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Professional Responsibility – Outline
I. Attorney-Client Relationship A. Undertaking to Represent a Client 1. Methods – contract, court appointment, political process 2. Consequences: a. Duration of relationship b. Source of duties c. Fees d. Statute of limitations 3. Communications w/ prospective client are privileged – R 1.18(b) 4. Don’t give substantive advice to prospective client – advise to get another lawyer, since deadlines exist 5. Keep info from prospective to a minimum, until conflict check – duty to other clients – R 1.18(c) 6. Test – did client hold reasonable belief that L was protecting his interest? a. Ambiguity is resolved against L 7. Termination of representation letter – say representation is over, but feel free to re-engage us 8. Decision-making – 1.2(a) a. Client decides objectives – L follows them, assuming they’re legal b. L, in consultation w/ client, determines means c. If decision is really big, client decides 9. Can limit scope of representation, w/ client’s consent – 1.2(c) a. Must be good for the client b. Cannot be that L doesn’t know how to do it 10. Can L help client get revenge? a. Can’t commit crime or fraud – 1.2(d) b. Can’t assist in violating laws or Rules – 1.4(a)(5) c. Can’t advance frivolous claims – 3.1 d. Must respect rights of third persons – 4.4 e. CAN give advice, other than legal – 2.1 B. Duty of Confidentiality 1. Privilege – applies to communication from client to L and back to client, if reflects info from client a. Communication must be made for purpose of receiving legal assistance b. Must be made to L in capacity as a lawyer c. Why? – encourage info, quality advice, comply w/ law, justice d. Waiver: i. Voluntarily sharing info ii. Inadvertently – notify sender – cases split whether you can read it / must return it iii. Self-defense (if client sues you) iv. W preparation 2. Work product = material prepared by L, in anticipation of litigation OR b/c of that litigation a. Why? – want L to be prepared – works in adversarial system b. Duration – until litigation is completed (a/c privilege lasts forever, unless waived) c. Waiver – must show conscious disregard for competitive advantage (a/c privilege easily waived) d. Discovery standard – substantial need & undue hardship e. Advice – mix opinions into memo, giving greater likelihood of protection 3. Confidentiality a. Categories: i. Confidence – must be under a/c privilege ii. Secret – info client wants private, would be embarrassing or detrimental to client b. Doesn’t matter when something was learned – if it relates to representation, it is confidential c. L not free to repeat confidential info to someone
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d. Implied consent to disclose: i. L thinks something is persuasive to other side ii. Client brings in pleadings, L can use it e. Rule disclosure – 1.6(b) i. Self-defense ii. Comply w/ ct order (after final judgment) iii. Prevent client from committing crime/fraud w/ substantial injury to another, in which L used iv. b(3) – disclose to limit damages, if client used L v. b(1) – to prevent reasonably certain death or substantial bodily harm C. Confidentiality and the Organization as a Client 1. L wants to ensure that report back to client company is privileged – give company the option to sit on it a. If no anticipated litigation – no work product – a/c privilege only for insiders 2. Who is the client (for purposes of privileged communications)? (Upjohn, p. 147) a. Person must know they’re communicating w/ L b. Must know it’s for purpose of company receiving legal advice 3. Why was L hired by the company? – must be to give legal advice, not just to determine facts a. Engagement letter – should say that client wants legal advice 4. Who controls privilege? – the company – it passes to new owner (w/ some expections) 5. Ex: memo from general counsel saying “dump the waste” – crime/fraud exception to a/c privilege a. But report investigative alone should be privileged – criminal memo is past act D. Representing Multiple Parties Dealing with Each Other E. Duty of Loyalty 1. Imputed – conflicts imputed from one attorney to all attorneys in the firm 2. Rule 1.7 a. A(1) – directly adverse b. A(2) – significant risk that representation will be materially different 3. Two things don’t have to be related to be a conflict (Fiandaca, p. 170) 4. Can have conflicts w/ client, former client, and yourself 5. Confidential information is always protected (former & current clients) a. Current – 100% loyalty b. Former – can’t take on new client w/ adverse interests in same OR substantially related matter 6. Corporate family – be careful – comments suggest that not all members are clients – but courts differ 7. Advance waiver – suspicious, but allowed if firm is specific enough 8. What if client doesn’t want L taking on certain work/client? a. Spectrum of analysis (more to less likely prevent): substantive, procedural, evidentiary b. Think about – temporal relationship of cases, significance of issues in case 9. Rule – conflict exists if significant risk that L’s action for C1 will materially limit L’s effectiveness for C2 F. Advising Business Corporation 1. L gives candid advice & can refer to things other than law – 2.1 2. The client is the entity itself – 1.13(a) 3. But L can’t follow client if it violates legal obligation, that might be imputed to client, produces substantial injury to client, in a matter related to the representation – 1.13(b) 4. Two sections of 1.13: reporting up (to highest authority, if needed); reporting out ((c) permits disclosure) 5. Overlap – 1.13(c) and 1.6 (Venn Diagram) a. Corp. trying to commit fraud & would harm another, 1.6 permits disclosure b. 1.13 requires injury be to the organization c. Can imagine crime/fraud that injures corporation AND another d. Can also imagine corporation hurting itself w/o help from L a. BUT there is an overlap in the middle G. Contact with Represented and Unrepresented Persons 1. 4.2 – governs contact w/ represented person
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a. If L knows person is represented, needs permission from other L to talk – unless authorized by law or ct b. Paternalistic effort to protect a/c relationship c. Easy to apply for individuals, but what about organization? – 3 categories: i. People who work w/ corporate counsel (concerned about privilege) ii. People who have authority to obligate the organization iii. Anyone whose act / omission can create liability d. Can be big fights regarding which ppl are off limits w/in organization 2. 3.4(f) – when lawyer is permitted to say “don’t talk to L on other side” a. Can request that person (other than client) not voluntarily give relevant info, only if you have reasonable belief that the individual’s interests will be adversely affected 3. 4.3 – duties re contact w/ unrepresented person a. L can’t present himself as disinterested b. L must correct any misperceptions the person might have about L’s role c. Can’t give legal advice (except to get an attorney), if there is reasonable possibility that interests of W will conflict w/ interest of client d. Applies to people and organizations 4. 1.13(f) – deals w/ organizational context a. L must explain identity of client, when she reasonably knows person’s interests are adverse to org. client i. If L doesn’t think person’s interests are adverse – no warning b. L needs info to represent client – warning is one extreme, deception is the other – Rule is in the middle c. Rule gives minimal protection to person – L just states identity of client 5. 8.4(a) – misconduct for L to attempt to violate rules or induce another to do so a. Fighting ground – investigation stage, prior to indictment b. Issue – fed v. state – who controls fed agents? – currently, fed lawyers abide by rules of state H. Conflicts Between Client Interests and the Lawyer’s Personal Interest 1. Taking interest in client property – 1.8(a) a. 3 separate writings required: disclosure, advice for independent counsel, consent b. Must be signed by client 2. Fee can’t be excessive a. Difficult to determine w/ stock (or other interests in property) b. Calculate amt of risk L is taking on it c. Determine fee, if billed by the hour d. The more restrictions on L’s share, the less valuable 3. Gift rule – 1.8(c) a. Non-consent-able conflict for L to draft instrument giving himself gift from client (except close family) b. Ok, IF insignificant gift or NO written instrument I. Lawyer and His Former Client 1. Interests: confidentially, loyalty, prospective client 2. No new matter against former client if: same matter OR substantially related – 1.9(a) a. Confidential info would be in jeopardy 3. L can’t use or disclose confidential info against former client – 1.9(c) 4. Two extremes of analysis – if same or related: a. Issue – favors prospective client b. Fact – favors confidential info, loyalty 5. Three steps: a. Figure out actual scope of prior representation (what kind of info given to L?) b. Court presumes actual info given to L c. Figure out contours of present case J. Imputed Disqualification 1. If any L has a conflict, it is imputed to every L in the firm – 1.10(a)
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2. Balance: former client, prospective client, other Ls who may be unable to help, L’s mobility interest 3. Don’t impute knowledge across firms to associated firms 4. Imputed knowledge does not run w/ L to a new firm – 1.9(b) 5. But actual knowledge of L does run w/ L – 1.10(a) 6. Screening a. Govt. lawyers – 1.11 b. Judges, arbitrators, etc – 1.12 c. Screening allowed when govt. Ls join private firms d. Case law no inquires into the actual info to which the person is exposed e. Analysis: i. Is there a 1.9(a) conflict (matters same or substantially related)? ii. Can you rebut presumption that L got confidential info at old firm? iii. Can you rebut presumption that info is shared in new firm? II. Ethical Problems in Litigation A. Litigation Tactics 1. What’s going on at trial? a. Search for truth b. Protect const. rights – may suppress EE that is obtained improperly c. Burden of proof – “not guilty” is conclusion of law – pros must meet burden d. Fairness – procedure, etc 2. Don’t violate local customs 3. More inclined to allow something, if it can be corrected later 4. Client who wants to engage in lawful activity should have L’s help 5. Theory – necessity B. Disclosure of Law or Facts Favorable to the Other Side 1. L required to disclose directly adverse legal authority from controlling jurisdiction – 3.3(a)(2) 2. No special duty to disclose factual information 3. Might be case where failure to disclose fact ~ affirmative lie 4. L must correct a false stmt given under oath – 3.3(a)(3) C. Handling Physical Evidence 1. If client gives L evidence – L must turn it in – but don’t divulge what client said 2. L shouldn’t destroy EE in any manner – moving something destroys its original location 3. L can’t commit / advise “unlawful” destruction / concealment – 3.4(a) D. Client Who Intends to Commit Perjury 1. Spectrum: “tell me what happened” ---- “here’s the law” 2. Obligations in 3.3 last only until conclusion of the proceeding 3. Duties in 3.3 could have L betray his own client – but also prevent corrupt judgments 4. What to do: a. Try to dissuade intended perjurer b. Withdraw (w/ court’s permission) 5. R requires knowledge that perjury has/will take place – HIGH knowledge requirement 6. Only person who knows about perjury might be client or his own L – need truth in court III. Basics A. Lawyer Discipline and the Disabled Lawyer 1. Report “substantial” questions about L’s honesty, trustworthiness, or fitness to practice – 8.3 2. Obligation doesn’t exist if it will harm the client – 1.6 B. Negotiation Authority 1. Can’t make false stmt of material fact / law – 4.1 a. Com 2 – not fact = price / value estimate, party’s intention, undisclosed principle b. Com 1 – omission / partial stmt can be misrepresentation 2. When must disclose?
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a. Statutes might require it b. Might be necessary to prevent partial / ambiguous stmt from being misleading c. L might’ve made an affirmative stmt that has now changed d. Other side is relying on a stmt incorrectly 3. 4.1(b) = 1.2(d) + 1.6 C. Billing for Legal Services 1. No requirement for written fee agreement (except for contingent fee) 2. Fee can’t be unreasonable (8 factors) 3. Contingent fees a. Permitted, generally b. Domestic relations – L should encourage reconciliation – can’t have fee contingent on recovery c. Criminal – no res to get money from at the end D. Handling Client Property 1. Do: notify, identify, safeguard, account, pay/deliver 2. Keep funds separate – applies to advance fees also 3. Make sure delegated person is doing it right! E. Withdrawing from Representation 1. Avoid assisting fraud / crime 2. Silent withdrawal 3. Noisy withdrawal – disaffirm / withdraw statements