Slide 1 - Michael Steven Green

Document Sample
Slide 1 - Michael Steven Green Powered By Docstoc
					• The rule in paragraph 1.10(a) also does
  not prohibit representation by others in the
  law firm where the person prohibited from
  involvement in a matter is a nonlawyer,
  such as a paralegal or legal secretary. Nor
  does paragraph (a) prohibit representation
  if the lawyer is prohibited from acting
  because of events before the person
  became a lawyer, for example, work that
  the person did as a law student.
• Such persons, however, ordinarily must be
  screened from any personal participation
  in the matter to avoid communication to
  others in the firm of confidential
  information that both the nonlawyers and
  the firm have a legal duty to protect.
Duty of Candor in Litigation
• (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
• 3.3(a) A lawyer shall not knowingly:
• (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.
• (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.
• Your client is being sued for breach of
• Your main defense is that the plaintiff and the
  defendant rescinded their contract in writing.
• You present as evidence the written
  recession, which your client told you, and you
  believe, is genuine.
• It is in fact an obvious forgery, as shown by
  the fact that both your client and the plaintiff’s
  signature are in the same handwriting.
• That it is a forgery becomes abundantly clear
  at trial.
• Have you violated Rule 3.3?
• Rule 3.1 Meritorious Claims And
• 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.
• Your client is being sued for negligent
• You know from your investigation that your
  client did not signal when he made the left
  hand turn that caused the accident.
• You stumble across a witness who is
  convinced that your client did signal.
• May you present the witness at trial?
• Let’s say instead that you are only pretty
  sure that the witness is wrong.
• May you present the witness at trial?
• May you refuse to present the witness at
• You discover that your client has falsely
  testified as a witness in a case in which
  you are not involved. Must you inform that
  court, even if you will reveal client
• May you do so?
• Your client indicates that he is going to
  testify in a civil case that he is 21 rather
  than 20 years old.
• The issue is likely to come up in the
  routine questioning at the beginning of
  your questioning of him or in the cross-
• It is not relevant to your client’s actual civil
• He wants to say he is 21, because a
  bartender at a bar he frequents will be in
  the audience.
• What should you do if your client doesn’t
  tell you in advance of his intent to lie about
  his age, but you are instead surprised by
  the lie during your questioning of him?
• Do you need to take remedial action?
• Assume that the surprise lie by your client
  in question above was relevant to his civil
  liability. What then?
• What if you found out about the lie after
  there was a judgment in your client’s
• Your client, who is a criminal defendant in
  a murder case, is rather naive and
  indicates that he is guilty.
• He then asks you what type of testimony
  he should come up with.
• You say that he cannot testify falsely at
• He insists that he will.
• What do you do?
• Assume that you do withdraw.
• The client, a little wiser now, does not tell
  his second lawyer the truth.
• He gives perjured testimony at trial.
• Can you do anything about this?
  Special Problems in Criminal
• Tension with right to counsel and right to
  testify in one’s defense
• Nix v Whiteside
“Narrative” approach
• Rule 8.1 Bar Admission And Disciplinary
• An applicant for admission to the bar, or a lawyer
  in connection with a bar admission application or
  in connection with a disciplinary matter, shall not:
• (a) knowingly make a false statement of material
  fact; or
• (b) fail to disclose a fact necessary to correct a
  misapprehension known by the person to have
  arisen in the matter, or knowingly fail to respond
  to a lawful demand for information from an
  admissions or disciplinary authority, except that
  this rule does not require disclosure of
  information otherwise protected by Rule 1.6.
•   Bar application asks whether you ever
    suffered from “mental illness” defined as
    including use of prescription psychotropic
•   You took drugs for depression
•   You think that you would accepted even if
    you answered yes
•   Thinks it is an invasion of privacy and
    therefore answer no
•   Violated MR 8.1?
• Let’s say that they ask you whether you
  have used marijuana, a misdemeanor in
  the state
• May you explicitly refuse on 5th
  Amendment grounds?
•   Let’s say a student has cheated and was
•   On the application the Dean says no
    cheating occurred
•   Does applicant have a duty to correct the
    misapprehension created by the Dean?
• Disciplinary proceedings are being
  brought against Lawyer for violating the
  duty of confidentiality
• The complainant’s witness offers evidence
  that suggests that the material was not
  confidential, although it actually was
• Must Lawyer correct this
• except that this rule does not require
  disclosure of information otherwise
  protected by Rule 1.6.
• Lawyer1 is representing lawyer2 in
  disciplinary hearings
  – Lawyer2’s confidence should not be
    affirmatively divulged by lawyer
• Lawyer1’s information to correct a
  misapprehension caused by others is a
  confidence of another client, who does not
  want it divulged
Negotiation and Honesty to Third
MR 4.1 In the course of representing a client
  a lawyer shall not knowingly:
• (a) make a false statement of material fact
  or law to a third person; or
• (b) 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.
• You and your client are engaging in the
  negotiation of an agreement between your
  client and a retailer. May you say that no
  significant competitor for your client's
  product is likely, even though you and the
  client know that a competitor is about to
  introduce a cheaper and better version of
  your product in a few weeks?
•   What about saying that you can’t accept
    an offer (when you could)?
• Reporting another lawyer’s misconduct
• Rule 8.3 Reporting Professional
• (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.
• (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.
• In re Himmel (Ill. 1988)
• Forsberg retained lawyer (Casey) in connection
  with motorcycle accident
• Casey got $35k settlement, but kept it all
• She hired Himmel to represent her against Casey
• Himmel promised to take only 1/3 of amount in
  excess of $35K
• Casey agreed to pay $75k settlement
• Forsberg agreed no civil or disciple action
• Himmel ultimately suspended for a year
• The “no-contact” rule
• 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
• You represent a defendant in a personal
  injury action.
• Without telling the plaintiff’s lawyer, you
  approach the doctor who treated the
  plaintiff after the accident and who will
  probably be called as a witness in the
• Your client is suing the A Corp. for harm
  due to a defective product. You send an
  investigator to interview a janitor at the A
  corp’s factory without telling A Corp’s
• - 4.2 (Comment 7)
• Contact with only if supervises, directs or
  regularly consults with the lawyer for the
  organization, has auth to obligate the
  organization with respect to the matter the
  matter - or whose act or omission may be
  imputed to the organization
MR 4.3 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.
• Imagine instead that you interview a
  former manager of the A Corp. without
  telling the A Corp’s counsel. Any
  problems under MR 4.2?
• Does MR 4.3 prohibit you from
  approaching currently unrepresented
  potential plaintiffs against your client and
  making settlement offers to them without
  advising them of the appropriateness of
  getting the advise of counsel?
• 5.1
• (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.
• (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.
• 5.2
• a) A lawyer is bound by the Rules of
  Professional Conduct notwithstanding that
  the lawyer acted at the direction of another
• (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

Shared By: