs a. a) 8.4(b) – lawyer has engaged in criminal act that affects adversely on their honesty, trustworthiness, or fitness in other respects to practice law ii. ex: lawyer lied on application, must you report 1. 1) ethical violation- yes violation of 8.4(c), however 2. 2) does this raise question about his honesty, trustworthiness, fitness as a lawyer under 8.3(a) to mandate reporting??? Maybe, maybe notdeceitful prob about trustworthiness iii. Ex: lawyer missing statute of limitation 1. 1) violation – yes, kind of violation of 1.1 competence a. This is very broad, and usually doesn‘t apply to one mistake, usually need pattern of misconduct or aggravating circumstances b. 1.4 (b) violation- must inform client to make decisions 2. 2) must you report under 8.3(a)prob not f. 8.3(c) rule does not require disclosure by a lawyer or judge while participating in an approved lawyers assistance program i. If you come by information from a client, the obligation to report doesn‘t apply to information protected by 1.6
If you come by information and client tells you and client says- don‘t report it- you are off the hood, don‘t have to iii. (examples from above are about lawyer learns on own) iv. Ex: Himmel- lawyer learns that prior lawyer had embezzled money, lawyer goes to him and says, settle for this sum or else I will go to authorities i. Ill. Bar discipline lawyer that offered deal, suspended for year, b/c if there is an obligation to report under 8.3(a), you must report it ii. Issue here was since info derived from client, did he not have disclose under 8.3(c). court said no. iii. under 8.3(a) mandated to disclose MARKETING LEGAL SERVICES A. Defining the borders: Advertising- communication that you direct to population at large, offering legal services or letting them know your legal services are available 1. Anything that offers your services, saying I‘m available 2. Can take place through websites- lawyer putting info out there; more common now 3. Yellow pages, television 4. Governed by rule 7.1 and 7.2 5. At one time advertising considered a violation of Rules 6. Now change a. Ex: Bates v. Bar of AZ (p.801)- lawyers advertised ,disciplined by bar, appealed to Supreme court. Supreme court removed this ban on advertising i. Advertising is commercial speech and thus entitled to constitutional protection if it is nondeceptive ii. Deceptive commercial speech is not entitled to protection iii. Non-deceptive commercial speech is entitled to limited constitutional protection iv. Difference - Ex: someone who manufacturers competitor to florescent lights and advertises that florescent lights are bad for your health- this is commercial speech. If person just screams it out loud on street corner, even if wrong- noncommercial speech, protected by first amendement free speech v. Commercial speech- done to promote a purpose i. given less protection
b. c. d.
e. f. g.
ii. speech that proposes a commercial transaction iii. difference between commercial and noncommercial 1. deceptive non-commercial speech generally not prohibited b/c protected by first am. a. Ex: florescent lights harmful to your health – false statement, made by individual – free speech. Protected 2. deceptive commercial speech a. could be prohibited b. Ex: from above but said by competitor, said as deceptiveprohibited different constitutionally what is permitted some state bars had banned it, then US S Ct. gave limited protection, so then state bars put in limiting regulating rules rule 7.1 a lawyer shall not a false or misleading communications about the lawyer i. if deceptive, banned by 7.1 rule 7.2(a) i. advertising ok ex: statements that are untrue- violation of 7.1 ex: misleading- lawyer advertises and says, in past year my practice I had 10 cases where the recovery was over $5million (statement is truthful) but arguably misleading i. comment 2- sounds like every case you‘ll have shot at 5million recover 1. ―truthful statements that are misleading are also prohibited by this Rule a truthful statement is considered as a whole not materially misleading…‖ ii. comment 3- to protect from truthful misleading- write in disclaimer like ―results not typical‖ 1. some states require this disclaimer be very conspicuous iii. comment 3 also- making a statement of fact may also be mislead 1. ex: best lawyer in Philadelphia. 2. it is a comparative statements and now way for a consumer to
determine whether they are best trial lawyer or not 3. ex: Connecticut ―maximum money minimum time‖; ―my firm has been very successful‖ ―get the results and service you deserve‖ ―my firm got highest jury verdict ever‖- all struck down, as misleading 4. ex: ―highest Martindale Hubble rating‖- bar and district court said no, b/c said this was something consumers couldn‘t verify b/c they couldn‘t understand criteria. Eventually won at circuit court 5. ex: Pa – ―the everything lawyers‖no, if meant that you would have to handle al types of cases. Since need so much legal training for any type, verification of this claim impossible, struck down 6. ex: lawyers who construct website w/ metatab. Can search words and lawyers on ―google‖ and can get their firm or just typing in anything on browser 7. ex: domain name cant be false, don‘t have to use name of your law firm 8. ex: website- if you put up advice, could get sued for malpractice b/c person could say this is legal services to. Same thing w/ responding to someone‘s email. h. 7.2 Advertising – subject to 7.1, lawyer can advertise services i. 7.2(b) a lawyer shall not give anything of value to person for recommending the lawyer‘s services (so no runners) except: 1. (1) pay reasonable costs of advertisements or communications permitted by this rule a. Ex: internet plan. If pay 1 time fee, or year fee- then ok b. If person gets share of your fees, is this permitted under 7.2(b)(1) as reasonable cost of advertising or is this
paying someone to recommend you. Must determine is this a listing like yellow pages or are you paying someone for referring people to you (ex: vault.com) – can also get you in trouble w/ 1.5(e) 2. (2) payer usual charge of legal services plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral… 7. Non-deceptive commericial advertising a. Regulation must be for a direct/substantial governmental objective b. Regulation must advance that objective c. Regulation cannot be more than necessary to protect government purpose d. Applied to legal advertising i. Ex: Zauderer (p. 811) – lawyers advertise and they handle dalcon, a medicine which ahs severe personal injury problems. We handle them,(i.e. if you took dalcon, come see us) this is advertising, not solicitiation, directed to public at large. Not specific individuals 1. Ohio take- regulation of truthful advertising – we represent people who took dalcon, question is nowthis is example2. where state of Ohio, believe lawyer should not run ads that give legal advice about a specific legal problem. B/c it is too difficult to police and we want people to be protected from bad legal advice 3. only way to protect people from bad legal advice in adds is to ban ads that given any legal advice 4. US S Ct asks is there substantial governmental purpose that this ban directly serves/ a. Court says NO b. b/c when you get add, it is writing, a form that can be monitored and no need for
prophylactic rule intrudes too much of freedom of speech right ii. ex: what if put specific advice about legal problem- this is electronic advice. Is there thus a difference between electronic advertisements than written? Could state ban on electric ad ok? 1. electronic stuff comes and goes, not in writing which can always be checked 2. state could probably say- look we cannot possibly monitor every statement on websites for accuracy, therefore we should ban then even though we do not ban written statements 3. is this too broad- couldn‘t state say, must put everything online in writing? But how can we trust people to do this? e. It is hard to regulate non-deceptive commercial speech. i. Cannot come up w/ generally worded ban on something tasteless b/c will violate constitution ii. Ex: cannot have state laudatory statements – iii. Ex; cannot appeal to likes/ dislikes of person iv. Ex: advertisement must be presented in dignified manner B. Solicitation- addressed to a particular person offered to represent them in a particular matter 1. Ex: when hear someone on golf course, and say hey let me help you with that matter 2. Governed by rule 7.3 3. Say to someone w/ cause of action- employ me 4. Ex: PA you cannot have someone that portrays client or nonclient w/o saying it is dramatization. Non-lawyer shall not portray a lawyer in any publication or communication – b/c deceptive (think this is who you are getting) 5. p. 805 Orelock- 2 young women injured, he solicits both (one in hospital, one at home) they agree then back out, he wont let them. He argues commercial speech a. Ohio bar says no unwanted solicitation of clients b. US S Ct upholds Ohio bar,-not matter of fraud or overreaching. P808 – situation where lawyer has powers of
persuasion, instead of suffering from injury, they just need to show that state has banned any in person solicitation b/c lawyers have power of persuasion 6. A. 2? Shapiro p. 818 targeted mail- have foreclosure suit filed against many, Shapiro sends letter to them, KT bar says cannot solicit business by sending untruthful letters to client. US S ct throws out KT bar rule. a. S Ct says written solicitation by letter cannot be prohibitively banned. Distinction between written solicitation and person solicitation (which can be banned) is b/c in personal solicitation is not conducive for people to make up own minds, while written people can view at leisure and make up own mind about 7. Rule 7.3 – a person may not by in person, live-telephone real time electronic contact (IM, chat room) solicit professional employment…. Unless person has some familial tie w/ lawyer when lawyer‘s motive is pecuniary gain a. Not pecuniary gain- can solicit contacts when idea is for public interest C. ConcernS 1. Marketing communications by lawyers a re commercial speech and are entitled to protections of commercial (less protection than non-commercial speech, commercial speech invites a commercial transaction) a. Ex: case where tobacco companies distributed leaflets on why tobacco not dangerous. Leaflets didn‘t identify any company, just said tobacco not dangerous. FTC moved against publisher on grounds speech deceptive, tobacco companies said it wasn‘t deceptive but even if it was, it is free speech not commercial speech- and thus FTC couldn‘t regulate on grounds of deceptively (only can if commercial speech) i. did it invite commercial transaction- don‘t know, suit settled b. marketing communications by lawyers are commercial speech c. banned before bates d. bates i. if deceptive, can be regulated ii. up to states to determine whether or not want to regulate, adopted rule 7.1 which makes it unethical for lawyer to develop deceptive communications i. 7.1 prohibits deceptive speech about lawyers‘ services ii. Ex: Fl lawyer‘s advertise as ―the pit-bull lawyers‖ not allowed. FL took action against
it, and court upheld sanction on basis of deceptively b/c said hard for consumers to 1. 1- evaluate if these lawyers have characteristics of pit-bull (better than other lawyers?)- cannot be objectively verified 2. Note- originally what was prohibited was ―Statements not related to an objective basis for selecting a lawyer‖- much broader, e. Non-deceptive commercial speech is ok i. But can have state regulation- 3 prong test? D. Direct In person solicitation 1. Ex: I want to be your lawyer, here is my car 2. S Ct. -A state can prohibit it though b/c pressures brought on perspective client, lawyer‘s powers of persuasion.- so state bar associations can prohibit truthful in person solicitation 3. 7.3(a) a lawyer shall not by in person, live telephone or real time electronic contact engage in solicit employment when a significant motive is lawyer‘s pecuniary gain, unless person contacted is a lawyer or has a prior relation w/ lawyer a. Might be challenged b/c IM is not the same as in person solicitation (not as much pressure) and S Ct. has only ruled on in person contact 4. A state MAY ban in person solicitation, if there is legitimate state purpose in doing it- doesn‘t have to a. Ex: VA does not b. One or 2 states do permit in person solicitation 5. Do sometimes have issue under rule 7.3(a) what is ―solicitation?‖ a. Brochures and booth at church bazaars- allowed? Ohio opinion said not solicitation if lawyer is in booth and brochures can just be picked up. Yes solicitation if lawyer handing them out b. For state w/o amended 7.3(a)- ask whether chat room solicitation yet E. Zabauer- advertisement to general population which gives general advice about a legal problem 1. One time banned. State purpose that people wont get erroneous or incorrect advice. 2. Court said was ok, no more ban F. Targeted mail 1. Shapiro –lawyer sends out letter to people. To people he knows has a legal problem/issue/ case. You know they need legal services, direct mail to them. a. S ct. said that targeted mail is not like targeted solicitation, b/c people have opportunity to reflect.
b. State regulation does not pass 3 prong test c. State cannot ban it but can impose reasonable regulations 2. 7.3(c) every …. Shall include the words ―advertising material‖ – general rule about targeted advertising.. cannot solicit by in person except in certain categories a. PA doesn‘t have 7.3(c) 3. 7.3(b) – even if in protected category, still cannot solicit if told not to do so person you are soliciting G. These are all non-deceptive speech examples 1. Oralux- can be banned 2. Zauder 3. Shapiro a. Wentforth p. 825- FL rule had 30 day ban on soliciting injured persons. Said reason was b/c regarded as deplorable and beneath common decency. So cannot solicit accident victims in first 30 days b/c impairs public perception/ reputation of lawyers. S Ct said it was ok regulation b/c for brief period. i. How does court know that this conduct would impair lawyer‘s reputation? i. State is required to introduced to evidence to establish this (polls, surveys) b. New Mexico case- regulation that banned solicitation of personal injury clients. S Ct. said not allowed. FL would be ok b/c temporary, permanent ban not allowed c. Maryland- banned lawyers communicating w/ potential criminal defendants for 30 days i. Court said no- not same detriment to legal profession when lawyer contacts potential criminal defense client as when lawyer contacts personal injury client d. Iowa- must be carried out in dignified manner. H. Defamation against Lawyers 1. Ex: lawyer makes ad defamatory statement about someone (witness, other party) at press conference- want to sue lawyer 2. Absolute privilege from defamation in legal proceedings if covered by privilege, cannot sue a. Judges and lawyers covered b. Statement in question must be relevant to proceedings. c. So what is clearly covered in scope of trial, and lawyer makes defamatory statement and party wants to sue, but if made in court- no claim 3. Issuesa. When you go away from statement in court to documents filed in court, you try to see if privilege extends or not
b. Statements made before/after proceedings. Statements to 3rd parties w/clients/ w/ witnesses c. Press statements are generally NOT protected d. Lawyer asked about complaint statement. Lawyer mailed it to reporter. Mailing made statement subject to suit for defamation – took out of court proceeding XIV. FREE SPEECH RIGHTS OF LAWYERS A. Rule 3.6 deals w/ lawyers‘ statements about trial 1. US S Ct decision dealt w/ rule 2. 3.6(a) Rule now- a lawyer who is participating in litigation shall not make an extra judicial statement that lawyer knows or reasonably should know will be disseminated and will have likelihood of…‖ 3. No statements to press if statements will have likelihood of materially prejudicing proceeding 4. Ex: Ira Einhorn- lawyer quoted about everything, basic framework is you cannot make statement that would… B. 3.6(b) not withstanding- limited exceptions C. 3.6(c) not withstanding = loop hole, can make statements to counter act prejudicial affect of recent publicity