Professional Responsibility I. Attorney Client Relationship A. Formation & nature 1. formation of the ac relationship a. what does it make? creates fiduciary relationship or b. how to create: i. expressly (by K, express consent; offer/promises/accepted) ii. impliedly: A) did the parties mutually manifest an intent to be bound in a representation relationship? elements 1. request for legal services 2. agreement by the lawyer to represent client • express • conduct (provides legals services) • failure to negate rzbl belief of representation (reliance) (duty to inform client of non-rep if there's a rzbl belief of representation) B) if unsure, it's a fact Q for the jury (and they don't like attys) if you are atty then they can find breaches of duty C) ex. Neighbor asks you at a block party some legal Q's (is Texas a community prop state? yes) then you start telling him about the laws expansively. No attycliien relationship b/c no request for representation D) ex. Neighbor says he's selling his house and wants to sell it w/o a realtor to save money and asks you about forms needed to sell house. Later he sues you. Is there a request for legal services? Yes. Express ag to rep? No, but accepted by performing (by conduct). E) ex. friend in wreck, calls you; your receptionist tells him to send you police report, ins, etc. You never do anything. Was a request, no conduct by performance; But was rzbl for dude to think you rep'd him c. what is not required: written K (except req'd for contingency fee ag.) d. Parker: if you're in a meeting w/client that have potential consequences for someone who is w/them, be v. clear you are not their atty facts: lady went in to talk about her husband's problems and occassionally asked re effect on her ("why wasn't I sued along w/my husband?") & that was enough to be a request for legal services e. declining the a/c relationship: send a letter! so they don't have rzbl expectation you rep them i. get proof of sending (send cert/rrr) ii. tell them clearly you don't rep them iii. tell them to see another atty b/c different lawyers see things differently (referral?? NO b/c negligent referral is a coa) iv. tell them to act promptly b/c may be time barred (but don't put date in there or may mess it up) v. tell them nicely so you don't burn bridges f. Perez: g. Duties to potential clients (ppl you refuse, but what they say in interim) i. client is in your office telling you things but you don't want to work for them • ex. criminal case; driver says he hit someone in crosswalk, he was drinking, he fled the scene & he is wanted; you don't want to rep. him and you want to alert the police! Can you? NO even though there is no a/c relationship ii. even if there is no a/c relationship b/c of prelim consultations iii. rule an atty's responsibilities arise even during prelim consultations re atty's possible employment if discussion of client's legal problems ensues w/an eye towards representation iv. why? so clients can disclose info to potential atty's v. conflict of interest: ex. you rep. WalMart; potential client (victim) comes in and tells you he wants to sue WM b/c of slip and fall, etc. 1. you can't represent victim b/c of conflict 2. you can't tell WM about what victim told you (confidentiality) 3. can you represent WM in the action brought by that victim? eventually you can acquire so much confidential info. that you can't rep WM in that lawsuit (R109) (eventually the victim becomes a "client" per R1.09 & this is the same matter soln: first ask who clients are & ease into more info. h. court appointments creates a/c relationship (r6.01) i. as officer of ct, we are req'd to provide the services ii. can't turn down except for good cause (hard to get out of it) 1. would lead to violation of rules (say you are not competent) 2. result in unrzbl financial burden on atty or 3. so repugnant, likely to strain a/c relationship i. R 1.12: organization is your client a. your client is the entity (but officer might think you rep him, too) e. but you must explain who you rep. to client if rzbly necessary j. reminder: we need to know when the a/c relationship arises in any form becuase the relationship gives rise to fiduciary duties (competense, diligence, confidentiality, loyalty, to communicate) 2. responsibility & control of decision making (1.02, 1.03, 2.01) a. 1.03: we have a duty to communicate: keep client rzbly informed & promptly reply to requests; give client enough info to make informed decisions b. 1.02 client controls • (a1) client has control over objectives of the representation (gets to decide if obj. of PI suit it to quick & rzbly settle, or go to trial or get as much money as possible, etc.) • (a2) client can decide if they want to settle or not • (a3) client can decide about plea bargains, jury trial, whether the client will testify we control • means to reach the objectives of the client • being sucked into illegal schemes • getting guardians/representatives if client lacks legal competence c. Quintero case: rule--> there is an obligation to consult re settlements (now DR 1.08f) facts: P's hire atty1 to rep them; atty1 gives case to atty2 to take to trial (gets $78k verdict); atty1 later advises settlment to P's for less (doesn't know about verdict); verdict dismissed per settlement ag. (a K) 1. Quinteros set aside K as void for public policy 2. the policy is a violation of the disciplinary rules 3. DR requires consultation w/client before settlement (here, no good consultation) 4. R1.08(f) must consult w/all clients terms of settlements & effect of aggregate settlements on one individual; if you rep more than one client, you must get ea's infomred consent to settle any of their claims d. budgeting ex. client says only do half of the depos b/c I don't have enough money e. alteration by contract: decision making repsonbility can be altered or spelled out by K 1. in engagement letter, can expressly discuss decision makng authority that is for the client and that that is for the lawyer 2. can also outline the scope of the engagement! (this is v. important -e.g. if later they want to add a stupid claim, your letter outlined you were only trying xx cause of action; or say you're not handling the appeal) 3. there are some limitations that atty's are not allowed to make: i. hypo: you do divorce for W; later she's mad cause she could've gotten tort dmgs. for abuse (now res judicata); did we impliedly accept the entire case? (1) request for legal services (2) implied acceptance (provide services or don't say you're not representing when there is a rzbl expectation of representation). Here, the W had a rzbl expectation that we would take care of any coa's so we impliedly had to represent her on any coa's b/c we didn't expressly limit the scope of our representation. (993//760) ii. we are allowed to limit the general objectives and methods of repreesntation (1.02b) iii. but there are boundaries to limiting the scope of representation (cmt. 5): you cannot limit representation so much that you violate R. 1.01 or surrender the right to terminate lawyer's services or right to settle 3. termination of the ac relationship a) client fires you: 1. a client always has the power & right to fire you, but it is still a breach of K (unless excused for some reason) 2. if you sue for failure to pay fee, you will always get counterclaim for malpractice & get formal grievance filed against you w/state bar! 3. Mandel v. Thomas case: In Texas, when the client w/o good cause, discharges an attorney begore he has completed his work, the atty may recover on the K for the amt. of his compensation (less costs avoided by not doing the work). b) mandatory withdrawl 1.15(a1-3) when you must w/draw 1. you would violate 3.08 (lawyer is a W) 2. lawyer's condition (mental/physical) materially impairs ability to represent 3. lawyer is discharged (w/or w/o cause) c) you must not w/draw voluntarily unless (b, voluntary): • anytime, as long as it won't adversely impact client (materially) or • exception -if you think your services are getting pulled into criminal or fraudulent uses, you can w/draw (even if adverse consequences to client) d) 1.15(c) if a ct orders you to continue representation (e.g. motion to w/draw denied) you must continue even though you have good cause to w/draw (once you are counsel "of record" you have to get permission to w/draw) e) 1.15(d) when you terminate representation, you must take steps to protect client's interests (to extent rzbly practicable); even if you've been unfairly discharged f) how to voluntarily withdraw: send letter, rrr/cert, say why you can't represent them, mitigate potential consequences to your client (1.15d) g) finished: send an "I am done" letter to let them know you are no longer handling things when the case is over/settled, etc. You have to take affirmative action to refute any rzbl belief the client may get as to what the scope of your representation is. You still owe duty of confidentiality and loyalty, but competency is over. h) hypo you prepare bad will; beneficiaries can't sue you for boFD b/c they are not your client -no privity of K; civil coa? didn't listen g) seller & buyer of land; seller's atty does lien check badly & says no liens; turns out there were liens; this is not PR duty breach, but it negligent misrep (McKamish); needs to be stmts of fact, not opinion B. Payment for Services 1. Fee Agreements: a. two types: i. set by contract A) hourly rate B) flat/fixed fee C) percentage fee (% of transaction) D) contingent fee (% of recovery if any) E) blended fee (mix of hourly rate and contingent %) ii. set by statutory scheme (ex. dtpa or cprc & contracts) A) usually "reasonably & necessary" B) "rzbl" means... b. setting fees by contract i. communicate with the client A) does not have to be in writing B) unless for contingent fee K C) what if you don't & can't recover on K? quantum meruit D) explain what the fee is payment for 2. Excessive Fees a. What fees may not be colltected? R 1.04 i. illegal: there are some statutes that say you can't charge these fees (veterans $10) ii. unauthorized or (this is when you are not authorized to collect that type of fee); not illegal but b/c of public policy A) improperly soliciting client's bsns, you can't collect a fee(7.03d) B) you can't have contingency fee in criminal case (1.04e) C) contingency fee in family law csse (1.04 cmt 9) D) if you sell (crminal client's story) media/literary rights while you're still their lawyer, you can't collect your fee(1.08c) E) if a 3P pays for your client & interferes w/your representation, you can't take that fee (1.08e); 3P paying is okay only if there is no interference by 3P (think about mom & dad paying for representation) (or ins. co. paying for and controlling representation of insured!) iii. unconscionable (1.04a) A) a fee is unK if a competent lawyer couldn't form a rzbl belief the fee is rzbl B) is it rzbl? limit to when rzbl minds could not differ that fee is unK; factors (1.04b) 1. time labor difficulty novelty skill req'd 2. likelihood of precluding other employ 3. usual charge in that area for that work 4. amt involved & results 5. time limits 6. nature & length of a/c relationship 7. experience reputation ability of atty 8. fixed or congingent fee C) when do we need to know what's "rzbl"? 1. fee dispute 2. "rzbl & necessary fees" allowed by statute 3. ex. DTPA or contract disputes showing damages & telling jury contingent fee % did not prove "rzlbness" of atty's fees; rule tell jury % and factors (and evidence of factors) and let jury decide what is rzbl 3. Contingent fee domestic relations case: usually a contingent fee improper (1.04 cmt 9) but this on was okay; but this fee was "unreasonable" b/c should be $700 and fee was $7000 & this was an easy & obvious recovery (and other 1.04 factors). 4. poor client communication is a big rzn for malpractice b. contingency fees (1.04d) 1. elements i. written ii. method for determining fees • if different for settlement/trial/appeal • expenses to be deducted (identify) • & when expenses are to be deduted iii. at conclusion, atty must describe outcome, recovery & calculation of expenses, etc. 2. explain to client if expenses deducted from total recovery (then to percentage) or if you do percentage & then deduct expenses from P's portion 3. proprietary interest: R. 108(h) atty shall not acquire proprietary interest in the litigation that he conducts for the client i. this doesn't mean you can get contingency fee, but you can't buy a lawsuit, buy the claim ii. but this doesn't mean anything b/c same difference! iii. but lawyer may acquire lien on recovery to esure he gets his payment 3. Other fee issues a. "retainer" -fee earned separate & apart from services; earned as soon as paid (but still could be unreasonable) b. if someone hires you as atty & they have to pay you as a "retainer" as an advance pymt of fees & if you don't use it up you give it back c. certain fee arrangements that are sometimes called "forbidden" i. 1.08h(1): you may acquire a lien on coa recovery to secure your fee or expenses ii. 1.08d: you can't provide financial assistance for client except you can • advance or guarantee for expenses of lawsuit & for rzbly necessary medical & living expenses • note you're not paying for it, but you can make repayment contingent on outcome • but medical and living expenses are banned in other states and that will be the MPRE answer • can pay for costs and expenses of indigents iii. 1.04(f) fee splitting: general rule: not allowed unless... (fair) • in proportion to time ea atty spends • made with a forwarding lawyer [not allowed in other states -so not allowed for MPRE!] OR • made by written ag w/client • 5.04 -you may not fee split w/non-lawyers! (there is debate re: Multi-Disciplinary Practices) d. fee forefeiture as a remedy: i. Burrow v. Arce case: 1. clients claimed boFD 2. trial ct held there was no actual harm even if there was boFD 3. rule proving actual loss is not a prereq for feeforfeeitur for violating a fiduciary duty; why? 4. so there is incentive not to breach even if there is no harm 5. don't want attys to weigh costs & then breach FD 6. for what breaches of FD can we award fee forfeiture? 7. for breaches of the duty of loyalty (usually conflicts), 8. that are "clear & serious" violations of duties 9. (regardless of actual damages) 10. Procedure of fee forfeiture: 11. the court must determine if atty's lose fee (not jury q) and 12. may be partial or entire, depending on seriousness of violation 4. Client Propery & Trust Accounts (1.14) a. don't commingle client funds with your money i. have escrow or trust account for client's funds • just need one escrow acct (not one for everyone) • need accounting so each client's share is indentifiable ii. duty of recordkeeping (have records & keep for 5 yrs) b. if you get client's money i. promptly notify client you have his funds (then put in trust acct) ii. deliver to client any amt. they are entitled to receive (even if they owe you for your bill) iii. render a full accounting upon request c. if part of the money goes to the lawyer... i. keep it separate ii. do an accounting iii. if not disputed: "sever the interests" (send client his part; ensure there is no dispute! and then if there isn't you can deposit your own amt. into bsns acct) iv. if disputed, keep the disputed portion in escrow until resolved (practice tip: have arbitration clause saying any disputes will be arbited) d. IOLTA interest is property (still open question if that is unconstitutional) II. The DUTY OF CONFIDENTIALITY three privileges: 1. ex bsnsman shares secrets with atty; atty insider-trades; this is not a violation of atty-client privilege b/c no disclosure; this violates the duty not to use the info w/o consent 2. ex. defending ACME in products liability case; go to facility and take stmts of non employee witnesses; this is work product ("other" work product); protected from disclosure 3. ex. represent bsnsman; DA investigating him for tax fraud; DA subpoenas atty's files; protected by a/c privilege A. The Attorney-Client Privilege 1. Creating the privilege (TRE 503) a. communication • any expression (written, oral, conduct) • facts are not privileged (can't tell your atty everything to protect fact w/a/c privilege) • hypo: boK; one issue is client's course of dealing; client comes in for interview & talk about client's course of dealing; @depo asked: • privileged: tell me what you told your atty about your cod or what did you talk about? • not privileged: tell me about your cod iv. outside privilege • name of client • existence of the a/c relationship v. just b/c you give your lawyer docs doesn't = privilege; if not privileged when prepared don't become privileged when att gest them b. made between "privileged persons" 1. can be by client to atty and by atty to client 2. client, rep, rep laywer, rep, rep, consultant => all privileged 3. btwn {client's side}and {atty's side} 4. the communication must originate with a privileged and be directed at or addressed to another privileged person 5. "client" TRE 503a1: {person} {who is rendered (or consults for) prof'l legal services} = actual or potential clients 6. "lawyer" lawyer or rzbly believed by client to practice law 7. **"representative"** = 8. of client: has authority to obtain prof'l legal services or to act on that advice, on behalf of client or 9. of client: other person who makes or receives confidential commincation while acting in scope of empl for the purpose of legal representation 10. includes ins. co. as rep. of client 11. bsns entities 12. old test: control group test: if the e'ee can control or take a substantial part in a decision re taking action on atty's advice => he is privileged rejected in fed ct 13. federal test -subject matter test is the sm of the communication a. about which e'ee knows & b. that is w/in his course and scope & c. e'ee knows the info is being sought for purpose of legal advice 3. state test 503a2B: make communication while acting in scope of employment & for purpose of legal representation • of lawyer: employed by to assist in redering legal services • of lawyer: accountant who is rzbly necessary • of lawyer: not a rep!!! expert W preparation -he can repeat things b/c (not sure ...) c. made in confidence (503a5) i. intent = viewed objecitvely ii. not intended to be disclosed to 3P (unless rep or those necessary for transmission) d. made for the purpose of redering legal services i. for purpose of getting client or having client (potential & actual clients) ii. x & y want to start a bsns, and they come to you; no privilege btwn co-clients; but sometimes can be altered by agreement but problems w/that 2. Duration of the privilege a. unless waived, exception => the client or atty may invoke the privilege at any time during the representation or thereafter; last forever! b. exception: if atty provided will services & they're dead & litigation concerns disposition of the property => upon death if intent in q, privilege ends c. see waiver (C) 3. The rules of Privilege (TRE 503b-d) a. provides protection for • confidential communications • btwn lawyer and client • made for purposes of representattion b. protection: prevents compelled disclosure B. Work product doctrine (TRCP 192.5) 1. focus on the atty's (not clients) 2. 2 types: a. core work product = mental impressions & conclusions (very high protection) b. other work product = ex. going to scene of accident & taking stmt C. Wavier of the Privilege 1. by the client TRE 511 a. no intent req'd to waive the privilege (doesn't even have to know there is a privilege) b. just must be a voluntary disclosure = waiver c. what will not waive privilege: • legal compulsion • result of deception 2. by the atty a. voluntary disclosure: at odds... • duty: under R. 1.05, duty to keep confidential info secret (whether privileged or not); it is not the atty's privilge, but the client's • power: but atty has authoriztion to advance the interests of our client w/o getting authorization every time • don't get this?????? b. common situations: implied waiver i. partial disclosure of privileged info = waiver of all (can't just waive privilege as to good stuff) • D atty hires lie detector guy for his own case and atty talks to him, privilege is there; D atty tells prosecutor atty about results that say "not guilty"; prosecutor subpeonas results • D atty didn't disclose all the report, but just that it said "not guilty" • the rule of optional completeness: TRE 107 suggests all of it be handed over & that is the result ii. offensive use of the privilege: 1. P files suit v. dr. but wants to keep dr from all her medical records w/other dr's; she has waived dr patient privilege 2. Republic: Culver gets National Ins, Nat'l gets Republic UW; Nat'l goes bankrupt; Republic is getting (National) claims & National's bankruptcy trustee wants nothing paid; P's (in accident) filed counterclaim against Republic for Ins. Code violations; ask to discover stuff; Republic tries to claim privilege on the Ks that are at issue; here failed test b/c declaratory P is not seeking affirm. relief 3. test: 4. the party asserting privilege must seek affirmative relief (P seeks money damages) 5. the privileged info must be, if believed by the factfind, outcome determinative! 6. disclosure must be the only means by which the aggrieved party may obtain the E iii. inadvertent disclosures: 1. general rule: balancing test • what disclosure-protection did you put into play (could have you have been more careful, what pressures were there) versus • ABA committee opinion that says receipient is obligated not to read it and to return it 2. discovery exception: TRCP 193.3 (d) • produce material w/o intending to waive does not waive IF • w/in 10 days after producing party realizes what was discovered (or less if ct order) • amend response, identify material what is produced and the privilege asserted => must return [they still know about it they just can't have it; only the product of the communication not the fact of it is privileged] • how do I make a claim of privilege: a) depo: object for record & why & instruct W not to answer b) MIL requiring opposing counsel to approach before going into privilege 3. exceptions to waiver TRE 503d a. in furtherance of crime/fraud --> services sought to commit it not after b. claimants through same decesased client c. breach of duty by lawyer or client d. document attested by lawyer --> if you witness a doc you can later W that you saw it signed, etc. (may cause conflicts) e. joint clients --> no privilege btwn selves D. The Duty of Confidentiality (DR 1.05) 1. information a. confidential? everyone knows about it --> not privileged yes...then it's confidential... rule 1.05 a. privileged info: protected by TRE 503 or FRE 501 b. unprivileged client info: all info relating to or furnished by client acquired by reasons of or during course of representation ex. lawyer K's w/Acme Co. to represent Acme in all employment lit; hears info then reps. personnel dir, too; this is protected b. cannot disclose 1. reveal confidential info of client/former client to anyone but client/reps/firms members (but client can tell you not to tell someone additional -not Partner X) 2. use info to clien't disadvantage (unless consent) (or if former client, has become generally known) 3. use privileged info for your (or other's) advantage w/o consent c. may disclose (c, d) privileged & unprivileged 1. expressly authorized, or consent 2,3. to members of firm or client's reps unless instructed otherwise 4. if lawyer rzbly believes necessary to comply w/ct order or DR or other law 5. rzbly necessary to est. claim defense in controversy btwn lawyer and client 6. to est. a defense v. lawyer/firm based on conduct re the client or representation of client 7. lawyer thinks necessary to prevent crime/fraud 8. necessary to rectify consequences of client's crime/fraud if unprivileged: 1. impliedly authorized 2. necessary to carry out representation 3. necessary to defend lawyer/firm against claim of wrongdoing 4. necessary to respond to allegations in proceedings re lawyer's representation 5. necessary to prove services rendered, or value, in action re payment of fee d. must disclose 1. thinks client is likely to commit crime/fraud that will result in death or SBI; reveal to extent rzbly necessary 2. under (c) you may reveal confidential info (privileged): if authorized or w/consent, etc. but under (d) you can reveal unprivileged info if impliedly authorized III. The DUTY OF LOYALTY A. background 1. what are we trying to avoid? impairment of representation i. substantial risk ii. of a material effect iii. on quality of representation 2. what duties i. conflicts have to do w/duty of loyalty ii. and implicitly the confidentiality rules B. Conflicts between the interests of the atty & client (1.06b, 1.08, 1.13, 3.08) 1. Atty's personal interests i. ex. if atty if part owner of restaruant and there's a slip and fall there, atty can't represent the victim b/c conflict w/atty's personal interests ii. ex. atty has shares in mutual fund; the fund has shares in ACME; client wants atty to sue ACME a. question: is there a substantial probability that there will be a material effect on the quality of representation? b. answer: no, not in this situation; common sense 2. Bsns transactions btwn atty & client i. general prohibition: a. R. 1.08: general prohibition of entering into a bsns transaction with a client b. "bsns transaction" 1.08(j): bsns trasnaction does not includ estandard commercial transactions (when you just act like a member of the public) c. who is included? 1.08(i) if lawyer is conflicted out, so is any other lawyer at his firm ii. rule 1.08 a. exceptions a1-3 requirements 1) fair deal & terms are fully disclosed to & rzbly understood by client AND 2) client given rzbl opp to get indy advice AND 3) client consents in writing 4) ex. investor and developer propose a deal btwn selves and want to make atty 3rd partner; each get ownership interest for their contribution -the atty contributes legal services i) bsns transaction? yes ii) must comply w/(a) exceptions 5) ex. want to purchase client's land; if you purchase the land via straw man; you haven't even informed the client you are entering into a transaction; this is a violation of 1.08a! What if the offer is at a fair price? Still violation b/c didn't give client opps. to get advice, etc. b. gifts from client to atty 1) elements • cannot prepare instrument (not acceptance of gift) • giving laywer or relation • a substantial gift (incl. testamentary) • except: if client related to donee 2) only preparation of instrument gets you into trouble 3) comment confusing -but probably only prepareant not receiving substantial gift gets you into trouble (on quizzes, exam, only prohibited if requires prep of legal instrument) c-f. talked about w/atty client rel & fees • c. media rights • d. financial int in suit • e. paid by 3P • f. aggregating settlements • h contingency ag's ok, but no propriety int. g. malpractice 1. can't make ag. forcing client to waive claims against atty for malpractice (what should atty do? protect self by limiting scope of representation) 2. can't settle malpracice claim w/an unrepsented client unless you first advise to get indy legal advise C. Conflicts between the interests of two clients 1. Identifying the conflict i. lawyer as W: R 3.08 a. favorable testimony: atty can't accept or continue empmt. if knows/believes he will (probably) have to T on essential fact for his client 1. T is on uncontested matter 2. formality T only (little to no opposition; maybe id of signature) 3. relates to legal services 4. pro se OR 5. atty notified opposing counsel that he expects to testify and that disqualificaton would be substantial hardship to client (can't procrastinate until "substantial hardship") b. can't be atty in pending proceeding if he thinks T will be substantially adverse to client; unless full dislcosure and consent c. if you have a 3.08 problem, affects all in law firm d. if you're going to take W's statement you have to have copy and signed or another w so you can impeach ii. concurrent representation who cares? 1. duty of loyalty -undivided duty of loyalty to place interests of your client above all others -hard to do when 2 clients w/potentially conflicting interests 2. concern there will be need to disclose confidential info a. civil lit: 106a 1. can't represent opposing parties to same lit.; can't be cured by consent 2. 106b -can cure w/consent (see c -"unless") can't rep person • w/sbustantially related matters and directy adverse to client or • rzbly appreas to be/become adverse b/c of firm's duties to another person (or self) unless (cure w/consent, 106c) • lawyer rzbly believes representation of ea. will not be materially affected AND • each client consents after full dislclosure of possible consequences 3. hypo: Acme has storage/distrib facilities in Waco; hires local counsel to deal w/local taxing entities; My law firm is local counsel; New Client wants litigation rep to sue acme, but acme will be repp'd in this case by its usual lit. counsel, not My law firm. i. ABA can't rep unless Acme consent ii. Texas --> matters don't meet 106b reqs to be a conflict A. substantially related (is the matter that we rep. acme on substantially related to the matter we rep new client on?) commentary p 126 "closely related or identical material facts in common" B. & materially and directly adverse: atty's indy jj is rzbly likely to be affected re duties to newclient (maybe acme and newclient want same result) iii. Dresser: Susman rep's Dresser in many cases; Susman now wants to rep. P in a suit against Dresser; doesn't want to have to get Dresser's consent; since this is in federal ct, have to use ABA rules; so Susman prohibited from rep'ing 2 clients when there is some adversity btwn them iv. Dresser under Tex. law: probably same result b/c matters are substantially same and are adverse 4. if atty reps multiple parties, can't then rep. one party in a later dispute btwn parites arising out of prior representation unless consent from all parties prior to dispute 5. 106b2) i. ex. we rep. wife against H in divorce; H is employee of acme and we know about acme's emplmt. practices; does this representation rzbl appear to adversely limit responsibilities? maybe -look at facts; maybe just fact that acme is rainmaker client for firm is enough ii. rule: representation rzbl appears to be/become adversely limited by responsibilities to another iii. "rzbly appears to be" limited -appearance of impropriety? 6. consent (c) i. atty subjective belief: if atty rzbly believes representation will not be materially affected ii. ea potentially affected client consents after full disclosure iii. rule doesn't require written but get it in writing! b. criminal lit.: you annot represent multiple parties as D's in a criminal proceeding c. non-litigation situations: transactional 1. common goal to start a bsns 2. rule written for litgation so skip 106b and just go to c and get consent!!! d. conflict of interest -intermediaries r 107: 1. this is not a rule about mediation, arbitration b/c a mediator doesn't rep. either side 2. intermeidary: adverse parties want you to help both of them reach resolution (that is the only common goal); you represent both sides 3. rule should be applied when (see commentary p 1-33) i. simulatenous representation of mulp. clients concerning the interests to be intermediated and an adjustement of those interests ii. soleley btwn those clients iii. w/o litigation btwn them concerning those interests (else 106 a problem!) when you don't know who client is -parents/subs, etc. (see 2) 2. Identifying the client: missed class Thurs Oct 11 (email Jennifer) D. Conflicts between the INterests of Current and Past Clients 1. 1.09 a. am I a lawyer who has personally represented the former client? b. is the current representation adverse from the former representation? c. would the current representation cause an (a1-3) problem? i. in which other person questions the validity of the lawyer's services or work prodcut for the former client (109a1) hypo: W get you to make will (nothing to H); W dies; H wants $ so hires you to challenge the will. A. have personally rep'd; is adverse to former client B. a1-3 problem? Yes, a1 conflict b/c H questions the validity of the will. This is quesitoning the validity of your work. ii. repreesntation (in rzbl probability) will involve violation of R. 1.05(the confidentiality rule) (a2) A. see cmt. 4 B. ex. subsequent rep. will involve inauthorized disclosure or inappropirate use to the disadvantage of the former client C. hypo: you rep Former Client and find out they want to rule the world. Now New Competitor is a client and wants to sue Former Client w/you as atty. Even though you don't tell anyone anything, the kn. you have will inform you discovery requests (among other thing). no prior consent peronally formerly rep'd client w/adverse interests violation of a2 iii. same or substantially related matter A. same = palintiff today, defendant tomorrow (duh) B. cmt 4B: substantially related means an atty could have acquired confidential info re a prior client that could be used either to disadvatage of old client or advantage of new client (big overlap w/a2) C. if we undertake representation in violation of a3 there is a conclusive presumption that we acquired and shared confidential info from prior client and shared it w/everyone in the law firm (all the lawyer); for this reason a3 is big D. sometimes facts overlap btwn client; other times legal issues overlap; either one = substantially related under a3 i. hypo: atty reps Fromer Client on environment issues re uranium; atty learns client's decision making process (how to find uranium, market); New Client wants you to sue Former Client for antitrust; this is substantially related even though different legal issues b/c there is factual overlap ii. legal issues: lawyer represents Former client in acquiring real estate; during acquiring tract X there are marketability of title issues; we research, develop theory, and sell; New Client is buying a certain tract of property from Former Client and there are marketability of title issues; no facts are same b/c different but there is overlap re legal issues E. ABA, MPRE: i. they accept R 109 and substantial relatedness limitation to this rule (unlike that other thing? where its a per se violation) ii. why? b/c appearance of impropriety is bad; atty representing 2 current clients adverse to each other looks worse atty representing old and new client 2. Migrating Clients and Migrating Lawyers a. hypo: client migrates firm a firm b atty A (IP matters) client A ---------------> client A (now only B rep's client new client (wants to sue client A for patent violations) first, make full disclosure to new client that we represented former client & what potential problems that might entail next, do we have to get consent of former client? i. we presonally represented former client ii. adverse? yes iii. a1-3) probably 2 and/or 3; and 1 if suit wants to attack patent already made therefore, can't rep unless get consent of former client (good luck) b. hypo: migrating lawyer firm a firm b atty A ---------------> atty A client A new client (wants to sue client A for patent violations) (see cmt. 7) i. did atty personal rep client A? yes ii. adverse? yes iii. a1-3? A) assume original rep is substantially related to new representation => • if atty A knew about client A, can we build a Chinese Wall around atty A and represent new client? • NO; Texas has rejected screening; firm is disqualified from representing new client • why? R 1.10 since personall disqualified lawyer can't rep new client, no one else can either iv) Henderson case A) atty with old firm goes to new firm; atty there worked for Mr. Henderson, D B) new firm is representing P suing Mr. Henderson! C) if atty is a PDL (personally disqualified lawyer) then new client can't rep P anymore D) apply: in this case could have proof read briefs; possible that litigation was discussed at meeting re trial strategy; so he is a PDL -just have to have acquired some confidential info. (don't have to have billed client, etc etc) E) therefore entire firm is disqualified • exception: R 1.10 for government attys: allows new firm to screen you (chinese wall) v. Petroleum Wholesalers A) v. much like last case; new firm reps D that old firm was suing B) Cowles & Thompson did a lot to screen but held that still not effective C) you can't screen! vi. hypo: A) firm a firm b atty A ---------------> atty A (not PDL!!!) atty C (PDL) client A A) while Atty A is at Firm A, Lawyer C's representation of client A is imputed to A B) but if Atty A leaves, never having had worked w/client A, then 1) atty A doesn't carry imputed representation w/him 2) and atty B isn't infected by atty A either vi. hypo: migrating client firm 1 firm 2 Atty (reps client) PDL client --------> client new client v. former client Can atty 1 represent new client? A) does the representation present a 1.09 problem? [1.09 = adverse; same matter; will probably violate 1.05] 1. yes: go to B 2. no: no problem B) get consent of new client & former client C) see 1.09 cmt 5: vi. hypo: migrating PDL laywer firm 1 firm 2 Atty (reps client) PDL-------> goes to new firm client new client v. former client Can firm 2 represent new client? A) PDL? B) adverse? C) 1.09a problem? (yes) D) consequences at firm 2? 1. PDL is still a PDL and is disqualified from representing client? 2. rule the conflicts that disqualify PDL are imputed to other attys at new firm! 3. rule when PDL leaves old firm (1), the PDL taint leaves firm 1; cmt. 6; except old firm atty's cannot question the work product or violate 1.05; see cmt. 7; see 1-41 (no really, read it!) vi. hypo: migrating non-PDL atty Enstar firm 1 firm 2 Atty, non-PDL ----------> goes to new firm client new client v. former client A) rule if you leave the firm w/o being disqualified, you don't impute anything to new firm; neither non-PDL nor new firm 2 are conflicted out B) cmt. 7 (see page 1-41); for practical reasons this has to be the firm viii. if you go to docket meetings, are you a PDL? who knows... "sometimes being a fiduciary is a bitch" --Bill Trail, Oct 18 ix. a lot of P's joins together to sue acme and bravo; promised to keep confidential info w/in P's; you have to keep the info secret by ag. to ensure you don't bust the privilege; joint-defense ag. allows sharing and creaeting Kual obligation to keep secret; after this is done, all the ppl are your "former clients"; [see aba construction law newsletter spring 2000] x. paralegals and secretaries: (p3-59) Phoenix founders v. Marshall (Tex 94)--> can screen or created Chinese wall 1. written policy 2. must be followed & have policer xi. can also have screen for ex-govmt attys (1.10) xii. 3 consequences 1. 2. disbar 3. enjoined from representing (mostly transactional) 4. if caused harm to client => boFD & legal malpractice claims 5. Burrows v. Arse violation of DR, therefore grounds for fee forfeiture xiii. Motion to disqualify -need E; trial ct should consider factors to decide if disqualify based on paralegal, secretary (screen) 1. atty knew/should have kn privileged 2. promptness w/which atty notifies opposition 3. extent to which atty review and digests privileged info 4. significance of the privileged info 5. extent to which movant may be at fault for unautho. disclosure 6. extent to which the nonmovant will suffer prejudicie from DS of her atty IV. Duties as an Officer of the Court A. general notes, R. 1.01 1. may not accept employment beyond your competence a. competence is not experience i. just b/c you need to learn more about it, that's ok ii. can't expect client to pay unrzbl amt. of $ to get you to become competent (unless exception) b. unless i. consent + experience lawyer there to help or ii. emergency c. cmt. 1, cmt. 3, cmt. 4, cmt. 7 B. Limits on Advocacy: 1. Frivolous Advocacy: R. 3.01 a. don't lie about the law (need some basis that it's true); frivolous advocacy is false advocacy; can argue for change in law (cmt 2) b. don't lie about the facts; knowingly false stmt of facts; but don't have to have investigated before you initiate the matter under DR's (but slightly greater obligation under TRCP's and CPRC -have to have been rzbly diligent) c. can't sue just to hurt someone w/no legal & factual support; where primary purpose is to inflict pain, expense d. not frivolous: putting opponent to proof (client can admit guilty but not frivolous to them put in not-guilty plea) 2. Disclosure & Advocacy to the court a. R 3.03a3) must disclose material & unprivleged facts in ex parte hearings that "rzbly should be known" by tribunal; so you must tell them a lot except unprivileged b. MPRE: ABA rules require v. full disclosure in TRO hearing; must disclose all material facts c. legal authority in any hearing must be dislcosed if controlling, directly adverse, and not brought up by other party! i. controlling jx: must be for your jx ii. directly adverse: if you can distinguish it, you're ok! iii. so it's not too hard to get out of disclosure to opposing counsel R 3.04 d. can't obstruct party's access to E or acquiring or conceal, destroy E e. can't falsify E or pay for content of T except i. can pay exepeses for W ii. can pay W for lost time (days wages, etc.) iii. an pay experts a rzbl fee iv. perjury: see later notes f. can't request person (except client, agent, family & not giving info won't adversely affect them) not to volunarily give relevant info to opposing party i. hypo: I know there's a W and docs out there adverse to me; what do I have to say to P? nothing per 304 DR ii. FRCP 26: (wasn't listening): information to support your claim or defense; affirmative duty (not on request) iii. TRCP 194.2(e) names addresses & phone nos of ppl having kn of relevant facts; so relevant facts could be good or bad & if you find bad-fact-W you have to tell other side (this is on request) iv. the ethical rule is easier g. prosecutors R 3.09: Brady rule -i. hypo D stabbed/killed victim; defense is victim attacked D (self defense); prosecutor has E that victim is violent ii. what happens when prosecutor possesses exculpatory E? iii. 309d prosecutor must make dislcose all E that tends to negate guilty of the accused or mitigates the defense and in sentencing part must dksoclose all unprivileged mitigating info. known (even w/o request per Argus case) C. Advocates & Evidence (not paying attn to class) 1. False testimony a. DR 3.03 i. knows to be false: (cmt 5) shall not knowingly disclose, help false info; this is a duty -suborning perjury; regardless of client's wishes ii. believed to be false: (cmt 15) this is discretionary, and that discretion should be exercised cautiosly; we are not req'd to report anything we only believe to be false iii. find out its false later CIVIL: 1. CRIM: b. what should the atty do? 1. **urge client to tell the truth 2. advise the client re penalty for perjury 3. tell the client false E is easy to impeach & almost guarantees a victory for other side 4. you're obligation under DR's, if T given, to advise everyone that it is false & that you will do so 5. **refuse to offer the T (don't ask that Q); 6. put W on the stand & stay away from lying area 7. **withdraw (last resort); DR 1.15; file mtn to w/draw but can't tell judge why b/c a/c privilege; make a "noisy w/drawal" saying continued representation would result in my violating the DR's so you must w/draw under 1.15a (this is for client W, not non-client W) c. 303b) W offers materially false T i. if material, then learns false 1. GF effort to persuade client to admit lie (recess) 2. if client refuses, atty shall take "rzbl remedial measures", including disclose of truth (1.05f); cmt8 ii. if lies on cross 1. Offer (rule makes it look like not duty but comments, commentary disagree); cmt 13; suggests atty has obligation to urge W, tell the other atty he might want to try again 2. 1-70 commentary; just b/c during cross doesn't usually relieve atty of ordinary duty of disclosure 3. Trail says pick the one that's the best course of action to you; he says commentary b/c yo udon't want to be an ass to opponent ii. but even if not material, you can't "use" it (use in closing, etc) d. 303c) obligation to go forward lasts until appeals, bills of review, etc. are no longer possible e. criminal trials: i. we know this story isn't true -his alibi doesn't check out; we know W is going to lie for D; atty still has a duty ii. Nix you have no C'al right to perjure yourself 2. Fair Competition in the adversary system; DR 3.04 a. can't hide or destroy or change the evidence (can't take the murder's weapon for safe-keeping b/c if you do you have an obligation to turn it over; this doesn't keep you from inspecting the weapon or testing); cmt 2 can't "tell" the client to "lose" the gun) b. can't make fake evidence; can't pay witnesses to testify a certain way (except experts can be pd); can pay W for time and expenses of testifying c. commentary 1-72; you don't have to help opponent get the E; don't have to tell DA where gun is if D tells us where he hid it d. prohibited forensic tactics (3.04c) 1. can't keep violating same rule 2. state/allude to matters that we know aren't relevant 3. state personal opinion as to justice, cr, culpability, innocence, etc.; never say "I believe"; but atty can argue for any position based on evidence 4. intended to degrade a W 5. disrupt the proceedings Final Notes 35-40 m.c. 2 hours (3 mins/q) you must bring #2 pencil Bates giving exam quiz x 2 = pts. from quizzes (38 pts poss) + 76 possible final pts questions before wed/th last week class.