Legal Profession by hcj


									                                     Legal Profession
                                      Prof. Alberts

I.    Introduction
      A. Model Rules adopted in almost every state, although states sometimes vary the rules,
          especially Rule 1.6.
      B. Substantive law is often very important in determining legal ethics
          1. Trumps ethical rules
          2. Agency  Lawyer has zones of discretion to act outside the will of the principal.
          3. Tort  Can’t be negligent toward client or third person
          4. Criminal Law  May be liable as an accomplice to client’s acts
          5. Constitutional Law  5 & 6 Am impose duties on counsel at criminal trials.
      C. Legal ethics is “real” law. There are many important ethical rules you must follow.
          1. To know law, must examine cases as with any other area.
          2. Sometimes codes are ambiguous, require as much interpretation as other areas.
II.   The Relationship of Law, the Lawyer and Ethics
      A. Introduction to Ethical Codes (Spaulding v. Zimmerman)
          1. Facts: Boy suffers life-threatening injury and settles a civil case. The  lawyers
             knew of injuries the  didn’t know of, but, in the name of confidentiality, don’t
          2. Model Rules Implicated
             a. Rule 1.6:  lawyer could not reveal injury since it relates to representation
                 unless the client had consented. If client won’t disclose, maybe out to fire
                 them, but even then you couldn’t disclose.
             b. Rule 1.2(a)/1.4(b): Here  lawyer did not even consult w/. (Very key)
             c. Rule 1.2(d): And can’t consult the client to engage in fraud.
             d. Rule 2.1: Lawyer should have rendered candid advice based on both law and
             e. Rule 4.1: Truthfulness required in statement to , but trumped by 1.6.
             f. Rule 3.3: Can’t knowingly make material misstatement in courtroom. Not
                 trumped by 1.6, but no duty to speak out.
          3. Court’s Holding: Set aside settlement agreement.
             a. Since  was a minor,  lawyer obligated to not mislead trial court.
             b. Courts often twist substantive law to reach morally right and equitable result.
             c. Also criticizes ’s lawyer for failure to conduct adequate discovery.
          4. Legal Potency
             a. Clients often depend on lawyers to tell them what to do, antithetical to
                 traditional conception of lawyer fulfilling client’s wishes. (Wasserman)
             b. On the other hand, sometimes clients try to bully their lawyers. (Alberts)
             c. Offer candid advice, but try not to manipulate or be manipulated by them.
          5. Rule 4.1 Hypotheticals
             a. No ethical duty to inform other side if they are mistaken about a fact.
             b. Rule applies only to statement of facts, not conventions in negotiation, such as
                 the acceptable level for settlement of a claim.
             c. But can’t affirmatively mislead: “The policy limit is $50”, if it’s really $100.
              d. Also fraudulent to assist client in a lie (like the one above), although there
                  may be 1.6 issues here.
       B. Perspectives on Morality of Lawyer’s Role
          1. Often inequality in the LC relationship: can go either way.
          2. Rule 1.13: Your client is the corporation, not its President or CEO.
          3. Amazing the ease with which our tradition accepts the amorality of the lawyer’s
              a. Premise: Legal system itself is moral; lawyer must be amoral to fulfill its aims
              b. BA finds this odd amidst corrupt judges, unequal resources, and bad lawyers.
          4. Great danger of overreaching in matrimonial laws. Should have a bright line rule
              against sexual relations with clients, although we don’t.
       C. Incriminating and Damaging Evidence
          1. Rule 3.4(a): Lawyer shall not unlawfully obstruct evidence, conceal a document,
              or counsel another to do so. But generally no duty to disclose.
          2. Unlawful Obstruction
              a. OK to destroy a document consistent with a Document Destruction Policy or
                  other normal reason. Indeed, if client can destroy, usually should.
              b. Still, may occasionally be unwise. Jury might draw negative inferences from
                  destroyed documents that are worse than the documents themselves.
              c. Can leave evidence right where you find it and can’t disclose under 1.6 if told
                  in confidence (Dead Bodies). No obstruction, alteration, or concealment
              d. Could even take photographs of the bodies as part of a defense and not have to
                  turn it over since it’s work product.
          3. When You Must Turn Over Evidence
              a. Once in possession of evidence of a crime, must turn over to authorities.
                  Example: Stenhach must turn over gun the  gave him. Ryder can’t keep gun
                  in safety deposit box.
              b. If  takes photographs of the bodies, must turn over since it incriminates him.
              c. In response to a judicial subpoena; court is the ultimate authority.
III.   Conformity to the Law
       A. Criminal Law (Benjamin)
          1. Ethical Rules Implicated
              a. Rule 1.2(d)  Cannot counsel a client to engage in criminal conduct.
              b. Rule 4.1  Must be truthful to third parties who would read your documents.
          2. Mens Rea
              a. Lawyers tend to view job as representing a client, not judging him, but this is
                  only true in the courtroom. Completely erroneous outside.
              b. If a lawyer knows an act is criminal, can’t counsel client to do it or assist him.
              c. A lawyer knows what reasonable lawyers would know; indeed, more expected
                  of a competent lawyer than a non-lawyer to discover fishy transactions. Can’t
                  just close your eyes.
              d. Frequently lawyers can be charged with accomplice liability.
          3. Actus Reus
              a. Ordinary lawyering activity enough. Can’t hid behind label “pro forma.”
              b. AC privilege cannot protect legal representation sought to engage in a crime.
          4. BL: Protect yourself by doing due diligence and refuse to assist clients in fraud.

   5. Hypos: Partner asks for extradition laws after being accused of securities fraud.
      a. Rule 5.2: Following Orders defense, but only if superior reasonably resolves
           the ethical dilemma.
      b. Could consult another attorney within the law firm w/out violating 1.6.
      c. Might consult an “ethics expert”, but they don’t know substantive law.
      d. What you really need is an expert in obstruction of justice law. Can discuss as
           long as you don’t reveal client identity or confidences.
      e. Could also disclose if necessary to establish a civil defense under 1.6(b)(2).
B. Tort Law
   1. Legal Malpractice to Non-Clients
      a. Privity bar prevented non-clients from recovering, but this has fallen away in
           most states.
      b. Generally, non-clients can now recover if the engagement’s primary purpose
           is to benefit them.
      c. IL: Anybody who reasonably relies on the lawyer’s work can recover. Of
           course, generally not reasonable to rely on an adversary, or even the other side
           in transactions if they are represented by their brother-in-law, as in Greycas.
   2. Negligent Misrepresentation (Restatement approach)
      a. Liable for any injuries caused by detrimental reliance, regardless of privity
      b. Some fear this will diminish client loyalty , but in Greycas, it is inefficient to
           make both parties do a UCC search.  should reasonably rely on .
   3. Some Close Cases
      a. No liability in Greyhound Leasing b/c lawyer makes clear he is “not aware” of
           any liens, and the misrepresentation that equipment was new was made by .
           Still, result might be different w/ a less sophisticated .
      b. Liability in Roberts for failure to disclose the clearly material fact that the
           partners did not believe they had unlimited liability. Key distinction b/n legal
           advocacy in courtrooms versus business transactions: With “office lawyers”
           third parties frequently rely on your representations.
      c. Finley, Kumble hypo: If you gamble and give advice that most lawyers would
           consider unreasonable, you will be liable for tortious assistance.
   4. Hazard Formulation of Prohibited Assistance: Liable If
      a. Client is violating a criminal law, or intentionally violating a civil obligation.
      b. Reasonable lawyer would discern the client’s course of conduct is a violation.
      c. Lawyer facilitates the conduct either by giving advice encouraging the client
           to pursue the conduct or by performing an act that substantially furthers the
           course of conduct.
      d. Application: Client and neighbor have longstanding dispute over land. You
           can counsel your client to sue to quiet title even though you think he might
           lose, but you can’t encourage him to cut down the trees or you will be liable in
           tort for urging violation of the law. No license to commit intentional torts.
C. Securities and Regulatory Law (National Student Marketing)
   1. Ethical Rules Implicated
      a. 1.2(d)  Can’t assist Interstate or NSMC in committing a fraud.
      b. 1.6  Must maintain Interstate confidences

            c. 1.13  Do what is “reasonably necessary in the best interests of the
                 organization.” Seek reconsideration, get a second legal opinion, or appeal to
                 higher authority. Must make sure the client is advised.
         2. Facts
            a. White & Case lawyers are clearly culpable for fraud b/c they know of a
                 significant new representation in a comfort letter they did not disclose.
            b. Also hold Interstate lawyers culpable since their inaction is the equivalent of
                 aiding and abetting a securities violation. Makes sense under Hazard test.
                 LBB knew comfort letter was not in compliance and materially different
                 financial information had not been disclosed to their shareholders.
            c. Some fear that the Interstate agents consulted have a conflict of interest since
                 they are substantial shareholders who can redeem up to 25% of NSMC stock.
            d. Court finds liability, but rejects SEC argument that LBB should have
                 disclosed to them; only need to disclose to your client—the shareholders.
         3. What should LBB have done?
            a. In some ways sandbagged; if they had cancelled the deal that might be
                 malpractice if Interstate stock subsequently drops, as it assuredly would.
            b. 1.13(b)(3): Refer to other officers within the organization at least, even if
                 going to the shareholder is not feasible. Could quickly solicit opinion of
                 independent Board members who have no conflict of interest.
            c. Key: President is not your client, the corporation is.
            d. Must always do due diligence; assurances of other side’s lawyers not enough.
            e. BL: Not silence per se that violates the law, but silence w/out either consulting
                 w/ others in the corporation or withdrawing. (Withdraw as last resort).
            f. You may have to withdraw b/c even signing routine documents saying
                 everything is in order might help perpetrate fraud.
         4. BL: Must take some preventive action when you issue a legal opinion facilitating
            a securities sale and then learn of knowingly false representations by the client.
         5. After all this, Judge Parker still doesn’t sanction the lawyers.
            a. Kind of ironic, especially since LBB later finds itself in similar debacle.
            b. Law violations w/out sanctions = Failure to live up to principles.
IV.   Malpractice
      A. Duty
         1. Always have a duty to your own client (Privity).
         2. Duty to non-client if “primary purpose or intent of the attorney-client relation was
            to benefit or influence the third party.” See also III.B.1, supra.
      B. Breach
         1. Rule 1.1: Must have legal knowledge, skill, and thoroughness.
         2. Must have knowledge, skill, and prudence of an ordinary competent practitioner
            a. Court in Lucas excuses lawyer for not knowing rule against perpetuities, but
                 this is an outlier.
            b. Always liable if you do no legal research. Smith. Never shoot from the hip.
      C. Causation & Damages
         1. If the client would have lost her case anyway, your breach does not = liability.
            a. Example: If you did no research, and your research would have borne out your
                 position or law was unclear, you aren’t liable.

            b. Lawyers are not guarantors.
            c. Causation is a factual question for the jury.
            d. May lead to “case w/in a case syndrome”: Lawyer tries to prove he would
                 have lost anyway to avoid malpractice liability.
        2. Sometimes courts only require malpractice to be a substantial factor. Ex: Fail to
            tell client loan is risky. Other factors cause it to fail, but advice a big part. Liable.
     D. Methods of Proof
        1. Expert Testimony: Always helpful and required unless obviously wrong, like
            statute of limitations problem.
        2. Violations of Ethical Rules
            a. Don’t create tort liability, but often cited to illuminate standard of care.
            b. If your conduct is unethical, jury much more likely to convict.
            c. Still must look out for causation. Paul Newman movie hypos: Rejecting
                 settlement is unethical. If most med mal cases settle, might be causation, but if
                 you lose b/c witness gets skewered, rule violation shouldn’t matter.
     E. Miscellaneous Issues
        1. Vicarious Liability is allowed by most states.
        2. Malpractice Insurance
            a. Lawyers should carry insurance for loss prevention, but few do.
            b. ALAS: Attorneys’ Liability Assurance Society. Provides bulletins/alerts on
                 ethical problems, and audits member firms on conflict/supervision issues.
        3. Cannot limit liability by agreement unless you notify client of potential claims she
            is giving up and advise her to seek review by independent counsel.
        4. Rule 1.8(h): Must inform clients of prior malpractice against the lawyer as part of
            your fiduciary duty.
V.   Confidentiality
     A. Attorney-Client Privilege
        1. Introduction
            a. AC Privilege protects a communication b/n privileged persons in confidence
                 for the purpose of obtaining or providing legal assistance for the client.
            b. BL: Can’t ask “What did you tell the lawyer, and what did he tell you?”
            c. Circumstances surrounding the engagement (like fee) not privileged
            d. Facts themselves are still obtainable.
            e. Fraud-crime exception: If client uses lawyer to commit a future fraud, attorney
                 can be compelled to testify even if lawyer was unaware of the fraud
                 (Lewinsky false affidavit)
        2. Rationale: Need for full and frank communication b/n Lawyer and Client.
        3. Waiver of the Privilege
            a. Privilege lost if communication made in front of a third party
            b. Even if you just tell a dinner companion, rationale for privilege is gone, and so
                 is AC privilege (although BA think it should be and often is still protected).
        4. Corporate Clients
            a. Control Group Test (IL)  Privilege extends only to communications b/n the
                 lawyer and top members of management
            b. Upjohn (Federal)  Fluid, extends to anybody in corporation who provided
                 information to lawyers.

   5. Speaking with Corporate Employees
      a. Rule 4.2: Ex Parte Ethical No-Contact Rule: Can’t contact somebody on the
          opposite side w/out consent of opposing counsel. Acknowledges potency of
          lawyers and protects non-lawyers.
      b. Rule 3.4(f): Can request your client’s employees or relatives not to give
          evidence unless their interests will be adversely affected.
      c. Some jurisdictions prohibit contacting current employees, while others only
          prohibit contacting the control group.
      d. Former employees probably shouldn’t be w/in rule, though a few prohibit.
      e. Other rules apply in Rule 4.3 when dealing w/ unrepresented persons: Can’t
          falsely imply to them you are disinterested.
   6. False and Misleading Testimony
      a. Rule 8.4(c),(d): Clinton rule. Can’t give false or misleading testimony under
          oath b/c prejudicial to the administration of justice.
      b. Tradition seems to tolerate use of employment and housing testers although a
          misrepresentation, but can’t falsify evidence. Rule 4.1.
B. Professional Duty of Confidentiality
   1. Rule 1.6.: A lawyer shall not reveal information relating to representation of a
      client unless the client consents after consultation, except for
      a. Impliedly authorized disclosures
      b. To prevent the client from committing a criminal act likely to result in
          imminent death or substantial bodily harm
      c. To establish a defense on behalf of the lawyer in a controversy b/n lawyer and
          client, such as malpractice or fee dispute
      d. To protect against a criminal charge or civil claim
      e. To respond to allegations in any proceeding concerning the representation
   2. General Notes
      a. Much broader than AC privilege—extends to all information relating to
          representation where or not publicly known.
      b. Privilege may even extend to non-clients who reasonably believe you are their
          lawyer, like the Coca-Cola truck driver in Perez.
      c. Rule 1.6 very controversial and varied in many jurisdictions.
   3. Self-defense Exception (Meyerhofer)
      a. Lawyer who wants to blow the whistle on a client may seize on the self-
          defense exception as Goldberg did here.
          i.       Revelation when named as  in securities fraud action ok if limited to
                   information needed to get out of case.
          ii.       lawyers can’t now use this information to add counts to suit or they
                   will be disqualified.
          iii.     But turning over to SEC seems to violate canons since no charge was
                   threatened or pending. (Though some states vary the rule; OK in IL).
      b. People wink at fact this exception rarely applies b/c they try not to pit law
          against ethics.
   4. Lawyers & Tainted Information

             a. Misdirected Fax or Turncoat employee: If you inadvertently learn of
                 privileged material, you must disclose to other side and the court, and
                 probably withdraw.
             b. If you haven’t read it yet, await the other side’s directions
      C. Client Fraud
         1. Black Letter Ethics: The “Noisy Withdrawal”
             a. Rule 1.6 says you cannot disclose to prevent a client from committing a
                 fraudulent act, but can withdraw “noisily” to alert others to situation if
                 i.      Client continuing to abuse lawyer’s work product
                 ii.     Lawyer reasonably believes client use is criminal or fraudulent.
             b. Much criticized: Lawyer may be subject to tort liability, but can’t disclose.
                 Others think any kind of signal violates confidentiality.
             c. Rule 4.1 requires truthfulness to others, but trumped by 1.6
             d. Most controversial part of the Model Rules; 41 jurisdictions depart in some
                 way, but only 18 accept a rectification of past fraud provision.
         2. Real World Applications
             a. Klein: Lawyer learns client hasn’t yet created a partnership agreement.
                 Advises client to disclose, but later participates in incomplete disclosure.
                 i.      While mere silence may not be actionable, here made an affirmative
                         misrepresentation that omitted a material fact.
                 ii.     Have a duty under tort law to correct ongoing fraud, even if it violates
                         ethical rules.
             b. Schatz: Bad case according to BA. Lawyer knows client is perpetrating a
                 fraud and delivers closing documents anyway. Under Klein this is fraud.
                 Rationale that otherwise client won’t trust lawyer makes no sense.
         3. OPM Leasing Scandal
             a. Rules violated: 1.3 (Diligence); 1.4 (Communications); 1.6 (Confidence); 1.13
                 (Organizations); 1.16 (Terminate Representation); 4.1 (Truthfulness to 3P);
                 5.1 (Responsibilities of Superiors); 5.2 (Subordinates); 8.3 (Obligations to
                 Report Misconduct); 8.4 (Misconduct).
             b. Seems to have engaged in fraud by wilfully ignoring the fact that OPM had
                 perpetrated fraud in that past and chief accountant believed company couldn’t
                 stay in business without continued fraud.
             c. Lessons learned
                 i.      Details count. Do your due diligence. Be a fussy lawyer
                 ii.     Must be competent and check basic transaction facts.
                 iii.    In bad situations, don’t engage in wishful thinking.
                 iv.     Make sure your ethical experts know substantive law too.
                 v.      Don’t lie to successor counsel.
         4. BL: Past frauds are confidential, but continuing frauds probably aren’t. Always
             look at both ethics and substantive law. (1992 Ethics Committee)
VI.   Duty to the Court (Perjury)
      A. BLL: Duty to not perpetrate a fraud on the tribunal trumps confidentiality: Can’t
         knowingly lie to a judge or offer false evidence. [Rule 3.3(a),(c)]; Crary. But duty to
         correct extends only to end of proceedings.
      B. Lucille’s Age Discrimination Hypos

           1. If you find out that night that her answer was false, you have a duty to take
               reasonable remedial measures. Rule 3.3(a)(4).
           2. If true at time asked, but now false, still may have duty to correct if judge relies
               on it to avoid fraud on tribunal, but probably ok not to supplement. 3.3(a)(2).
           3. If never asked, you can argue it at trial even if not true. Deeply rooted
               compartmentalization; what happens in the courtroom is the truth for purposes of
               ethics committee. Can always rely on that record. Truth vs. Courtroom Truth.
VII.    Lawyer-Client Relationship
        A. Formation (Togstad; Rule 1.3)
           1.  has burden of proving the formation of a relationship.
               a. Based on Reasonable Reliance of Putative client: Lengthy conversation in
                   lawyer’s office w/ advice given ok, but not if a casual dinner conversation.
               b. Relationship can be found even w/out formal engagement.
           2. Court in Togstad requires minimum threshold research before saying to a putative
               client that she has no case and a warning about the statute of limitations.
               a. Based on ease of discovering these things and community norms.
               b. Solution: Say nothing on the merits and say you don’t know if there is a
                   statute of limitations. Example of Barry’s friend w/ hyper-technical letter.
        B. Termination & Withdrawal (Rule 1.16)
           1. Client can generally terminate at will for any or no cause. A few limitations
               through contingency fees and anti-discrimination laws.
               a. A lawyer can’t invoke the tort of retaliatory discharge. Bella.
               b. Even an associate can’t invoke this if a firm fires him for revealing the law
                   firm’s ethical violations. Jacobson.
           2. When Lawyer may withdraw
               a. Must withdraw if representation will cause you to violate law or rules
               b. May withdraw if no material adverse effect on the interests of the client or if
                   you learn client is engaged in criminal or fraudulent conduct.
           3. No Termination by Drift (IBM). Must write a close-out letter to end relationship.
        C. Karen Horowitz Dilemma: Duty to client to present best case to a jury may conflict
           with a Jewish associate’s interest in taking a case to trial.
VIII.   Conflicts of Interest
        A. Concurrent Conflicts in Litigation
           1. 1.7(a): Direct Adversity
               a. Cannot represent a client whose interests directly adverse to another client b/c
                   of need for loyalty in relationship unless
                   i.       The lawyer reasonably believes there will be no adverse effect and
                   ii.      The client consents
                   iii.     BL: If the matters are related, can’t represent even w/ client consent. If
                            unrelated, can represent, but must get client consent.
               b. Can’t represent oil companies before Congress claiming no antitrust violation
                   and then represent a uranium company in an antitrust suit against them.
                   i.       Westinghouse: Even if client consented, clearly unreasonable.
                   ii.      Oil companies treated as clients b/c reasonably believed K&E acting
                            as lawyer when they requested confidential information from them.

           iii.   Could present different legal positions if not direct adversity, but not to
                  the same court.
      c. A “Chinese Wall” cannot solve conflicts problems. Rule 1.10(a): Imputation.
      d. Remedy for violation = Disqualification and disgorgement of fees. If work
          product is tainted, client may have to start all over again with new counsel.
      e. Must advise client of potential conflicts problems.
      f. Can seek prospective waivers, but courts generally allow these only if the
          conflict is foreseeable, and ambiguity is resolved against the lawyer.
   2. 1.7(b): Material Limitations
      a. Focus shifts from loyalty to quality of representation.
      b. Example of material representation: Can’t push for a favorable settlement for
          women prisoners b/c it would harm another set of your clients (Fiandaca).
      c. If the representation will be limited, can’t represent even w/ client consent. If
          it might in the future limit, can represent if you get client consent.
      d. Disqualification only begins when conflict arises. In Fiandaca = remedy stage.
      e. Some fear this rule is prone to tactical abuse.
B. Concurrent Conflicts in Transactions
   1. Common Representation
      a. 1.7(b)(2)  Any common representation must include an explanation of the
          implications and advantages and risks involved.
      b. Must disclose past long-term relationships w/ one client. Callahan.
      c. Frequently creates conflicts b/n loyalty and confidentiality that will often
          materially limit representation of one client or the other.
   2. Confidentiality & Joint Clients
      a. Generally there is no confidentiality between parties, although client
          autonomy might allow confidences by agreement.
      b. Generally, don’t disclose unless material to lawyer’s mission. A v. B.
   3. “Lawyer for the Situation”
      a. Brandeis argued this, but against the ethical tradition.
      b. Still, even sophisticated clients often use one law firm for joint ventures.
          Probably OK as long as different people represent on price issues.
   4. Parent-Subsidiary Conflicts (Michael Burns hypo).
      a. Independent affiliate not a client unless it would be exposed to confidential
      b. Weird though, since financial implications are the same. Alternate test would
          look at the economic impact on the client.
      c. Still, must always look for 1.7( b) problems here. Should get consent before
          bringing $20 million suit against Jaguar while representing Ford.
   5. Fee-Payer Problems
      a. Rule 5.4(c): If lawyer’s bill is paid by somebody else, the payor cannot
          regulate or restrict the lawyer’s professional judgment.
      b. Rule 1.8(f): Payer cannot interfere with attorney-client relationship.
      c. Examples: Insurance context or representing both employer and employee.
          Works if they have a common defense, but may need to withdraw if conflict.
C. Successive Conflicts [Rule 1.9]

         1. Basic Framework: Can represent a client in a matter materially adverse to a
             former client if
             a. The former client consents, or
             b. The matters are not the same or substantially related.
             c. Cannot convert a current conflict into a former conflict by firing 1 client.
             d. Rest. § 213: Can’t represent if a substantial risk the new matter will involve
                 work acquired in representing the old client. Also see American Airlines.
         2. Substantially Related Matters
             a. Posner (Analytica): “If the lawyer could have obtained confidential info in the
                 first representation that would be legally relevant to the second.”
             b. If the matters functionally have similar facts and issues (Presume confidences)
             c. Key is to focus on the facts of the 2 matters, not their labels
         3. Examples
             a. Can’t represent either of 2 jointly represented clients after the joint deal goes
                 sour. Issues of confidentiality and loyalty (no side-switching). Brennan’s.
             b. Can’t represent H in criminal tax case and then W in divorce case.
             c. Can incorporate Restaurant A and later Restaurant B across the street.
             d. Might be able to represent a meat supplier in defective meat suit against
                 Restaurant A, but would have to withdraw if finances become relevant.
             e. Can’t represent Restaurant A’s landlord in breach of covenant suit, and
                 probably can’t even represent neighbors in municipal ordinance suit to the
                 extent you advised Restaurant A about covenants and ordinances.
         4. Any cases involving former clients might also have 1.7(b) diminished zeal issues.
IX.   Professional Discipline
      A. Duty to Report Professional Misconduct
         1. Rule 8.3: If you know another bar member has violated the rules, you must report.
             a. Requires actual knowledge, not mere suspicion.
             b. Violation must raise substantial doubt as to honesty, trustworthiness, or fitness
         2. Exception: Rule Yields to 1.6 Confidentiality.
             a. This almost engulfs the rule. Himmel.
             b. Wouldn’t protect law firm that lets a partner bill 6000 hours.
         3. In Himmel, lawyer suspended for failing to report. One-of-a-kind case.
             a. 1.6 exception in IL didn’t apply b/c client told lawyer when others were
                 present, although in most states this would still be confidential since related to
                 the representation.
             b. Also some fear of extortion here: “If you don’t give my client her money
                 back, I will go to the authorities.” Might violate Rule 1.2(e): Can’t threaten to
                 present criminal charges to gain advantage in a civil matter.
      B. Responsibilities of Supervisory and Subordinate Lawyers
         1. If a conflict of interest or other ethical obligation is obvious or egregious, an
             associate violates the ethical rules even if just following orders. Rule 5.2.
         2. Very big dilemma for many associates. Murphy & Demeroy.
X.    Conclusion
      A. Model Rules strive to preserve confidentiality, loyalty, and lawyerly independence.
      B. Welcome to an honorable profession.


To top