Professional Responsibility – Outline Spring 2004 -Girth Page 1 of 62 I. Introduction to Professional Responsibility A. The Foundation of Professional Responsibility and the Concept of a Philosophy of Lawyering 1. The Lawyer as Fiduciary i. Duties a. Duty of competence 1). Rule 1.1: Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. i). Objective orientation ii). Financial considerations may sometimes cause lawyers to take cases beyond their level of competency. iii). Incompetent representation can result in malpractice. iv). Question is not satisfaction, it is competence. b. Duty of diligence 1). Rule 1.3: Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. i). Comment 1 refers about zealous advocacy. a). This is the philosophy of “anything goes” as to representation of a client. ii). Must be clear with client as to when representation ends. a). Must eliminate confusion as to whether attorney will handle client’s appeal. c. Duty of Communication 1). Rule 1.4: Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; Professional Responsibility – Outline Spring 2004 -Girth Page 2 of 62 (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. i). Heavy emphasis on promptness and keeping client reasonably informed. d. Duty of Loyalty 1). Rule 1.7: Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or Professional Responsibility – Outline Spring 2004 -Girth Page 3 of 62 other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. 2). Rule 1.9: Conflict of Interest: Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. 3). This duty has become more difficult to monitor because attorneys move around more and thus there are greater opportunities for conflict. Professional Responsibility – Outline Spring 2004 -Girth Page 4 of 62 4). Major topic here is conflict of interest e. Duty of confidentiality 1). Rule 1.6: Confidentiality of Information i). See Rule 1.6 Below 2). There are issues when the attorney believes that client is going to commit perjury as to whether an attorney must report and to whom the report is made. 3). Rule 2.1: Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. 4). Attorneys can give “moral, economic, social, and political factors”. 5). Clients can ask attorney for purely technical advice; however, comments indicate that if the client does not have experience in legal matters, attorney should give advice as to other matters, as well. 2. The Lawyer as an Officer of the Court Functioning in an Adversarial System of Justice i. Rules 3.X ii. Only claims that are “not frivolous” can be brought. a. If circumstances indicate a change in law might be possible, there is a tension here. iii. Also there are requirements of candor to the court and fairness to adversary. iv. Adversarial System Characteristics a. Neutral decisionmaker b. Competent advocates zealously presenting the positions of the interested parties c. Rules of procedure fairly designed to allow the presentation of relevant evidence to the decisionmaker 3. The Lawyer as a Person with Personal and Financial Interests i. Values, needs, etc. ii. Billable hours requirements, increased attorney costs, etc. all play an important role. 4. The Concept of a Philosophy of Lawyering i. Requires an integration of professional responsibilities and personal values. B. Sources of Lawyers’ Obligations 1. Two Sources Professional Responsibility – Outline Spring 2004 -Girth Page 5 of 62 i. Professional standards ii. General legal principles 2. Third source – general ethics or morality – is more uncertain and controversial 3. ALI Restatement (Third) of the Law of Lawyering i. Not the law until highest court of state adopts a particular section ii. However, does provide a framework for advising clients and solving legal problems 4. Professional Standards: ABA Codes of Ethics, Ethics Advisory Opinions, Specialized Codes and Practice Norms i. Authority to regulate the practice of law typically resides with highest court in state. ii. Federal court has its own rules of admission and practice but often follow rules of state in which federal court sits iii. Most states base rules of professional conduct on ABA’s Model Rules of Professional Conduct a. Roughly 40 of states have adopted b. Some states still use the ABA’s Model Code of Professional Responsibility 1). New York 2). California iv. Model Rules are Grouped into Eight Sections a. Client-lawyer relationship b. Counselor c. Advocate d. Transactions with persons other than clients e. Law firms and associations f. Public service g. Information about legal services h. Maintaining the integrity of the profession v. New York, California, DC, Illinois, North Carolina, Oregon, and Virginia have significant deviations from Model Rules vi. ABA also has adopted Model Code of Judicial Conduct a. Originated in 1972 b. Revised in 1990 vii. ABA committee issues both formal and informal opinions on issues of professional ethics viii. Additionally, every practice area and firm will have its own norms of behavior. ix. Georgia’s Disciplinary Procedures a. Delegated to State Bar of Georgia b. Statistics from one year in 1990’s 1). 6500-7000 telephone complaints 2). 2300 written complaints 3). 300 investigated and pursued complaints Professional Responsibility – Outline Spring 2004 -Girth Page 6 of 62 4). 150+ found “probable cause” to find professionalism problem 5). 100 of complaints received informal letter 6). Rest go to group of special masters that make a recommendation to Supreme Court of Georgia i). 6 public reprimands ii). 34 suspensions iii). 28 disbarments 7). Common grounds for complaints are for timeliness and communication, as well as for return of client’s file. 8). Common grounds for suspensions and disbarments include i). Stealing clients funds ii). Convictions of a crime a). Income tax evasion b). Drug related 9). Areas of practice typically affected i). Criminal defense ii). Family law iii). Personal injury and settlements 10). Liability i). Civil malpractice ii). Motions to disqualify the other side’s attorney because of conflict of interest 5. Law Governing Lawyers i. Court Decisions a. Important source of standards of professional conduct b. Major categories of cases 1). Disciplinary 2). Malpractice 3). Disqualification 4). Sanctions 5). Criminal ii. Statutory Law a. Less significant than court decisions because of the independence of the judiciary iii. Administrative Rules and Regulations iv. Court Rules 6. Moral Principles: Developing the Practice Component of a Philosophy of Lawyering i. Client-Centered Philosophy a. Two Principles 1). Lawyers act as zealous partisans on behalf of their clients, doing everything possible to enable their clients to prevail in litigation or to obtain their Professional Responsibility – Outline Spring 2004 -Girth Page 7 of 62 client’s objectives in non-litigation matters, except to the extent rules of professional conduct or legal principles prohibit the lawyer from acting. 2). Lawyers are not legally or morally accountable for their actions when acting in this role. b. Neutral partisanship or “hired guns” c. This is the typical public perception of attorneys d. This depends upon the adversarial system to determine whether tactics were valid. ii. Defensive Lawyering a. Lawyers make sure they have documentation that indicates client made all decisions that might indicate unprofessional conduct on the part of the attorney. iii. Philosophy of Personal Morality a. Lawyers are morally accountable for the actions they take on behalf of their clients and must be prepared to defend the morality of what they do. b. This philosophy puts personal morality first. c. Holds simply that an attorney will not take work that conflicts with personal moral values. d. Increases the emphasis on the advisory role of the attorney. iv. Philosophy of Pursuing Social Value a. Based on societal values or norms rather than principles or morality. b. Typically, emphasis is on law reform. c. Less personally subjective and more emphasis on societal values. C. Methods of Regulating Attorney Conduct 1. Two Methods i. Admission of lawyers to practice a. To practice before a court, a lawyer must be admitted to the bar of that court, normally by the highest court in the state. b. Federal courts require specific admission to specific court bars. c. Typical State Requirements 1). Graduation from law school 2). Pass bar exam 3). Be of “good moral character” i). Precise meaning is unclear ii). Generally thought to be honesty, fairness, and respect for the rights of others and for the laws of the state and nation. iii). Criticisms of moral character requirement a). Admission officials do not have the resources for adequate investigation into moral character. Professional Responsibility – Outline Spring 2004 -Girth Page 8 of 62 b). Admission process is left to subjective judgment of bar officials. c). Review of character has First Amendment implications. d). Privacy issues. 4). Some states have residency requirements i). Pro Hac Vice a). Matter arising in state that lawyer does not have membership to the bar of that state. b). Temporary c). Typically requires association of local counsel. ii). Supreme Court has held invalid various residency requirements under the Privileges and Immunities Clause ii. Discipline of lawyers admitted to practice for misconduct a. Disorganized until the 1960’s. b. Justice Tom Clark and a commission issued a report highly critical of the disciplinary system. c. One of big issues is who would control the system. d. Each state has its own point of view as to how system works. e. Model Rule 8.4(b) 1). Criminal behavior that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. f. Supreme Court has characterized disciplinary system as “quasi-criminal”. g. Methods of assuring proper lawyer conduct 1). For malpractice, the standard is that the attorney’s conduct fell below generally accepted standards of conduct in the profession. 2). Motions for disqualification i). Usually filed by a former client ii). Used to be infrequent; however, now it is more prevalent. iii). Disqualification is at a tension between client’s right to secure the representation of his or her choice. 3). Sanctions 4). Criminal prosecution 5). Legislation D. Duty to Report Misconduct 1. One of the most difficult ethical issues. Professional Responsibility – Outline Spring 2004 -Girth Page 9 of 62 2. Four different philosophies that lawyers might adopt when faced with complex ethical problems i. Client-centered ii. Defensive iii. Officer of the Court -Institutional iv. Personal Morality 3. Originally, duty to report was very broad. i. It was widely disregarded a. Typically, was used only in cases of evidence destruction or taking of client’s funds. 4. Rule 1.6: Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which a client has used or is using the lawyer’s services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of crime or fraud in furtherance of which the client has used the lawyer’s services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (6) to comply with other law or a court order. 5. Rule 5.1: Responsibilities Of A Partner Or Supervisory Lawyer (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. Professional Responsibility – Outline Spring 2004 -Girth Page 10 of 62 (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 6. Rule 5.2: Responsibilities Of A Subordinate Lawyer (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. 7. Rule 8.3: Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. 8. Rule 8.4: Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; Professional Responsibility – Outline Spring 2004 -Girth Page 11 of 62 (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. 9. Exceptions to the duty to report misconduct by another lawyer i. Only if a lawyer has knowledge of misconduct a. Actual knowledge ii. Subject to the lawyer’s duty of confidentiality to the client. II. Ethical Issues in Civil Litigation: The Client-Lawyer Relationship, Confidentiality, and Conflicts of Interest A. Ethical Obligation to Charge Reasonable Fees B. Rule 1.5 Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by Professional Responsibility – Outline Spring 2004 -Girth Page 12 of 62 which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. 1. Model Rules require fee to be “reasonable” 2. Courts regulate reasonableness in three ways i. Courts can discipline for excessive charges ii. Courts have power to reduce the amount of fees charged by lawyers if the court finds the fee unreasonable. iii. In some cases, court must determine the reasonable fee because it is paid pursuant to statute, court rule, or contract. C. Ethical Duty to Inform the Client of the Basis or Rate of the Fee 1. Model Rules require lawyers to reach clear agreements with clients regarding fees. i. Rule 1.5(b) 2. Methods of Charging Fees i. Hourly a. Common in business, tax, and civil defense litigation. ii. Contingent a. Common in personal injury cases b. 25/33/50 c. Major justification is that they allow people who could not afford an attorney to obtain access to legal system. Professional Responsibility – Outline Spring 2004 -Girth Page 13 of 62 d. Some countries disagree, indicating that contingent fees encourage litigation. e. Contingent fees unreasonable in two situations 1). High likelihood of substantial recovery by trial or settlement 2). High recovery that would make fee unreasonable for services performed and risk assumed. f. Generally are proper when client was fully informed and consented to agreement. g. Special Ethical Rules 1). Be in writing 2). State the method by which the fee is computed, including the percentages if the matter is concluded by settlement, trial, or appeal. i). Amount does not necessarily have to vary depending upon stage of trial at which controversy is resolved. 3). Identify litigation or other expenses that the client is responsible for 4). State whether expenses are deducted before or after the contingent fee percentage is computed h. No contingent fees in criminal cases i. No contingent fees in divorce or alimony/support cases j. No per se prohibition of defense contingent fees. k. Contingent fees for expert witnesses are not allowed under Rule 3.4(b). Charge should be by the hour. iii. Fixed a. Common in routine estate planning and real estate matters. b. Could also be based on percentage of transaction. iv. Value-Billing a. Determine fee at conclusion of matter. v. Combinations are possible a. Can have hourly fee combined with bonus/contingent fee. vi. Blended rates 3. Supreme Court has held that court-awarded fees belong to client and the client then must reimburse lawyer according to agreement. 4. Some countries require loser to pay fees of both parties. In US, each party is generally responsible for their own fees. D. Ethical Obligations Regarding Expenses 1. Lawyers can now advance court costs and expenses of litigation with repayment contingent on the outcome of the case. 2. Also, lawyers for indigent clients can advance litigation expenses. 3. Not required to advance expenses. 4. Cannot advance general loans to clients. 5. Common litigation expenses to charge to clients i. Filing fees Professional Responsibility – Outline Spring 2004 -Girth Page 14 of 62 ii. Costs of transcribing depositions iii. Fees of expert witnesses iv. Travel expenses v. Photocopying vi. Long-distance telephone or fax charges vii. Computer research charges 6. General office overhead or markups are not properly chargeable absent agreement to the contrary. 7. Agreement must indicate when expenses are to be deducted – prior to determining contingent percentage or after contingent percentage is computed. E. Fee Splitting 1. Model Rule 5.4 Governs Fee Splitting and Multi-Disciplinary Practice sharing of fees. 2. Division of fees between lawyers not in the same firm only allowed if i. The division is in proportion to the services performed by each lawyer assumes joint responsibility for the representation. ii. The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing. iii. The total fee is reasonable. 3. Rule 5.4 Professional Independence Of A Lawyer (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price; (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and (4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. Professional Responsibility – Outline Spring 2004 -Girth Page 15 of 62 (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. F. Engagement and Non-Engagement Letters 1. Has developed as a more formal means to institute the attorney-client relationship. 2. Really is not routine agreement for non-engagement letters to be used. Although more is done now than in the past, they are still far from routine. 3. Question about non-engagement letters is how much they should say substantively beyond statement that firm/attorney will not be representing. i. Anything you say risks being misunderstood. ii. More specifically, should include an alert as to looming time limitations. a. This would require accuracy. 4. Theory of formal non-engagement letter seems clearer than it actually is in practice. 5. Engagement Letter Problem p. 240-245 i. Format is a letter and some clients may be more ii. Scope is very lean. Would need to more fully flesh out the scope of the representation as to trial, appeal, claims, etc. iii. Firm Representation section a. Might try language that reserved power to make all staffing decision to the firm. b. Need to indicate limitations of roles of non-lawyers. iv. Should number paragraphs in order for quick reference to the agreement. v. Efforts on Your Behalf Section a. Negotiation section does not indicate client has absolute power of accepting settlement. b. Settlement area might need to be separate part of agreement. c. Section appears to leave open an unlimited cost. d. No promptness element to status section. Might want to add this in. Professional Responsibility – Outline Spring 2004 -Girth Page 16 of 62 e. Discovery section is silent as to expense. Would want to flesh this out more. vi. Billing Basis Section vii. Billing Section a. No statement as to consequences of non-payment. Would want to include some statement as to what happens if bills are not paid as required. viii. Appeal Section ix. Termination Section a. Should be more specificity of timing of termination and how payment will be determined. 6. Scope of Representation i. Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. ii. Ambiguities in agreements with client are construed against the attorney. iii. The big issue is with Model Rule 1.2(a) a. Lawyer has duty to abide by client’s objectives. 1). Often, the client will not have a clear objective and will need lawyer’s help in formulating objective. Professional Responsibility – Outline Spring 2004 -Girth Page 17 of 62 b. Lawyer has duty to consult on means of obtaining the client’s objectives. c. Client has control over settlement in civil case and plea to be entered in criminal case. Also as to whether to waive trial by jury and whether the client will testify. d. Language of 1.2(a) is mandatory as to client’s control. However, attorney can counsel client. iv. Model Rule 2.1 indicates that attorney is a counselor and can advise as to proper course of action. v. Model Rules are silent as to whether client or lawyer has right to decide whether appeal will be taken. a. Important to clearly define this in the engagement agreement. vi. Clarity is needed to clearly define means to achieve objectives in terms of cost to the client. a. Under MR 1.8(e), lawyer can advance court costs and expenses of litigation, repayment contingent upon outcome of case. Also, can pay court costs and expenses of indigent clients. vii. Lawyers must define clearly the matters for which they are agreeing to represent their clients. a. Clear communication is absolute requirement for effective relationship. viii. A lawyer may not enter into an agreement with the client to prospectively limit the lawyer’s liability for malpractice. ix. An agreement to submit fees disputes to arbitration may be enforceable in some jurisdictions. x. Model Rule are unclear on whether agreements limiting scope are valid. xi. Restatement of the Law Governing Lawyers is more tolerant 7. Allocation of Authority Between Client and Lawyer i. In representing clients, lawyers may not counsel or assist them to engage in conduct that the lawyer knows to be criminal, fraudulent, or in violation of a court order. a. Lawyers who do so face professional discipline and civil liability to the client or third parties. ii. Lawyers and clients are free to make agreements that indicate authority to make strategic and tactical decisions. iii. When a lawyer proceeds with express authority, the lawyer binds the client. iv. Also, a client is bound when implied or apparent authority is present. v. Normally, an attorney does not have apparent authority to settle a case on behalf of a client. 8. Termination of the Client-Lawyer Relationship: Discharge and Withdrawal i. Rule 1.16 Declining Or Terminating Representation Professional Responsibility – Outline Spring 2004 -Girth Page 18 of 62 (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Professional Responsibility – Outline Spring 2004 -Girth Page 19 of 62 ii. Model Rule 1.16(b) gives several reasons by which attorney may withdraw. a. Lawyer can withdraw if withdrawal can be accomplished without material adverse effect on the interests of the client. 1). Difficult in adversarial system to NOT send a message that would adversely affect client’s interests. iii. Almost all jurisdictions allow client the absolute to discharge an attorney, regardless of cause. a. Model Rule 1.16(a)(3) b. Courts typically allow lawyers to recover reasonable value of services rendered. 1). If client can prove lack of service by attorney, courts may not award. iv. Terminated or withdrawn lawyers do not immediately lose fiduciary relationship. a. If SOL’s are running, there would be a need to preserve client’s interests. v. Mandatory Withdrawal a. For violations of Rules of Conduct b. Lawyer’s physical or mental condition impairs ability to represent client. vi. Permissive Withdrawal a. Example situations 1). Client’s insistence on following a course of conduct that the lawyer considers to be repugnant or imprudent; 2). Failure to pay fees or expenses 3). Client has made representation unreasonably difficult 4). Other good cause. b. Objective – Reasonable lawyer vii. Disagreement with client is not grounds for withdrawal viii. Financial hardship alone is not sufficient grounds for withdrawal. ix. Model Rules also allow for withdrawal when withdrawal can be accomplished with material adverse effect on the interests of the client. 9. Liens i. Rule 1.8 Conflict Of Interest: Current Clients: Specific Rules (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case. Professional Responsibility – Outline Spring 2004 -Girth Page 20 of 62 ii. Model Rule 1.8(i) attempts to take proprietary interest in the client’s cause of action, except for the execution of certain liens. a. Can acquire a lien authorized by law such as mortgage, etc. b. Most states have some type of statutory lien that protects lawyers from the non-payment of fees. iii. Two types of lawyer’s liens a. Retaining lien 1). Allows lawyer to retain client papers until client pays amount owed to lawyer. i). OCGA § 15-19-14(a) 2). Purely possessory lien – lawyer cannot sell client’s papers. 3). Some jurisdictions prohibit this type of lien. i). Very coercive because client cannot go on to another lawyer without the file. 4). Forcing client to sign release of liability is typically held unethical and unenforceable. b. Charging Lien 1). Lien that is applied against proceeds from settlement or judgment to secure payment. i). OCGA § 15-19-14(b) iv. In order to be effective against third party, lawyer must provide notice. 10. Client’s File i. Lawyers have duty to take reasonable steps to protect client’s documents. ii. Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation. (b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose. (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. Professional Responsibility – Outline Spring 2004 -Girth Page 21 of 62 (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. iii. Clients ordinarily have right to inspect and copy documents a. Except internal firm memoranda iv. On termination of representation, client is entitled to all documents except internal firm memoranda. G. Confidentiality 1. Rule 1.6: Confidentiality of Information i. See Rule Above 2. Confidentiality and the Use of E-Mail, Faxes, and Cellular Telephones i. Negligence standard ii. If a lawyer uses a means of communications that has a reasonable expectation of privacy, the lawyer complies with the obligation of confidentiality even though client information may be revealed either inadvertently or through intentional interception by another person. iii. Ethics opinions indicate that lawyers can use cell phones and that there is a reasonable expectation of privacy. a. Should inform other party about lack of security. iv. E-Mail a. Generally, lawyers may ethically use e-mail to convey confidential information without using encryption or other technology. b. As a matter of prudence, lawyers may need to refrain from using a method of communication or adopt additional precautions for particularly sensitive information. c. Prudent to contain provision in engagement letter indicating warnings to client. d. E-mail and faxes should also contain warnings. 3. Scope and Exceptions to the Attorney-Client Privilege i. Restatement of the Law Governing Lawyers a. Attorney-Client Privilege may be invoked with respect to 1). A communication Professional Responsibility – Outline Spring 2004 -Girth Page 22 of 62 2). Made between privileged persons 3). In confidence 4). For the purpose of obtaining or providing legal assistance for the client. ii. Privilege can be lost is any element is not met. iii. Exceptions to attorney-client privilege a. Waiver 1). Agreement 2). Disclaimer 3). Failure to object 4). Voluntary disclosure by client, client’s lawyer, or another authorized agent of lawyer 5). By raising lawyer’s communication or assistance as an issue in the proceeding. b. Crime-Fraud Exception 1). When client uses attorney to obtain assistance or to engage in criminal activity or fraud. 4. Scope and Exceptions to the Work Product Doctrine i. Generally, an attorney’s work product is protected from disclosure. ii. FRCP 26(b)(3) a. Allows discovery of materials prepared by an attorney in anticipation of litigation only upon 1). Substantial need of party 2). Unable without undue hardship to obtain the substantial equivalent of the materials by other means. iii. Material must be prepared in “anticipation of litigation” iv. Must be substantial need and undue hardship to obtain by other means v. Opinion work product is much more highly protected. vi. Other work product is given less protection but is still subject to standards above. 5. Internal Investigations: Scope of Attorney-Client Privilege i. Upjohn Case a. Supreme Court held that privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. b. Privilege applies to communications made by middle and lower level employees as well as upper management. c. Case-by-case decision. ii. Upjohn case provided broad protection for communications by all corporate employees to corporate counsel in federal court. iii. State courts have not widely followed Upjohn. H. Conflicts of Interest 1. Current Clients Professional Responsibility – Outline Spring 2004 -Girth Page 23 of 62 i. Rule 1.7 Conflict Of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. ii. Representation of One Client Against Another Client in a Single Matter and In Unrelated Matters a. Rule 1.7(a) deals with adverse representation against current clients. 1). A lawyer may not undertake representation that is directly adverse to another client unless certain conditions are met. i). The lawyer reasonably believes the representation will not adversely affect the relationship with the other client, or ii). Representation will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer 2). Rule 1.7(b) contains the exceptions to the general rule i). Most important is the idea of each affected client giving informed consent after consultation. Professional Responsibility – Outline Spring 2004 -Girth Page 24 of 62 ii). Exceptions reflect the long-standing thought that clients should be able to choose their lawyer. 3). Test under (a) is whether the representation is “directly adverse” 4). Comments, however, indicate that consent is not effective when representation of interests are directly adverse. 5). Prohibition extends to all members of lawyer’s firm. 6). Also, absent consent, cannot be representation in adverse unrelated matters. iii. Determining Who is a Current Client a. A lawyer may ethically undertake representation against a former client, even without consent, if the current and former matters are not substantially related. b. Doing work currently = current client c. Ongoing professional relationship/retainer = current client iv. Determining Who is a Current Client in Entity Representation Cases a. Merely representing an entity does not make every member of the entity a client of law firm. b. An attorney who represents an entity could have lawyercliien relationship with member, depending on facts and circumstances test. 1). Whether the lawyer affirmatively assumed a duty of representation to the individual partner. 2). Whether the partner was separately represented by other counsel when the partnership was created or in connection with its affairs. 3). Whether the lawyer had represented an individual partner before undertaking to represent the partnership. 4). Whether there was evidence of reliance by the individual partner on the lawyer as his or her separate counsel or of the partner’s expectation of personal representation. v. Positional Conflicts a. Arises when a lawyer takes a legal position on behalf of one client that is adverse to the interests of another client. 1). Taking opposing positions on behalf of different clients in different courts. 2). Representing one client in a matter that can harm the economic interest of another client. b. If advocacy of one client’s legal position would materially and adversely affect another client, the lawyer may proceed only with the informed consent of both parties. Professional Responsibility – Outline Spring 2004 -Girth Page 25 of 62 c. Generally, representation of competing economic interests are proper without the need for consent. vi. Consentable Conflicts a. Tension between client’s ability to choose lawyer of choice and lawyer’s duty of loyalty to clients. b. Effective Consent 1). Written 2). Fully informed 3). Updated if circumstances change vii. Consent – Validity of Prospective Waivers a. Not per se invalid b. Not dispositive – courts will still look to facts and circumstances to determine if there was informed consent. c. Blanket waivers are treated with great skepticism. d. The more specific the waiver, the more likely it will be upheld, if applied prospectively. 2. Former Clients i. Rule 1.9 Duties To Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. Professional Responsibility – Outline Spring 2004 -Girth Page 26 of 62 ii. Origin and Justification for the Substantial Relationship Test a. Issues with former clients focus both on duty of loyalty and duty of confidentiality. b. Originally, there was no protection for former clients. c. Later, doctrine of substantial relationship evolved in common law. d. 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. e. Absolute bar would result in harsh consequences 1). Limits ability of client to select attorney of choice. 2). Deters lawyers from taking representation in small matters because it would preclude them from representing the adversary of the small client. 3). Lifetime duty of loyalty would develop, increasing legal fees. iii. Application of the Substantial Relationship Test a. Key is whether lawyer obtained an unfair advantage in later matter by his prior involvement with client. b. Model Rule 1.9 1). Differing interpretations of its meaning. i). Some courts focus on the facts involved in the two matters. ii). Other courts focus on the legal issues involved. iii). Seventh Circuit Three-Pronged Test a). Factual reconstruction of scope of prior representation. b). Whether confidential information would have been given to lawyer. c). Whether that information is relevant to the issues raised in the pending litigation. iv). Courts are divided on whether representation over an extended period of time in matters that are similar is sufficient to amount to a substantial relationship. c. Restatement of Law Governing Lawyers indicates 1). A substantial relationship between the current and former representation exists if 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, Professional Responsibility – Outline Spring 2004 -Girth Page 27 of 62 unless that information has become generally known. d. Most courts hold that the presumption of substantial relationship is conclusive that lawyer received confidential information. e. Other courts allow former counsel to rebut the presumption of receipt of confidential information. f. Courts are divided as to whether a preliminary consultation with a client is sufficient to invoke the former client disqualification rule. 1). This is referred to as the “prospective client problem.” g. Informed consent, confirmed in writing, can be obtained from the former client. h. When facts about former client become generally known, representation against former client would not be barred – MR 1.9(c)(1). iv. Appearance of Impropriety as a Basis for Disqualification a. Former professional responsibility rules used this concept. b. Model Rules specifically reject the concept. c. Occasional decisions will rely on appearance of impropriety as a basis for disqualification. d. This issue is more determined by your own personal philosophy of lawyering. v. Problem 3-5 a. Previously defended firm in arbitration actions and this is crucial. b. Arbitration claims. c. Change in firm’s management structure and thoughts. d. Who was involved in previous matters. e. Suppose that you find that person that is alleged to have committed to wrongdoing is unknown to lawyer. 1). 24 no disqualification 2). 15 yes disqualification 3. Rule 1.10 Imputation Of Conflicts Of Interest: General Rule (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, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to Professional Responsibility – Outline Spring 2004 -Girth Page 28 of 62 those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7. (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. i. The Imputation Principle a. Under this principle, when lawyers are currently associated in a firm, and one of the lawyers is disqualified from handling a matter, that disqualification is imputed to disqualify all members of the firm. b. It is assumed that any confidential information that one member has is accessible to other members and this serves as the basis for disqualification ii. Imputed Disqualification and Movement Between Firms a. The rule of imputed disqualification could lead to extreme instances of disqualification, even when no realistic risk of use of confidential information exists. b. Model Rule 1.9 indicates that a lawyer who has no involvement or only minor involvement in a client’s matters changes firms, the lawyer is disqualified from handling a matter against the client of the lawyer’s old firm only if the new matter is substantially related to a matter involving the client of the former firm and if the lawyer received confidential information related to the matter. 1). The lawyer is not disqualified simply based on her membership in the old firm. 2). If the lawyer is not disqualified under Rule 1.9(b), then her new firm is also not disqualified under Rule 1.10(a). iii. Imputed Disqualification and “Screening” of Disqualified Lawyers a. Drafters of Model Rules rejected the possibility of screening when a disqualified lawyer joined a firm. b. Some courts follow Model Rules, others allow screening. c. Restatement of Law Governing Lawyers has approved use of screening. 1). May only be used, however, when the confidential information held by the personally disqualified Professional Responsibility – Outline Spring 2004 -Girth Page 29 of 62 lawyer is unlikely to be significant in the subsequent matter. 2). Restatement also allows broader use of screening when it involves former prospective client. d. Disqualification of a law firm can also result from hiring paralegals or other non-lawyer employees who previously worked for an adverse party in substantially related matters. iv. Imputation When a Disqualified Lawyer Leaves a Firm a. Model Ruel 1.10(b) 1). Old firm is not disqualified from handling a matter against a former client when the matter was handled by a departed lawyer unless the current matter is substantially related to the prior representation AND some lawyer still remaining with the firm actually received confidential information regarding the former client. III. Ethical Issues in Office Practice A. Tension Between Ethics and Law on the Issue of Client Fraud B. Ethical and Legal Obligations of Lawyers Not to Counsel or Assist Clients in Fraud 1. Ethically, lawyers have an obligation not to counsel or assist their clients in transactions that they know are fraudulent. i. Scope of Obligation a. Lawyers do not counsel or assist a client in committing a fraud or crime if the lawyer does nothing more than advise a client that the client’s planned course of action would be illegal or fraudulent. b. Courts have used several possible standards for knowledge of crime or fraud 1). Firm factual basis 2). Beyond a reasonable doubt c. In aider and abetter liability cases, courts have held that lawyers were only liable if they provided substantial assistance to client fraud. 2. Sarbanes-Oxley Act of 2002 made it a rule that required attorneys to report evidence of a material violation of securities law or breach of fiduciary duty or similar violation by the company or any agent thereof, to the chief legal counsel or the chief executive officer of the company and if they do not appropriately respond, to report the evidence to the audit committee of the board of directors. i. There are specific definitions of appropriate responses, etc. 3. Model Rule 1.6(b) indicates that a lawyer “may” reveal information relating to the representation of a client subject that the enumerated items in 1.6(b) are found. i. This is permissive. 4. Rule 1.6(b)(2) is aimed to prevent client fraud. Professional Responsibility – Outline Spring 2004 -Girth Page 30 of 62 5. Rule 1.6(b)(3) is aimed to what happens after client has already committed fraud. 6. Rule 1.2(d) indicates that a lawyer shall not counsel a client to engage, or assist a client in conduct lawyer knows to be criminal or fraudulent. i. However, lawyer can discuss the likely consequences of client action. C. Civil Liability for Failing to Disclose Client Fraud 1. If lawyer prepares a legal opinion in a transaction and the lawyer knowingly or recklessly omits material information from the opinion, the lawyer can be liable for such omissions under federal securities law and common law principles. 2. Lawyers who have participated in the transaction are liable to third parties. 3. If a lawyer does not actively participate in a fraudulent transaction, it is unlikely that the lawyer would be held liable to a third party simply for nondisclosure of the client’s wrongdoing. 4. If a lawyer is advising at the edges of behavior that might become criminal or fraudulent, there is some possibility of personal civil liability from injury to third persons. D. Withdrawal from Representation 1. Rule 1.16 provides that client’s criminal or fraudulent conduct is grounds for mandatory withdrawal. E. Fraud by Clients in Business Transactions 1. Problem 5-2 i. Client indicates that contract is essential and that in negotiating earlier contract, she had to give other party something to get contract signed. a. Under Rule 13, the company is the client. b. Other facts that would be necessary 1). What does “something on the side” mean? i). Money ii). Dinner iii). Stock or other assets 2). Is there a company policy or practice? 3). Did VP take individual initiative? 4). How important are the fees to the firm? c. What reporting requirement as to past acts? 1). The Rules have prospective view. d. If the lawyer “knows” that there is a potential problem, they must act. The problem is with knowledge – when does someone know. 1). If lawyer decides that they know of a problem, they must go to highest authority that can act on behalf of organization. 2). If they do nothing, lawyer may go to Board of Directors. Professional Responsibility – Outline Spring 2004 -Girth Page 31 of 62 e. Assume that lawyer believes that act will happen again in negotiations. 1). How will you explain that you are not going to represent client to your firm? IV. Ethical Issues in Civil Litigation: Limitations on Zealous Representation, ADR, and Delivery of Legal Services A. Commencement of Actions, Investigation, and Discovery 1. Frivolous Actions and Delay: Ethical Duties and Discovery Sanctions i. Rule 3.1 Meritorious Claims And Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. ii. Rule 3.2 Expediting Litigation A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. iii. Rule 3.3 Candor Toward The Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. Professional Responsibility – Outline Spring 2004 -Girth Page 32 of 62 (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. iv. Rule 3.1 expresses the ethical obligation of lawyers not to engage in frivolous legal proceedings. a. Applies to ALL pleadings and steps in legal proceeding. b. Rule contains an exception for defense of criminal proceedings. 1). Attorney can insist that every element of the case be established because the stakes are so high. c. Rule does not define a frivolous action but comments supply guidance. d. A claim is NOT frivolous even if the claim is not warranted under existing law if the lawyer can make a good faith argument for extension, modification, or reversal of existing law. e. A claim may be frivolous if it is brought for an improper purpose, even if the claim has legal or factual merit. v. FRCP 11 also prohibits frivolous litigation and is more widely used because it has monetary sanctions. a. Governed by an objective rather than subjective standard. b. Courts generally look to determine whether the pleading or paper is frivolous as a whole. c. Other FRCP Rules that can be used to punish litigation abuse. Some states also have their own versions. 1). 16(f) – failure to abide by pre-trial order. 2). 26(g) – improper discovery requests or objections. 3). 30(g) – failure to attend a deposition or serve a subpoena on a witness to be deposed. 4). 37 – improper failure to respond to discovery. 5). 41(b) – dismissal of action or claim when a party fails to FRCP or court order. 6). 45(e) – contempt for failure to obey a subpoena. 7). 56(g) – presentation of affidavit in summary judgment motion in bad faith or for the purpose of delay. d. Criticism of Rule 11, the 1993 Amendment, and the Private Securities Litigation Reform Act of 1995 1). Criticisms i). Too much judicial discretion leads to varying application. Professional Responsibility – Outline Spring 2004 -Girth Page 33 of 62 ii). Efficiency of the rule because it spawns ancillary proceedings. iii). Deter innovative advocacy. 2). 1993 Amendment i). Provides 21 day safe harbor. ii). Sanctions can be imposed on law firms and attorneys. iii). Deterrence rather than compensation. iv). Sanctions are discretionary. v). Specificity in court orders when sanctions are imposed. 3). Private Securities Litigation Reform Act of 1995 i). Makes sanctions mandatory in securities litigation. ii). Presumed that opposing party’s attorney fees will be the sanction. vi. Restatement of Law Governing Lawyers also provides some guidance on the meaning of frivolous claims. a. One that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it. vii. Rule 3.2 expresses the obligation that lawyers shall exercise reasonable efforts to expedite litigation. 2. Tort Liability of Attorneys for Frivolous Actions i. Restatement Second of Torts § 674 – Malicious Prosecution ii. Restatement Second of Torts § 675 – Abuse of Process iii. Abuse of process claim is easier to establish. iv. Compensation for harm that has been incurred in frivolous actions. v. Disgruntled defendants have increasingly brought tort claims against attorneys. a. Tension between two public policies. 1). Open access to courts – tort claims have a chilling effect. 2). Judicial process should be used to resolve bona fide disputes. b. Courts attempt to strike a balance and indicate that liability will only be imposed in extreme cases. 3. Candor Toward the Tribunal i. Rule 3.3 ii. An interesting part is Rule 3.3(a)(2) which prevents a lawyer from knowingly failing to disclose to the tribunal legal authority known to be directly adverse to the attorney’s position. iii. In ex parte proceeding, there is a duty to disclose material facts that will enable the tribunal to make an informed decision. a. Protective orders are an example of an ex parte proceeding. Professional Responsibility – Outline Spring 2004 -Girth Page 34 of 62 iv. Also, the rule requires a lawyer who knows that person intends to engage in criminal or fraudulent behavior has a duty to take appropriate remedial measures. 4. No-Communication Rules i. Rule 4.2 Communication With Person Represented By Counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. ii. Rule 4.3 Dealing With Unrepresented Person In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. iii. Rule 4.4 Respect For Rights Of Third Persons (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. iv. Prohibition of Communication with a Party Represented by Counsel in General a. Lawyers are prevented from communicating with a person the lawyer knows to be represented by counsel in the matter without consent of the person’s attorney, unless authorized by law. b. Rationale of the no communication rule is that it protects people who are represented by counsel from the harm they can suffer if they deal with a lawyer who represents an opposing person without receiving the advice of counsel. 1). A client might reveal privileged information. 2). A client might agree to an unwise settlement. c. Exceptions to No-Communication Rule Professional Responsibility – Outline Spring 2004 -Girth Page 35 of 62 1). When authorized by law. i). Court order ii). Court rule 2). Communication directly with governmental officials. 3). Rule applies only to lawyers, not clients. i). Lawyers may advise clients of their right to communicate directly with the opposing party but should not assist them in such a communication. 4). Communication in an emergency. d. Application of the Prohibition on Communications with an Opposing Party to Current Employees of Corporate Parties 1). All courts agree that some employees are subject to the no communication rule. 2). Control Group Test i). Only upper level management in position to make decisions on behalf of the corporation is subject to the no-communication rule. ii). All lower level employees are subject to informal interviews. 3). At other extreme is the Test that allows all corporate employees to be subject to nocommunnicatio rule 4). Courts strike a balance. i). Managing-Speaking Agent Test a). If employee has managing authority sufficient to speak for and bind the corporation in the matter in question, then the no-communication rule applies. ii). Scope of Employment Test 5). Rule 4.2 adopts broad no-communication rule that applies to most, but not all, employees of a corporation. i). Three classes of covered employees subject to no-communication rule. a). Persons having managerial responsibility on behalf of the organization. b). Any other person whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Professional Responsibility – Outline Spring 2004 -Girth Page 36 of 62 c). Any person whose statement may constitute an admission on the part of the organization. 6). Restatement of Law Governing Lawyers Narrows the Scope of the No-Communication Rule i). Not all managers subject to rule. ii). Employees making statements are covered only if the statement would be binding on the organization rather than simply being admissible against the entity. 7). No matter which rule i). Lawyers may not seek privileged information. ii). Lawyers may not circumvent the discovery process because it prevents opposing counsel from raising objections to the discoverability of documents. e. Application of the Prohibition on Communications with an Opposing Party to Former Employees of Corporate Parties 1). Vast majority have ruled that an attorney may communicate with a former employee so long as the attorney does not try to obtain confidential or privileged information. i). ABA Committee on Ethics and Professional Responsibility adopted this view. f. Other Applications of Rule 4.2: Settlement Offers, Expert Witnesses, and Treating Physicians 1). Settlement Offers i). Cannot make settlement offers directly to opposing party (would violate Rule 4.2) – must be through counsel. ii). If not satisfied that offer is going to party, can seek formal means (court order) or informal by advising client of right to convey settlement offer to opposing party. 2). Expert Opinions i). Subject to specific limitations under the discovery rules. ii). Lawyers may not informally interview an expert for the opposing party without consent of opposing counsel. 3). Treating Physicians i). Split among jurisdictions. a). Some invoke physician patient privilege to make communication improper. Professional Responsibility – Outline Spring 2004 -Girth Page 37 of 62 b). Others indicate patient waived confidentiality by filing suit. v. Pre-Filing Interviews a. Courts have accommodated pre-filing interviews by allowing plaintiff’s counsel to engage in investigation prior to filing suit so long as they do not have actual knowledge that the person contacted is represented by counsel. b. Lawyers with an actual knowledge that an employee is represented by counsel cannot communicate prior to filing suit. c. A lawyer contacting a witness or a potential defendant must keep in mind the obligations with regard to unrepresented parties set forth in Rule 4.3. 1). Under the rule it is proper for the attorney to communicate with a witness or even with a potential defendant, but the attorney must use care in doing so. 2). The attorney may not mislead the person about the attorney’s role nor may the attorney give the other party legal advice. 5. Discovery Abuse i. Rule 3.4 Fairness To Opposing Party And Counsel A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or Professional Responsibility – Outline Spring 2004 -Girth Page 38 of 62 (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. ii. Liberal discovery rules of FRCP and many states have caused increase in discovery abuse. iii. Two Categories a. Propounding Unnecessarily Broad Discovery Requests b. Withholding Information from the Propounding Party to Which that Party is Entitled iv. Discovery Abuse in Connection with Interrogatories and Requests for Production of Documents a. Court sanctions can include 1). Fines against the offending lawyers, 2). Permission for the opposing party to engage in liberal cross-examination of witnesses on issues related to the abuse, 3). Dismissal of the action, 4). Tort liability, 5). Professional discipline. v. Discovery Abuse in Deposition Practice a. Inappropriate Coaching by lawyers b. Directing client to lie or subtle suggestion to testify falsely c. Even discovering later that client made misstatement, it is required to correct misstatement. vi. Dealing with Discovery Abuse a. Formal 1). Request for sanctions 2). Appointment of special masters 3). Administrative judge who handles questions b. Informal 1). Mutual agreement of counsel 2). Discovery conferences 3). Bar association committees 4). Use discovery abuse against opposing party in cross examination to show lack of candor. 5). Knowledge of proper objections and improper deposition conduct. B. Alternative Dispute Resolution 1. Honesty in Negotiation: The Duty Not to Engage in Misrepresentation Professional Responsibility – Outline Spring 2004 -Girth Page 39 of 62 i. Model Rules adopt the view that lawyers have a general obligation of honesty in negotiation but that deceit and misrepresentation are to some degree part of the rules of the game. ii. Model Rule 4.1(a) states that in representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person. iii. Case law gives some guidance as to what constitutes an improper misrepresentation a. Clearly, when a lawyer makes a false statement about the material facts of the case. b. When a lawyer makes false statements about the effect of provisions of an agreement, about procedural aspects of the case, or about insurance coverage. c. Not improper to misrepresent their true opinions about the relative strengths of each side of a case. d. Lawyers may make misrepresentations about a party’s intentions as to an acceptable settlement of a claim. e. Misrepresentations of settlement authority are improper. 2. Honesty in Negotiation: The Duty of Disclosure i. Model Rule 4.1(b) states that a lawyer may not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. ii. As a general proposition, lawyers do not have a duty to disclose material information to the other side. iii. The duty to disclose arises in four situations a. Corrective disclosure arises when a lawyer made a representation that the lawyer now learns was either false when made or has become false because of changed circumstances. b. When a lawyer knows that the other party is operating under a fundamental mistake about the contents of a writing, the lawyer has a duty to disclose the mistake to the other side. 1). Extends to situations in which a lawyer changes provisions in an agreement but fails to notify the other side of such modifications. c. Situations in which lawyers will have a fiduciary duty to the opposing party to disclose material information. 1). Would include dealing with unrepresented parties. d. When disclosure is necessary to correct a mistake by the other party about basic aspects of the transaction and the failure to disclose violates standards of good faith and fair dealing. 1). Includes major procedural developments, mistakes about the amount of insurance coverage, Professional Responsibility – Outline Spring 2004 -Girth Page 40 of 62 and recantation of testimony by a significant witness. 3. Improper Threats i. Model Rules intentionally omitted the ban on threats of criminal prosecution. ii. If threat of criminal prosecution does not violate Rules 3.1, 4.1, 4.4, and 84, a lawyer may make it to settle a civil matter. iii. It should be noted that under the Model Rules a threat may sometimes be improper even if it does not involve a threat of criminal prosecution. 4. Negotiating Approaches i. Style a. Competitive b. Cooperative ii. Strategy a. Adversarial b. Problem-Solving iii. Relevant factors for choosing negotiating style and strategy. a. The goals of the client and the needs of the opposing party. b. The configuration of shared, independent, and conflicting needs of the parties. c. The resources, including money, personnel, time, and the like, available to your client and the opposing party. d. The ability of the parties to creatively generate additional issues and resources to expand the subject matter of the negotiation. e. The comfort or discomfort you experience when you behave as a competitive versus cooperative bargainer. f. The style and strategy combination selected by your opponent. 5. Alternative Dispute Resolution in General i. Arbitration a. Binding ii. Mediation a. Not binding iii. Summary jury trials iv. Mini-trials 6. Ethical Obligations of Lawyers to Advise Clients Regarding ADR i. Not specifically in Model Rules, but taken as a whole, Model Rules indicate that lawyer should indicate the availability of ADR. 7. Ethical Obligations of Lawyers Serving as Arbitrators and Mediators V. Delivery of Legal Services in Civil Cases A. Advertising and Solicitation 1. Rule 7.1 Communications Concerning A Lawyer's Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is Professional Responsibility – Outline Spring 2004 -Girth Page 41 of 62 false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. 2. Rule 7.2 Advertising (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a notfoorprofit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority; (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. 3. Rule 7.3 Direct Contact With Prospective Clients (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside Professional Responsibility – Outline Spring 2004 -Girth Page 42 of 62 envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. 4. Rule 7.4 Communication Of Fields Of Practice (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation. (c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication. 5. Rule 7.5 Firm Names And Letterheads (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1. (b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. Professional Responsibility – Outline Spring 2004 -Girth Page 43 of 62 6. Basic Constitutional Principles Governing Regulation of Lawyer Advertising i. Traditionally, commercial advertising or solicitation had been seen as unprofessional. ii. The Supreme Court has established and expanded the constitutional right of lawyers to market their legal services. iii. Bates v. State Bar of Arizona a. Court held that advertising in newspapers, offering to provide various services for specified fees, including uncontested divorce, adoption, non-business bankruptcy, and change of name was allowed. b. Arizona gave six justifications for the ban 1). Adverse effect on professionalism 2). Inherently misleading nature of attorney advertising 3). Adverse effect on the administration of justice 4). Undesirable economic effects of advertising 5). Adverse effect of advertising on the quality of services 6). Difficulties in enforcement c. Supreme Court limited in several ways 1). Decision did not prevent state regulation of false, deceptive, or misleading advertising. 2). In-person solicitation posed unique problems that might warrant restriction. 3). Warning or supplementation might be required to prevent consumers from being misled. 4). States may impose reasonable time, place, and manner restrictions. 5). Advertising concerning illegal transactions could be prohibited. 6). Special problems of advertising on the electronic broadcast media will warrant special consideration. iv. In re R.M.J. a. Supreme Court set principles for determining the constitutionality of restrictions on lawyer advertising. 1). A state may constitutionally prohibit lawyers from engaging in false or inherently misleading advertising or when experience has proven that in fact such advertising is subject to abuse. 2). A state may not prohibit advertising that is potentially misleading, but may regulate such advertising by a method no broader than reasonably necessary to prevent the deception, such as by explanation or disclaimer. Professional Responsibility – Outline Spring 2004 -Girth Page 44 of 62 3). States retain the right to regulate truthful advertising in some limited circumstances if the state establishes a substantial interest and the interference with speech must be in proportion to the interest served. 7. Basic Constitutional Principles Governing Regulation of In-Person Solicitation by Lawyers i. Ohralik v. Ohio and In re Primus a. Supreme Court indicated that in-person solicitation was distinguishable from advertising because it involved conduct as well as speech. b. As a result, the state could constitutionally prevent solicitation in furtherance of important state interests. c. The Court found that the state had an important interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of vexatious conduct. ii. NAACP v. Button a. Under the associational freedom guaranteed by the First Amendment, organizations such as the NAACP could solicit clients as part of collective activity undertaken to obtain meaningful access to the courts. 8. Application and Development: Targeted Advertising, Direct Mail Advertising, and False or Misleading Communications i. Zauderer v. Office of Disciplinary Counsel a. Supreme Court noted that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. b. The Court ruled, however, that disclosure requirements, unlike prohibitions, were subject to less scrutiny and would be upheld as long as the requirements are reasonably related to the State’s interest in preventing deception of consumers. c. The Court found that the requirement that an attorney advertising his availability on a contingent fee basis disclose that clients will have to pay costs even if their lawsuits are unsuccessful easily pass muster under this standard. ii. Shapero v. Kentucky Bar Association a. Court indicated that the ban on solicitation approved in Ohralik rested on two fundamental differences between advertising and solicitation. 1). In-person character of solicitation creates a situation rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud. Professional Responsibility – Outline Spring 2004 -Girth Page 45 of 62 2). Solicitation poses unique enforcement difficulties because it is not visible or otherwise open to public scrutiny. b. Court recognized that direct mail advertising could be subject to abuse. 1). Recipients might overestimate the lawyer’s familiarity with their problem 2). Recipients might mistakenly assume that they have a legal problem (or a more serious legal problem) when this is not the case. c. Court concluded that regulation was justified but prohibition was not. iii. Florida Bar v. Went For It, Inc. a. Supreme Court stated that the Court’s commercial speech cases had held that commercial speech was entitled to some constitutional protection, but that such protection was more limited than that afforded speech at the core of the First Amendment. b. Commercial speech may be freely regulated by government in two instances 1). Speech concerning unlawful activity 2). Speech that is misleading c. Commercial speech that did not fall into these categories would be evaluated under three-prong test 1). The government must assert a substantial interest in support of its regulation. 2). The government must demonstrate that the restriction on commercial speech directly and materially advances that interest. 3). The regulation must be narrowly drawn. iv. Peel v. Attorney Registration & Disciplinary Commission a. Supreme Court indicated that if professional certifications were issued for a fee by organizations that did not enforce standards, a state could prohibit their use because they would be misleading. 9. Marketing on the Internet i. Opinions from a number of state ethics advisory committees have stated that lawyers may use the Internet to market their services provided they comply with the rules on advertising and solicitation. ii. Like print or television advertising, Internet advertising can be false or misleading or can violate other advertising rules. iii. Domain names can create false or misleading impression of the nature of the firm’s work or could create unjustified expectations about the results the lawyer could achieve. iv. Lawyers should indicate the geographical limitations on their practice to avoid misleading potential viewers. Professional Responsibility – Outline Spring 2004 -Girth Page 46 of 62 v. Lawyers who obtain clients in jurisdictions in which they are not admitted to practice may run afoul of the state’s prohibitions on the unauthorized practice of law. vi. Some states will attempt to exercise jurisdiction over out-of-state lawyers who target their web pages or other Internet advertising to potential clients in the state. VI. Lawyers in Public Service A. Representation of the Public Interest 1. History and Meaning of Public Interest Law i. Public interest law is not the same as pro bono work. ii. Pro bono involves individuals and is usually free service. iii. Public interest involves the public and can have fees. iv. Public interest law is not linked to any particular area of substantive law, to any specific form of litigation, or with any political movement. 2. Ethical Problems Facing Public Interest Lawyers i. Most difficult are conflicts of interest. a. A client may be willing to settle a public interest case for a payment that seems advantageous to the client, subject to confidentiality provisions, but the public interest lawyer may believe that the settlement, particularly its confidentiality provisions, is not in the public interest. 1). Clients have right to accept or reject settlement. b. One technique that public interest law firms can consider to deal with such potential conflicts is the use of limited engagement agreements. 1). Under this type of agreement, the client concurs to be bound by the policies of the organization in the conduct and settlement of the litigation, in exchange for the organization’s agreement to provide legal representation without charge to the client. B. Special Responsibilities of a Prosecutor 1. Rule 3.8 Special Responsibilities Of A Prosecutor The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate Professional Responsibility – Outline Spring 2004 -Girth Page 47 of 62 the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. 2. The Prosecutor’s Ethical Obligation to do Justice i. Well accepted that prosecutors have broader ethical obligations than defense counsel. ii. Prosecutors have the responsibility of a minister of justice and not simply that of an advocate. 3. Disclosure of Exculpatory Evidence i. Defense counsel in a criminal case does not have the obligation to disclose incriminating information that the defense receives in confidence. ii. Prosecutors have both a Constitutional and professional obligation to disclose exculpatory material. iii. Brady Decision a. Supreme Court held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. b. Duty applies even if the prosecution has not suppressed the evidence and even if the defense does not file a Brady motion. Professional Responsibility – Outline Spring 2004 -Girth Page 48 of 62 c. Evidence is material when there is reasonable probability that the outcome would have been different had the evidence been disclosed. iv. Bagley Decision a. Duty applies to evidence that can be used to impeach government witnesses as well as exculpatory evidence. v. The Constitutional duty of disclosure does not turn on the bad faith of the prosecutor. vi. The Brady rule only applies if the evidence is in the possession of the government. vii. Duty to disclose does not apply to grand jury proceedings. viii. Model Rule 3.8(d) a. Rule differs from the Constitutional standard in two respects 1). The ethical duty applies only to evidence or information known to the prosecutor while the Constitutional standard applies to any evidence in the hands of the government, even if not known by the prosecutor. 2). The “tends to” standard of the rule appears to require greater disclosure than the Constitutional standard. 4. Prosecutorial Discretion i. Prosecutors have broad discretionary power at almost every stage of criminal proceedings, including investigation, charging, and plea bargaining. ii. Model Rules provide that prosecutors should not institute criminal proceedings without probable cause. iii. The Supreme Court has imposed some limits on prosecutorial discretion when prosecutorial vindictiveness is present. iv. The Court has ruled that this did not apply when the prosecutor informed the defendant during plea bargaining that he would face higher charges if he did not agree to the bargain offered by the prosecutor. The Court found the prosecutor’s actions to be part of the give and take common to plea bargaining and not evidence of vindictiveness. v. The Court found that the possibility of vindictiveness to be greater post-trial rather than the pre-trial stage. 5. Ex Parte Communications with Defendants i. Model Rule 4.2 a. Anti-contact rule b. Was amended to indicate that a lawyer shall not communicate with a “person” – it used to read “party”. 6. Courtroom Misconduct by Prosecutors Professional Responsibility – Outline Spring 2004 -Girth Page 49 of 62 i. Fundamental problem with prosecutorial misconduct in the courtroom may not be in defining it but in devising remedies to deal with it. a. Greater use of the contempt power b. Structural reform of the prosecutor’s office to reduce the pressures that can lead to overzealous tactics. 7. Should Prosecutors be Subject to Greater Regulation? C. Representation of the Public Interest 1. The Role of the Government Lawyer and the Duty to Seek Justice i. Under the current model of lawyers’ professional obligations, lawyers should counsel their clients regarding both legal and nonleega aspects of their cases, including the fairness of any action that the client intends to take. ii. Justifications for the view that government lawyers have an ethical obligation to seek justice. a. Since the public interest favors just resolution of cases, imposing an obligation on government lawyers to seek just outcomes does nothing more than require government lawyers to carry out the goals of their “clients”. b. Imposing an obligation of fairness on government lawyers helps prevent governmental oppression of private citizens. iii. Ethical Consideration 7-14 of the Code of Professional Responsibility seems to accept the position that government lawyers have special responsibilities to justice. iv. The ABA Committee on Ethics and Professional Responsibility concluded that the Model Rules impose no greater obligation on government attorneys than on private lawyers to achieve just outcomes. v. The Restatement of the Law Governing Lawyers largely agrees with the approach of the Model Rules. a. Under the Restatement, government lawyers do not have a general obligation to represent the public interest or to promote justice – instead government lawyers are required to follow the direction of their clients, which are normally the agencies by which they are employed. vi. The Attorney General has the authority to determine the legal position of the United States and to authorize settlement, subject to legal restrictions. vii. If an agency disagrees with the position of the Justice Department, the agency can attempt to convince the Justice Department to change positions and if that is unsuccessful, the only resort would be to the President. 2. Confidentiality of Information: Government Attorneys and Wrongdoing by Government Officials i. There are federal “whistleblower” statutes that attempt to protect employees who report wrongdoing. Professional Responsibility – Outline Spring 2004 -Girth Page 50 of 62 ii. The Code of Professional Responsibility and the Model Rules do not contain any specific provisions regarding the scope of the duty of confidentiality as applied to government lawyers. a. Comment 7 of Rule 1.13 indicates that the rule applies to government lawyers. iii. The Supreme Court has indicated that the attorney-client privilege applies to government entities but that the privilege must yield in the context of criminal investigations. 3. The Revolving Door: Movement of Lawyers Into and Out Of Government Practice i. Rule 1.11 Special Conflicts Of Interest For Former And Current Government Officers And Employees (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which Professional Responsibility – Outline Spring 2004 -Girth Page 51 of 62 that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b). (e) As used in this Rule, the term "matter" includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and (2) any other matter covered by the conflict of interest rules of the appropriate government agency. ii. Benefits of the Revolving Door a. Avoidance of the likely alternative: a permanent legal bureaucracy b. An official will be better able to maintain his independence if he is relatively free to leave the government c. Important aid to government recruitment of attorneys with talent and imagination. iii. Problems of the Revolving Door a. Government attorney might abuse his position to benefit his future career in the private sector; b. Protection of client confidences; Professional Responsibility – Outline Spring 2004 -Girth Page 52 of 62 c. Unfair advantage that it might give private parties who are able to hire former agency attorneys having special contacts and expertise; d. Encourages favoritism to former government attorneys by their former colleagues in the agency or department in which they worked; e. Continually permits the fundamental impropriety of switching sides. iv. Model Rule 1.11 deals with ethical limitations on successive governmental and private employment. v. Rule 1.11(a) prohibits a lawyer who leaves government service from representing a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. vi. Scope and limitations of Rule 1.11 a. The rule bars representation of all private clients as to matters in which the attorney was personally involved while in government employment. b. Restricts the activities of a former government lawyer only as to the matter in which the lawyer participated personally and substantially. 1). A matter is limited to a proceeding involving specific parties, as distinguished from rulemaking and issues of general policy. c. With the consent of the agency, a lawyer may handle a matter in which the lawyer was personally and substantially involved. 1). Screening of lawyer would be permitted to allow lawyers firm to handle the matter if agency did not consent. D. Judicial Ethics 1. Regulation of Judicial Conduct: Standards and Procedure i. Code of Judicial Conduct a. Composed of several Canons 2. Disqualification of Judges Because of Personal Involvement or Interest in Matters i. Covered by Canon 3(E) ii. General principle of disqualification a. Whenever a judge’s impartiality might reasonably be questioned. iii. Six Situations for Disqualification of Judges for Personal Involvement in the Matter a. Personal knowledge of disputed evidentiary facts; b. Served as a lawyer in the matter in controversy before assuming the bench; Professional Responsibility – Outline Spring 2004 -Girth Page 53 of 62 c. Has been a material witness to the matter in controversy; d. Is a party to the proceeding, or an officer, director, or trustee of a party; e. When a judge has a personal bias or prejudice concerning a party; f. When the judge is either personally or as a fiduciary has an economic interest in the subject matter in controversy or in a party to the proceeding. 1). Code indicates that economic interest means ownership of more than a de minimus legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, subject to exceptions. 3. Disqualification of Judges Based on Relationships with Persons Interested in the Matter i. A judge is disqualified if a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter. a. Case must have been in the office when the judge was practicing. b. Judges are also disqualified when close family members have stake in outcome of proceeding. 4. Disqualification of Federal Judges i. Federal judges are subject to removal by impeachment. 5. Waiver or Remittal of Disqualification 6. Ex Parte Contacts VII. Defense and Prosecution of Criminal Cases A. Delivery of Legal Services to Indigents in Criminal Cases 1. Methods of Delivering Legal Defense Services i. Gideon v. Wainwright guaranteed indigent defendants a right to appointed counsel in criminal prosecutions in state courts. ii. Later, was also extended to misdemeanor cases but has become watered down over time. iii. Three methods of delivering legal defense services a. Public defender programs 1). Often, there are excessive caseloads. 2). Methods of selection of chief public defender may undermine the independence of the program b. Contract defense programs 1). Fixed fees 2). Critics fear that contracts are awarded to lowest bidder without regard to qualifications. c. Assigned counsel programs 1). In some jurisdictions, assigned counsel receives no compensation; in others, fees are capped or limited to low hourly rates. Professional Responsibility – Outline Spring 2004 -Girth Page 54 of 62 iv. Usually, there is very little provision for experts and other litigation tools that are more readily available to the prosecution. 2. ABA Standards for Providing Defense Services i. Important Guidelines a. Funding and Eligibility 1). Standards call for funding of the full cost of defense services sufficient to provide quality representation to all eligible persons. 2). Eligible persons are defined as those who are financially unable to obtain adequate representation without substantial hardship. b. Professional Independence 1). Freedom from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice. c. Assigned Counsel 1). Standards call for a plan of assignment of counsel implemented by administrators rather than ad hoc assignments by judges. d. Defender Systems 1). Standards call for the selection of the chief defender and staff on the basis of merit, and prohibit their selection by judges. e. Workload 1). Standards provide that lawyers should not accept excessive workloads that interfere with rendering quality representation. B. Confidentiality 1. The Obligations of Lawyers Regarding Tangible Criminal Material in their Possession i. Lawyers have an ethical obligation to maintain confidentiality of information regarding past crimes. ii. Lawyers can come into possession of fruits of criminal conduct, instrumentalities of crimes, contraband, or tangible evidence of crimes. iii. Lawyers can obtain possession of tangible criminal material in a variety of ways a. Clients b. Third parties c. As a result of their own investigation iv. Lawyers may not assist their clients by actively concealing tangible criminal material. v. A number of courts have held that attorneys who come into possession of tangible criminal material have an obligation to turn the material over to authorities. Professional Responsibility – Outline Spring 2004 -Girth Page 55 of 62 vi. Restatement of Law Governing Lawyers § 179 a. Basically indicates that a lawyer may take possession of the evidence and retain it for a reasonable time but must either turn it over or return it to where it was obtained. 2. Application of the Attorney-Client Privilege after Tangible Criminal Material is Turned Over to Authorities i. Olwell case held that the confidentiality of communications between client and lawyer would be protected after the attorney turned over any tangible criminal matter to the authorities. ii. Defendant waives attorney-client privilege by disclosing information to a third party. 3. Application of the Fifth Amendment Privilege Against Self-Incrimination i. Fisher v. United States a. The Supreme Court held that the 5th Amendment privilege against self-incrimination protects a person from being compelled to give incriminating testimony. b. The Court also indicated that the act of production of the documents could have testimonial aspects, depending upon the circumstances. 1). For instance, production could establish the existence, possession, or control over the documents and thus, would be testimonial. ii. United States v. Doe a. The Court ruled that the privilege did not apply to the defendant’s own records when they had been voluntarily prepared because there was no element of compulsion present. b. However, the Court indicated that the act of production did violate the 5th Amendment because it forced the defendant to admit the existence of the records, the defendant’s possession, and their authenticity. 4. How Should Attorneys Comply With an Obligation to Turn Tangible Criminal Material Over to the Authorities i. Possible Actions a. Return the material to its original location rather than the authorities. 1). ABA Standards and Restatement of Law Governing Lawyers recognize this option. 2). Some courts require immediate notification upon return and impose requirements as to risk or harm to the public. b. Turn the material over anonymously. 1). Could even hire another attorney to deliver material – some courts say this prevents disclosure of client’s identity. Professional Responsibility – Outline Spring 2004 -Girth Page 56 of 62 5. Approaches to the Problem of Perjury by the Criminal Defendant i. Full Representation a. Defense counsel should allow the defendant to take the stand and to testify. b. Defense counsel should not do anything that would either explicitly or implicitly disclose the attorney’s knowledge to the judge or jury. ii. Disclosure to the Court a. Lawyer should never under any circumstances participate in a fraud on the court, and that for a lawyer to ask questions of a client that would elicit perjured testimony was clearly improper. iii. Withdrawal Without Disclosure a. Lawyer should move to withdraw for ethical reasons or because of a conflict of interest or because of privileged reasons. iv. Narrative Testimony a. ABA Defense Function Standard 7.7 granted lawyers discretion to move to withdraw if the issue of client perjury arose before trial; if withdrawal was not feasible or was denied by the court, the standard provided that the lawyer could elicit background information on the defendant on the stand and then let the defendant tell his “story” in narrative form. v. Avoidance of Knowledge a. Some commentators have suggested that the most practical way for a lawyer to deal with the problem of perjury by a criminal defendant is to make sure that the lawyer avoids knowing that the client intends to commit perjury. 6. The Approach of the Model Rules of Professional Conduct and the Restatement of Law Governing Lawyers to Defendant Perjury i. Under Model Rule 3.3, when the lawyer knows of contemplated perjury, the lawyer’s course of action is to attempt to dissuade the client from testifying falsely, and if this fails, to move to withdraw if that step is feasible. ii. Under the Rule, if there is perjury, the lawyer must take reasonable remedial measures, up to and including full disclosure to the court. iii. Rule indicates that it is a matter for the court to determine what should be done – making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing. 7. Client Perjury and the Constitutional Rights to Effective Assistance of Counsel, the Privilege Against Self-Incrimination, and Due Process of Law i. In Fisher case, the Supreme Court held that information conveyed to an attorney by a client is subject to the privilege against selfincrimminatio if two requirements are met: Professional Responsibility – Outline Spring 2004 -Girth Page 57 of 62 a. The conveyance of the information from the client to the attorney must be protected by the attorney-client evidentiary privilege. b. The information sought from the attorney must be subject to the privilege against self-incrimination if the government had attempted to obtain the information directly from the client. 8. When Does a Lawyer “Know” that a Defendant Intends to or has Committed Perjury? i. Model Rules define know as having actual knowledge. ii. ABA Formal Opinion indicated that a lawyer should take action only when the client had a clearly stated intention to testify falsely at trial. iii. Proposed ABA Defense Function Standard 7.7 has a two-part test a. If the defendant has admitted to defense counsel facts which establish guilt, and b. Counsel’s independent investigation establish that the admissions are true but the defendant insists on the right to trial. iv. Several courts have said that the attorney must have a firm factual basis before taking any action to prevent or rectify perjury by the defendant. a. Restatement adopts this view. v. Other courts have adopted a requirement that the lawyer have evidence establishing beyond a reasonable doubt that the defendant has or will commit perjury. 9. Perjury by Witnesses Other than Criminal Defendants i. While criminal defendants have the right to decide whether to testify in their own behalf, lawyers have the authority to determine which witnesses to call – Model Rule 1.2(a). ii. Model Rule 3.3(c) also indicates that a lawyer may refuse to offer evidence that the lawyer reasonably believes is false. 10. The Ethics of the Lawyer’s “Lecture” C. The Client-Lawyer Relationship 1. The Ethical Duty of Competency, Ineffective Assistance of Counsel, and Malpractice Liability of Defense Counsel i. Implicates several Model Rules a. Model Rule 1.1 ii. Under the Model Rules, lawyers have an ethical duty to provide competent representation. iii. Lawyers who fail to adhere to their duty to provide competent representation may be subject to professional discipline. iv. Two-Part Test a. Defendant must show that counsel’s performance fell below an objective standard of reasonable effective assistance. Professional Responsibility – Outline Spring 2004 -Girth Page 58 of 62 1). Judicial scrutiny should be highly deferential and there is a strong presumption that counsel’s conduct was reasonable. b. Any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. 1). In defining prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. v. Rarely is the test satisfied. vi. Defendants can also assert ineffective assistance of counsel claims not only as a basis for setting aside convictions, as well as for damages for legal malpractice. 2. Ethical Issues Regarding Fees in Criminal Cases i. Types of fees in criminal cases a. A general retainer is a payment to the lawyer for agreeing to take the case, or for agreeing to be available to handle legal matters for the client during a specified period of time. 1). Differs from special retainers in two significant respects. i). The lawyer earns a general retainer when it is received, so it is part of the firm’s general revenue and should not be deposited in the firm’s trust account. ii). Since the purpose of the general retainer is to assure the availability of the firm rather than to serve as payment for specific services rendered, the retainer is non-refundable. b. A special retainer is an advanced payment by the client of fees for services to be rendered in the future. c. A flat fee is a payment of a fixed amount for specific services. 1). Differs from a special retainer in that under a flat fee a lawyer cannot contractually charge the client any additional fees for the services rendered, regardless of how long it takes to perform those services. d. An expense deposit is an amount paid to the firm to be applied to future expenses in the client’s case. ii. Contingent fees in criminal matters are precluded under Model Rule 1.5(d). iii. Model Rule 1.8(d) indicates that a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the Professional Responsibility – Outline Spring 2004 -Girth Page 59 of 62 representation PRIOR to the conclusion of the representation of the client. iv. Also, many states have enacted statutes to prevent criminal defendants from profiting from commercial exploitation of their crimes. 3. Trust Accounts and Client Property i. Model Rule 1.15 imposes several obligations on lawyers a. The Duty Not to Commingle 1). The rule acts against commingling acts as a prophylactic against lawyer misuse of client funds and protects such funds from being subject to the claims of the lawyer’s creditors. 2). Do not have to maintain an individual account for each client. 3). Lawyers cannot receive the interest earned because it belongs to the client. 4). Some states allow the use of an IOLTA program, whereby earned interest goes into fund for public purpose such as indigent defense. b. The Duty to Maintain Records 1). Model Rule 1.15(a) has option for length of time records must be maintained. c. The Duty to Notify Promptly clients or third parties when lawyers receive money or property in which clients or third parties have an interest. d. The Duty to Deliver Promptly to clients or third parties any funds or other