Lecture Topic: During the lecture, take notes here. o Basic Overview Model Rules of Professional Conduct is what is followed in most states Vast majority of states have adopted the rules in a very similar manner (but not exact) Who makes the rules? Judiciary makes the rules, not the legislation Professionalism There is a movement for professionalism codes, but it is too subjective to enforce o Is there a lawyer/client relationship? Restatement §14: Formation of Client-Lawyer Relationship: A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonable should know that the person reasonably relies on the lawyer to provide the services; or (2) a tribunal with power to do so appoints the lawyer to provide the services. Togstad v. Vesely T is hospitalized with an aneurism. T's wife come to visit and finds out that T is severely injured, cannot talk, etc. Might be some medical malpractice. Fourteen months later, T's wife goes to a lawyer and no fee is ever discussed. The lawyer tells the lady she doesn't have a case. T's wife goes to a second lawyer and gets information from a hospital (what the first lawyer should've done) and determines she had a decent case, but Statute of Limitations have no expired. T's wife then sues the first attorney for malpractice; uses the second lawyer to sue. First lawyer defends by stating she was never the client. Never charged a fee, paid a fee, signed an agreement. How does he owe her a duty? First court held that they owed a duty of care When do you owe someone a duty of care? Gave her legal advice knowing that she'd reasonably rely on it Is someone a client? One test is do you have reason to believe that the client will reasonably rely on your advice? Togstad Do you have reason to believe that they will reasonably believe it will be held in confidential? What if someone pays you to represent someone else? The client is the son. It is the client who the lawyer owes the duty, not the parents. What do you do to protect yourself from getting confidential information that you do not want? Put a disclaimer on the website. Something like "nothing on this website renders legal advice." But even then, it may not work o Elements in a Relationship
Competence MR 1.1 (pg. 29) - A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Standard to which you are held Required proficiency is that of a general practioner and expertise in a certain field of law may be held to a higher standard Can you take a case in which you are not familiar with the field of law? A lawyer may represent as long as the lawyer through necessary study feels like they can represent them client Can you charge the client for the extra preparation? As long as it is reasonable and the client knows that there may be more, you should be able to charge for your learning time Confidentiality MR 1.6 (pg. 75-76) 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) Information related to the representation, not just what the client tells you. Can be information you learn from a witness, cannot disclose it There is no time limit. Even after the representation is over, cannot disclose anything Rule 1.6(b) (1, 2, and 3) are public policy exceptions which permit disclosure. Permit disclosure when permitting the disclosure is more important than the interest in preserving confidentiality Rule 1.6(b)(1) To prevent reasonably certain death or substantial bodily harm Must be prevention. If something has already happened, cannot use this privilege. Consequences of Breach of Confidentiality Attorney-client privilege – rule of evidence – relates to judicial proceedings only – certain evidence might be relevant but adversary is not able to inquire into it because there is a greater public policy – same as husband-wife privilege or priest-person privilege Attorney-client – communication from a client to a lawyer should be protected because we want people to be able to talk freely with their lawyers The privilege only becomes relevant in a judicial proceeding – so when a lawyer is asked by a reporter on his client’s position, the lawyer should not use this privilege but instead say they are barred by ethical provisions of confidentiality
Elements of the Privilege – communication by the client to a lawyer made in confidence for the purpose of obtaining legal advice or assistance 1) Communication – Oral or written including email Covered is the communication and NOT the underlying facts – so if the client writes to the lawyer about the cash flow of his company during the acme negotiations – can ask about underlying fact but actual communication is privileged 2) By a client to the lawyer – Applies to actual and perspective clients Covers communications to the lawyer’s agents (anyone acting on behalf of the lawyer, then privileged) Does it cover communication learned by the lawyer from third party witnesses? NO, not the client – only covers communications made by the client The Rule 1.6 confidentiality rule is much broader in terms of what it protects – protects information relating to the representation However for privilege to apply must be a judicial proceeding and only what client communicates to lawyer What attorney learns from third party witness may be protected under 1.6 or work product rule Does the protection cover what the lawyer says? It is not necessarily covered but at a minimum what should be protected is what the lawyer communicates back to the client where that information reflects what the client said Only protected if what the lawyer said would reveal what the client said in the beginning 3) Made in confidence – If not made in confidence, then not privileged Issue where lawyer interviews client and with her daughter – no privilege because not made in confidence because they were made in the presence of someone not needed to facilitate the communication Ex. of client tells lawyer that the witness was drunk – not privileged because not in confidence but lawyer still cannot say anything because it is still under 1.6 confidentiality because it relates to the representation 4) For purpose of obtaining legal advice or assistance – Example – client prepares a timeline for lawyer so that the lawyer can better protect client in lawsuit – this is privileged communication On the other hand, if you already have a timeline prepared for other reasons – this is
discoverable because it was made before the lawyer came into the picture Does not apply to communications or documents that occur prior to the lawyers being involved What is protected is documents or communications made to the lawyer for the purpose of obtaining advice or assistance Does not protect business advice – only legal advice or assistance If it is mixed business and legal – then presumably the dominant advice controls Duty is Owed To Generally, duty is owed to former, prospective and current clients Organizational clients Communications from agents of an organizational client are within the evidentiary privilege and therefore within the duty of confidentiality if two conditions are met: 1. Information communicated is treated as confidential within the organization 2. It is communicated to the lawyer so that the lawyer can give advice or counsel to the organization To What Does the Duty Apply? Duty of confidentiality applies to "information relating to representation of a client" MR 1.6(a) To be protected, information must come from the client or the client's agent Exceptions to the Privilege Consent Client may give informed consent to disclosure of information that would otherwise be protected(1.6(a)) Self-defense Three categories To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client Normally a fee dispute To establish a defense to a criminal charge or a civil claim against the lawyer based upon conduct in which the client was involved When the lawyer is a defendant n a criminal suit To respond to allegations in any proceeding concerning the lawyer's representation of the client
May use information in selfdefense
With reference to the aforementioned categories, lawyer must disclose only facts necessary to defend and only to individuals who need to know Future crimes, frauds, and harms - MR 1.6(b)(1) Lawyers may reveal confidential information to prevent future crimes, frauds, or harms by clients. When a client reveals a past crime or fraud, that information is protected by the duty of confidentiality Collection of fees Waiver of the privilege – important area The lawyer cannot waive – it is the client’s privilege How do you waive? – you can waive something by putting a matter in issue – ex. acted in good faith because of what my lawyer told me
Agency Acts of attorney bear on the client. Lawyer is the agent for the client Taylor v. Illinois Facts: Taylor's lawyer purposefully doesn't identify a prospective witness. Witness isn't allowed. Taylor is so upset with this since he wasn't the one who did this and wants the witness to be used. Majority - no, lawyer has full authority to manage trial. Doesn't care what client thinks, lawyer is at fault Fiduciary Lawyers have a fiduciary duty to a client. There’s a relationship of trust and confidence. Cannot act in a manner inconsistent with this trust and confidence There’s no actual rule stating this either. L’s are not disciplined for violating a fiduciary duty. But there is an action for breach of fiduciary duty that can be brought Fiduciary duty is different from malpractice. Malpractice: L did not exercise level of confidence that a reasonably prudent L would do. Only can receive out-of-pocket damages. Even if there were no out of pocket damages you can also be sued for your failure to act as a fiduciary for your client. Perez Coca-Cola Case. Driver for Coke hits kids at intersection. Ls for Coke go to truck driver and tell him they are representing him. They then get him a new lawyer and give their information to the DA. He cannot sue them for malpractice because there were no out of pocket damages.
He sues under breach of fiduciary duty. They broke confidences. He recovers under breach of fiduciary duty – mental stress damages are available. Loyalty and Diligence No specific rule that governs loyalty and diligence But loyalty and diligence form the Rules 1.7 and 1.9 Diligence Under 1.3, lawyer should act with reasonable diligence and promptness representing a client File deadlines, do what is necessary to pursue the case Usually requires a course of conduct to produce an action against the lawyer Cannon 1908 (pg. 65, casebook) Entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability, to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No duty of zeal, has been relegated to a comment and its qualified by saying that the lawyer is not bound to press for every advantage Professor makes of this that there has been an attitude change. In the old days, they would push for every positive thing they can get for their client. That concept has changed and now the lawyer is not pressed to push for every advantage
Duty to Inform and Advise Rule 1.4 MR 1.4 - Communication (a) A lawyer shall: (1) promptly inform the client of any decision or
circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3)keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation Communication
Communication duty is critical to maintaining a quality lawyer-client relationship. Shared decision-making Lawyers and clients must share decision-making responsibility. They have the knowledge the layperson does not have. Autonomy of Attorney and Clients The Lawyer's Autonomy Rules Rule 1.2(a) Lawyer shall abide by client's decision concerning the objectives of client's decision Settling (client has right to make decision to settle) Rule 1.4(a)(2) Accept the Offer 1.2(a) again, must let the person decide, but I'd make sure they knew of the consequences, past stories, etc. before I let her accept The Client's Autonomy Rule 1.14 sets certain guidelines for dealing with client with diminished capacity Hypo - Someone comes in to discuss making radical changes to a will. (a) When a client's capacity to make adequately considered decisions in connection with 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 with the client. Comment 3 - When someone is dealing with someone of diminished capacity, it is ok to have family around to help. But you have to remember who your client is. Also, there is an issue if something is made in confidence; but if it is made in front of others, the privilege may be waived. Attorney knows client is under diminished capacity (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. Comment 5 - May talk to other people to get information so you can make a better decision on how to go
Consulting with family members, using a reconsideration period Comment 6 - Make a decision after looking at the factors that are applicable (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. When you are talking to others, you are not violating 1.6 as long as it is for the protection of the client. Terminating the Relationship Termination by Client May fire the lawyer pretty much at any time for any reason But three caveats Lawyer who is an employee, there are statutes that deal with and say employees are protected from being fired for certain reasons (gender, race, etc.) Indigent defendants cannot fire their lawyers for not liking them Can ask the judge to fire the lawyer, but the client themselves do not have the right Courts won't allow firing lawyers too close to trial or for delay purposes This applies to a case where the client has money, but client wants a postponement and decides to fire his lawyer so he can extend the trial Some cases, judges might say this is being done for delay; others may allow it Fees Questions needed to be asked Is the lawyer entitled to fees With cause or without cause? Assuming a right to the fee, how does the lawyer protect that right? Charging lien (lawyer has the right to a fee from a case in which the lawyer has been discharged, the lawyer has a lien on the proceeds of the case to the extent which the lawyer is owed If you have this, as his former lawyer, you write a letter to the new lawyer stating you have a charging lien. Must notify the other lawyer or someone who will get in the possession of the money Retaining lien Do not have to give any papers to the client until you get paid.
A lot of states do not recognize this lien; very coercive Very inconsistent with the concept the client can fire the lawyer If client fires the lawyer, is the lawyer entitled to a fee? Firing must be without cause (cause means good reason) If it's on an hourly basis, the lawyer will get fees on the amount of fees put in If on a contingent fee, the lawyer gets fees on a quantum meruit basis Whatever the court believes you deserve (normally determined after the case) If the lawyer is fired with cause States vary Some say if fired with cause, you forfeit your fees. Others say you do not forfeit anything
Termination by Lawyer Lawyer's right to get out of the case is by 1.16 1.16(a)(1) is Mandatory Withdrawal If you have begun to represent a client and the client is involved in the shady scheme to defraud a business. Lawyer finds out that the documents are not legitimate. The lawyer still wants you to represent him, but you have to get out (1.2(d)) 1.16(b) (1) Absolute right to withdraw unless it will materially and adversely affect the interest of the client Problem with this, it might always adversely affect the client (2) Can withdraw if the lawyer reasonably believes is criminal or fraudulent (3) Client uses the lawyer's services to perpetrate a crime (4)-(7) - Can withdraw even if it adversely affects the interest of the client if your reason falls into 4-7 (4) Client insists on taking action which the lawyer believes is repugnant or there is a fundamental disagreement There is room for considering the lawyer's moral beliefs (look at 6.2(c)) (5) Client doesn't fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled One of the two major reasons for withdrawal Happens when fees aren't paid (6) Representation will result in an unreasonable financial burden (7) Other good cause Termination by Drift When does an attorney's representation of a client end? 1.3, Comment 4
There are times in certain circumstances where the client can assume he represents the client If client is reasonable in that belief, there is an attorney/client relationship Communication With Another Lawyer's Client Communicating With Represented Persons Lawyers are prohibited from communicating about the subject matter of a dispute with represented opposing parties without first obtaining permission from the opposing party's lawyer. Opposing parties may communicate with one another without offending MR 4.2, as long as the lawyer did not instruct the client to do so to circumvent the rule Who is an opposing party or person? Mere witness - 4.2 does not apply to witnesses since they are not involved in the litigation Organization parties - Cannot speak with employees with managerial responsibilities for the subject of the matter, employees who acts or omissions may be imputed to the organization with respect to the matter, and employees whose statements may constitute an admission attributable to the organization (Comment 7) Former employees - Not parties under 4.2 Obtaining permission Lawyer may communicate with an opposing party about the subject matter of the representation as long as the opposing party's lawyer has given consent Communicating With Unrepresented Persons Although not prohibited, lawyers are restricted in what they may say to such a person - Rule 4.3 Must avoid misleading about the lawyer's interest Affirmative duty - Lawyer is under an affirmative obligation to refrain from stating or implying that the lawyer is disinterested in the matter about which the lawyer is communicating. Clarifying duty - When a lawyer "reasonably should know" that an unrepresented person misunderstands the lawyer's interest in the matter, the lawyer is obliged to make reasonable efforts to clarify his role Giving Advice Lawyers are prohibited to give advice to unrepresented person except to advise the person to obtain counsel Criminal Manners - Improper Acquisition of Privileged Material 8.4(c) is a general prohibition of deceitful conduct by a lawyer involving dishonesty, fraud, deceit or misrepresentation Three of these phrases are defined Fraud, deceit and misrepresentation Dishonesty is not defined. Courts can read a lot into this definition.
Rule 4.4(b) - Lawyer who receives a document and knows or should know that the document was inadvertently sent shall promptly notify the sender Doesn't have to be privileged information, just anything that you know shouldn't be produced Can you use the information? Up to state law. Normally up to the lawyer and his professional judgment. Client wants to send a fax to the lawyer asking for advice on something relevant to the lawsuit, and the fax somehow gets to the lawyer from the other side. First, under 4.4(b), must notify the sender that you have the document. Next, can the attorney use the document? May defer to the state's definition Some states hold that the privilege is always waived even when material is produced inadvertently Some states hold that the privilege is never waived even when material is produced inadvertently Some states look at the facts of each case and looks to see how the person has tried to keep facts disclosed Metadata Contains information that is not apparent from the face of the electronic document Can the other side "mine for metadata"? What is the issue under 4.4(b)? Not talking about a document that was sent inadvertently ABA doesn't rule on it, but they think there is a strong argument that 4.4(b) doesn't apply ABA doesn't have a problem with stripping the document for metadata; but other states say there is a problem under 8.4(c) (bad or dishonest conduct) Financial Legal Services Rule 1.5 - Fees - regulated for their amount and their nature Reasonableness standard - Under 1.5(a), the fee must be reasonable. Look at a number of things like time and labor, fee customarily charged, amount involved and the results obtained. Though preferred, not required that there is a written contract sets the fee 1.5(c) - Contingent fees Most cases allow the recovery of a contingent fee Criminal cases and certain domestic cases bar the use of contingent fees Writing and terms Contingent fee agreement must be in writing and must be signed by the client. Must show why the fee will be calculated the way it is and which way the deductions in expenses will be used. Ending statement Lawyer must provide an ending statement in writing to the client explaining the outcome of the matter and providing the calculation of the fee and expenses
Fee Splitting - 1.5(e) When lawyers who are not members of a firm share fees or want to share fees with non-lawyers, certain problems arise (ok to share fees within lawyers) Among lawyers - Thought to be unethical, but still allows. Don't see why someone should be paid for just forwarding a client. Modern rule (1.5(e)) Allows if certain items are met Fee is reasonable, client agrees to the arrangement, and either the fee is shared in proportion to the work done or the lawyers accept joint responsibility for the representation. Must be confirmed in writing With former partners Can share between former partners and associates With non-lawyers Fees may not be shared with non-lawyers except under very limited conditions Rule 1.15 - Safekeeping Property Lawyers must maintain client trust accounts and safety deposit boxes for the safekeeping of client property. Must maintain the account in the state in which they practice, maintain records of the account for later examination, and must keep client property and funds separate from lawyer property and funds 1.15(a) Only client money can be in the trust account. Lawyer must maintain a separate office operation account. When the lawyer commingles his funds with the client's, the lawyer is subject to discipline. Unethical Fees Nonrefundable Fees Lawyer tells the client that this is the minimum fee (can still charge more), but will not work for any less, even if discharged earlier. Normal retainer (some call it a special retainer). If something isn't earned, then money not used is returned to the client. This is normal. Two views Amount that is unearned has to be returned to the client Look at it on a case by case basis, no per se rule. It may be enforceable if the overall circumstances, it is reasonable under 1.5(a) (Pennsylvania holds this view). Look at things like the sophistication of the client. Must be reasonable under 1.5(a) Fee agreement has to be clear under 1.5(b) lawyer must explain all the factors relevant to the fee so the client understands what the fee will be. In PA, must be in writing - ABA, preferably in writing
What if the lawyer is given 1 million dollars from the client, what does the client have to do? If it is non-refundable, they earned it. So being in a state like PA, you still have to be careful about using a nonrefundable fee because it may be refundable under 1.5(a) since they might not be sophisticated. Implications in a non-Cooperman state (NY) General retainer (pg. 141) - Company pays lawyer $10k to rep them for an entire year and still will get the $400 per hr. They are paying for the commitment (can't take any business conflicting with the client/arrange resources so you are able to represent that person). Earned when paid. Flat fee What if flat fee is terminated before the service is rendered and the client wants a refund, what happens? Some NY type states require return of unearned flat fee where the client terminates early Court Awarded Fees Fee paid to the attorney to win the case is not a recoverable cost from the other side You can recover things like deposition costs, filing costs Problem in America is you can recover less than you pay for attorney fees But there are always lawyers to take cases Two instances where a lawyer can get fees from the other side Statutes which allow lawyers to get their fee paid for RICO statute Common fund (class action) Mandatory Pro Bono Should lawyers have a mandatory pro bono obligation? Rule 6.1 (pg. 406 supplement)- No state makes it mandatory to do pro bono A few states make it mandatory to report pro bono work ABA rule - lawyer should try for 50 hours of pro bono services
1.5 - Financing Legal Services (a) Lawyer shall not collect an unreasonable fee or an unreasonable amount for expenses. Factors for determining reasonableness include: (1) Time/labor required, novelty/difficulty of questions involved, skill requisite to perform (2) Likelihood that acceptance of particular employment will preclude other employment (3) fee customarily charged in locality
(4) Amount involved/results obtained (5) Time limitations imposed by client/circumstances (6) Nature/length of professional relationship (7) Experience, reputation, ability of lawyers (8) Is fee fixed/contingent Cannot charge a fee that is excessive. Must be reasonable and in good faith. (b) Scope of representation/fees shall be communicated to client (preferably in writing). Any changes shall also be communicated to the client. (c) Contingent fee may be used on the matter in which the service is rendered. Agreement must be in writing signed by the client and shall state the method which the fee will be determined (including percentage). Must notify client of expenses. At conclusion, must show in a written statement how much he should make (d) Lawyer shall not enter into an arrangement for, charge, or collect: (1) Cannot collect contingent fee in domestic relations matter (2) Cannot collect contingent fee in criminal case (e) Division of a fee between lawyers who are not in the same firm may be made if (1) Division is in proportion to the services each lawyer gave (2) Client agrees, in writing, to the agreement (3) Total fee is reasonable
Hourly billing Can’t bill two clients for the same hours. ABA had a case – can L who flies across country for client A bill both A and client
B because he does work for B while on airplane. Who do you bill. You split it up. You are billing on an hourly basis. You can only work for one client an hour. You are not entitled to bill more than one client at once. Suppose, L has spent 30 hours with client A for difficult tax issue. Client B walks into office three weeks later with exactly the same question. If L is billing on an hourly basis can L bill B for 30 hours of work when it only took 10. No, but you may ask for a flat fee. Nonrefundable Fees Cooperman: Normal retainer with a caveat. If I am fired before exhausting retainer I get to keep it. PA (minority view) A non-refundable fee agreement is not per se invalid. The question is whether it is reasonable under the circumstances. If the client is very difficult and hard to work for. The C fires Ls a lot and L is worried about investing time and commitment for an L that will fire them. Comparison of other fees to non-refundable fees: Normal Retainer You pay me X amount up front, My fee is 300 a month, you pay me 10K retainer. If my fees do not meet the retainer, the funds will be returned. You pay me 10K, I bill at 300/hour, I send you bill at end of each month, when retainer is exhausted you send me another retainer. This is simply up front money. You have to put retainer is client trust account. 1.15(a)(c). As you bill you must draw out from that account. What happens if C discharges you before retainer is exhausted? You refund that amount of retainer that is unearned.
Refundable retainer: refundable if case terminates between a certain number of hours, etc. Attorneys do this so you know you’re going to get your $ (instead of billing as you go) All states its okay in General retainer: i.e. corporation pays law firm $10K a year to be there if it needs help, money paid solely for availability. (no conflicts of interests). Corporation will pay for actual services later. Viewed as earned when paid. CB tells us that in situations where there is a general retainer and the C fires L after 6 months, should C get back 6 months worth of general retainer? Conventional interpretation has always been that there is no money due back, L receives funds at moment they agree to leave self open, it is a not a non-refundable agreement because it is earned upon agreeing to funds. In NY jurisdiction there may not be an issue, but Professor still thinks that general retainers are okay and always enforceable because money is earned when you agree to hold yourself available. 1.15 - Safekeeping Property
(a) Lawyer shall hold property of clients/third persons separate from his own property. Must be kept in separate account. Complete records must be kept by lawyer. (b) Lawyer can put own money into account to pay for bank service charges Violations must be intentional (c) Lawyer shall deposit into the client's account fees/expenses that have been paid in advance and will only be withdrawn as by lawyer as fees/expenses earned. (d) When lawyer receives property that belongs to third party, must tell them. If funds are due to the third party, they must be given when requested. And when the third party so desires, an accounting regarding the property may be asked for. (e) When two or more people are have property held by the lawyer, the property shall be kept separate by the lawyer until dispute is resolved. The lawyer shall then distribute all portions of property when interests are not in dispute.
6.1 - Pro Bono Plans (recommended but not required) Every lawyer shall have professional responsibility to provide legal services to those unable to pay. Should aspire to render at least 50 hours of pro bono legal services. Not mandatory - more for poor people/organizations. (a) Should provide 50 hrs of legal services without fee to... (1) Poor people (2) Charitable, religious, civic, community organizations that design to help poor people (b) Provide additional services to... (1) Legal services to organizations or people attempting to secure/protect civil rights, liberties or public rights (2) Legal services to poor people (3) Participation in activities to improve the law, legal system or legal profession o
Concurrent Conflicts of Interest
1.8 - Client-Lawyer Conflicts
1.8(a) - Business Interests - Cannot enter into a business relationship with client unless: (1) The terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing (2) The client can seek advice of independent legal counsel (3) Client gives informed written consent to the essential terms of the transaction and lawyer's role 1.8(c) - Solicitation of Gifts Lawyer shall not solicit any gift from a client unless the lawyer is related to the client. 1.8(d) - Media Rights Lawyer cannot negotiate an agreement giving lawyer literary/media rights to portray an account relating to representation May want to try and make case attractive 1.8(e) - Financial Assistance and Proprietary Interests (1) Lawyer may advance court costs/expenses of litigation, repayment of which is contingent on outcome of the matter (2) Lawyer repping poor client may pay court costs/expenses on behalf of client 1.8(f) - Cannot except compensation from someone other than the client unless: (1) Client gives informed consent (2) No interference with lawyer's independence/judgment in helping client (3) Information relating to 1.6 is protected 1.8(j) - Sex with Clients Cannot have sexual relations with client unless the relationship existed before the relationship commenced 1.7 - Conflict of Interest: Current Clients (a) Unless provided in (b), lawyer shall not represent a client if the representation involves a concurrent conflict of interest. This exists if... (1) Representation of one client will be directly adverse to another client Cannot represent a client if the representation involves a concurrent conflict of interest or there is a significant risk that the representation of one or more people hinders the lawyer's responsibilities for the clients (2) Significant risk that representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, former client, or third person (b) Notwithstanding the existence of a concurrent conflict of interest in (a), lawyer may rep a client if (1) Lawyer reasonably believes he will provide competent and diligent representation to each affected client If you cannot meet (b)(1), you cannot represent the client. (2) representation is not prohibited by law (3) representation does not involve the assertion of a claim by one client against another in the same litigation (4) Each client gives informed consent, confirmed in writing (b)(1) demands that the L “reasonably believe he/she can provide competent and diligent representation.” This is described as the non-consentability provision. How can you reasonably believe you will be able to rep the client when your conflict of interest is so great?
Even if a client consents to the conflict of interest, in some cases the L will still not be able to represent C because the L could not reasonably believe they could offer competent representation to the C 1.9 - Duties to Former Clients (a) Lawyer cannot represent another client in a similar manner as a past client unless the former client gives informed consent in writing (b) Lawyer shall not knowingly represent a person in the same/substantially related matter in which a firm the lawyer was formerly associated with had previously represented the client... (1) Whose interests are materially adverse to that person (2) Lawyer acquired information protected by 1.6 and 1.9(c) that is material to the matter (c) If you rep someone on the opposite side of a lawsuit and you repped someone on the other side, you cannot (1) Use information related to the representation to disadvantage former clients unless information is generally known (2) Reveal information relating to the representation except as these Rules would permit/require with respect to a client
Successive Conflicts of Interest MR 1.9, 1.10
Imputed Disqualification and Migratory Lawyers: 292-304.
1.10 - Imputation of Conflicts of Interest: General Rule (a) If lawyer works at firm, may not knowingly represent a client when any other lawyer in the firm would be prohibited from doing so by Rules 1.7 or 1.9 unless it doesn't present a significant risk of materially limiting the representation of the remaining lawyers in the firm (b) When lawyer leaves firm, the firm can rep someone with interests materially adverse to those of a client unless: (1) Matter is the same or substantially related to that in which the formerly associated lawyer represented the client (2) Any lawyer has information protected by 1.6 and 1.9(c) that is material to the matter (c) Client may waive this under conditions in 1.7 (d) Disqualification of lawyers because of government is governed by 1.11 1.11 - Government Service (a) Lawyer who has formerly served as a public office/employee of the government (1) Subject to 1.9(c); and (2) If you worked for a client while working with the government, you cannot later work with that client unless the government consents (b) If lawyer is disqualified under 1.11(a), then the whole firm the lawyer works for is disqualified from working with him unless (1) The lawyer is screened from any participation and gets no part of the fee (2) Written notice is given to the proper gov't agency to ascertain compliance with this rule (c) If lawyer has confidential information received from the government, the lawyer may not represent a person in which the information could be used as a material disadvantage. (d) Lawyer currently serving as a public officer or employee
Government Service: 304-306. MR 1.11
(1) Is subject to Rules 1.7 and 1.9; and (2) shall not: (i) Cannot participate in a matter that he practiced privately unless he gets informed, written government consent (ii) (e) The term "matter" includes (1) Any judicial proceeding (2) Any other matter covered by the conflict of interest rules of appropriate gov't agency
Ethics in Advocacy Three Views of Adversary Justice: 319-326.
There are two conflicting views that are set forth in this material One view: Trials and Law is a search for truth. Second view: Trials and Law is an adversary system and not a search for truth.
Are Lawyers Morally Accountable for their Clients: 331-335.
If lawyers have discretion to decline representation, does that make them morally accountable? To some yes. IF they are appointed counsel. Rule 6.2: A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause. (c) the cause is repugnant to the L. This gives weight to Ls religious and moral values.
Truth and Confidences: 335-354. MR 3.3 Lawyer must be truthful to a tribunal Civil Case
Judge says to L, did you surrender all documents to other side? L says yes. L lied. In this instance, that is a clear violation under 3.3(a)(1). An L shall not knowingly make a false statement to a tribunal nor fail to correct a false statement of fact or law previously made. 4.1(a) and 8.4(c) may also apply. Client has lied, Lawyer knows 3.3(a)(3). L may not offer evidence L knows is false. Client says he is going to lie. 3.3(b). Ethically 3.3(b) tells you that you cannot represent a client who lies. L knows client plans to lie. This would be offering false testimony under 3.3(a)(1) or 1.2(d) assisting client in crime. But if you tell them you are not going to help and they go elsewhere to attempt to lie, your obligation ends. Direct adverse Legal Authority - 3.2(a)(2) L shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the L to be directly adverse to the position of the client and not disclosed by opposing counsel Criminal Case Whiteside. Whiteside is charged with murder. Whiteside talks with attorney and in all conversations with attorney tells L that he thought the guy had a gun but never saw it. As it comes down to the trial, Whiteside tells L that he is going to say hat the guy had the gun and he saw it. L says I cannot permit you to do this. L says that if you tell this to court I will tell court that this is perjury and will withdraw as your L in advance of the trial. Whiteside found guilty. Whiteside appeals based on ineffective assistance of counsel.
The 6th A in criminal law context, often comes up where the D says my L acted in violation of legal ethics and hence I was deprived of effective assistance of counsel. Court says that there needs to be serious error and prejudice for an ineffective assistance of counsel claim. Failure to follow professional rules is not a per se serious error. Court found that L acted properly anyway. Minority View: FN6 (p. 344), some states say that criminal defendants have a right testify and with respect to perjurious testimony, the L may not ask questions where the answers will be perjurious. L can ask client if there is anything they would like to say, client can then testify perjuriously. L, in closing argument, may not use perjurious testify to build on. 3.3 - Truth and Confidences (a) Lawyer shall not knowingly (1) Make a false statement of fact or law to tribunal or fail to correct a false statement of fact/law previously made (2) Fail to disclose adverse legal authority (3) Offer evidence known to be false (b) Lawyer shall not hold back or engage in criminal/fraudulent conduct (c) Duties continue to the conclusion of the proceeding (d) Ex parte proceeding, lawyer shall inform tribunal of all material facts to allow tribunal to make informed decision
Fostering Falsity or Advancing Truth. Arguing for false inferences: 376-378
not? What is proper conduct when the L knows something that others do Westerfield case: scenario: “hypothetically – what if we could tell you where body is?” Give up Death Penalty? Cops find body before this But L knows W committed this crime. Can continue to represent W. L then questions victim’s parents to try to prove they could have brought someone home who did it This is arguing for false inferences. Criminal cases: Is this okay? There is some authority that an L for defendant must argue for false inferences (p.477)
Frivolous Positions and Abusive Tactics: MR 3.1.
3.1 - Frivolous Positions and Abusive Tactics Cannot be a frivolous claim. There must be some merit to bring a claim under law. You cannot assert a frivolous position. There has to be a non-frivolous reason to take position, take action. In criminal case you can do all you can to ensure other side proves all elements. 3.2 - Dilatory Tactics Must expedite (speed up) litigation consistent with interests of the client - rarely enforced - lawyers delay things all the time. 3.4 - Fairness to Opposing Party and Counsel Lawyer shall not (a) Unlawfully obstruct another party's access to evidence or alter/destroy
Dilatory Tactics: 1st full paragraph p.388.MR 3.2.
Fairness to opposing party and counsel: MR 3.4.
(b) Falsify evidence (c) Knowingly refuse to follow rules of tribunal (d) Make frivolous discovery request (e) Allude to any matter in which the lawyer does not believe (f) Request a party from giving relevant information to another party unless (1) Person is a relative or employee or other agent of client; and (2) lawyer reasonably believes person's interests will not be adversely affected by refraining from giving such information
Communication with judge or jurors: MR 3.5 (b) and (c).
3.5(b) and (c) - Communication with Judge or Jurors Can’t do it even if the judge (judge includes clerks) initiates it Doesn’t matter if you later tell other lawyer about it Technically, you cannot give letter to judge and mail it to other party on same day. That is essentially ex parte. You cannot communicate with judge and then later communicate with party concerning same information. One possible exception - scheduling problems (b) Shall not communicate ex parte with such a person (judge/jury) during proceeding unless authorized to do so by law/court order (c) Shall not communicate with juror/prospective juror after discharge of the jury if: (1) Communication is prohibited by law/court order; or (2) Juror has made desire not to communicate (3) Communication involves misrepresentation, coercion, duress or harassment (d) Engage in conduct intended to disrupt a tribunal
Disruptive conduct: 388-393. MR 3.5(d). Real Evidence: 401-404; 408 (top)-417; 420. MR 3.4(a).
3.4 - Fairness to Opposing Party and Counsel Lawyer shall not (a) Unlawfully obstruct another party's access to evidence or alter/destroy 8.4(d) An L shall not engage in conduct that interferes with the administration of justice. Becomes relevant to the extent the court thinks that something the L does is prejudicial to the administration of justice but not covered by some other rule. Catch-all. Where no specific rule on point.
Negotiation and Transactional Matters: 421-426; 436-448 No specific rule You apply the standard model rules in a negotiation complex. Lawyers can’t lie (Rule 4.1(a), 8.4(c)) 4.1(a), comment 2: puffing is okay sometimes, depends on context, if it’s a common negotiating ploy, maybe okay. L can’t assist a client in a crime or a fraud. (Rule 1.2(d)) Suppose C wants to commit a crime or fraud. Ex. Client wants to hide money from wife. Ex. Using fake documents to secure a bank loan. Can the client assist the client? No. 1.2(d). Can’t knowingly assist in crime or fraud. Threatening criminal prosecution
Model Rules don’t have any specific provision on this point. Assume that the claims that are made are in good faith and founded in fact (if they weren’t the L would be liable under 8.4(c). Dealing with unrepresented Persons R. 4.3 (p. 277): Part 1: A L shall not state or imply that a L is disinterested. The 3rd party has to know who you represent. Part 2: When the L knows or reasonably should know that the unrepresented person misunderstands the L’s role in the matter, the L shall make reasonable effort to correct the misunderstanding. Make it clear that you are not their attorney. Put it in writing. Part 3: A L shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the L knows or reasonably should know that the interests of such a person or have a reasonable possibility of being in conflict with the interests of the client. Lawyers for Entities. MR 1.13.
1.13 - Lawyers for Entities (a) Lawyer employed/retained by organization represents the organization acting through its authorized constituents (b) If lawyer knows someone is going to do something against the organization, the lawyer shall proceed in the best interest of the organization and report up. (c) Except as provided in Paragraph (d) (1) If someone high in the organization is doing something adverse to the organization (2) And the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, the lawyer may reveal information related to 1.6, but only to the extent the lawyer deems necessary to prevent the injury (d) Paragraph (c) shall not relate to a lawyer's representation by an organization to investigate an alleged violation of law (e) (f) (g) Lawyer me rep people in the organization.
Conflicts and Confidentiality in Entity Representation: 461-465; 468; 470-471. Conflicts and confidentiality in entity representation Rule 1.13: L represents the corporation, not the individual officers 1.13(d) à who is the client? Who is the client? 1.13(a) L represents entity only 1.13(d): L must explain relationship if there is confusion… 1.13(e): Although L doesn’t in fact represent officers, L can represent entity and officers.. Example: personal injury If L wants to represent entity and officers in a fraud claim, it would be okay under 1.13(e) But there may be a conflict under 1.7(a)(2), so L must abide by 1.7(b) if he wants to represent both.
This is all assuming you believe your clients are right/telling the truth. 1.13(f) Officer walks in and tells attorney that he stole 3 million. The L would say stop, my client is the C, not you. Can the L then go to some corporate officer and say, guess what Joe is doing? Yes. L has no duty of confidentiality for officer who disclosed the information. That is why 1.13(f) says you have to stop and explain the situation. That is your only duty. 1.13(g) The L is not prohibited from representing officers/directors. It is a conflict of interests analysis. The representation is subject to 1.7. If C’s representation is subject to consent, consent must be given by someone other than the officer/director seeking dual representation. 1.13(g) Hypo: Officer comes in and says I want you to represent me in a lawsuit. It is unrelated. Under 1.7 that is not an issue. 1.7 is not implicated unless both the C and an officer/director are seeking representation – concurrent conflict of interest. 1.7(a) You need a concurrent conflict of interests. Hypo: C officer comes in and says we are being sued by this person who bought a lot of shares from us in a private placement. The person is alleging I committed fraud in selling the shares for the C. Can the L represent both the C and the corporate officer accused of fraud? 1.13(g) says you can subject to 1.7 Is there a concurrent conflict of interest under 1.7? Yes. There is a significant risk that representation of one may be limited by representation of another Retaliatory Discharge and Whistle Blowing: 474-484; 488-489. 1.13—obligation with respect to corporate wrongdoing: Obligation to report up. Mandatory (1.13(b)). This is essentially a mandatory duty to report up. What is reported? “The lawyer knows that someone is acting violation of a legal obligation to organization or act will be imputed to C.” There is no further duty beyond reporting up. Under 1.13 you report up, that’s it. Key Features Mandatory reporting up Obligation to report Permissive Disclosure under 1.13(c) Retaliatory Discharge Overview
If a whistle-blowing EE is discharged for whistle blowing and that EE has an express or implied contract of employment, that EE is protected. This is for a L or non-L EE. This K, since it specifically sets forth EE and ER rights will specify when an EE can be discharged (for cause). Whistle blowing is not cause. The point is that if you are protected by an express K. You can only be discharged by the terms of the K. If the K specifies that the EE can only be terminated for cause or breach then that is it. Bala: In Bala, L disclosed defective kidney dialysis machine and is fired. L sues. IL SC says no right of retaliatory discharge. The court, discussing this on p. 478, states that it would undermine a/c confidences and that IL law compels L to make this disclosure so they don’t need incentive to do so. The trend has been to reject IL’s rationale due to the importance of the public policy. EE L should be protected from discharge where permitted or compelled to make disclosure. Sarbanes-Oxley and the Rule 1.13 Amendments: 489-492. Passed after corporate scandals. Purely a matter of corporate law imposes enormous amount of rules & restrictions on corporate governance & how corporations For exam just know that lawyers who practice before commission have a broader mandatory reporting obligation & duties depending on results of report triggering their reporting up and permissive reporting requirement that permits disclosure to commission under certain circumstances. Control of Quality: Reducing the Likelihood of Professional Failure. Admission to the Bar. There quality control mechanisms for Ls admitted to bar. Theory of bar exam is that demonstrates the minimum competence of Ls as to state law. Character inquiries. They focus on character before and during law school. Extent of character inquiry has diminished appreciably. Transient Lawyers and Multijurisdictional Firms. MR 5.5; MR 8.5
371) 5.5 - Unauthorized Practice of Law; Multijurisdictional Practice of Law (pg. (a) Lawyer shall not practice law in a given jurisdiction in violation of law/regulation (b) Lawyer not permitted to practice law in a jurisdiction shall not: (1) Unless established by these rules, establish an office or other continuous presence in the jurisdiction (2) Tell the public he is licensed in that jurisdiction (c) Lawyer admitted in other jurisdiction, not disbarred, may provide legal services on a temporary basis in this jurisdiction that: (1) Undertaken to help person in matter lawyer is actively involved with (2) Are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction (3) (4)
Pretty much seems if the lawyer is involved in the proceeding, he may represent the person on a temporary basis in another jurisdiction (d) (1) (2) 8.5 - Disciplinary Authority; Choice of Law (a) Lawyer admitted/not admitted into a jurisdiction is subject to the rules of that jurisdiction (b) Choice of Law…law applied shall be as follows: (1) Conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction where the tribunal sits (2)
Assume (Jackman): L is licensed in MA, comes to NJ and practices in NJ in seven years without a license. L was never licensed in NJ, although clearly practicing in NJ. What sanctions are there? States have statutes (UPL) that prohibit the unauthorized practice of law. Persons not admitted to practice law in the state may not practice law in the state. It is a crime to do so. The statutes apply both to Ls and non-lawyers who are illegally practicing law. Statutes set forth and make it a criminal offense, usually misdemeanor. Rule 5.5(a) It is a violation of ethics in your own state if you practice law in a jurisdiction where you may not legally practice law. Your license can be suspended or disbarred. Assisting L to practice law in jurisdiction where they are not licensed 5.5(a)(1) prevents a L from “assisting” another to practice L in violation of the laws of a jurisdiction where he cannot practice law. Supervisory Responsibilities: 591-593. MR 5.1 to 5.3
5.1 - Responsibilities of Partners, Managers, and Supervisory Lawyers (a) Lawyer in the law firm shall do everything to make sure everyone is conforming to the Rules of Professional Conduct (b) Lawyer having supervisory authority shall make reasonable efforts to make sure they are conforming to Rules of Professional Conduct (c) Lawyer shall be responsible for another lawyer's violation if: (1) Lawyer orders or ratifies the conduct involved; or (2) lawyer is a partner or has comparable managerial authority in the law firm in which the lawyer practices 5.2 - Responsibilities of a Subordinate Lawyer (a) Lawyer is bound by Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person (b) Subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty 5.3 - Responsibilities Regarding Nonlawyer Assistants (a) Shall make sure the nonlawyer is giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer (b) Person watching over the nonlawyer shall make reasonable efforts that the person's conduct is compatible with the professional obligations of the lawyer
(c) Lawyer shall be responsible for person's conduct if it violates the Rules of Professional Conduct if: (1) Lawyer orders or has knowledge of the conduct involved; or (2) Has supervisory powers over the person and knows of the conduct
Unauthorized Practice of Law: 593-602 Certain activities by nonlawyers, usually activities that involve appearance in court or representation of parties are clearly the practice of law. Usually prohibited by non-lawyers. Other aspects with respect to assisting and giving advice can be viewed as the practice of law, but courts often create exemptions or exceptions, even though the activity could be view as a practice of law, the practice has a valuable public purpose and is allowed. Ex. Real Estate Brokers. The term the practice of law is very broad, sometimes for the public interest it is permitted by the courts anyway. Specialization: 605. MR 7.4.
7.4 - Communication of Fields of Practice and Specialization (a) Lawyer may communicate the fact they do or do not practice in a particular field (b) If admitted to practice patent law, may use the designation "Patent Attorney" or something similar (c) Lawyer engaged in Admiralty practice may use the designation "Admiralty," or something similar (d) Lawyer shall not state they are an expert in a field unless: (1) Lawyer has been certified as a specialist by an organization approved by appropriate state authority or accredited by the American Bar Association; and (2) Name of the certifying organization is clearly identified in the communication
7.4 deals with what you can say about your credentials. You can say what areas you practice in or don’t practice in. Control of Quality: Remedies for Professional Failure. Malpractice and Breach of Fiduciary Duty Togstad W puts H in hospital for heart issue, 7-8 days later he is paralyzed and unable to speak. W goes to see H, nurses were very upset. W goes to L to see if she has case. L tells her that she doesn’t have case. L then goes to 2nd L, but SOL had run. In fact, a clamp wasn’t properly used on her H, causing injury. Elements of malpractice action: Was there an AC relationship: W had consulted L, did not retain L, W was not billed. Still, the courts will find an AC relationship here, the person who said she was a client reasonably believed that the L was giving legal services or would supply legal services in future and L knew or reasonably should have known that the L believed services would be provided.
This two part test is necessary for an AC relationship. Triggers duties owed to client Duty of care, confidentiality Was there a breach of the duty of care: Experts say that if you are giving an opinion on whether there is a medical malpractice case then what you have to do under general duties, an ordinarily prudent L has to check hospital records and consult with an expert. So there was a breach of the ordinary care in L giving his opinion. An ordinary diligence, even if you don’t give an opinion, would require L to tell the C that there was a 2 year SOL. D’s actions had to have caused the injury. Trial within a
Trial But-for test (majority): But for the negligence of the lawyer, the client would have won the claim on the merits (stricter standard of causation) In civil cases you also always have to also prove that you had a case that you lost. Trial within a trial. Have to show that you had a successful case. If it is not a successful case then you have not been damaged. Substantial factor test (minority): Was lawyer’s negligence a substantial factor in the client’s damages (easier for client to show) Criminal Context: defendant cannot sue for malpractice unless he was exonerated. If defendant is guilty, malpractice is not, obviously, the sole cause of the defendant being convicted. (Majority rule). Minority Rule: if defendant can show that lawyer’s malpractice is sole cause of conviction, then don’t need exoneration Compensable damages & Proven Damages Reflect the value of what was lost. Breach of Fiduciary duties Alternative theory to malpractice. Malpractice is breach of a duty of care. You can breach a fiduciary duty and not breach a duty of care. Ex. L who has sexual relationship with client and wins case for client but takes advantage of client’s weakened position. Third Parties as “Client Equivalents”: 623-624. Hypo: L represents client A in doing a will or estate planning. Purpose is to reduce taxes for heirs. L messes up and as a result the heirs are socked with a tremendous tax bill. The heirs sue the L for malpractice. The heirs were not clients, never were. Some states say that because you were not a client the L owed you no duty of care, thus no malpractice action.
However, the majority states that the heirs have a case as third party beneficiaries. Courts permit a malpractice suit by persons who are not clients, the third party beneficiaries are essentially equivalents of clients. Proving Malpractice Standard of care: Ordinarily prudent lawyer. If held out as an expert in that field the standard of care increases. Do you have to have an expert to show a breach of the duty of care? In many cases, yes. The knowledge of the standard of care is outside of the jury’s basic competence. Jury does not know on its own about a L’s basic standard of care. What the ordinarily prudent L would do 1. Use of Ethics Rules and Expert Testimony: 626-629. Violation of a rule is not a per se cause of action. Majority of courts permit rule violation to be evidence of a breach of duty of care. The existence of the rule is relevant to what the duty of care was in a particular situation. The rule had to have been intended to protect someone in the position of the P. Evidence of duty of care if rule was intended to protect someone in the position of the P. 3. Damages or Injury: 651-652. Statute of limitation on lawyer’s malpractice begins to run from date of discovery What are the damages? The trial within a trial: have to prove that client would have won underlying case and what client would have gotten from it (need experts to do this) Are non-monetary losses compensable? (pain and suffering, humiliation) Beyond Malpractice: Other Grounds for Attorney Liability to Clients and Third Parties: 660(bottom)-670 Cannot co-mingle funds (Warhaftig p,839) Rule 1.15 Cannot co-mingle funds or property (we went over this earlier) Ls can defraud own partners in law firm. 8.4(c). In private life, on job or with other lawyers. 8.4(c) has no limitation to work. Also can be applied to your business. It is not limited to the course of representing a client. Failure to report another lawyer’s misconduct. 8.3(a) requires lawyers to report misconduct of other lawyers lawyer has to know of violation of rules of professional conduct Defenses: Alcohol, depression, mental illness are note defenses to the commission of acts. May be considered in sanction though or in mitigation.
Advice: recognize a problem and deal with it. Constitutional Protection in Criminal Cases Advertising/Solicitation Lawyer's speech at producing business is commercial speech and it has the protection the Constitution gives to commercial speech. Commercial speech may be prohibited when deceptive. Rule 7.1 tries to stop misleading speech. But even truthful speech that is not misleading in any way can be regulated if there is an important state purpose and the state regulation advances that position. What constitutes speech they'd want to regulate? Can stop in-person solicitation LOOK AT THE THREE PART TEST Advertising - Rules 7.1 and 7.2 Communication that you direct to the population at large, offering legal services, or letting them know where legal services are available Listings there for people to know about L and L’s services. Anything that offers your services Can take place now on websites for the law firm. Lawyers do this more and more This is something that almost everybody does now Solicitation - Rule 7.3 Communications to a particular person offering to represent them in a particular matter Solicitation is more direct communication to an individual or group of individuals who the L believes has a cause of action or potential cause of actions who the L attempted to persuade/solicit to hire the L for the specific services they provide. This is more of the conventional “let me represent you in this matter” When people think about solicitation, people think about it in derogatory terms (personal injury lawyers) This takes place at all types of levels Fundamental difference between advertising and solicitation There’s a difference between marketing and advertising. Websites are advertising (subject to advertising rules) Solicitation is approaching clients for services Advertising targets mass public, solicitation targets specific people. Essentially permitted due to the First Amendment of the Constitution Only way normally not permissible is due to restrictions on speech that furthers a substantial government interest and must be no broader than necessary.
Rule 7.3 - Solicitation Rule 7.3(a) prohibits face to fact solicitation unless the person contacted is a lawyer or is a close friend or family of the lawyer. 7.3 is a prohibition of face to face solicitation unless…. State does not have to ban solicitation. If you do it, it's constitutional. 7.3(b) - Targeted Mail - Lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication if (1) prospective client had made known a desire to lawyer not to be contacted (2) solicitation involves coercion, duress or harassment
Cannot have an absolute ban on targeted mail solicitation. But some ABA sections are attempting to limit the types of advertising that can be sent. Florida limited targeted mail for 30 days of people with personal injuries. 7.3(c) - Must make the lawyer put "Advertising Material" on their solicitation material. Rule 7.2 - Advertising (a) Lawyer may advertise services through media (b) Lawyer may not give anything of value to a person for recommending the lawyer's services except that a lawyer may… (1) Pay reasonable costs of advertisements/communications permitted by the Rule (2) Pay usual charges of a legal services plan or a not-for-profit or qualified lawyer referral service. Rule 7.1 - Communication Concerning a Lawyer's Services Lawyer will not make false or misleading communications regarding the lawyer's services. Communication is false/misleading if it contains a material misrepresentation of fact/law or omits a fact necessary to make the statement considered as a whole not materially misleading.