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CHAPTER 1: THE LEGAL PROFESSION: BACKGROUND AND FUNDAMENTAL ISSUES a. Prof. thinks Bok’s quote is wrong on many levels i. Why is it that we went from repressing lawyers and forbidding the practice of law to allowing lawyers to practice? Why is it that lawyers are in demand? i. Prof.: People had increasing differences; society became more heterogeneous so different people needed different dispute resolution mechanisms. There are socio-economic reasons - as economy becomes more complex so do the legal systems. 1. Thus Prof. offers that there are 2 main reasons a. Quantitative: limit the number of lawyers and therefore increases the cost b. Qualitative: protect people; make sure lawyers are competent. In short, to protect society from unscrupulous lawyers and those who have no legal training but have hung out a shingle b. Schlitz article i. Tells how the author became an unhappy and unethical lawyer. How are lawyers unhealthy? More depressed, alcoholics, physically unhealthy, tend to be more suicidal 1. 3 premises of article: (1) Comply with Model Rules, (2) act ethical in work even when not required by the Model Rules, and (3) live an ethical life. 2. Prof.: CANNOT have big firm that markets less hours but good pay because it will lower the estimation of the law firm. c. Interplay of the quadrants i. Facts 1. Law school required; apprenticeship ends. a. West Virginia – first state that had requirement of going to law school before practicing law. 2. Demographics: Bok quote, Schlitz article part 1 3. History: e.g. Morris, Stevens 4. Sociology: Heinz and Laurrann, Model Rules a. The Disciplinary rules were mandatory in character, that is violations would be subject the attorney to discipline up to and including disbarment, and they are like Fuller’s Ethics of Duty b. The Ethical Considerations were aspirational in character and thus are like Fuller’s Aspiration 5. Psychology ii. Descriptive Theory: 1. Profession v. Occupation (Theories that explain lawyer regulation). Profession exists because the market CANNOT provide it OR the government CANNOT produce it through regulations. a. Thesis: Functionalism: to correct market failure.
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i. Profession = public service; education = competence ii. Anything to protect others is based in functionalism. Competence is used to meet goal of protecting the public. iii. E.g.: MR 1.3(diligence) b. Antithesis: Dominance: lawyers regulate selves to regulate prices--constrict supply, raises demand and prices. i. Profession = exploitation; education = exclusion ii. Goal is to protect ourselves (lawyers) iii. E.g.: MR 5.4(b) – professional independence; 1. Maybe argue that all rules are, to a certain degree, are hybrid because all have a spec of functionalism in that the public is also protected by the rules. c. Syntheses: Hybrid (best answer to why there are professions, especially the legal profession): Some rules designed to correct problems, other benefit some of the profession, etc. i. A bit of both functionalism and Dominance; duality of purpose and effect. ii. E.g.: MR 1.6; and rules relating to lawyer advertising iii. Law: 1. 2. 3. 4. Constitutions: State and Federal, e.g. 5th and 6th amendment Statutes: e.g. Sarbanes Oxly Case law: e.g. attorney client privilege Lawyer Codes: From ABA to State Supreme Court a. 1908 Canons of ethics b. 1969 Code of Professional Responsibility c. 1983 Rules of Professional Conduct 5. Non-Binding codes, creeds and pledges iv. Normative Theory 1. Basic Division: Social Ethics versus Individual (Personal) - we all have, to a certain degree, Abrahamas religious values (Christian, Muslim, Jews) and think that good guy will win probably soon a. Social: what to require and why. E.g. Fuller’s Duty v. Aspiration. i. The Ethics of Duty versus the Ethics of Aspiration 1. COOKIE: As counter example to ethics of duty v. ethics of aspiration, think of King David of Israel – he was NOT concerned with duty, he is concerned with aspiration 2. The task of ethical analysis might be understood as one of defining a minimum
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standard below which conduct may NOT fall, establishing standards of ideal behavior toward which individuals should aim BUT CANNOT realistically expect to reach, or giving “practical advice” that is somewhere in between. 3. Fuller’s Morality of Duty and Morality of Aspiration a. Morality of Aspiration – Morality of Aspiration starts at the top of human achievement. It is the morality of the Good Life, of excellence, of the fullest realization of human powers. In a morality of aspiration there may be overtones of a notion approaching that of duty. These overtones are muted. A man might fail to realize his fullest potential or he might be found wanting. In such a case he was condemned for failure, NOT for being recreant to duty; for shortcoming, NOT for wrongdoing. b. Morality of Duty – starts at the bottom of human achievement. It lays down the basic rules without which an ordered society is impossible, or without which an ordered society directed toward certain specific goals must fail of its mark. It is the morality of the Old Testament (“thou shalt not”). It does NOT condemn men for failing to embrace opportunities for the fullest realization of their powers. Instead, it condemns them for failing to respect the basic requirements of social living. 4. The 1969 ABA Model Code of Professional Responsibility was an explicit attempt to create propositions based on the morality of duty. Its Disciplinary Rules are exactly the kinds of minimum standards that can be enforced in disciplinary proceedings. The ABA Model Rules of Professional Conduct continue that approach.
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a. Note that 1969 ABA Model Code of Professional Responsibility’s Ethical Considerations are nominally aspirational provisions of the sort described by Fuller. ii. The 1969 Model Code of Professional Responsibility’s Ethical Considerations did NOT last long because (1) court punished people for violating aspirational things and (2) the line (duty) was too low in people’s opinion, Prof: (3) thinks that people see it as a split after the duty line (e.g. sex outside of marriage, some say it is ok some say it is not ok). In short, the aspirational part was relative. b. Individual: What to obey and why. E.g. Hebrew midwives (addresses the question of whether lying is ever OK). Do we do more or less than the law requires and why; do you follow the law because of punishment or for another reason? E.g.: Lying is good if it saves the persecuted; this focuses on the Result (Consequentialist). BUT if say lying is wrong in itself then focuses on the Act (Deontological) i. Side note: Norsemen believed that good gods and bad guys would fight and the good gods would prevail. In the end, you will end up on the winning side; and if not, then they were not really upset 1. Norsemen just thought it was important to be on the right side; NOT necessarily the good side; they saw it as if they were just not on the winning side, and it was just how things are. In short, success is NOT the only measure. 2. Can a Good Person Be a Good Lawyer? (PG 18 of BOOK) a. Gorgias (Socrates talked to him) big question: how to be a good person and be a good lawyer in a functional sense. b. Can a Good Person Be a Good Lawyer? Prof.: Yes (cannot be no; and it assumes that the lawyer will follow the law). Society’s structure cannot do without lawyers, that is, in any acceptable society. Thus, society needs us. On the other hand, from lawyer’s point of view, in our society, there is no other job we can make a comfortable living at. This second proposition is somewhat dubious. Some people would pursue other fields if they offered more money; e.g. would be teacher if paid 300k per year. c. Thus, 2 reasons the answer is yes: (1) society needs us; and (2) we make a good living.
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i. As individuals, we have little impact on society (social side) but on individual side, we have more impact. So answer to question Can a Good Person Be a Good Lawyer must be yes: “they need us and we need them”. d. 3 Lawyer Types (see reader) - All lawyer types operate within the letter of the law. i. Type 1 Lawyer: The Neutral Partisan (or the Hired Gun) – The basic operating premise of this type is that anything a lawyer does for a client within the strict letter of the law, whether procedural or substantive, is at least morally and professionally acceptable, and perhaps even laudable; a lawyer may (or perhaps should) use any legally permitted means to assist any client to achieve any arguably legal end. Its fundamental message, after all, is that whatever a lawyer does for a client within the letter of the law is virtuous, however much it may violate the moral rights of third parties or the interests of the public at large. From this perspective, the trying moral dilemmas of law practice simply disappear; the lawyer's professional role is explicitly defended as amoral. A type 1 lawyer does everything they can for their client within the letter of the law. SEE PPT Slide. 1. E.g.: Defense Attorney Polly Biegler in Anatomy of a Murder; Jaggers and Mr. Wemmick in Great Expectations. Frank Armani, defense lawyer in Lake Pleasant Bodies case; Ben from The Great Santini. 2. “Unscrupulous Type 1 Lawyers” - NOT just stretching of the borders of the law, but also self-serving transgressions of ordinary civility. Lawyers of this ilk do not justify their Type 1 behavior by even a self-serving reference to dubious theories; they do not try to justify it at all. 3. Type 1 is in academic disrepute and is deeply problematic ii. Type 2 lawyer: Public Partisan – Type 2 lawyers see themselves as "officers of the court"; their detractors see them as quasi-bureaucrats or as aspiring acolytes in the temple of justice. The central belief of the Type 2 lawyer is this: public normative limits narrower than the letter of the law sometimes constrain what a lawyer may properly do
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for a client; a lawyer should properly decline to assist clients in achieving some ends, by some means, even though these are strictly legal, if they violate other identifiable public norms. Ends are to be measured against justice, not the letter of the law; means against truth and honor, NOT mere legality. A type 2 lawyer does everything they can for their client within the intent (spirit) of the law and while taking into consideration society’s accepted values. SEE PPT Slide 1. E.g.: Louis Brandeis; Atticus Fitch, defense lawyer in To Kill a Mockingbird. Miss Kenton, maid in Remains of the Day. 2. Like the Type 1 model, the Type 2 model is not monolithic. For our purposes, differences in theory, rather than motivation, matter most here. For Type 2 lawyers, different theoretical underpinnings give rise to different ranges of permissible conduct. To understand these differences, we must distinguish two subclasses of Type 2 lawyers, proceduralists and substantivists. 3. Type 2 Proceduralists (see Fuller’s ABA/AALS report) find limits short of the letter of the law, but only as to procedure, not as to substance. In general, they believe that lawyers should use procedural laws -rules of evidence and procedure, for example -- according to their purpose, which is to resolve issues fairly and expeditiously on their merits. As to substance, on the other hand, they believe it is the job of the tribunal, not the lawyer, to decide what the purpose of the law is. Type 2 proceduralists would, in other words, press any nonfrivolous claim, irrespective of their private opinion as to its merits, and leave the substantive decision on the merits entirely to the finder of fact or law. In that respect, Type 2 proceduralists are indistinguishable from conscientious Type 1 lawyers. a. As ADVOCATE – Pursue any substantive END to fullest extent of law’s “letter”. BUT, use only procedural MEANS according to tier “spirit”.
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b. As ADVISOR – Counsel compliance with “spirit” as well as “letter”. Ends as well as means. 4. Type 2 substantivists, on the other hand, believe that public limits short of the letter of the law constrain the lawyer with respect to substance as well as procedure. Substantivists would, accordingly, decline to bring non-frivolous claims that did not also meet other, more restrictive, criteria. These additional criteria are to be found in the spirit or purpose of the law or in the dictates of ordinary morality. Stated most generally, the lawyer pursues justice, not just legally permissible outcomes. a. As both Substance/Ends and Process/Means: i. Simon: Spirit of law, NOT just letter, of law ii. Luban: “Ordinary Morality” iii. Cf. “Criminal Defense Paradigm”. iii. Type 3 Lawyer: Partisan Partisan - The basic operating premise of this type is that lawyers may exploit loopholes, violating the spirit of both substantive and procedural law, subject to two constraints. First, like the other lawyer types, they must not transgress the law's letter; second, and distinguishing them from the other types, they must be laboring in a good cause, by their own lights. Unlike the Type 1 lawyer, the Type 3 lawyer believes in pursuing justice directly. But, in contrast to Type 2s, it is justice by their own standards, not by any set of shared public norms like the spirit of the law or ordinary morality. Type 3 lawyers, then, pursue any legal ends that they believe to be morally right, by any means that meet the same criterion. In this category, as in Types 1 and 2, we must note an important subdivision. Some Type 3 lawyers seek to work within the context of legal liberalism, stretching the law's outer bounds for the advantage of particular clients, without meaning to subvert the legal system as a whole. These are Loyalist Type 3s. Other Type 3 lawyers, in contrast, oppose legal liberalism itself. They seek to exploit the play in its joints to cripple or kill what
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they think is a beastly system. These are Subversive Type 3s. With them we reach a paradox -- for these latter Type 3 lawyers, the processes that constitute legal liberalism are to be used as the means of delegitimating and eventually overthrowing the system as a whole. SEE PPT Slide 1. E.g.: Clarence Darrow; Portia in Merchant of Venice. Rahab the Harlot; the Hebrew Midwives. 2. The Type 3 Lawyer will probably follow their own religious morality (e.g. Christian morals in the New Testament) 3. Type 3: espouses things like in this hypo: Earl had to Dies” by the Dixie Chics; encompasses radical feminist lawyers; has the mindset “do good for people like me” b. Can good person be good lawyer? Yes, and it assumes that the lawyer will follow the law. Yet, if one removed the condition (assumption) that the lawyer always follows the law then here is what you may find: i. Type 1 violates the law whenever he can ii. Type 2 violates the law to vindicate the client; he would engage in civil disobedience. He may also do things get to get the innocent off even though those things are illegal (e.g. forge hotel registry) iii. Type 3 would violate the law in order to get the client off because the client then could continue on doing what the lawyer sees a good acts. 3. What is Good? Good refers to some social norm a. How can the question of “Can a good person be a good lawyer” elicit different responses? i. 3 positions of “Metaethics” (or “forms of morality”; what lies beyond ethics; is about the meaning of goodness and rightness) 1. Moral Realism – moral matters are like mathematical matters. Realism maintains that binding ethical norms or values are "out there," objective and identifiable, both external to individual human wills and binding upon them. Furthermore, realism maintains that these norms or values are knowable by human reason. Realism is the metaethical position that best comports with our ordinary moral language, taking it at nearest to face value. Realists insist on a
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world of hard moral reality outside human will a. Either left morality is right or right morality is right; or old morality is right. ONLY one can be correct; thus someone is right and someone is wrong 2. Interpretivism (Prof. thinks it is either disguised Realism or disguised Skepticism) – it is what is right of our time and place. Need to look at the deep meaning and structure of the culture. E.g. old is now wrong; eventually the right or left will become superior; OR Prof. thinks there is convergence and that is the right position of our time. From their perspective, they have transcended a tired old philosophical dualism and salvaged a binding, public, and objective morality from the bleak conclusions of skepticism without resort to the metaphysical and epistemological oddities of the realists. 3. Skepticism – from Joe Singer (who accounted for divergent beliefs in people); people are concerned with making a statement; or some people see things differently and they like what they like. Skeptics doubt, or even deny, the existence of such an external moral world. In its more aggressive mode, skepticism denies in principle the possibility of moral truths. In its milder form, moral skepticism implicitly adopts the logic of what in law is known as the Scottish verdict -- to show that someone's case is not proved is not to have disproved it. The common element in these two forms of moral skepticism, the mild and the aggressive, is the rejection, tentatively or tenaciously, of an objective moral realm external to the human will. a. Hypo: one green color pants with other green shade shirt – some say they do not match and some say they do match. It is analogous to matter of taste; they believe moral matters are NOT reducible to truth.
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b. Prof.: there is no right or wrong in fundamental matters; there are just preferences c. 2 related subsets of Skepticism: i. Nihilism: “belief not in”; there is no absolutes out there ii. Fideism: “belief in”; all things are equal, it is just important to believe in something. ii. Sources: Atkinson, Maryland Law review article; Singer, Yale Law Review article 4. Structure of the Role Morality III. D. Structure of Role Morality (Truth, Justice, and the American Way) I. Professional Ethics I. Ordinary Morality a. Set of norms designed to advance common a. Course book values authors call it b. E.g. legal, medical etc. “Common ethical c. There is tension between lawyers norms and standards” own personal internal norms b. E.g. person, citizen II. Professional Roles: II. Personal Roles: a. E.g. lawyer, doctor b. E.g. parent, friend, neighbor III. Professional Rules III. Moral Rules a. E.g.: Do NOT lie to court (Rule 3.3) and do b. E.g., help NOT file fake papers innocents; hide the persecuted. IV. Specific Acts IV. Specific Acts i. E.g. Do NOT fake the hotel registry a. E.g. fake hotel registry (reference to problem) b. Ordinary person may know b. For lawyers it is what we know we should be they should NOT do it, but forbidden to do they still may. c. Lawyers think of it as do the right thing to uphold the system i. Lawyer is thinking in terms of Rule Utilitarianism ii. Do NOT get short term gains because it will have long term consequences 1. E.g. If lawyer fakes the registry, lawyer will lose his job 5. Moral Dispositions (Williams article pg97) a. SEE PPT Slide labeled “III. E. Moral Dispositions” 6. Focus of Moral Analysis/”Schools of Ethics”
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a. 4 Traditional Substantive Schools of Philosophy – tells what is right and wrong, and what is good and bad. All 3 Lawyer-types can be analyzed from any of 4 substantive schools of philosophy. i. Deontology – focuses on the “Act” itself: asks if the act is properly structured?; focus is on “goodness” or “rightness” of act or its motive; like Kant’s philosophical views ii. Teleology/Consequentialism – Focuses on the “Result” of a particular act; focuses on achieving a good result. iii. Virtue Ethics – Focuses on the “Agent”: focuses on the agent’s character; is the agent truthful, honest, chaste, and courageous, etc. Note that BBE focuses on the Agent iv. Ethics of Care – “Relationships of the Agent with others” c. Consequential versus Deontological Standards v. Agent -> Act -> result/Consequence vi. Consequentialism – ethical analysis is based on achieving a good result. 1. The consequential approach is best illustrated for most lawyers by Utilitarianism. The Utilitarian asks how particular conduct affects people’s happiness and well-being. If more total well-being will be generated by one course of conduct than another, then that course of conduct is morally preferable. Lawyers act as utilitarians most of the time in evaluating legal rules. 2. 2 categories of Utilitarianism a. Act Utilitarianism/Consequentialism – asks which behavior will lead to more happiness or well being in a particular situation. Asks how best to produce maximum welfare in a unique case. Like prophylactic rule b. Rule Utilitarianism/Consequentialism – takes the view that there is value in establishing appropriate standards of behavior for particular classes of cases – would ask what principle or course of conduct is most
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appropriate for a class of similar cases. Like primary rules vii. Deontological – whether the analysis values given behavior as an end in itself. Deontological approaches tend to be based on a set of first principles, such as “responsibility” or “equal rights”. The truths are either revealed by religious faith or are obvious. A deontological approach subordinates goals such as maximizing happiness or welfare to such principles. 1. 2 categories of Deontological a. The first is based on “Duty” and says that there are particular general principles of moral responsibility that can be derived logically and applied universally; e.g. act in a manner that you would have others act toward you. b. The second approach is based on “Rights”. This approach would assert, for example, that individuals have certain human rights that lawyers should help preserve and protect. This position sees particular behavior of lawyers as appropriate without regard to what the effect would be on the general happiness or well-being of the rest of society produced by asserting the rights. b. Moral People versus Moral Actions i. Professional ethics are NOT synonymous with moral conduct. For example, it is not immoral for a lawyer to form a partnership with a non-layer but it would violate current professional standards in almost every jurisdiction. There must inevitably be concern for the quality of a lawyer’s moral decision-making in the countless situations when a lawyer is unlikely to get caught. The source of good decisions in those settings is what we usually call a person’s “character”. ii. Kohlberg’s 6 Stages Of Moral Development: Kohlberg tries to account for the phenomenon of why some people want to be at top (aspiration) and others are fine if they do what have to do (duty) 1. Stage 1: Adherence to rules such as those imposed on lawyers by state supreme courts;
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represents no more than the moral development achieved by a small child who knows wrongdoing is associated with punishment 2. Stage 2: a person basically says, “I will be good to you if you are good to me”. 3. Stage 3: a person conforms his behavior to something he thinks others will approve. a. Stages 2 and 3 are neither the morality of aspiration, but both forms of moral thought are certainly familiar to lawyers. 4. Stage 4: conforming acts to what is required by the social order; requires respect for authority, and would be seen in legal ethics as respect for courts and other legal institutions. 5. Stage 5: requires conforming acts to what is required by the social contract; recognizes greater possibilities of change in the social order and is what Kohlberg identifies as the “official” morality of democracy. 6. Stage 6: Highest stage of moral development; believe in general moral principles. A person looks to “universal ethical principles”. These principles ultimately must be self-chosen, but they must appeal to “logical comprehensiveness, universality, and consistency. In short, Prof. said people determine course of action because it seems wrong to them and are motivated by intrinsic motivation. a. Kohlberg has no answer for cynicism. He CANNOT have an answer because he has no progressive stages of good. iii. Role Ethics v. Common Ethical Standards (ties in with “can a good person be a good lawyer”; relevant to Great Expectations: Mr. Wemmick compartmentalizes his life/beliefs – he gives different advice to Pipp at home and work.) 1. Role-Differentiated Behavior: The nature of role-differentiated behavior often makes it both appropriate and desirable for the person in particular role to put to one side considerations of various sorts – and
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II.
especially various moral considerations – that would otherwise be relevant if not decisive. One’s role as a lawyer alters one’s moral universe. Of special significance here is the fact that the professional qua professional has a client whose interests must be represented, attended to, or looked after by the professional. And that means that the role of the professional is to prefer in a variety of ways the interests of the client over those of individuals generally. 2. Role Ethics: Affects setting of social norms; we want to set legally binding requirements that are fair to everyone. As individuals in deciding what rules to follow and why, we confront having to follow rules/laws that may conflict with our notion of what is right CHAPTER 2: REUGULATION OF THE LEGAL PROFESSION a. MR 8.4(c): Misconduct – It is professional misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation - (does not have to be a crime) b. MR 8.5(a) – Any state in which the lawyer is licensed may discipline a lawyer for misconduct wherever it occurs, and even a state to which the lawyer travels for temporary practice may try the lawyer for conduct occurring there. c. MR 8.3: Reporting Professional Misconduct– lawyer has duty to report misconduct of another lawyer or judge. This requirement tends to one of the most under enforced rules of professional conduct. d. How soon must a lawyer make a report against a fellow lawyer? i. If there is a civil or criminal action pending involving the same conduct, disciplinary authorities often prefer that the lawyer wait until that action is completed. If the information comes in earlier, disciplinary authorities often suspend or abate their own inquiry so as to be able to work with a complete record and avoid duplicative investigation. e. What is the point of the Character and Fitness requirement? BBE want to keep out bad people: who is the BBE trying to protect? i. Clients: 1. The first purpose is shielding clients from potential abuses, such as misrepresentation, misappropriation of funds, or betrayal of confidences. 2. Protect clients because they do not know about the law (there is asymmetric information between the lawyer and the client) and client only knows what lawyer tells them. Thus BBE needs to certify that the lawyer is good because consequences are high 3. Like in economics there is market failure due to asymmetric information – there is a willing buyer and a willing seller, but
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buyer cannot get the information about a product unless the buyer spends much more money ii. Public: 1. Incompetent lawyers affect system because it slows it down, or client could get another trial due to lawyer’s incompetence. Thus, BBE wants to protect the public from the (1) cost of incompetent lawyers AND (2) to protect the public from dishonest lawyers (aka “hyper zealous lawyers”) 2. Thus, the concern involves safeguarding the administration of justice from those who might subvert it through subordination of perjury, misrepresentation, bribery, or the like. iii. Bar Association: 1. A less frequently articulated rationale for character and fitness rests on the Bar’s own interest in maintaining a professional community and public image (protect the Bar’s reputation). An overriding objective of any organized profession is to enhance its members’ social standing, and the Bar is scarcely an exception. Thus, do not want bad lawyers because it affects the entire Bar’s reputation 2. This position is hardest to justify 3. Cord v. Gibb (Va. S. Ct. case): where bar applicant appealed her denial of admission; denial was based on the fact that she had live in boyfriend; the bar argued that it would affect their reputation 4. Fla. S. Ct., in relation to gays, said that past acts among consensual adults that were non-commercial were not going to reflect on the applicants future (this is now a moot point because S. Ct. in Lawrence said that homosexual relations are OK) f. NOTES: i. COOKIE: “The good, the truth, and the beautiful all converge in a single, irreducible idea” is an idea that was espoused by Plato. ii. Bar applicant should admit/disclose everything if there is any chance BBE will find out about conduct and applicant must tell how the incident(s) was disposed of. Also, the Bar focuses on the Agent. The BBE rules on a person’s character and fitness. Thus, the BBE is focusing on something more than illegality iii. Even if act is constitutionally protected, the BBE may use it to keep an applicant out of the bar iv. BBE CANNOT ask you about past illegal acts you were NOT caught for because of the 5th amendment v. In re Hale: The Illinois character and fitness panel held that, in lawyer regulation, “fundamental truths of equality and nondiscrimination must be preferred over the values found in the First Amendment.” g. Movie Re: Bar Discipline – Characters: Do Gooder; The Alcoholic; Chicago Grad; The Poet i. The Poet
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III.
1. Committed a crime (forgery) and he may have committed malpractice (get the definition from the book). He did get into trouble with the Bar. He violated the letter of the law BUT MAYBE NOT the spirit of the law. The bar gave him a public reprimand. Note that the Do Gooder also got a public reprimand. Note that a public reprimand is worse than it sounds because it is public humiliation (a recognized punishment from human norms) and it leads to the loss of clients, sometimes jobs, etc. (which are collateral damage). Thus the actual penalty may be beyond the legal penalty. With regard to the Poet, the structure of is practice lead him to cross the “dubious line”. Bar took a deontological approach to examining his character. ii. Chicago Grad 1. He filed brief untimely and plagiarized some of them. BUT he filed untimely because he was waiting for a S. Ct. opinion to come down. Unfortunately, the S. Ct. upheld the statute so he would have lost either way. But that is NOT how the bar looked at it. 2. He also filed “canned briefs”. He said there were no appealable issues. But the 6th amendment says a client has the right to counsel under Strickland (lawyer sleeps through important part of the trial; point was that the bar disciplined the lawyer, but his client may have had a collateral attack.) 3. Chicago Grad was suspended for 30 days. The sociology of his practice (worked alone; soften blow by talking to clients) led to less damage stemming from his suspension. 4. Note that grievance committee decides if the lawyer violated substance of 1983 Model Rules; the committee uses procedure between civil and criminal; the committee uses sentencing guidelines for punishment. 5. Chicago Grad has this in common with the other lawyers in the movie: they were all unhappy; they all practiced by themselves or in very small firms. iii. Alcoholic – fills in part of chart labeled “Diversion” - He had substance abuse problem and there was a diversion program CHAPTER 3: FUNDAMENTALS OF THE LAWYER – CLIENT RELATIONSHIP a. Undertaking to Represent a Client - Problem 4 i. CANNOT lead client to fabricate his mental state 1. BUT note that the client’s state of mind is hard to find out; BUT ALSO note that it could come back to hurt you if the client sues you. ii. Lawyer client relationship formed, like in Ks, client asks for legal services AND then lawyer accepts it 1. R3rd The Law governing Lawyers § 14 Formation of a ClientLawyer Relationship: a. A relationship of client and lawyer arises when:
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i. A person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; AND either 1. (a) the lawyer manifests to the person consent to do so; OR 2. (b) the lawyer fails to manifest lack of consent to do so, AND the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services iii. Attorney-Client privilege exists AFTER talking to client EVEN IF NO Lawyer-Client relationship formed 1. In other words, prospective clients are within the attorney-client privilege of confidentiality. iv. Client will have to give written permission for lawyer to negotiate, settle, and reject offer. v. R3rd The Law Governing Lawyers § 15 and Model Rule 1.18 confirms the following principles: 1. Communications from a prospective client are legally privileged and protected by the lawyer’s duty of confidentiality as if they were communications from an actual client; 2. If the lawyer takes possession of documents or other property of a prospective client, the lawyer must protect those items as if they were documents or property of a client; AND 3. If the lawyer gives advice to a prospective client, the lawyer MAY be responsible to the prospective client for malpractice if that advice is wrong vi. Model Rule 1.7 – a law firm may NOT represent both sides in the same litigated case. b. Billing For Legal Services – Fees: Problem 5 i. SEE Model Rule 1.5: It contains the word “reasonable”; items 1-8 tell how to deal with problems and there is no bright line because the lawyer must weigh the 8 factors; NOTE Model Rule 1.5(d) is more black and white 1. Model Rule 1.5(a) has a requirement that expenses charged by a lawyer be made part of the fee agreement. 2. Model Rule 1.5(c) requires a written agreement in the case of a contingent fee BUT Model Rule 1.5(b) declares only that a written agreement is preferable. ii. Model Rule 1.5(a) deals with reasonable fees BUT Model Rule 1.5(c) has much more specificity with regard to contingent fees than other fees and Model Rule 1.5(d) tells when contingent fees CANNOT apply – e.g. criminal defense cases and divorce cases 1. Not allowed for divorce cases because if they were allowed it would encourage lawyer to push for the divorce and kept lower echelon lawyers from doing divorce work because they would do
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iii. iv.
v.
vi.
vii.
whatever is possible to win. Note that the policy against having contingent fees for divorce is that people are vulnerable during a divorce MR 1.5(e) – division of fees between lawyers NOT in same firm. Contingent 1. In Fla. have to give client a paper detailing the clients rights when entering into a contingency fee agreement Market system 1. Do NOT see the market approach because a. The state CANNOT come up with sorting method for the price (what to charge for certain legal fees); AND b. Lose market capability of signaling quality to consumers; AND c. CANNOT charge flat rate/set the floor because it would violate anti-trust laws (Goldfarb case) Market failure 1. Market failure in legal markets is of 2 types a. Information Asymmetry: attorney knows more about the quality of services than the client and the client cannot evaluate the quality of the lawyer’s services because lawyer’s services are expensive and variable. Regulation is designed to correct consumer’s inability to evaluate quality of services. i. Note that regulation of fees deal with this problem ii. Since lawyers charge fees there is tension between 1. Client wants to pay as little as possible for legal services AND 2. Lawyer wants to charge the most he can for legal fees iii. Model Rules try to deal with this problem of asymmetric of information iv. A different way to deal with the problem, rather than deal with reasonableness, is to charge flat fees b. Lawyers Incompetence: it affects society and the client. This one deals with protecting the client. A client who does minor bad act hires a cheap lawyer and then relies on judge to keep the lawyer on track. The downside risk is not born by them but by other people (i.e. there are externalities). So the Bar tries to internalize these externalities through regulation. It only protects the public very crudely – e.g.: lawyer takes the bar exam to show minimum competence. Goldfarb case 1. S. Ct. held that the minimum fee schedule published by the County Bar Association and enforced by the State Bar, as applied to minimum fees prescribed for real property title examination, violated the Sherman Act, since the record established that (1) the
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fee schedule was not purely advisory but constituted price fixing, establishing a fixed, rigid price floor. viii. Double Billing Issue 1. ABA rationale: a. ABA says that if the lawyer double bills, then lawyer is selling the same thing twice. ABA says cannot sell an apple twice because no more than one people can take a bite of it. ABA says it is helpful to consider the questions relating to double billing from the perspective of what the lawyer actually earned. ABA says that a lawyer who is able to reuse old work product has not re-earned the hours previously billed and compensated when the work product was first generated. 2. Prof. says ABA should focus on performance rather than time. Prof. says that the ABA rule forces lawyer to waste time and be inefficient 3. Note that some clients are hiring independent specialists to audit their lawyer bills. 9th Circuit found that the firm owed NO duty to the law firm. c. Handling Client Funds/Property And Withdrawing From representation - Problem # 6 i. A lawyer has a fiduciary relationship with a client. Violation of standards with respect to client property is also one of the most certain ways for a lawyer to be disbarred. Prof. says that this statement is somewhat inaccurate. He says what gets the lawyer disbarred is mishandling client funds. This can happen when the Lawyer sends money to the wrong account. The Bar can easily prove it and thus can prove that the lawyer violated a Model Rule. Thus, there is not so much a fiduciary issue but rather a mishandling of client funds. Note that the Model Rule does NOT really protect the client. ii. The lawyer CANNOT have non-monetary client stuff lying around. The lawyer need to put non-momentary client stuff somewhere safe like a safety deposit box iii. Withdrawing from Representation i. MR 1.16(a)(2): withdrawal mandatory IF the lawyer’s physical or metal condition materially impairs the lawyer’s ability to represent the client. ii. MR 1.16(b)(1): authorizes a lawyer to withdraw from representation at any time IF the withdrawal affects NO material interests of the client adversely. 1. NOTE: A client can discharge the lawyer at any time and for any reason, having only the obligation to pay for work done to that time. iii. MR 1.16(b)(4): Lawyer must withdraw when the client does something lawyer sees as against lawyer’s better judgment. d. The Duty Of Confidentiality - Problem # 7 i. Law protecting confidences i. Agency Law - Lawyers are always working on behalf of client 1. Lawyers are the agents for the clients, who are the principles
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2. The agent (lawyer) is obliged to protect the principle’s (client) information 3. The agent-principle relationship is broadest because it covers many relationships BUT it is shallow in that the information is NOT VERY protected a. In a balancing test, if someone needs the information more or for a good reason, then the information must be divulged b. The standard is “me vs. world”; thus the information comes out to protect 3rd parties. But between the agent and principle, the information is strongly protected and strictly enforced against the agent to protect the principle. ii. Attorney-Client privilege (Privilege information) 1. R3rd The Law Governing Lawyers § 68 says that the attorney-client privilege protects (1) a communication (2) made between “privileged persons” (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client. a. “Privileged persons” are the client (including a prospective client), the client’s lawyer, agents of either who facilitate communication between them, and agents of the lawyer who facilitate the representation 2. Narrow exception (in that it protects few types of information/little information falls into this – that is it must relate to the purpose of seeking legal counsel) BUT it runs Deep (it is hard to get the information); protected in court and death does NOT free information/allow it to be exposed 3. Attorney client privilege continues after death a. It is a results oriented consequentialist argument which is people will NOT tell secrets during life to lawyer if they know lawyer will tell their secrets after their death b. Note that studies show that people do NOT know the extent of the attorney client privilege 4. It is the communication that is protected NOT the underlying facts 5. There is NO attorney-client privilege when: a. Furtherance of crime or fraud: If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. 6. How Legal Protection Against Disclosure Can Be Lost a. If the Client, by mistake or otherwise, tells an outsider – even a trusted friend – the content of your confidential conversations with him, the attorney-client privilege as to those conversations will be lost for all time. That means the Lawyer can be required to testify about the discussions as well. b. Further, if the Lawyer reveals some privileged information, often the privileged will be lost at least for all information needed to put the privileged material into context.
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iii. Confidential Information (MODEL RULE 1.6) 1. “Ethical duty of confidentiality”: as wide as agency relationship (broad) but NOT very deep (“fairly deep”) a. Anything a lawyer learns from a client in the course of representing the client, from any source, at any time is protected … BUT in terms of what it takes to get information exposed is a lot less than needed for attorney-client privilege i. Model Rule 1.6(b)(1) creates an exception to the obligation of confidentiality when disclosure is required to avoid “reasonably certain death or substantial bodily harm”, BUT NOT when failure to disclose will cause 3rd parties to be victims of securities fraud. b. The Model Rule 1.6(b)(2) and Comment 7 specifically allow a lawyer to use confidential information as reasonably necessary to seek legal advice about the lawyer’s compliance with ethics requirements. c. R3rd The Law Governing Lawyers § 60(1)(b): The Lawyer must take steps reasonable in the circumstances to protect confidential client information against impermissible use or disclosure. d. Model Rule 1.6 Comment 16: A Lawyer need NOT use special security measures if the method of communication affords a reasonable expectation of privacy. 2. One of the important distinctions between information that is “privileged” and information that is protected only by the obligation of “confidentiality” is that a lawyer MAY be required to testify about the latter (information that is protected only by the obligation of “confidentiality”). 3. Waiver a. R3rd The Law Governing Lawyers § 79 Comment (h) says that waiver does NOT result if the client or other disclosing person took precautions reasonable in the circumstances to guard against such disclosure. iv. Work Product Doctrine (ordinary and opinion) 1. Rationale is to (1) make lawyers do their own homework and (2) lawyer for a party needs to protect his own thoughts about the case 2. Information protected by Work Product Immunity a. What constitutes a lawyer’s “work product” and what are the consequences of so designing it? i. R3rd The Law Governing Lawyers § 87 1. (1) Work product consists of tangible material or its intangible equivalent in unwritten or oral form, other than underlying facts, prepared by a lawyer for litigation then in progress or in reasonable anticipation of future litigation.
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IV.
2. (2) Opinion work product consists of the opinions or mental impressions of a lawyer; all other work product is ordinary work product. 3. (3) Except for material which by applicable law is not so protected, work product is immune from discovery or other compelled disclosure ii. The test is whether litigation could reasonably have been anticipated; the lack of a specific case at the time the documents were prepared does NOT deny the work product protection. b. Hickman v. Taylor said that “ordinary” work product may be obtained in discovery upon a showing of “substantial need”. However, according to R3rd The Law Governing Lawyers § 89 “opinion” work product is immune from discovery or other compelled disclosures UNLESS extraordinary circumstances justify disclosure”. 3. Opinion Work Product a. Protected almost absolutely; narrow and fairly deep 4. Ordinary Work Product a. Ordinary work product is protected narrowly and fairly shallow; If either side needs the information for a good reason (that is they can show they are under a hardship to get the information) they can get the information i. The other side only gets information that does NOT contain the lawyers thought/mental impressions of the case/legal theories CHAPTER 4 THE REQUIREMENT OF LOYALTY TO THE CLIENT a. COOKIE PG 158 – What is wrong with the first sentence of biblical injunction? Note that the biblical injunction against serving inconsistent masters (bible says can only serve one master, god) is a man shall not serve 2 inconsistent masters. It seems to modify serving one master with serving two masters (thus serve 2 inconsistent masters) BUT we as lawyers do this all the time. A Lawyer has to balance his interest with the client’s interests. The lawyer’s interest is serving as many clients as possible and each client has their own interest. The point is that for regulation of loyalty to client you have to draw the line somewhere. b. Representing Multiple Parties Dealing With Each Other – Problem 9 i. Conflicts of Interest 1. MR 1.7 (conflict of interest with current client), 1.8 (specific rules), 1.9 (duty to former clients), 1.10 (imputations of conflicts of interest), 1.11 (government lawyers/officials) 2. Malpractice ii. Determining whether the lawyer has a conflict of interest 1. MR 1.7(a): Except with informed consent, a Lawyer shall NOT represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
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a. (1) The representation of one client will be directly adverse to another client; OR b. (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 3rd person OR by a personal interest of the Lawyer. iii. MR 1.10(a) usually imputes a single lawyer’s conflicts to all other lawyers in the firm. iv. MR 1.6 says that CANNOT tell others about certain information after withdrawing from the representation from a client v. Waiver of Conflict of Interest; Informed Consent (definition in MR 1.0(e)) 1. MR 1.7(b): Even with conflict, lawyer can represent client if: a. lawyer reasonably believes can give competent diligent representation to each affected client; AND b. Each affected client gives informed consent, confirmed in writing. 2. Informed consent requires the client or former client have reasonably adequate information about the material risks of such representation to that client or former client. 3. Generally: a. Each affected client or former client can preclude representation by withholding consent b. Lawyer must fully explain potential conflicts to all clients, to ensure valid meaningful consent c. If circumstances change significantly, lawyer should obtain new consents d. Client who believes unfair treatment can sue to set aside previous consent e. If clients consent to joint representation & conflict develops later, lawyer must withdraw; cannot continue to represent either client 4. Could Attorney help 3 people start up LLC partnership? a. YES, BUT NOTE that each has divergent interests i. The layer MUST tell all 3 partners the risks that come with the lawyer giving all 3 advice. 5. Each time a lawyer wants to confront/talk to 2nd person of a couple, the lawyer has to get consent of other person BEFORE hand 6. BUT NOTE – if it is a situation where there are divorcing spouses, the lawyer should NOT represent both spouses 7. Thus even if the divorcing clients both want you to represent them, you CANNOT because it is an unconsentable conflict (A lawyer cannot represent two clients with claims against each other in the same litigation) for 2 reasons based on these theories:
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a. (Contractual related) You CANNOT get both to understand future factual problems; thus the client and lawyer’s minds never really meet b. It just causes future problems in that if it goes bad both clients have to get new attorneys and incur other costs; thus the possibility of future problems just CANNOT be avoided. vi. Drawing client protection rules too broadly (even “former client” conflict of interest rules) would impact other clients in detrimental ways (or even be abused by unscrupulous lawyers) 1. E.g. M&A client approaches 7 firms and only 7 firms can do the M&A or defend the target. Target cannot get lawyer because rules of conflicts of interest so target (a ready client) is hurt because it cannot get representation. c. Duty Of Loyalty - Problem 10 i. Duty of loyalty a. protecting clients info b. protecting clients loyalty to lawyer ii. Note the Bar is concerned with the Bar’s image in duty of loyalty cases a. Grievance Committee of Bar v. Rottner: this case established the rule against a firm’s handling an unrelated law suit against a current client. “When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and his champion. If, as in this case, he is sued and his home attached by his own attorney, who is representing him in another matter, all feeling of loyalty is necessarily destroyed, and the profession is exposed to the charge that it is interested only in money.” iii. From deontological approach want to give client the peace of feeling that attorney-client relationship is persevered or sacrosanct. iv. From consequential approach, it wants to prevent any ill results that may arise. v. It is important for the lawyer to determine when the client has become a former client (client status is a question of fact). IBM case (pg 178) shows that the client’s reasonable expectation precludes you from taking a case against that client. Lawyer’s perception and expectations are not the most important. vi. You can sue former clients if you do NOT know anything that will be used against them later. vii. The “Hot Potato” Rule/Firing a Current Client: The firm may NOT drop a client like a hot potato in order to keep a far more lucrative client. a. Lawyer may NOT convert a present client governed by Model Rule 1.7 into a former client governed by Model Rule 1.9 merely by choosing when to cease to represent the disfavored client.
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viii. Positional conflict: what you do in one case might hurt your client in a later case. (MR 1.7(a)(2)) a. ABA Formal Opinion 93-377 analyzed the so-called “positional conflicts” issue as follows: If the two matters are being litigated in the same jurisdiction, and there is a substantial risk that the law firm's representation of one client will create a legal precedent, even if not binding, which is likely materially to undercut the legal position being urged on behalf of the other client, the lawyer should either refuse to accept the second representation or (if otherwise permissible) withdraw from the first, unless both clients consent after full disclosure of the potential ramifications of the lawyer continuing to handle both matters. Even if the matters are being litigated in different jurisdictions, if the lawyer concludes that the issue is of such importance and that its determination in one case is likely to have a significant impact on its determination in the second case, thus impairing the lawyer's effectiveness -- or if the lawyer concludes that, because of the dual representation, there will be an inclination by the firm either to "soft-pedal" the issue or to alter the firm's arguments on behalf of one or both clients, thus again impairing the lawyer's effectiveness -- the lawyer should not accept the second representation. d. Conflicts Between Client Interests and the Lawyer’s Personal Interests Problem 12 i. Recall that there is asymmetric information problem (lawyer knows more and how much work will take and service is worth). Double Asymmetric Information: on the one hand, the client does NOT know the worth of legal services AND on the other hand, if the client pays with other than money (e.g. stock), the client may NOT know the worth of what they are offering. In other words, nature of services are hard to evaluate worth, then client is relying on lawyer to value the stuff the client will use to pay the lawyer. 1. We do NOT want lawyers to take advantage of clients because lawyers know too much (Rule 1.5 deals with this) and we do NOT want lawyers to take advantage of clients when engaging in business transactions (Rule 1.8 deals with this). 2. On the substantive side: Rule 1.8(a) the arrangement must be fair to the client. So the deal must be reasonable 3. On the Procedural side, lawyer must show that they have taken procedural steps: Lawyer has to notify the client in writing of the problems/conflict (pg 86 in rule book), the client then must reply in writing; lastly, the Lawyer has to notify client in writing that they should seek the advice of another lawyer about the impending transaction. a. E.g. David Bois problem: he did not tell client he was referring them to company owned by Boise relatives to provide services to the client. He should have disclosed to
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clients that his family has ownership of the company he referred them to. b. He should have, under Model Rule 1.8(a), told clients that he is tied to the company and then have another lawyer evaluate it. So he had to meet substantive requirements AND procedural requirements. Prof. speculates that if it was just done in house by his relatives, he may have been o.k. and not had to disclose to client who did the work. ii. Accepting payment in the Form of Stock; Business Transactions- All or part of the Lawyers fee in the form of stock in the client’s business. 1. Model Rule 1.8(a) treats such fees as business transactions with a client. They are also subject to Rule 1.5(a)’s requirement that the total fee be reasonable. Other conflicts can arise; e.g. problems under Rule 1.8(j) if the company’s only asset is a cause of action, and under Rule 1.7(a)(2) if the stock is a major asset of the lawyer. a. Note that even if the lawyer complies with Model Rule 1.8(j), Rule 1.7(a)(2) is still relevant. b. Notice that Model Rule 1.8(k) expressly does NOT impute the Model Rule 1.8(j) prohibition throughout a law firm. 2. Rule 1.8(a) requires that a stock transaction be fair and reasonable and the terms discussed specially with the client, NOT simply be reasonable in value as required by Rule 1.5. 3. Rule 1.8(a) does NOT prohibit standard commercial transactions in the regular course of business of the client, involving a product or service as to which the lawyer does NOT render legal services. Comment (c) explains that these transactions regularly entered into between the lawyer or the client and the general public, typically in which the terms and conditions are the same for all customers. 4. Comment (c) warns that where a lawyer engages in the sale of goods or services ancillary to the practice of law, for example, the sale of title insurance, the requirements of this section DO APPLY. iii. Using Confidential Client Information to make Private Investments 1. Model Rule 1.8(b) says that without the client’s informed consent, a lawyer shall NOT use information relating to representation of a client to the disadvantage of the client UNLESS the client consents. a. Model Rule 1.8(b) seems to permit profiting from inside information that is NOT to the client’s detriment, BUT NOTE that other areas of law do NOT allow this and former rules do not allow it. i. The law (not lawyer codes) say CANNOT use client information to help client and to hurt the client. iv. Accepting Unsolicited Gifts From Happy Clients 1. Model Rule 1.8(c) lawyer shall NOT take/ask for substantial gift from client; if relative gives gift it is OK. If it involves drawing up an instrument, then cannot take the gift. E.g. if try to give car have
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to draw up instrument, so cannot take gift. BUT if client wants to give you a jacket, that is OK. One gift is OK because transferring tangible property even if super valuable dose not require an instrument. Prohibition of gifts turns on whether a legal instrument needs to be drawn up. Turns on it because valuable stuff requires the drawing up of an instrument whereas other personal property can just be delivered. Under other law, the notion is that such gifts are suspect and presumptively invalid. The lawyer codes do not forbid the gifts, but other laws have something to say. 2. R3rd The Law Governing Lawyers §127(2) tells lawyers that they may NOT accept a substantial gift from a client, whether or not preparation of an instrument is required. The different statement of the rule may be explained by Comment 6 to Model Rule 1.8, which says that a lawyer may accept a substantial gift, BUT the gift may be voidable by the client under the doctrine of undue influence, which treats the client gifts as presumptively fraudulent. v. Pre-Payments (restatement 34, Comment (e) and restatement 38, Comment (g)) 1. Lump Sum Fee a. Constitutes the entire payment for a lawyer’s services in a matter. Covers ALL work to be done. 2. Refundable Retainer/Advance Payments a. From the RR/AP the lawyer’s fees will be subtracted. Covers SOME work to be done. 3. Non-refundable Retainer/Engagement Retainer a. Where lawyer is to be additionally compensated for actual work, if any, performed. Covers ONLY AVAILABILITY to do work. b. It is questionable as to whether a Non-Refundable retainer is permissible. Different jurisdictions treat this differently – generally ok if sophisticated client. vi. Lawyer’s Liens - Lawyers can acquire security interests in their clients stuff - but only under very scrupulous rules. This happens in three instances: 1. Retaining Liens (client property and $$ in lawyer’s hands) a. Majority Rule – this type of lien is OK. Lawyers CANNOT be required to turn over stuff they have generated for clients if the clients have not paid their bill (this includes documents and even money). i. Exception: “Urgent need”. Pomerantz v. Schandlerfound an exception to the attorney’s lien, in the court’s discretion, when the client had an urgent need for papers to defend a criminal case and lacked the means to pay the lawyer’s fee. HOWEVER, that exception is NOT broad. The whole purpose of a retaining lien is to put pressure on the client to pay
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the lawyer’s bill. An Attorney’s lien CANNOT otherwise be disregarded merely because the pressure it is supposed to exert becomes effective. ii. Exception: Items left for safekeeping. The retaining lien does NOT apply to property simply given to the lawyer for safekeeping. See M&R at 124n.5. b. Minority Rule – NOT OK; this is rule in California i. R3rd The Law Governing Lawyers § 43(1): 1. Rejects the availability of a retaining lien on the ground that a broad retaining lien could impose pressure on a client disproportionate to the size or validity of the lawyer’s fee claim. ii. Exception: quasi “work product”; e.g. wills, trust, deed drafted for client. 1. CA rule says that Lawyer can keep the documents he has generated if client has not paid for them. iii. Exception: “NOT unreasonably harm” 2. Charging Liens (property lawyer recovers for client) a. Majority Rule: automatic, subject to notice to 3rd party i. See Model Rule 1.8(i)(1); cf. Model Rule 1.8(i)(2) (contingent fee) b. Minority Rule – ONLY by contract with client, Restatement 43(2), and subject to notice to 3rd party. i. R3rd § 43 Comment (d) explains that many states recognize a charging lien without a contract between the lawyer and client BUT R3rd § 43(2) provides that there should be a contract in order to safeguard the client. The attorney must give notice to the person paying the judgment or settlement. Once such notice is given, the person paying the judgment or settlement is liable for the attorney’s fees IF that person pays the entire judgment or settlement directly to the attorney’s client. 3. Other Liens on Client Property – OK, subject to conflict of interest rules; See Model Rule 1.8(a) a. R3rd The Law Governing Lawyers 43(4) i. With respect to property neither in the lawyer's possession nor recovered by the client through the lawyer's efforts, the lawyer may obtain a security interest on property of a client only as provided by other law and consistent with §§ 18 and 126. Acquisition of such a security interest is a business or financial transaction with a client within the meaning of § 126.
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b. On property subject to litigation – 1.8(i)(1) c. On other client property – 1.8(a) vii. Tokens of Affection 1. MR 1.8(c): A lawyer shall NOT solicit any substantial gift from a client, including a 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. viii. Affection Itself (Sexual relations with clients) 1. MR 1.8(j) sexual relationships are forbidden UNLESS the relationship existed before representation. a. Model Rule Comment says when client is an organization – includes representatives of organization that supervise and direct legal matters. b. ABA is prophylactic rule. 2. Fla. R. 4-8.4(i) CANNOT engage in sexual conduct with a client that exploits attorney client relationship. a. Fla. Rule Comment says applies to sex with individuals, but NOT with those in corporations – this is done intentionally to reject the comment to MR 1.8(j) b. Do NOT have sexually exploitive relationships with clients --To stop this, the ABA could have just completely banned this but they didn’t, they added “unless there was a prior relationship”. The Fla. rule is different, it adds (i), sexual relations that exploit the lawyer client relationship. c. Fla. rule is a primary rule. e. Representing the Insured and Insurer - Problem 13 (Prof. - this happens often) i. MR 1.8(f): A lawyer shall NOT accept compensation for representing a client from one other than the client UNLESS: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; AND (3) information relating to representation of a client is protected as required by Rule 1.6. i. MR 1.8(f) and Comment 11 are the analogous rule to Fla. special rule (stated below) when it comes to representing the insured and insurer. ii. COOKIE: Florida has special rule - Florida Rule 1.8(j) deals with the representation of the insured by insurance company. In Fla. a Lawyer engaged in representing the insured have to notify client with an especially friendly client bill of rights. Statement of client’s bill of rights is more aggressive; tells that insured is the client of lawyer, NOT the insurance company. Florida Bar tells insured that if have problem, then call the Bar. f. The Lawyer and Her Former Client – Problem 14 i. MR 1.9(a): Lawyer CANNOT proceed adversely to former client in same or substantially related matter UNLESS the former client gives informed consent, confirmed in writing.
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1. It is based on policy of protecting client information and to a lesser extent protecting client loyalty. ii. MR 1.9(c): a lawyer may NOT use or reveal information acquired in a prior representation contrary to the interest of the former client UNLESS the information has become generally known. iii. Matters as to which disqualification is required – What Standard Defines When a Lawyer May Undertake A Matter That Is Contrary to the Interest of a Former Client? 1. The basic standard limiting such representation is in the lead case T.C. Theatres Corp. v. Warner Brothers Pictures, Inc. and it annunciated the “Substantially Related” test. a. HELD: that the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer's duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained. b. Note that the substantially related test is incorporated into MR 1.9(a). It is MR 1.9, NOT Rule 1.7(a), to which lawyers look to determine their obligations to a former client. i. The reference in MR 1.7(a)(2) to “former clients” refers to the effect of the lawyer’s obligations under MR 1.9 to a former client on the interest of a current client of the lawyer. c. Note well that “matters” are NOT limited to causes of action, rather the term “matters” covers more than lawsuits. 2. R3rd the Law Governing Lawyers § 132 a. The current matter is substantially related to the earlier matter IF: i. (1) The current matter involves the work the lawyer performed for the former client; OR ii. (2) There is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known. iv. Once it is shown that there was a relationship and that information spilling is likely, then there is no need to prove anything else; thus the lawyer will be disqualified.
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v. General Rule: a lawyer is NOT barred from proceeding in a later action against a former class member. g. Imputed Disqualification - Problem 15 i. See Model Rule 1.9(b). If the imputed contamination is gone (i.e. the lawyer dies or leaves), then so is the imputed conflict. In other words, when 2 lawyers in a firm, say X and W, and there is a conflict imputed to firm and if contaminated lawyer leaves the firm and takes the contamination with him, the imputation is removed SO LONG AS NO tainted information had spilled over. ii. MR 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... 1. MR 1.10 is designed to prevent intentional sharing of pertinent information AND to prevent the access of files that just arise in the course of working in the same law firm. 2. Silver Chrysler Case: a. Compare Silver Chrysler Case to GM case (pg 235). In GM case there was disqualification of lawyer. b. Why the difference? Remember TC Theater rule if lawyer goes from representing client to suing client, it is NOT O.K. if the cases are substantially related. c. Contrast, in Chrysler case, the Associate with minor involvement in a case is at little risk of getting law firm disqualified. The attorney’s involvement was, at most, limited to brief, informal discussions on a procedural matter or research on a specific point of law. We do not believe that there is any basis for distinguishing between partners and associates on the basis of title alone -- both are members of the bar and are bound by the same Code of Professional Responsibility. But there is reason to differentiate for disqualification purposes between lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery for a limited and specific purpose relating solely to legal questions. In large firms at least, the former are normally the more seasoned lawyers and the latter the more junior. d. Rationale: 2nd circuit court of appeals came up with the rule in Chrysler case because if the court developed another rule its law clerks could not get a job. The problem of junior lawyers moving from one firm to another and carrying with them taints that would lead to firm disqualification was what led to the courts ruling. 3. Lawyer has the burden of proof to show that they should not be disqualified (that is, lawyer’s involvement was small). iii. MR 1.7 Comment 11 (disqualification when ties are familial/spouse). In general the law does NOT impute conflicts because of family
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relationships, BUT the husband and wife may NOT personally represent clients adverse to each other. As Rule1.7 Comment 11 points out, the conflict is personal and thus ordinarily is NOT imputed to other lawyers in a law firm. iv. Use of “Screening” to Avoid Imputation 1. MR 1.0(k) defines “screening” by saying that to be “screened” denotes isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law. h. Government Lawyers: “Revolving Doors” - Problem 16 i. NOTE: Governor Epps case in Reader (pg 116) MAY BE relevant. ii. Revolving Doors – have it because we have a frontier mentality of government. Government is bigger than any other client AND it is the most powerful client. Thus, these two factors explain the unique American phenomenon iii. Note: Under the Federal Criminal Statute (18 USC 207) if lawyer was really high up in the government they may NOT be able to contact the office for a specific period of time (“cooling off period”). iv. Policy: The Rule is all about the employment careers of young associates. The interest is in allowing attorneys to move from firm to government agency and vice versa. v. Model Rule 1.11(a) says that former government lawyers CANNOT represent a client in a matter in which he had participated “personally and substantially”. Just being at the agency is NOT enough; being at the top of agency while investigation is going on, MAY NOT be enough; if participating in litigation, then it is enough and Lawyer must bow out. Model Rule 1.11(b) is the analog of Model Rule 1.10. Also note, Model Rule 1.11(a) is analogous to Model Rule 1.9(a). vi. Model Rule 1.11(c) is concerned with former government officials using information they got at former job to help current clients. vii. Rule 1.11(d) says public officer or employee subject to Rule 1.9(a) and Attorney CANNOT work on case in which he personally and substantially worked while in private practice. viii. Model Rule 1.11(b) and Comment 3 are derived from General Motors Corp. v. City of New York. The court concluded that lawyer’s prior responsibility for the case was “substantial”; that his contingent fee arrangement with the city constituted private employment; that the city’s anti-trust suit was sufficiently similar to the federal case so as to constitute the same “matter”; that it was irrelevant that the lawyer had NOT “switched sides” but had continued to litigate against GM; and that the lawyer’s representation of the city would constitute the “appearance of impropriety”. ix. Model Rule 1.11(b) clearly provides that imputation can be avoided by timely “screening” of the former government lawyer. REMEMBER that
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the requirements for an effective screen are set forth in Model Rule 1.0(k) and Comments 8-10 to Model Rule 1.0. V. CHAPTER 5 ADVISING CLIENTS a. 2 functions lawyers engage in: i. Advising clients ii. Advocating for clients b. The Lawyer For An Individual Client - Problem 17 i. Recall in Great Expectations Pipp want to give friend money to help him. He approaches Wemmick who advises Pipp that it is a bad plan to give money to friend. Yet Pipp goes to Wemmick’s house and he tells Pipp to go through with it and give the friend money. ii. Criminal Defense Paradigm: a notion that a lawyer is entitled to and supposed to do all things within the law to help the criminal client, even getting client off on a technicality when you know they are guilty. So the orthodox view is getting the client off even if they committed very egregious conduct. This is the belief of the Type 2 Lawyer and confines it to these cases. This is a special case because the most disadvantaged clients are at risk here because they are usually the most disadvantages and in poor economic circumstances and they are being hassled by the USA government, who is the most powerful person. 1. For the Type 2 Lawyer this is a rather restrictive case. They would only do this in this specific case. The type 1 lawyer however would do all this all the time; type 1 would do it for criminal clients and in situations that are purely advisory and in adversarial proceedings. Type 3 lawyer is limiting their choice of client to those client causes they actually believe in. So they will go as far in any litigation as the type 1 but the type 3 is constrained to fiercely advocating for clients who have a cause that they believe in. 2. Criminal Defense Paradigm has a psychological component. At the end of the day how do lawyers representing people like David Keith (murderer in Bellow’s article: Notes of a Public Defender; pp 118) feel when they come home. So the moral justification can be differentiated from the psychological justifications. Prof. refers to the chart below regarding the Williams article. iii. Williams article, Moral Dispositions (pg 97 of Reader) 1. Williams’s article gives 3 dispositions. Williams says non-adaptation would be good. 2. William’s says that lawyers tend to be in the category of specific professional adaptation. One of the dangers is people who do this day in and day out is that it wears on people’s souls. Even if it is justified to provide the defense for criminals, it is seen differently by the 3 types of lawyers. Moral Dispositions Personal Disposition Professional Disposition Specific Professional Feel Bad Feel OK Adaptation
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Non-Specific Adaptation Feel Bad Feel Bad General Professional Feel OK Feel OK Adaptation Prof. Offers a 4th position Feel OK Feel Bad d. Advising the Business Corporation - Problem 18 i. Hypo: Your client is owner of Sleepywear and he calls to tell you that he visited a plant he owns and notices employee in picture and he thinks he is gay. He tells you he thinks that there is gay man working in company and says he cannot tolerate it. He wants you to find out if he can fire the gay employee. Note federal law does not protect sexual preference and most state laws do not either. So he asks if he can fire all of them and if so draft a letter dismissing them. Any problem with that? Need to serve the client and put your personal ethics aside as did the Butler in the Remains of the Day. One answer is the Butler’s answer, it is not my job – the principle wants something within the law so we should advise him of it. If raise other questions of norms bearing on the lawyer then you may be acting as a Type 2 Lawyer. If you are a Type 2 Lawyer you may tell him it is not in the best interest of the company (which the Butler did and thus Butler could be a type 2 lawyer). If Type 1 Lawyer you tell him you (law firm) will do whatever is in the law which is it is legal to fire the employees. Note in Remains of the Day the maid Ms. Kenton wants to resign because she does not agree with what Lord Darlington wanted to do but she did not leave because she was scared because her employment alternatives were limited. 1. MR 1.2(b): client’s views NOT lawyer’s view. ii. Corporations are made up of various constituents who owe to each other fiduciary duties. 2 basic duties: (1) duty of loyalty (do not rip off the corporation) and (2) duty of care (make decisions on ordinary business prudence at the very least). iii. MR 1.13 is concerned with protecting the entity client. Keep mind that is not the only source of obligation. iv. MR 1.13(a): A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. v. MR 1.13(b): Lawyer shall refer illegal actions of officer, employee, or other person associated with corporation to higher authority in corporation vi. The business judgment rule is a rather low standard – a manager can really screw up and make a bad decision and still not be liable. vii. If the corporation violates the law the lawyer must take action. The next step is, the lawyer must go up the chain of command (go up to the president/CEO) as per Model Rule 1.13(b). Then if president does not pay attention to the lawyer, then go to the highest person you can go to; Comment 5 of the rule says that the highest authority will be board of directors. However, applicable law may say to go to someone else, such as the independent directors of the corporations which are the auditors (auditing committee). The auditors usually are not salaried employees of the corporation. Prof. says that the “rub” is: The auditors may be
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independent but they are always compensated for what they do and they like their job a lot; these folks are definitely cozy with the corporate managers. Also, the president of a competitor may be sitting on the auditing committee. This causes further problems. Now suppose the auditing committee does not pay attention to the lawyer; where is he to go next? You cannot go to the shareholders because in most public corporations if you tell the shareholders you have in fact (or essentially) told the whole world. Also note that the people that the lawyer works for are the people below the shareholders (e.g. managers who hired here). So the rules says tell all the agents all the way to the top BUT NOT the principles (shareholders). viii. Model Rules 1.13 and pg 549 in supplement that deals with SarbanesOxley which is similar language as Model Rule 1.13. SEC will promulgate rules setting forth minimum rules for attorneys appearing before the SEC. (see pg 364 course book) 1. Rule 1.13 talks ONLY about the company. Sarbanes-Oxley also talks about the company AND the shareholders/investors. 2. Rule 1.13(c): If lawyer has gone to the highest person and lawyer knows the problem will harm the organization then lawyer MAY report the problem to someone outside of the corporation. It allows you to report when Model Rule 1.6 does not. ix. ABA rules and Sarbanes makes clear that lawyer’s actions does NOT generate liability for the lawyer in themselves; BUT Prof. says to be careful. x. See MR 1.6(b)(2): the provisions came from the draft language of the SEC rules. 1. MR 1.6(b): if other law supersedes this law (Model Rule 1.6) then you as a lawyer must abide by that law. 2. If you do not reveal the problem then you cannot stay on in the case because you would be assisting the client in committing a crime or fraud. e. Confidentiality and the Organization as a Client (Problem of attorney client privilege as applies to multi-client situations) – Problem 8 i. In the Upjohn case S. Ct. said attorney-client privilege runs to the corporation and protects communications all the way down to the bottom. The corporation can exercise it or waive it. See MR 1.13(f). Also, if information was got in anticipation of litigation, the work product doctrine applied. The company has to convey to the agent (employee) that the information is protected. The corporate lawyer is the corporations’ lawyer. But S. Ct. Opinion rests on the assumption that the employees believe that the corporation’s lawyer is their lawyer. So under professional responsibility rules the lawyer is the corporation’s lawyer. BUT under other laws if employee believes and relies that the lawyer is their lawyer then the information is protected. But if the company tells the employee that the corporate lawyer is not employee’s lawyer, then employee is on his own.
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II.
VI.
1. Can be trap for unwary: Corporation can waive attorney-client privilege for employee. Yet Rehnquist’s rule only works when Corporation CANOT waive attorney-client privilege. ii. Does attorney-client privilege apply when one is conducting an internal investigation, the results of which may be available to others? See Upjohn case. The protection that will be granted to communications with inside and outside corporate counsel is broad in cases where NO public disclosure is planned, BUT the result may be different where the lawyer’s conclusions are intended to be made available outside of the corporation. iii. The SEC rules ONLY apply to the attorney practicing before SEC. The Lawyer as Evaluator (Various sources of the law that govern lawyers) – Problem 21 a. Should the lawyer be liable to investors in an offering of securities if the lawyer’s investigation is inadequate or if the lawyer fails to prevent fraudulent conduct by the lawyer’s client? i. Central bank of Denver v. First Interstate Bank of Denver. It is the leading case limiting lawyers financial exposure under § 10(b) of the Securities Exchange Act of 1934. The S. Ct. held that there is NO aiding and abetting liability under § 10(b). Because many lawyers, accountants, and other professionals would be sued under such an aiding and abetting theory, the decision appears to have limited this form of exposure. b. Foreign Corrupt Practices Act: USA law that says CANNOT bribe foreign officials. CHAPTER 6 ETHICAL PROBLEMS IN LITIGATION a. Decision to File A Civil Lawsuit - Problem 23 b. NOTE: Dickens’s Bleak House MAY BE relevant. i. Relates to Dickens’s Bleak House because the case of Jarndyce v. Jarndyce has drug on a long time; the lawyers keep filing motions and documents with the court that appear to have no other point than to keep prolonging the case; the lawyer’s should have settled since there is not much merit, both factually and legally, left in the case. c. Lawyer Misconduct - Model Rule 3.1 vs. Federal Rule Civ. Pro. 11 d. Model Rules very similar to FRCP 11 – rules evolved in tandem, but they come from different sources and apply to different conduct i. Model Rule 3.1 is triggered by a client opponent filing with the bar and bar investigates to see if its frivolous ii. FRCP 11 is part of the proceedings that it challenges – a motion in response to a filing in the very case that the filing was made – this is just one of those rules that operates in a trial itself e. Under FRCP 11 (Model Rule 3.1) filing NOT proper IF: i. Improper motives, OR 1. Courts have held that motive does NOT matter if claim is legally founded and factually founded (2d Cir. Decision). Motive is either independent of the other factors or it is out of the equation all together.
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a. S. Ct. has been squishy on this point (pg 383 BE&K Construction): Scalia and Thomas took the line that there is NOT a separate improper motives rule (Atkinson’s view: Prof. likes the idea that there is no restriction/sanction for improper motive), but other justices left the question open in their concurring opinions 2. Improper motive of the complaints is one factor to consider and it was seen in “All the Kings Men”. Stark was told not to prosecute Brown because charge was based on improper motive. i. Unsupported by law, OR 1. as it exists today 2. or a non-frivolous reason for the law to be extended, tailored, or even reversed a. But see FRCP 11(b)(2) and Model Rule 3.1 – good faith argument for an extension, modification or reversal of existing law - This is qualified different under the two rules. 1. Qualified in MR 3.1 by reasonable belief that extension or reversal could happen. CANNOT be based solely upon policy. Subjective good faith that the rule is bad is not good enough. 2. Rule 11 used to be “pure heart & empty head” - if you believed it, you could not be sanctioned - but that was written out of the Federal Rules in 1983 (thus does NOT exist anymore) by dropping the “good faith” portion and leaving it as “non-frivolous” (thus, “Pure Heart” defense still exits today) a. Is it ok to break the law and take the sanction? Sanction NOT pegged at other side’s costs, but it is pegged at what it takes to deter you from bringing frivolous actions. THUS, Rule 11 is NOT based upon compensatory damages (make them whole), is instead based upon deterrence (punitive damages) - changing both your opponent and other future actors’ actions ii. Unsupported by the facts - file claim, BUT if you do NOT discover the facts that lead to support the case, then you withdraw the claim to avoid violating this rule. 1. Model Rule 1.2(a) talks about allocation of authority between lawyer and client – how to conduct things once the case is under way a. Client decides whether or not to bring the case, settle, and what kinds of action to bring/strategic design. i. Decisions prior to case are typically the clients b. However, tactics left up to attorney in order to allow him to run the show based on customs of the practice
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i. Do you accept a request for delay from the other lawyer because his wife is in the hospital? 1. Typically in the lawyer’s discretion. The rule says that the client can impose their preferences, but does allow Lawyer an out if the request is against Lawyer’s desires a. Rule favors meeting your client’s demands – type 1 2. Catch 22 when you have plausible allegations, but not facts. a. Cannot get facts until discovery i. Rules altered to allow reasonable investigation. If after investigation there is nothing, then need to withdraw suit b. Split in circuits as to whether you are OK if you get a distinction in facts by accident i. 3d Cir. Says ok if supported by facts, but you did not know ii. 9th Cir. Says lucky guesses are not ok. c. Want to deter lawyers from just taking “pot shots” – sanctioning those who guess and don’t get it right are different from those who have a reasonable basis, but get it wrong. f. Litigation tactics - Problem 24 i. MR 1.2(b): lawyer representing a client does NOT reflect the lawyer’s belief of the client’s position. ii. MR 3.3(a)(1) provides that a lawyer shall NOT knowingly make a false statement of fact or law to a tribunal. iii. MR 4.1(a) the rule as applied as to 3rd persons (NOT tribunals) is similar except that it adds the word “material”. i. M.R. 3.3 and 4.1 come into play – Lawyer shall NOT make a misrepresentation to a tribunal or third party. ii. What about picking jury who are more sympathetic to your client’s claim? MR 8.4(d) Comment 3: A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does NOT violate this rule. iii. Bar is under the assumption that tricks are bad, but in reality only Type 2 Lawyers have a problem with them. 1. Harper Lee’s, To Kill a Mockingbird: Atticus Fitch (a lawyer) wants to prove that Robert Ewell committed the crime (which he in fact did) in order to get off an innocent person (Tom Robinson). Atticus Fitch does that by testing Ewell’s left hand because the real perpetrator who hit Mayella Ewell did it with his left hand while facing her. How does Fitch show to the jury that Robert Ewell is left handed? Ask Robert Ewell if he can write and ask him to write his name = tricking him into showing the jury that he is left handed. Moreover, note that there is more leeway for defense
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tactics as opposed to prosecutor’s tactics. In short, defense attorneys have more discretion in the tactics they use than prosecutors and this is played out in the questioning of the witnesses in the book. 2. Type 1 Lawyer – tricks are cool 3. Type 2 Lawyer: a. Tricks are bad, but… b. Tricks being used for good purposes are OK – pursuing moral ends by means that are neutral in public i. Jews in the attic, Nazis at the door – telling a lie is ok here - not so much as to how you do it 4. Type 3 Lawyer: “The methods have no inherent value. Tricking people who are good is inherently bad. Tricking people who are bad is inherently good.” g. Lawyer Civility i. NOTE: P. Conroy, The Great Santini (pg. 144) MAY BE relevant. 1. Ben intentionally and violently fouls another player. He does so because he thinks it is what his Dad (Bull) would want him to do. Ben gets kicked off the team and can never again play High School Basketball or varsity sports. Story relates to Lawyer Civility because Lawyers (who are like Ben) sometimes use uncivil tactics (like Ben’s intentional foul) that they think their client (like Ben’s Dad, Bull) wants them to use. Some lawyerly tactics are severe and egregious (like Ben’s violent foul in last game) and the Bar wants to have civility codes (like basketball rules against pushing) to prevent these unseemly tactics. Also, Bar uses the rules (MRs and Civ. Pro. R. 11) to disbar Lawyers who use extreme tactics to preserve the Bar’s reputation (analogously, Mr. Dacus bans Ben from sports in order to preserve reputation of HS). Point is that some things are so egregious (Ben’s intentional foul) that they call for Disbarment (Ben was banned from HS sports) in order to preserve Bar’s reputation (HS reputation). ii. In civility regulation, there is a great interest in protecting the reputation of the bar. iii. The Civility codes recommend that the lawyer be virtuous and that the lawyers treat the unvirtuous as they deserve, but this undermines its own goals. Hypo: Lawyer X does not let you get continuance; you see him at a bar meeting and he wants to shake your hand; are you going to be friendly to him? Probably not. But if you do shake his hands then you are just pretending and this undermines the goals. iv. Lawyer Type 2-like behavior is the way to go when approaching civility. Type 2 lawyer is in favor of the Civility Codes because they do not understand the many ways to act in a situation. 1. The type 1 lawyer might be one of the nicest because the very bastards have the most to lose by being called bastards. So type 1 might be very civil.
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2. Type 2 Lawyer are diametrically opposed to the type 1 lawyer but treats the type 1 lawyer like a type 2 lawyer. h. Disclosure of Law or Facts Favorable to the Other Side - Problem 25 i. MR 3.3(a)(2): A lawyer shall NOT knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel 1. The standard for whether to reveal adverse case law appears to be materiality. Bottom line rule is that you MUST reveal law that will result in a different outcome. 2. Prof. says the rule is designed to give the judge the benefit of the authority. This is practical. Prof. says the rule says this rule is the last clear chance for judges to fix mistakes. ii. NOT required to reveal facts. We are a lot more concerned of getting justice done through law rather than fact. Prof. says that this stems from wanting to protect the judge from embarrassment. 1. FRCP 26 (pg 406): only have to come forward with stuff that supports your case. iii. HOWEVER, MR 3.3(d): in ex parte proceeding, lawyer MUST inform the court of ALL material facts known, including adverse facts. iv. You CANNOT put in knowingly perjured testimony and if you know there is perjury, then you must take corrective action steps which may include you telling the judge that the client or other person committed perjury. v. Client is about to be sentenced by the judge - Possible scenarios (PG 414) 1. Judge finds no record and hands down light sentence a. Lawyer has to be mum/quiet and not tell the judge that his client has a recorded the judge did not find 2. Judge reviewed the record and found client had no prior criminal record and Judge asks Lawyer if that is true a. Lawyer has to tell b. ABA Formal Opinion - If, under all the circumstances, the lawyer believes that the court relies on him as corroborating the correctness of the statement by the clerk or by the client that the client has no criminal record, the lawyer’s duty of candor and fairness requires him, in our opinion, to advise the court NOT to rely on counsel’s personal knowledge as to the facts of the client’s record. (Note - essentially you may be telling him that there is something he should look into). c. If the lawyer is quiet clear that the court does NOT rely on him as corroborating, by his silence, the statement of the clerk or of his client, the lawyer is NOT, in our opinion, bound to speak out. i. Handling Physical Evidence - Problem 26 i. Client brings weapon in, you have to turn it in
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ii.
iii.
iv.
v. vi.
vii.
1. From the cases emerges the RULE that a criminal defense attorney must turn over to the prosecution real evidence that the attorney obtains from his client. Further, if the evidence is obtained from a non-client 3rd party who is NOT acting for the client, then the privilege to refuse to testify concerning the manner in which the evidence was obtained is inapplicable. 2. When the lawyer turns in the evidence, he does not have to say where it came from. The evidence does not bring into testimony of where it came from. This is to protect the client because if lawyer had to tell, then the client is damaged. What if client does not turn hammer over the lawyer, but rather just tells the lawyer what he did? 1. If hammer does not come into your possession, then you do not have to turn it in. Thus if Client leaves weapon out in the world, you do NOT have to do anything. Suppose the hammer is at the bottom of Nick’s garage 1. Lawyer’s investigator gets the hammer, and gives it to the lawyer. Here the cops can tell where the hammer came from. The person who removed the object will have to testify where it came from BUT the investigator will NOT be revealed to be an agent of the lawyer. So the lawyer is NOT in the position of directly connecting the client with the hammer. Note the intermediary case – where client shows up with weapon, does not give it to you, and asks what he should do 1. Model Rule 1.2(d) – Lawyer CANNOT counsel or assist client in violation of the law, but the lawyer can talk with the client about the consequences of any course of action. a. Prof. notes that if you counsel him on what to do, you probably have to withdraw from the case and tell the police that you counseled him on the topic of what to do with the hammer. THUS, the location of the physical evidence is important; it is what the rule turns on. What if client left a still alive/dying body in the woods? 1. Model Rule 1.6(b) – Lawyer may tell where the body is at because Lawyer may reveal information to prevent death or seriously bodily harm a. Be aware that MR 1.6(b) says that lawyer has to follow/obey other laws; but in a case a court said that law that said have to reveal body did not supersede the MRs 2. Fla. rule allows lawyers to come forward - Same as today’s MR 1.6 - Have to reveal to prevent death or seriously bodily harm 3. NOTE that if the person is already dead, the lawyer does NOT have to tell/come forward. Confidentiality of Client’s Identity
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1. Client identity is NOT normally confidential. The traditional rule is that NO privilege attaches either to the fact that someone has consulted a lawyer OR to the general subject of the representation. viii. Model Rule 3.4 1. Destroying evidence a. The key is “unlawfully” -- The Model Rule just tracts other law, typically federal and state obstruction of justice laws b. If case under way, lawyer CANNOT destroy evidence c. IF case has NOT been begun, BUT the case is coming, the lawyer CANNOT destroy the evidence j. The Client Who Intends to Commit Perjury (Client Perjury) - Problem 27 i. Law 1. Damaging evidence a. E.g. Williston; Lake pleasant bodies case 2. Handling client perjury ii. MR 3.3(a)(3) 1. The GENERAL RULE is Lawyers have a duty to NOT suborn perjury, which is a criminal offense. Further, the lawyer may NOT aid and abet a client’s perjury. See Model Rule 1.2(d). 2. The Model Rule prohibits the lawyer from offering any evidence that the lawyer “knows” to be false. There is NO requirement of materiality. The Model Rule requires lawyers to take remedial measures IF the lawyer learns that the witness has offered “material evidence” that is false. 3. The lawyer may NOT offer the testimony of a witness the lawyer knows is false, fraudulent, or perjured. iii. Nix v. Whiteside (USA S. Ct. 1986) 1. MR 3.3(a)(3) - See last sentence a. There is a distinction between knowing client’s testimony is false (if this is case, then CANNOT put testimony in) and reasonably believing the testimony is false (Lawyer can put testimony in and in fact lawyer is required to put testimony in) b. So Lawyer ONLY forbidden to put in testimony in civil and criminal cases if the lawyer knows it is false. 2. Note that Nix has a very narrow holding: regarding ineffective assistance of council a. S. Ct. “held that the accused's Sixth Amendment right to assistance of counsel was not violated by his attorney's refusal to cooperate with him in presenting perjured testimony at his trial, since (1) the attorney treated the accused's proposed perjury in accord with professional standards, and (2) the accused's truthful testimony could not have prejudiced the result of his trial.” (Nix case is just a 6th amendment case).
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b. The lawyer has a duty to disclose falsity of evidence even if disclosure compromises client confidences. The Model Rules require such disclosure. c. S. Ct. said at minimum the attorney’s first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct. An attorney’s revelation of his client’s perjury to the court is a professionally responsible and acceptable response to the conduct of a client who has actually given perjured testimony. The Rules expressly permit withdrawal from representation as an appropriate response of an attorney when the client threatens to commit perjury. iv. Corrective measure 1. Model Rules say - Prevent client perjury if you can; correct it is a must v. Then what? 1. If client assures you that he will not lie, then you have to put him on the stand. 2. What if he does commit perjury on the stand? Have to bring attention to the tribunal. How do you go about notifying the tribunal? a. If take corrective measures too dramatically, you can cause a mistrial because you would undermine client’s position b. Here is what to do: at the first natural break in the proceeding go to judge and indicate you have a problem. The judge is likely to say “what is the problem”. You say it is an ethical problem. And when he asks, you tell him client committed perjury and you would like to withdraw from the case. What does the judge do? He has 2 options. (1) He can tell the attorney to continue to argue the case; so the judge will tell lawyer to argue case just like Freedman argues; the only difference from Freedman’s position is that you actually tell the judge. (2) Judge grants attorney’s request to withdraw. Problem here is that the client will tell the new lawyer the inconsistent (perjured) testimony (story). If this is the case, then you are back to where Freedman says you would get. In both cases notice that the judge knows about it. Once lawyer has fulfilled obligation of taking corrective measures, he may end up in position he was in before which the lawyer wanted to avoid, which is putting in perjured testimony but that it is known and sanctioned by the court. So once the judge sanctions it, all harm from the rules standpoint is remedied. So if follow ABA method, judge decides what the corrective steps are. ii. Normative Theory 1. 3 approaches to client perjury
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a. ABA approach - Come forward to stop perjured testimony b. Narrative Approach: Let the testimony come in but distance yourself from it i. This is the Narrative approach – The lawyer may put the client on the stand to testify in a narrative fashion, but the lawyer shall NOT examine the client in such a manner as to elicit testimony which the lawyer knows to be false, and shall NOT argue the probative value of the client’s testimony in closing arguments. ii. This has not been a popular approach 1. The trouble with the narrative approach is on the one hand the lawyer has signaled to jury that something is up by distancing himself from client testimony, and on the other hand the lawyer is instrument of letting perjured testimony come in. c. Monroe Freedman’s approach i. Freedman’s Trilemma 1. Know all - to provide “ideal” defense 2. Tell Nothing – to encourage client to “tell all” to lawyer so lawyer can help 3. Be candid with court a. Freedman says that candidness with the court has to be relaxed when it conflicts with the other 2 prong. He says primary duty is to provide the best defense for client. 2. Donagan’s critique a. He criticizes Freedman. He says it is problematic in at least 2 ways. i. Recall that Freedman says that have to relax the 3rd in order to ensure client will tell lawyer everything and this in turn lets lawyer help client in best way. Donagan says that do not put in perjured testimony and he says that the protecting damaging evidence is bad. Freedman says law does not go far enough and Donagan says that the law goes too far. ii. Pg 452: A number of experienced attorneys have expressed the view that the criminal defendant has a “right to tell his story”. What that suggests is that it is simply too much to expect of a human being, caught up in the criminal process and facing loss of liberty and the horrors of imprisonment, not to attempt to lie to avoid that penalty – Prof. says there is a sense in which there is something obligatory on
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lawyers. It is a rights-based deontological perspective. But also Prof. says that it is a consequentialist perspective. 1. Reason should not tell is because we should let people tell what they want to say. If let person take stand and give perjured testimony, then it will not advance the real truth. What will be advanced if let the client give perjured testimony, we get fewer convictions of the guilty. If Donangan is right, the effect of Freedman’s rules would be to let more guilty people go free. So Freedman says to get client to tell everything to the lawyer, have to weaken candidness with the court. Donagan questions this because he thinks client will tell lawyers everything because client wants lawyer to come with the best possible defense. Donagan is not sympathetic to criminal defendants who are guilty; he says that they are not entitled to best possible defenses IF the best possible defense if putting in perjured testimony. 3. Subin v. Mitchell (these are two authors articles in reader) a. Mtichel comes close to saying the criminal punishment system is so bad that even the guilty should be let off; criminal justice system so bad that lawyers are morally allowed to get the guilty off. This is a Type 3 position. b. Subin says that putting prosecution to its proof, the lawyer should not be able to put forth alternative theories knowing that those theories are false. Mitchell says that it is appropriate to present “false defense”, NOTE that under current law a lawyer is permitted to do this and maybe is required to do it. iii. Descriptive Theory/Empirical research 1. Lawyers’ actions a. Bribe witness: CANNOT do this b. Personally lie: CANNOT do this c. Present perjured testimony: CANNOT do this. d. Present “false” defense i. Subin says this is wrong. Subin says put prosecution to its proof but do so in a way that does NOT present the false defense. Subin says that the lawyer should just allow the client to tell the false story but only after the jury is informed that it is the case (that the defense is false). Mitchell suggests that once have told jury that
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client is guilty of the act, he says that the jury will likely convict client based on a standard below reasonable doubt. Jury will convict client without deciding if the prosecution has made its case and met its burden of proof. Both of their arguments are based on policy arguments. ii. RELATES TO PRESETNING FALSE DEFNSEWhat was Socrates executed for? He was executed for corrupting the youth of Athens. Athenians alleged that Socrates made the false look true and the truth look false. Socrates presented the weak argument as the strong argument. Basically, he made the best case based on the arguments he had (the weak arguments). Thus, Socrates presents a scenario to the jury that is not true, and does so to show doubt. e. Present reasonably doubtful evidence i. This is OK; it is mandatory in criminal matters. f. “Merely” challenge the prosecutor’s case i. Actively – question witnesses, attack things that seem doubtful ii. Passively – sit by and make sure prosecution does not admit any inappropriate evidence. i. Verdict That May Be Tainted – Problem 28 i. Model Rule 3.5 - Rule tracks other laws 1. Extreme restriction during trial – NO contact with jurors during trial UNLESS in presence of judge. Any contact with jurors outside of court is forbidden. 2. Somewhat liberal before trial: Before trial – more restrictive than the rules regarding after trial because lawyers can contact jurors after trial. Contact before trial, worry is that lawyer will dig into juror’s background. 3. Not very restrictive after trail - Contacting jurors after trial is OK; the worry is lawyers harassing jurors. a. Fla. has a very restrictive rule regarding contacting jurors after trial. ii. Paying fact and expert witness 1. Expert witness - CAN pay them BUT CANNOT do so with contingent agreement. 2. Fact witness – CANNOT pay witness for their testimony; BUT CAN pay them for lost wages, travel expenses. iii. Taping conversations – rules are taken from other laws 1. No rule forbidding taping 2. Telephone conversations – FCC rules apply 3. Recording clients conversation is deeply disfavored 4. Taping 3rd party conversations is less clear iv. Lawyer as witness for the client
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1. Model Rule 3.7 – lawyers CANNOT act as witness in case where they represent the client. Note client cannot waive this. This rule is NOT imputed to other lawyers in the firm. 2. Prevalent theory regarding advocate/witness prohibition -- Letting lawyer act as advocate and witness would confuse the jury. j. The Crusading Prosecutor - Problem 29 a. Model Rule 3.8(f) imposes specific trial publicity rules on the PROSECUTOR b. Model Rule 3.6 imposes other publicity restrictions equally on BOTH prosecutors and private lawyers. c. Pretrial Publicity – MR 3.6(a) – see the S. Ct. Gentile case i. S. Ct. said that lawyer’s speech may be regulated by less than a “clear and present danger” standard, and that the “substantial likelihood of material prejudice” standard balances relevant interests permissibly. ii. “Substantial likelihood of material prejudice” is a high standard. But S. Ct. said the lower standard was OK. iii. The balance between lawyer free speech and keeping jury screened from some information is resolved in restricting lawyers speech more than allowed in the public. d. When could a prosecutor bring a case? – Prosecutorial Discretion i. MR 3.8(a) – prosecutors should NOT bring a case that is NOT supported by probable cause. Prof. says do NOT need his rule because the defense can always move for dismal when there is no probable cause. Some say there should be a more stringent standard. Shouldn’t there be more screening of cases that should not be brought – i.e. limits on how prosecutor can press the outer limits of prosecutorial discretion; Prof. says that it is like a Type 2 Lawyer: only pursue cases you only can win and the evidence as it stands appears to you to be strong and in favor of conviction. ii. Prosecutors CANNOT bring every case so there must be some discretion iii. Prevailing notion on which case to take -- the one thing NOT to rest decision on is the advancement of your own political cause or the accumulation of a tract record of wins. iv. Similar to the prosecutor in “All the Kings Men” v. ABA Standards 3-3.9 deal with prosecutorial discretion (supp. pg 520) 1. Improper motive of the complaints is one factor to consider and it was seen in “All the Kings Men”. Stark was told not to prosecute Brown because charge was based on improper motive. 2. Willie Stark is NOT a Type 2 Lawyer; rather Willie Stark is a Type 3 Lawyer; Willie wants to build a grand hospital with no corruption. Willie Stark’s speech about the nature of goodness says that goodness only comes out of badness. So human needs give rise to direction from which we press laws and other social institutions. vi. ABA Standard 3-3.9(c) Discretion in the Charging Decision (PG 521 of supplement): no one’s supervisor can force a subordinate prosecutor to bring a case where they have a reasonable doubt about the person’s guilt.
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vii. ABA Standard 3-5.7 (prosecutor examination of witnesses) compare with standard 4-7.6 (defense examination of witnesses) 1. Prosecutor should NOT try to undermine the credibility of a truthful witness (a witness prosecutor knows is truthful); BUT the defense attorney can under the standard. 2. Compare to Harper Lee’s To Kill A Mockingbird: Prosecutor Glimer is very tough on Robinson (defendant) during crossexamination. His trial tactics can be contrasted with Atticus’s tactics. Atticus undermines Mr. Ewell’s testimony by tricking him and thus shows there is reasonable doubt and that Mr. Ewell is untruthful. Mr. Glimer uses tactics to try to undermine Robinson’s credibility because he reasonably believes the Robinson is lying. If Mr. Glimer knew Robinson was truthful, Prosecutor Glimer probably could not have utilized the tactics he used to try to make Robinson out to be untruthful. Whereas Atticus can undermine any truthful witness’s testimony and he does so when he tricks Mr. Ewell into showing he is left-handed while cross-examining him. e. Spaulding v. Zimmerman (pg 492) – court said that the settlement could be reopened. Even though there “may not have been” an ethical or legal obligation for the defense to tell the P about what the defense knew. f. In Strickland, the S. Ct. enunciated the standard for ineffective assistance of counsel is the criminal defendant must show that the lawyer acted outside the wide range of professionally competent assistance and that the result was actual prejudice to the criminal defendant. k. ABA MOVIE regarding lawyer advertisements a. Recall - Purpose of lawyer regulation i. Protect clients ii. Protect the public iii. Protect the profession 1. This is problematic. In cases of regulation of advertisements there is question of “dignity”. Most of the advertisements shown on the ABA movie could be seen as having “indignity”. Lawyers and the Bar do not like most of the advertisements because they reflect badly on lawyers. It hurts the dignity of the profession. Recall the “Alcoholic” in an earlier Movie advertised and ripped clients off. VII. CHAPTER 7 THE DELIVERY OF LEGAL SERVICES a. 2 types of conservatism i. Free market/19th century libertarian anti-regulation 1. Disfavors structure of advertising, law firms, etc. Do not want government involved ii. Conservatism in a Tory sense 1. Traditionalists; Social conservatives; those who like the noneconomic, but still want the government in everything. b. Marketing Professional Services - Problem 31
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i. Commercial speech is scrutinized under the “intermediate scrutiny” test which requires a substantial government interest and the means chosen must NOT be the least restrictive. 1. It is more like modern conservatism. It leans toward market forces. THUS, there is an alliance between protective of individual rights and the conservative/libertarian who say serve clients based on market forces. ii. Bates – S. Ct. held that advertising by attorneys may NOT be subjected to blanket suppression. The S. Ct. did NOT hold that advertising by attorneys may not be regulated in any way. Rather, S. Ct. said there are some permissible limitations on advertising. Advertising that is false, deceptive, or misleading is subject to restraint. iii. Zauderer court said that the diagram (lawyer advertisement had diagram/drawing of IUD) CANNOT be undignified; came close to saying indignity alone should NOT be reason to prohibit advertising 1. Pg 509 –The S. Ct. held the illustrations were protected speech. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech; restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test (which states that commercial speech could only be regulated in pursuit of a substantial government interest and by means narrowly tailored to protect that interest.). The S. Ct. said that it was unsure that the State’s desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgement of their First Amendment rights. The mere possibility that some members of the population might find advertising embarrassing or offensive CANNOT justify suppressing it. The S. Ct. also held that an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers. iv. Ohralik dealt with ambulance chaser. S. Ct. upheld state ban on inperson solicitation (for profit). Lawyer Ohralik said that the bar had to show that he harmed the client (actually overreached). S. Ct. said no, rather the rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs. The rule is aimed at preventing getting close to the problematic situations. So to avoid the problem, the bar will not let the lawyer get close to the situation that is itself is problematic. In Ohralik the S. Ct. said that “even if the contact is not invasive, the Court can regulate the behavior. The potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Thus, under these adverse conditions the overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual's privacy,
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even when no other harm materializes. Under such circumstances, it is not unreasonable for the State to presume that in-person solicitation by lawyers more often than not will be injurious to the person solicited.” v. In re Primus case – prohibited ban on (that is, allowed) solicitation by public interest groups (not for profit). Also, under the rules is there a problem with soliciting for client a waiver of their rights - under MR 4.2 (contacts with represented people) and Model Rule 4.3 (deals with unrepresented person) contrast these with MR 7.3. Under Model Rule 4.3 the lawyer has to let prospective clients know what the lawyer’s interest is. Lawyer forbidden to give any advice EXCEPT the advice to get legal counsel but that is not required. So under Ohralik, the ambulance chaser lawyer cannot get close, BUT under Primus, you are not forbidden to contact the client via letter and then meet with them in person. 1. Model Rule 7.3 limits “direct contact” with prospective clients ONLY when pecuniary gain is a “significant motive”. The definition of direct contact is limited to “in-person, live telephone, or real-time electronic contact”. vi. In the Went For It case– Justice O’Connor said the undermining of the Bar’s image has bad repercussion for the public. 1. There is a shift from a protection of client from overreaching of the lawyer (as seen in Went For It there was just mail) to no coercing, and thus need to protect against the per se offense people take to receiving mail during the 30 days while they are still grieving (S. Ct. upheld Fla. rule banning targeted solicitation by plaintiff’s attorneys of victims for 30 days following an accident or disaster). vii. What kinds of lawyers do not like advertising? – Elites v. “My Cousin Vinny”: The elite lawyers who will not lose business do NOT like advertising because they believe that it reflects badly on the entire profession. Others who object are lower echelon lawyers who provide routine services. The lower echelon lawyers may lose clients to those lawyers who advertise that they will do certain routine services for a specified price. Lastly, the lower echelon lawyers do not like other lawyers advertising that they specialize in a particular field of law because the specialists will take some clients away from the lower echelon lawyers who will take any client. b. Ethics of Referrals to a Specialist – Problem 32 i. Can you take referral fees? (Material below fits with table labeled “Delivery if Legal Services”). ii. Yes, MR 1.5 governs fees in general. As long as lawyers comply with partial vertical integration both economically and legally (under MR 1.5(e)). iii. MR 1.5(e) governs fees of lawyers NOT in the same firm. The rule does NOT talk about one lawyer paying another lawyer a naked fee. The rules contemplate a fee sharing among lawyers where they provide services, rather than prohibiting referral fees for just referring clients.
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iv. Lawyer can give referral and get compensation BUT ONLY in form of getting referral from the person later (reciprocal referral agreement). 1. The baseline assumption is that there is a problem with receiving fees from lawyers not in the firm. This is because the referring lawyer may refer client to a lawyer who is not the best but pays the highest referral fee. The optimal solution is to send the client to the best provider of services for the lowest cost. So give client referral to the best lawyer for the money. By contrast, we do not want to send client to the lawyer who sends you the biggest referral fee. 2. Rules are trying to create “partial economic vertical integration” (aka partial vertical integration). a. If the two lawyers act as partners/joint ventures, then they have joint responsibility for the case. It is OK to split or share the fee. So the joint venture is an example of partial economic vertical integration. b. Naked referral fees between lawyers NOT in firms are NOT allowed 3. OK to split fees for rainmakers in firm. The Bar is not worried about splitting fees in the firm setting because the partners are jointly and severably liable if the other lawyer screws up. So the lawyer has an incentive to make sure the other lawyer does not screw up. Thus, the risk of screw up is offset by the fee. 4. The rule goes on to say that the lawyers have to tell the client that the other lawyer is giving you a referral fee. So the Bar requires the lawyers to do sort of a partial vertical integration. v. COOKIE – Fla. has very elaborate restrictions on referral fees in personal injury cases especially when there are contingent fees involved. 1. There is a 30 day restriction on contacting personal injury clients. vi. Specialization? 1. Peel case – S. Ct. could not come to majority opinion, BUT five justices agreed that completely prohibiting Peel’s reference to his certification was unconstitutional. 2. If lawyer advertise accurately about what it is lawyer does (specializes in), then it is fine. 3. The bar’s worry is in the Eckerd’s Drugstore phenomenon. A lawyer can always hang out a shingle. If specialization is allowed, then the clients may go to those who specialize and not those general practices of solo lawyers. a. Fla. bar has really embraced the notion of specialization and it presides over what you say. This is good because it helps client makes decision, and the bar certifies the lawyers specialization and this makes the lawyers claim legitimate. 4. Specialization in some parts of the bar is embraced in other parts of the bar it is not accepted. The resistance comes from those who
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ii.
iii. iv.
v.
lose out, which are those who do not have the credentials to allow adverting as a specialist. Eckerd’s Drugstore phenomenon – once were able to go to a local, independently owned shop (pharmacy), now everything is provided through big corporations. Lawyers who are at top of market make specialized documents and tailor things to clients needs. For those who do not need specialized document then (as in O’Steen) the other lawyers could give standard services and this is like going to Kmart or Eckerd Drugstore. So they are doing this wholesale, whereas some other members of the bar were giving hand tailored specific services. Group Legal Service Plans 1. E.g. car insurance gives you a lawyer when in accident. Free standing legal services 1. Offer cut rate legal services BUT operates under the label of Eckerd. How do we get poor people legal services? 1. Charity – Pro Bono a. Trouble with pro bono i. Pro (for pro bono) - poor people need services so give them services for free ii. Con (anti-pro bono) – it is a tax and spend program. iii. 3rd perspective – poor people get services, the middle class deliver services, BUT a different class of people bears the cost (the middle class lawyers who provide the services for free). b. Why does Atkinson dislike pro bono? Lawyers, middle class workers, are the ones taxed for pro bono. He thinks the upper class should be taxed and have the income redistributed to the lower classes to provide legal services. Like Medicare, it should be a tax and spend program.
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