Nancy Donovan Professional Responsibility Prof. Barrett Spring 2002 I. Making “Professionals” NY ECs 1-1, 1-2, 1-3; DRs 1-101 and 1-102 MR 8.1 and Comments NY CPR ECs 1-1—A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer. 1-2—The public should be protected form those who are not qualified to be lawyers by reason of a deficiency in education or moral standards or of other relevant factors but who nevertheless seek to practice law. To assure the maintenance of high moral and educational standards of the legal profession, lawyers should affirmatively assist courts and other appropriate bodies in promulgating, enforcing, and improving requirements for admission to the bar. In like manner, the bar has a positive obligation to aid in the continued improvement of all phases of pre-admission and post-admission legal education. 1-3—Before recommending an applicant for admission, a lawyer should be satisfied that the applicant is of good moral character. Although a lawyer should not become a self-appointed investigator or judge of applicants for admission, the lawyer should report to proper officials all unfavorable information the lawyer possesses relating to the character or other qualifications of an applicant. Should be satisfied, not must be satisfied; and should report to the bar, not must report to the bar. DR 1-101 MAINTAINING INTEGRITY AND COMPETENCE OF THE LEGAL PROFESSION A. A LAWYER IS SUBJECT TO DISCIPLINE IF THE LAWYER HAS MADE A MATERIALLY FALSE STATEMENT IN, OR HAS DELIBERATELY FAILED TO DISCLOSE A MATERIAL FACT REQUESTED IN CONNECTION WITH, THE LAWYER‟S APPLICATION FOR ADMISSION TO THE BAR. B. A LAWYER SHALL NOT FURTHER THE APPLICATION FOR ADMISSION TO THE BAR OF ANOTHER PERSON THAT THE LAWYER KNOWS TO BE UNQUALIFIED IN RESPECT TO CHARACTER, EDUCATION, OR OTHER RELEVANT ATTRIBUTE. Subject to discipline if you lie or omit on your application, but not for another. Admission to the practice of law In most states to be admitted to the practice of law, a person must have successfully completed college and law school, passed a bar examination, and submitted to a bar admission committee an application for admission, which generally includes proof of good moral character. Duty to be candid in connection with your application DR 1-101(a)a lawyer is subject to discipline if the lawyer has made a materially false statement in, or has deliberately failed to disclose a material fact requested in connection with, the lawyer‟s application for admission to the bar. Model Rule 8.1a lawyer shall not knowingly make a false statement of material fact or fail to disclose a fact necessary to correct a misapprehension . . . 2 Character evaluation integrity and competence? deficiency in education or moral standards? In re Anastaplodenial of admission to the Illinois bar based upon refusal to answer question of the committee on character and fitness as to whether he was a member of the Communist Party. Anastaplo defended his belief in the “right to revolution” and resisted questions which he deemed improper. Ultimately the state wonhas the power to withhold the bar admission. In re Mustafa (DC 1993) [p. 699]denial of admission to the DC bar b/c used law school funds for personal use. He did pay it back and disclosed when asked, but application denied for the present time, but probably will be able to establish the requisite good moral character at some future time. James Hammplead guilty to murder and served full sentence, gets law degree, facing character and fitness committee. Recognize criticism if admittedproblem for the bar/legal professiondevalue us in the eyes of the public. MODEL RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS 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 STATEMETN 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 OR INFORMATION OTHERWISE PROTECTED BY RULE 1.6. CommentsA lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding is governed by the rules applicable to the client lawyer relationship. Frequently Cited Grouds for Delaying or Denying Admission to the Bar. - Criminal Conduct—Whether or not it has resulted in conviction. Even acquittal will not prevent the conduct that was the subject of the charge from being weighed in the process. There are different burdens of proof. Only 8 jurisdictions make a felony conviction an automatic disqualification for admission. - Lack of Candor in the Application process—Preapplication conduct that would not result in exclusion can lead to exclusion if the bar applicant consciously omits it from the application. If falsity is discovered subsequent to admission, the lawyer can be censured, suspended, or disbarred. - Dishonest or Lack of Integrity in Legal Academic Settings—Cheating on LSAT, bar, or law school examinations can result in delay or denial of admission. - Mental Health—Lawyers have occasionally been excluded from the bar not for anything they did but because of what others predicted they might do based on their mental health history. - Financial Probity—dishonesty or abuse of trust in business or personal financial matters may predict a lack of probity as a lawyer. - Applicant‟s private Life—Must bear a rational connection to the individual‟s fitness to act as an attorney. Private noncommercial sex acts between consenting adults are not relevant to prove fitness to practice law. 3 II. Orientation to the Rules Self-regulation professional-specialized training and education + self-regulation. the way the bar does it is to limit the prospect of external regulators. Methods to prevent external regulation: constitutional args (6th Am right to counsel, P & I clause, judicial supremacy clause) rules flow from b/c Constitution defines. Beneath thatrigged gameinherent powers doctrine used to invalidate direct legislative efforts to regulate the admission and conduct of lawyers under the theory that the power to regulate the bar belongs to the courts almost exclusively. Because the practice of law is intimately connected with the administration of justice, the courts have the inherent power to regulate the legal profession in and out of court. Defensible? Rhetoriccivility movement, professionalism about demanding more, but effectively about PR and maintaining good gig. Is there something truly distinct about profession? If we want to keep this right it is necessary to practice self-restraint and judicial discretion. In some instances surrendering a small amount of inherent power is necessary to protect self-regulation, need to act responsibly so can maintain this right to govern ourselves. How to: 1.. Canon of Professional Ethics (1908)aspirational statement created by the ABA. 19081970. No real 1 world repercussions, not positive law. 2.. Model Code of Professional Responsibility (1970) Canon (title), Ethical Considerations (ECintro), 2 Disciplinary Rules (DR). No legal status, proposals. What makes it real law? States adopted Codes of Professional Responsibility. Eg, NY Codetinker and promulgate. DR‟s are what is binding as a basis for discipline. 3.. ABA Model RulesCode was focused on defining lawyer in adversarial role, focus on duties to client. 3 The Rules have an eye toward society/court, focus less on cutthroat warrior, duties to tribunal and society. New structureModel Rules and Comments. No legal statues until states adopt. NYkept Code, reject proposed Model Rule structure, amends Code regularly more substance/content of Model Rules. DR‟s with Model Rule substance. Also noteRestatement approach III. The AttorneyClient Relationship In a fundamental way the client is what makes the lawyer A. Creating/Establishing an AC Relationship A C: a person manifests an intent that the lawyer provide legal services and the lawyer agrees. C A: A person manifests an intent to have the lawyer represent him, the lawyer fails to make clear that he doesn‟t want to undertake the representation, and the lawyer knows or should have known that the prospective client is reasonably relying on the lawyer to provide the services. 4 A lawyer‟s assent is implied when he fails to clearly decline representation and the prospective client reasonably relies on the representation. Courts are alert to what a person claiming to be a client might r‟ably have believed under the circum‟s, especially if the client has given the lawyer confidential information on the assumption that the lawyer was performing a legal service for the client. Even thought an AC relationship can arise without a payment, the fact of payment is pretty good evidence of a professional undertaking. Is there an AC relationship is a question of law on which much will often turn, such as whether a lawyer is liable in malpractice or subject to discipline, and whether communications are confidential or privileged. Factors going to the ultimate questionbased on the totality of the circumstances There is no magic factor to negate the relationship Retainer agreementscan be very important, profession is moving to standardize and regularize to eliminate disputes. Courts liberally presume the existence of the AC relationship encourage people to seek legal advice, make it not hard to get rights that attach to the relationship. “Beauty contest” potential client interviews with potential attys, what does it mean with regard to A1 and A2 if a representation did not result, but information passedany duty with respect to that information? Liberal constructioneven though never formality of the AC relationship those lawyers still owe ethical duties to non-C, take out of play to represent conflicting C‟s, pragmatic reasons to find quickly b/c problems if other A‟s could have clients adverse to non-C. B. Elements of Conducting an AC Relationship 1. COMPETENCE NY DR 6-101 MR 1.1 and Comments DR 6-101 a lawyer shall not handle a legal matter which the lawyer knows that he is not competent to handle, handle a legal matter w/o adequate preparation, or neglect a legal matter entrusted to the lawyer. “shall not”designed for enforcement proceedings, easier to punish with a negative rule. 6-101 FAILING TO ACT COMPETENTLY A. A LAWYER SHALL NOT: 1. HANDLE A LEGAL MATTER WHICH THE LAWYER KNOWS OR SHOULD KNOW THAT HE OR SHE IS NOT COMPETENT TO HANDLE, WITHOUT ASSOCIATING WITH A LAWYER WHO IS COMPETENT TO HANDLE IT. 2. HANDLE A LEGAL MATTER WITHOUT PREPARATION ADEQUATE IN THE CIRCUMSTANCES. 3. NEGLECT A LEGAL MATTER ENTRUSTED TO THE LAWYER. Model Rule 1.1 a lawyer shall provide competent representation, which requires the legal knowledge, skill thoroughness and preparation reasonably necessary for the representation. “shall”harder to adjudicate violations, affirmative rules not heartland of discipline, good messages. 5 M.R. 1.1 COMPETENCE A LAWYER SHALL PROVIDE COMPETENT REPRESENTATION TO A CLIENT. COMPETENT REPRESENTATION REQUIRES THE LEGAL KNOWLEDGE, SKILL, THOROUGHNESS, AND PREPARATION REASONABLY NECESSARY FOR THE REPRESENTATION. o To determine this, relevant factors include the complexity of the matter, the lawyer‟s general experience, the lawyer‟s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. o No special training is necessary. You must spend the time to learn the particular area of law and study. o In an emergency a lawyer may give advice in an area in which he is unfamiliar, but limit the instances. o A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. o A mistake does not necessarily equal incompetence. Nor is a lawyer a guarantor of the result the client desires. “Getting competent”a lawyer may accept representation despite lacking competence in the field involved if the requisite competence can be achieved by reasonable preparation (as long as doesn‟t result in unr‟able delay or expense to the client). Proper preparation and representation may require the association with other atty‟s as a part of getting competent. The client decides on an association “Emergencies”In an emergency, a lawyer may assist a client, even if the lawyer does not have the skill ordinarily required in the field in question if referral to or consultation with another lawyer would be impractical. HWR, the assistance should not exceed what is r‟ably necessary to meet the emergency. Safe practicesavoid incompetence, get involved in bar, stay current, read the NYLJ, mandatory CLE. What isn‟t mentioned? Efficiency, keeping cost down, was in some drafts, but dropped out. Really about the business, a business furthering concept, not so much a disciplinary rule so much as a PR effort, forgiving standard (enables incompetence?) Incompetence can lead to discipline, but it rarely does absent egregious error or pattern of negligence. Often incompetence is the basis for a malpractice claim, assuming the client suffers damages. A 6th Amendment ineffective assistance of counsel claim also arises from incompetent representation. 2. CONFIDENTIALITY NY Canon 4; ECs 4-1, 4-7; DR 4-101 MR 1.6 and Comments EC 4-1: both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ the lawyer. A client must feel free to discuss anything with his or her lawyer and a lawyer must be equally free to obtain information beyond that volunteered by the client. A lawyer should be fully informed of all the facts of the matter being handled in order for the client to obtain the full advantage of our legal system. It is for the client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of a client not only facilitates the full development of facts essential to proper representation of the client but also encourages non-lawyers to seek early legal assistance. EC 4-2: The obligation to protect confidences and secrets obviously does not preclude a lawyer from revealing information when the client consents after full disclosure, when necessary to perform the lawyer‟s professional employment, 6 when permitted by a DR, or when required by law. Can disclose to other members of the firm. In the absence of consent of the client after full disclosure, a lawyer should not associate another lawyer in the handling of a matter; nor should the lawyer, in the absence of consent, seek counsel from another lawyer if there is a reasonable possibility that the identity of the client or the client‟s confidences or secrets would be revealed to such lawyer EC 4-3: Not improper to give limited info to an outside agency necessary for stats or bookkeeping. EC 4-4: A lawyer should endeavor to act in a manner which preserves the evidentiary privilege; for example, the lawyer should avoid professional discussions in the presence of persons to whom the privilege does not extend. EC 4-5: A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of the client after full disclosure, such information for the lawyer‟s own purposes. Likewise, a lawyer should be diligent in his or her efforts to prevent the misuse of such information by employees and associates. EC 4-6: The lawyer client relationship continues after the termination of employment. EC 4-7: A lawyer is afforded the professional discretion to reveal the intention of a client to commit a crime and the information necessary to prevent the crime and cannot be subjected to discipline either for revealing or not revealing such intention or information. Should only disclose something adverse to the client‟s interest to the extent necessary. DR 4-101 PRESERVATION OF CONFIDENCES AND SECRETS OF A CLIENT. A. CONFIDENCE REFERS TO INFORMATION PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE UNDER APPLICABLE LAW, AND SECRET REFERS TO OTHER INFORMATION GAINED IN THE PROFESSIONAL RELATIONSHIP THAT THE CLIENT HAS REQUESTED BE HELD INVIOLATE OR THE DISCLOSURE OF WHICH WOULD BE EMBARRASSING OR WOULD BE LIKELY TO BE DETRIMENTAL TO THE CLIENT. B. EXCEPT WHEN PERMITTED UNDER DR 4-101(C), A LAWYER SHALL NOT KNOWINGLY: 1. REVEAL A CONFIDENCE OR SECRET OF A CLIENT. 2. USE A CONFIDENCE OR SECRET OF A CLIENT TO THE DISADVANTAGE OF THE CLIENT. 3. USE A CONFIDENCE OR SECRET OF A CLIENT FOR THE ADVANTAGE FO THE LAWYER OR OF A THIRD PERSON, UNLESS THE CLIENT CONSENTS AFTER FULL DISCLOSURE. C. A LAWYER MAY REVEAL: 1. CONFIDENCES OR SECRETS WITH THE CONSENT OF THE CLIENT OR CLIENTS AFFECTED, BUT ONLY AFTER A FULL DISCLOSURE TO THEM. 2. CONFIDENCES OR SECRETS WHEN PERMITTED UNDER DISCIPLINARY RULES OR REQUIRED BY LAW OR COURT ORDER. 3. THE INTENTION OF A CLIENT TO COMMIT A CRIME AND THE INFORMATION NECESSARY TO PREVENT THE CRIME. 4. CONFIDENCES OR SECRETS NECESSARY TO ESTABLISH OR COLLECT THE LAWYER‟S FEES OR TO DEFEND THE LAWYER OR HIS OR HER EMPLOYEES OR ASSOCIATES AGAINST AN ACCUSATION OF WRONGFUL CONDUCT. 5. CONFIDENCES OR SECRETS TO THE EXTENT IMPLICIT IN WITHDRAWING A WRITTEN OR ORAL OPINION OR REPRESENTATION PREVIOUSLY GIVEN BY THE LAWYER AND BELIEVED BYTHE LAWYER STILL TO BE RELIED UPON BY A THIRD PERSON WHERE THE LAWYER HAS DISCOVERED THAT THE OPINION OR REPRESENTATION WAS BASED ON MATERIALLY INACCURATE INFORMATION OR IS BEING USED TO FURTHER A CRIME OR FRAUD. D. A LAWYER SHALL EXERCISE REASONABLE CARE TO PREVENT HIS OR HER EMPLOYEES, ASSOCIATES, AND OTHERS WHOSE SERVICES ARE UTILIZED BYTHE LAWYER FORM DISCLOSING OR USING CONFIDENCES OR SECRETS OF A CLIENT, EXCEPT THAT A LAWYER MAY REVEAL THE INFORMATION ALLOWED BY DR 4-101(C) THROUGH AN EMPLOYEE. 7 MODEL RULE 1.6 CONFIDENTIALITY OF INFORMATION (a) A LAWYER SHALL NOT REVEAL INFORMATION RELATING TO REPRESENTATION OF A CLIENT UNLESS THE CLIENT GIVES INFORMED CONSENT, THE DISCLOSURES IS IMPLIEDLY AUTHORIZED IN ORDER TO CARRY OUT THE REPRESENTATION, AND EXCEPT AS STATED IN PARAGRAPH (B). (b) A LAWYER MAY REVEAL SUCH INFORMATION TO THE EXTENT THE LAWYER REASONABLY BELIEVES NECESSARY: (1) TO PREVENT REASONABLY CERTAIN DEATH OR SUBSTANTIAL BODILY HARM; (2) TO SECURE LEGAL ADVICE ABOUT THE LAWYER‟S COMPLIANCE WITH THESE RULES; (3) TO ESTABLISH A CLAIM OR DEFENSE ON BEHALF OF THE LAWYER IN A CONTROVERSY BETWEEN THE LAWYER AND THE CLIENT, TO ESTABLISH A DEFENSE TO A CRIMINAL CHARGE OR CIVIL CLAIM AGAINST THE LAWYER BASED UPON CONDUCT IN WHICH THE CLIENT WAS INVOLVED, OR TO RESPOND TO ALLEGATIONS IN ANY PROCEEDING CONCERNING THE LAWYER‟S REPRESENTATION OF THE CLIENT; OR (4) TO COMPLY WITH OTHER LAW OR A COURT ORDER. The rationale of the ethical duty is that it encourages candor btw the lawyer and the client, encourages the client to seek early legal advice, and helps the lawyer discover all the information relevant to the client‟s legal problem. In re Holley (2001) [p. 29]S&C partner publicly censured after giving a court pleading to a reporter. Partner did not realize that the pleading was under seal, but even if weren‟t under seal it was still a client confidence and therefore wrong. The duty continueslifetime duration, continues after representation, ongoing tie. DR 4-101 Model Rule 1.6 What it applies to: “Confidences”info protected Information relating to the by the AC privilege representation Note: no substantial difference “secrets”info gained in the professional relationship Duty: Shall not: Shall not reveal 1. knowingly reveal 2. use to the Note: ways you can use disadvantage of a without revealing, the NY rule client has greater breadth, more 3. use for the advantage onerous. of the lawyer or a third party Exceptions: 1. consent after full 1. informed consent disclosure 2. to secure legal advice 2. when permitted under about lawyer‟s DR‟s compliance with Rules 3. when required by law 3. when required by law 4. when required by court 4. when required by court order order 5. future crime prevention 5. future crime prevention 6. self-defense 6. self-defense 7. fee collection 7. fee collection 8. noisy withdrawal 8. noisy withdrawal 8 Who makes which determination: Ethically Ethically protectedatty empowered to decide on the front protected end, knows which information is obtained in the course of the relationship, bigger realm P.I Privileged informationturns on a legal judgment of law of evidence at the back end, determined by the court. SCOPE of PROTECTION: Outer circle: Duty of Confidentiality: All information relating to representation of client protected from voluntary disclosure and from use harmful to client. Egscommunications btw atty and client with third party present, communications made when client seeks atty‟s services in future crime or fraud, information concerning past frauds involving atty‟s services, mechanical details of AC relationship (fee arrangement, client identity), relevant preexisting doc‟s and things. Inner circle: Attorney Client Privilege: confidential communications protected against compelled testimony. Egsconversations btw atty and client, letters and other documents between atty and client. Outside circles: Egsclient communications revealing intent to commit future crime likely to cause substantial bodily harm, information relevant to a dispute involving atty‟s conduct (fee dispute, malpractice case, misconduct charges), information for which disclosure expressly or impliedly authorized by client. Perez v. Kirk & Kerrigan (Texas Ct. App. 1991) [p. 34]Perez/driver works for Coke, injured in crash. K & C work for Coke, told driver that information would be confidential, driver makes statement in reliance of claim. Driver never hears from K & C again, they get a different lawyer to represent him, and give his statement to the DA. Perez claims breach of fiduciary duty, IIED, negligence. K & C win summary jmt. Issues: 1. Whether there was an AC relationship? o Re: courts are liberal in imputing o Can be implied by conduct o Even if relationship never arisesmay arise even during preliminary consultations regarding the atty’s possible retention if the atty enters into discussion of the client’s legal problems with a view to undertaking representation. 2. Breach of fiduciary duty? o Duty owed by someone who occupies a position of trust, owe “most abundant good faith”, absolute candor, openness and honesty, and the absence of concealment or deception. Duty to keep confidences. o K & C said: third parties present privilege doesn‟t apply, HWR, talking about ethical duty so presence of third party irrelevant. o K & C breached fiduciary duty by wrongfully representing that an unprivileged statement would be kept confidential What should K & C have done? Should not have given statements to DA. Could have given to Coke? Very hard to navigate, maybe if a whole bunch of disclaimers, conflict created if confides, low prospect of being able to do, but Coke would be very unhappy if don‟t. Could they have represented Perez or does a prospective conflict with Coke stop then at the beginning? Could align their interest 9 ENTITY CLIENTS Rule 1.13 and its comments make clear that a lawyer has the same ethical duties under Model Rule 1.6 whether the client is an individual or an entity. Issue: What is the scope of the privilege when the client is an entity? The privilege protects communications between and entity client and its counsel against forced disclosure outside the entity. What persons’ communications with entity counsel will be protected as privileged? The larger this group then greater the ability of entity clients to keep information secret. Control group testleast protective, only senior management, guiding and integrating the several operations can be said to possess and identity analogous to the corporation as a whole, protects communications by decisionmakers or those who substantially influence corporate decisions. Subject matter testmost protective, focus on the nature of the communication, not the status of the communicator. Upjohn Co. v. United States (SCt 1981) [p. 40] Management had reason to believe that some subs may have made illegal payments to foreign gov‟t officials. Atty‟s for company sent questionnaire and conducted interviews. The IRS subpoenas information. The company resists claiming privilege. Reject control group testoverlooks that privilege exists not only the giving of professional advice to those who can act on it, but also the giving of info to the atty to enable him to give sound advice. Test frustrates the purpose of privilege by discouraging the communication of relevant information by EE‟s of client to atty‟s seeking to render legal advice to client corp. Subject matter testcommunications that concern matters w/i scope of the EE‟s corporate duties, and the EE‟s themselves were sufficiently aware that they were being questioned in order that the corp could obtain legal advice. Question: the Ct says that the gov‟t was free to question EE‟s who communicated with counsel. True? Ethical conflict of contacting unrepresented, gov‟t lawyers represent a client, may not be able to go in and say no problem to talk to. Note: Upjohn construed privilege under federal law. States are free to define the scope of privileges under state law. Samaritan Foundation v. Goodfarb (Az 1993) [p. 1993] Lawyers question nurses and takes notes. Important b/c later nurses don‟t have good recollection. Nurses are not part of control group. Under Upjohn the conversations would be privileged under the subject matter test. Az court rejects both Underinclusivenessfails to promote institutional candor, atty interested in getting people to talk even beyond subject matter test, Upjohn wouldn‟t facilitate b/c wouldn‟t reach and control group fails to take into account the need for factual communications of non-control group EE‟s whose conduct has exposed the corporation to possible adverse legal consequences. Overinclusivenessprotects statements by EE‟s who were witnesses to the conduct of others. Tries to define middle groundwhere someone other than the EE initiates the communication, a factual communication by a corp EE to corp counsel is w/i the corp’s privilege IF it concerns the EE’s own conduct w/i the scope of his or her employment and is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for the corporate client. Nurses have facts beyond the scope of the privilege 10 Is there a government AC privilege? The Eighth Circuit found that public interest in honest gov‟t and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental AC privilege applicable in criminal proceedings inquiring into the action of public officials. Circuit assumed that the gov‟t enjoys privilege in context with other litigants. Starr won, privilege did not reach as far as Clinton wanted it to. EXCEPTIONS TO THE ETHICAL DUTYpermissive exceptions 1. Consent after consultation: MR 1.6(a) informed consent, DR 4-101(c)(1) after full disclosure. Safe practice: (a) written advice by atty and written consent by client and (b) memorialization of all communications leading up to. 2. When permitted under Disciplinary Rules: DR 4-101(c)(2) (Note: Model Rules do not preclude a lawyer from securing confidential legal advice about the lawyer‟s personal responsibility to comply with the Rules). 3. When required by law: MR 1.6(b)(4), DR 4-101(c)(2) (egcurrency reporting, tax reporting requirements). 4. When required by court order: MR 1.6(b)(4), DR 4-101(c)(2) (when a court decides not privileged, the ethical rules let you off at this point, although some lawyers („toothbrush lawyers‟) won‟t give in to motion to compel and will take contempt). 5. Future crime prevention: o NY, may reveal the intention of a client to commit a crime, any future crime as the basis for the NY exception, the scope of the criminal law (arguably includes misdemeanor). Note: disclosure adverse to the client‟s interest should be no greater than the lawyer r‟ably believes necessary to the purpose. o MR, may reveal to the extent lawyer r’ably feels is necessary to prevent r’ably certain death or substantial bodily harm, limits, but does protect lawyer against second guessing with objective r‟ableness in the circum‟s. o NY exception broader about disclosure, goes at intention; MR phrases more narrowly (doesn‟t mention intent). 6. Self-defense: MR, to establish a defense to a criminal or civil claim against lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; NY, necessary to defend the lawyer or his employee’s or associates against an accusation of wrongful conduct. o Two subtleties: (a) how early? Wait until litigation or can defend in the media? And (b) how much? Everything or more of a rule of reason/proportionality, use what you need to. o MR Comment 8, the lawyer‟s right to respond arises when an assertin of such complicity ahs been made, Rule doesn‟t require lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced. o MR Comment 12, exceptions permit disclosure only to the extent the lawyer r‟ably believes the disclosure is necessary to accomplish one of the specified purposes. o The self-defense exception is circumscribed by a rule of r‟able necessity, a lawyer must have reason to believe that revelation of the information is necessary to his or her self-protection. 7. Collection: Both the Model Rule and the New York Code permit lawyers to reveal confidential information to the extent necessary when they sue to collect fees. Rule of reason/proportionality. 11 8. Noisy withdrawal: o MR Comment 14, if the lawyer’s services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw (see Rule 1.16(a)(1)). After withdrawal the lawyer is required to refrain from making disclosure of the client’s confidences, except as otherwise permitted by Rule 1.6. No Rule prevent the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdrawal or disaffirm any opinion, document, affirmation or the like. o NY DR 4-101(5), may reveal confidences or secrets to the extent implicit in withdrawing a written or oral opinion previously given by the lawyer and believed by the lawyer to still be relied on by a third person where the lawyer ahs discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud. EXCEPTIONS TO THE PRIVILEGE 1. Consent/waiver: A client may waive the privilege. Waiver may be explicit or implicit. Clients may waive the protection of the A-C privilege by revelation of all or part of a confidential information. In re Von Bulow (p. 60)A (Dershowitz) wrote book about case, then in civil action against Von Bulow the ‟s move for discovery of certain discussions between A and Von Bulow. The court held that publication of the book was a waiver by Von Bulow as to the particular matters actually disclosed in the book, but no waiver of undisclosed conversations on the same or related subjects. Issue: when a law firm or client accidentally reveals allegedly privileged information to an adversary. “never waived” approachmerely negligent disclosure can never affect a waiver. “strict accountability” approachwaiver of privilege regardless of intent or inadvertence. “middle” approachallows courts to consider a number of circumstances related to inadvertent production, including (1) the r‟ableness of the precautions, (2) the amount of time it took for error to be recognized by producing party, (3) the scope of the production, (4) the extent of inadvertent disclosure, and (5) the overriding interest of fairness and justice. What about gentleman‟s agreement that will give back/not claim waiver? Can be contractually covered at the beginning of the adversarial process that discovery errors will be returned. Not sure a lot really are or telling clients if they are. See also “Improper Acquisition of Confidential Information” infra. 2. Crime-Fraud Exception: Communications btw clients and counsel are not privileged (although they may be ethically protected) when a client has consulted the lawyer to further a crime or fraud, regardless of whether the crime or fraud is accomplished and even though the lawyer is unaware of the client‟s objective and does nothing to advance it. o Two points: fraudulent objective and nexus to lawyer. Fraudulent objectiveeither party can be the decay that undermines the privilege. Nexuscommunication that would otherwise be privileged has to be in furtherance of that objective. o “chicken and egg problem” Must the opponent of the assertion of the privilege claiming crime-fraud actually prove a crime or fraud in order to discover the allegedly privileged information (party has to prove case in order to get information to prove case)? Problem avoided by establishing a lesser B of P to invoke the crime fraud exception. The crime or fraud need not have occurred for the exception to be applicable; it need only to have been the objective of the client‟s communication. 12 B of P not higher than a preponderance, egprobable cause to believe that the privileged communications were made with the intent to perpetrate a crime/fraud and that the communications were in furtherance of that fraud. After threshold showing an in camera review by the judge may be obtained and judge makes determination of whether the privilege applies. 3. Identity and Fees: generally not viewed as communication btw A & C, not privileged. 4. Public Policy: Egif client has died and A is the only one left to talk about the communication, the privilege doesn‟t go away, but when might public policy tip the other way to letting the A reveal the communication? Perhaps it may be pierced upon a showing of need, relevance and materiality, and the fact that the information could not be secured from any less intrusive source (egin a will dispute the A can talk of the C‟s intent. 3. AGENCY Lawyers are their clients‟ agents. As atty‟s, or agents, before the law, atty‟s have certain authority and certain duties. The authority that agency status affords the lawyer is to act for the client on the subject matter of the retainer. Acting for the client means that the lawyer‟s conduct will be attributable to the client, even if the lawyer errs, is the lawyer is careless, or worse. Principles suffer for the mistakes of their agents. Thus, defining the scope of the retainer is extremely important, in order to protect the lawyer from a charge of negligence or malpractice and to protect the client from being unwittingly bound to something. Taylor v Illinois (SCt 1988) [p. 69] Lawyer failed to reveal the identity of a prospective witness as required by state discovery rules and the trial court didn‟t let witness testify. The client must accept the consequences of the lawyer’s decision to forgo cross-examination, to decide not to put certain witnesses on the stand, or to decide not to disclose the identity of certain witnesses in advance of trial. - C must live with atty‟s bad tactical decisions, only clear in hindsight which ones are bad. Could lead to game playing an insurance policy in every case. Client consent not required for every tactical decision. - Dissent: C being punished for atty misconduct, HWR misconduct can be tactical (adversary or court could have missed the witness notification requirement). Cotto v US (1st Cir 1993) [p.71] Upheld dismissal of complaint for failure to prosecute, acts and omissions of counsel visited upon the client in a civil case. Lawyer‟s conduct flagged for disciplinary measures (profdon‟t use disciplinary system as a procedural backstop in litigation as the court suggests?). Binding the ClientIf an attorney acts improperly or foolishly, the client may still be bound, but he may be able to sue the lawyer for damages. The client has the right to decide whether to settle a civil matter or enter a plea in a criminal matter. Vicarious AdmissionsA lawyer‟s statements may be the vicarious admissions of a client. Procedural DefaultsIn criminal cases, an attorney‟s failure to raise a defendant‟s constitutional rights in compliance with valid state procedures will generally prevent the defendant from asserting those rights collaterally in federal court unless he or she can prove actual innocence. 13 Confidentiality Duties in Agency LawAn agent is subject to a duty to the principal not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency or in violation of his duties as agent, in competition with or to the injury of the principal, on his own account or on behalf fo another, although such information does not relate to the transaction in which he is then employed, unless the information is a matter of general knowledge. 4. FIDUCIARY A lawyer has a fiduciary relationship with his or her client. Lawyers must place their clients‟ interests above their own in the area of the representation and must treat their clients fairly. A truly high duty as the courts have articulated it. Lawyers are said to occupy a unique position of trust and confidence toward clients. Three reasons support imposing fiduciary obligations on a lawyer after the professional relationship is established. First, the client will likely have begun to depend on the attorney‟s integrity, fairness, superior knowledge and judgment. Second, the attorney may have acquired information about the client that gives the attorney an unfair advantage in negotiations between them. Finally, the client will generally not be in a position where he or she is free to change attorneys, but will rather be economically or psychologically dependent on the attorney‟s continued representation. 5. LOYALTY & DILIGENCE NY ECs 7-11, 7-12 MR 1.14 and Comments The duty of loyalty requires that the lawyer pursue, and be free to pursue, the client‟s objectives unfettered by conflicting responsibilities or interests. Loyalty survives the termination of the AC relationship and prevents the lawyer from acting adversely to a former client in matters substantially related to the former representation. The requirement of diligence imposes on the lawyer an obligation to pursue the client‟s interest without undue delay. The Code makes it clear that the duty of loyalty only applies to the lawyer‟s professional relationship. Model Rule 1.2(b) emphasizes that the lawyer‟s representation of a client does not constitute an endorsement of the client‟s political, economic, social or moral views or activities. o But see Morrison & Forrester backing away from Brosnahan‟s representation of John Walker Lindh. Firm said lawyer would be representing him in his own name. Unusual thing. Firm discomfort at representation (probably a snap jmt by the corporate department). MR 1.3 A lawyer shall act with r’able diligence and promptness in representing a client. Comment “A lawyer should act with commitment and dedication to the interest of the client and with zeal in advocacy on the client‟s behalf. HOWEVER, a lawyer is not bound to press for every advantage that might be realized for a client.” Loyalty and diligence to a point. Model Rule commands are less dictatorial than Code (Canon 7 A lawyer should represent a client zealously within the bounds of the law), societal regarding, more choice rhetorical shift in the Model Rules in view of who we are here for. DR 6-101(A)(3) A lawyer shall not neglect a legal matter entrusted to him. Note: difference prescription against neglect and affirmative command of the Rules. 14 6. DUTY TO INFORM AND ADVISE NY DR 7-101 MR 1.2 and Comments, MR 1.4 and Comments DR 7-101 REPRESENTING A CLIENT ZEALOUSLY A. A LAWYER SHALL NOT INTENTIONALLY: 1. FAIL TO SEEK THE LAWFUL OBJECTIVES OF THE CLIENT THROUGH REASONABLY AVAILABLE MEANS PERMITTED BY LAW AND THE DISCIPLINARY RULES, EXCEPT AS PROVIDED BY DR 7-101 (B). A LAWYER DOES NOT VIOLATE THE DISCIPLINARY RULE, HOWEVER, BY ACCEDING TO REASONABLE REQUESTS OF OPPOSING COUNSEL WHICH DO NOT PREJUDICE THE RIGHTS OF THE CLIENT, BY BEING PUNCTUAL IN FULFILLING ALL PROFESSIONAL COMMITMENTS, BY AVOIDING OFFENSIVE TACTICS, OR BY TREATING WITH COURTESY AND CONSIDERATION ALL PERSON INVOLVED IN THE LEGAL PROCESS. 2. FAIL TO CARRY OUT A CONTRACT OF EMPLOYMENT ENTERED INTO WITH A CLIENT FOR PROFESSIONAL SERVICES, BUT THE LAWYER MAY WITHDRAW AS PERMITTED UNDER DR 2-110, DR 5-102 AND DR 5-105. 3. PREJUDICE OR DAMAGE THE CLIENT DURING THE COURSE OF THE PROFESSIONAL RELATIONSHIP, EXCEPT AS REQUIRED UNDER DR 7-102 OR AS AUTHORIZED BY DR 2-110. B. IN THE REPRESENTATION OF A CLIENT, A LAWYER MAY; 1. WHERE PERMISSIBLE, EXERCISE PROFESSIONAL JUDGMENT TO WAIVE OR FAIL TO ASSERT A RIGHT OR POSITION OF THE CLIENT. 2. REFUSE TO AID OR PARTICIPATE IN CONDUCT THAT THE LAWYER BELIEVES TO BE UNLAWFUL, EVEN THOUGH THERE IS SOME SUPPORT FOR AN ARGUMENT THAT THE CONDUCT IS LEGAL. MR 1.2: SCOPE OF REPRESENTATION. (a) A LAWYER SHALL ABIDE BY A CLIENT‟S DECISIONS CONCERNING THE OBJECTIVES OF REPRESENTATION, AND SHALL AS REQUIRED BY RULE 1.4, CONSULT W/ THE CLIENT AS TO THE MEANS BY WHICH THEY ARE TO BE PURSUED. A LAWYER MAY TAKE SUCH ACTION ON BEHALF OF THE CLIENT AS IMPLIEDLY AUTHORIZED TO CARRY OUT THE REPRESENTATION. A LAWYER SHALL ABIDE BY A CLIENT‟S DECISION WHETHER TO SETTLE MATTER. IN A CRIMINAL CASE, THE LAWYER SHALL ABIDE BY A CLIENT‟S DECISION, AFTER CONSULTATION W/ THE LAWYER, AS TO A PLEA TO BE ENTERED, WHETHER TO WAIVE A JURY TRIAL AND WHETHER THE CLIENT WILL TESTIFY. (b) A LAWYER‟S REPRESENTATION OF A CLIENT, INCLUDING REPRESENTATION BY APPOINTMENT, DOES NOT CONSTITUTE AN ENDORSEMENT OF THE CLIENT‟S POLITICAL, ECONOMIC, SOCIAL, OR MORAL VIEWS OR ACTIVITIES. (C) A LAWYER MAY LIMIT THE OBJECTIVES OF THE REPRESENTATION IF THE CLIENT CONSENTS AFTER CONSULTATION. (d) A LAWYER SHALL NOT COUNSEL A CLIENT TO ENGAGE, OR ASSIST A CLIENT, IN CONDUCT THAT THE LAWYER KNOWS IN CRIMINAL OR FRAUDULENT, BUT A LAWYER MAY DISCUSS THE LEGAL CONSEQUENCES OF ANY PROPOSED COURSE OF CONDUCT W/ A CLIENT AND MAY COUNSEL OR ASSIST THE CLIENT TO MAKE A GOOD FAITH EFFORT TO DETERMINE THE VALIDITY, SCOPE, MEANING OR APPLICATION OF THE LAW. MR 1.4 COMMUNICATION (b) A LAWYER SHALL: (1) PROMPTLY INFORM THE CLIENT OF ANY DECISION OR CIRCUMSTANCE WITH RESPECT TO WHICH CLIENT‟S INFORMED CONSENT IS REQUIRED BY THESE RULES; (2) REASONABLY CONSULT WITH THE CLIENT ABOUT THE MEANS BY WHICH THE CLIENT‟S OBJECTIVES ARE TO BE ACCOMPLISHED; (3) KEEP THE CLIENT REASONABLY INFORMED ABOUT THE STATUS OF THE MATTER; (4) PROMPTLY COMPLY WITH REASONABLE REQUESTS FOR INFORMATION; AND 15 (5) CONSULT WITH THE CLIENT ABOUT ANY RELEVANT LIMITATION ON THE LAWYER‟S CONDUCT WHEN THE LAWYER KNOWS THAT THE CLIENT EXPECTS ASSISTANCE NOT PERMITTED BY THE RULES OR OTHER LAW. (c) A LAWYER SHALL EXPLAIN A MATTER TO THE EXTENT REASONABLY NECESSARY TO PERMIT THE CLIENT TO MAKE INFORMED DECISION REGARDING THE REPRESENTATION. Model Code comparison: MR 1.4 has NO direct counterpart in the DR’s. DR 6-101 (A)(3): provides that a lawyer shall NOT neglect a legal matter entrusted to him. DR 9-102(B)(1): provides that a lawyer SHALL promptly notify a client of the receipt of his funds, securities or other properties. EC 7-8: states that a lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. EC 9-2: states that a lawyer should fully and promptly inform of his client of material developments in matters being handled for the client. MR 1.2 and 1.4no basis for discipline. Revised Rule 1.4 attempts to regularize, be more specific about what to communicate. The clients right to know A lawyer has a duty to communicate settlement offers to a client, and that failure to do so is malpractice. Atty must communicate plea bargains/settlement offers, no matter how ridiculous. CASE: Nichols v Keller (Cal. 1993). FACTSthe P was injured on the job. The attorney pursued only the workmen's compensation claim and failed to advise the P of possible civil actions against others. P only learned of other possible civil claims after the statute of limitations had run. He sued the attorney for malpractice. HELDthe Court found in favor of the P. In holding against the attorney the Court stated that, a lawyer owes the C a duty of care to advise on all available remedies, including third party actions. RULEThe client’s objective governs the nature of the A-C relationship. (To a degree, the means employed must be communicated to the C too). The client‟s objective was to recover from work injury should have been told. One of the attorney‟s basic functions is to advise. Liability can exist b/c the attorney failed to provide advice. Not only should the attorney furnish advice when requested, but he should volunteer opinions when necessary to furnish a client’s interests. The attorney need not advise and caution every possible alternative, but only of those that may result in adverse consequences if not considered. The attorney need not represent the client on matters outside the scope of the retention, but should inform the client of the limitations of his representation and of the possible need for other counsel. Why? C really only relies on A to accomplish his objectives. Attorney General Ashcroft‟s Order Regarding the Monitoring of Lawyer-Client Communications: Monitoring of communications with attorney‟s to deter acts of Terrorism. The rule provides specific authority for the monitoring of communications between an inmate and atty, where there has been a specific determination that such actions are reasonably necessary in order to deter future acts of violence and terrorism, and upon a specific notification to the inmate and the atty‟s involved. The rule provides for: 1. protection of the inmate‟s right to counsel 2. the use of a special “privilege team” to monitor communications, pursuant to firewall procedures, when there is a specific justification of need to deter future acts of violence and terrorism 3. a procedure for federal court approval prior to the release of information gleaned by the privilege team while monitoring, and 4. an emergency procedure for immediate dissemination of information pertaining to future acts of violence and terrorism where those acts are determined to be imminent. 16 Based upon reasonable suspicionlittle more than a hunch, some articulable basis. Public safety Chilling effect on AC relationship conversations just won‟t happen. Limiting principle? Effectively a permanent decision. ABAopposed to proposed monitoring, 6th Amendment args, policy args, privilege argabsent a demonstratable showing of crime/fraud exception, lawyers can do better with privilege than with monitoring? C. Relative Power and Autonomy in the AC Relationship NY ECs 7-11, 7-12 MR 1.14 and Comments MR 1.14 CLIENT UNDER A WITH DIMINISHED CAPACITY (a) WHEN A CLIENT‟S CAPACITY TO MAKE ADEQUATELY CONSIDERED DECISIONS IN CONNECTION WITH THE REPRESENTATION IS DIMINISHED, WHETHER BECAUSE OF MINORITY, MENTAL DISABILITY OR FOR SOME OTHER REASON, THE LAWYER SHALL, AS FAR AS REASONABLY POSSIBLE, MAINTAIN A NORMAL CLIENT-LAWYER RELATIONSHIP WITH THE CLIENT. (b) WHEN THE LAWYER REASONABLY BELIEVES THAT THE CLIENT HAS DIMINISHED CAPACITY, IS AT RISK OF SUBSTANTIAL PHYSICAL, FINANICIL OR OTHER HARM UNLESS ACTION IS TAKEN AND CANNOT ADEQUATELY ACT IN CLIENT‟S OWN INTEREST, THE LAWYER MAY TAKE REASONABLY NECESSARY PROTECTIVE ACTION, INCLUDING CONSULTATION WITH INDIVIDUALS OR ENTITIES THAT HAVE THE ABILITY TO TAKE ACTION TO PROTECT THE CLIENT AND, IN APPROPRIATE CASES, SEEKING THE APPOINTMENT OF A GUARDIAN AD LITEM, CONSERVATOR OR GUARDIAN. (c) INFORMATION RELATING TO THE REPRESENTATION OF A CLIENT WITH DIMINISHED CAPACITY IS PROTECTED BY RULE 1.6. WHEN TAKING PROTECTIVE ACTION PURSUANT TO PARAGRAPH (B), THE LAWYER IS IMPLIEDLY AUTHORIZED UNDER 1.6(A) TO REVEAL INFORMATION ABOUT THE CLIENT, BUT ONLY TO THE EXTENT REASONABLY NECESSARY TO PROTECT CLIENT‟S INTEREST. EC 7-11—The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client, the obligation of a public officer, or the nature of a particular proceeding. Examples include the representation of an illiterate or an incompetent, service as a public prosecutor or other government lawyer, and appearances before administrative and legislative bodies. EC 7-12Any mental or physical condition that renders a client incapable of making a considered judgment on his or her own behalf cast additional responsibilities upon the lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has not legal representative, the lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his or her interests, regardless of whether the client is legally disqualified from performing certain acts, the lawyer should obtain from the client all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for the client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of the client. But obviously a lawyer cannot perform any act or make any decision which the law requires the client to perform or make, either acting alone if competent, or by a duly constituted representative if legally incompetent. To what extent and when must and should an attorney consult with his client? 17 The Lawyer‟s Autonomy Jones v. Barnes (SCt 1983) FACTS: A is assigned to represent D on appeal. D writes A a letter from prison listing several claims he wants raised on appeal and enclosed a copy of pro se brief. A responded & rejected most all of D‟s suggested claims, stating that they would not aid the respondent in obtaining a new trial and that they could not be made on appeal b/c they were not based on evidence in the record (if too many pts, good ones get lost). Attorney listed the 7 claims he was submitted and invited D‟s „reflections and opinions‟. Attorney‟s appellate brief focused on 3 points, all of which were included in D‟s letter. Attorney also submitted D‟s pro se brief. D’s CLAIM: D loses appeal & claims his A‟s failure to raise all 7 points violated his Sixth Amendment right. Does court appointed defense counsel have a constitutional duty to raise every nonfrivolous issue that the defendant suggests? No rule that the indigent has a constitutional right to compel appointed counsel to press nonfrivilous points requested by the client, IF counsel, as a matter of professional jmt, decides not to press those points. The Court stated that for judges to second-guess reasonably professional judgments and impose on appointed counsel a duty to raise every colorable claim suggested by a client would disserve the very goal of vigorous and effective advocacy. Different concepts of representation: Majority A is bosshas all the legal expertise & training. Blackmun’s concurrence although he agrees that there is no constitutional violation here, he thinks that there is an ethical breach. He feels attorneys should be ethically responsible to raise all non-frivolous issues insisted on by the client. As an ethical matter an atty should argue on appeal all non-frivolous claims upon which his client insists. Brennan’s dissent violates both ethics and constitutional standardagrees w/ Blackmun‟s view that this is an ethical violation but also sees the right to “assistance of counsel” to carry with it a personal right of the to decide which non-frivolous claims should be raised on appeal against the advice of counsel if he chooses. C is boss: a) respect for individual autonomy and dignityentitled to be deferred to & b) trust is already so low for appointed atty‟sthey could contribute to the relationship by being deferential to C‟s wishes. Barrett’s view Brennan‟s view is morally better, but not what the Constitution requires. The Scope of the Lawyer‟s Autonomy Appellate courts should accept timely and supplemental pro se briefs. The Code and the Rules allow for lawyer autonomy in several additional ways. A lawyer may, where permissible, exercise his professional judgment to waive or fail to assert a right or position in a trial. A lawyer may refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal. A lawyer may decline to offer evidence that he reasonably believes is false, and can limit the objectives of the representation if the client consents after consultation. The Client‟s Autonomy Olfe v. GordonPlaintiff told atty that she wanted to sell her property and that she was willing to take back only a first mtg. Atty negotiated a contract that left plaintiff with a second mtg, but atty led her to believe it was a first mtg. The court stated: “It has generally been recognized that an attorney may be liable for all losses caused by his failure to follow with reasonable promptness and care the 18 explicit instructions of his client. Moreover, an attorney‟s honest belief that the instructions were not in the best interests of his client provides no defense to a suit for malpractice. The Scope of the Client‟s Autonomy Certain decisions belong to clients: whether to plead guilty; whether to be present during trial; whether to waive a jury; whether to testify; whether to appeal; right to decide whether lesser included offenses should be submitted to the jury. In civil mattersthe decision to settle; whether to stipulate to facts or law. Statement of Client‟s Rights Statement of Client‟s Rights for Atty‟s in Domestic Relations Matters Statement of Client‟s Responsibilities C. Protecting the AC Relationship from Outside Interference NY DR 7-104 MR 4.2 and Comments MR 3.4(f) and Comment  Communicating with Another Lawyer’s Clients DR 7-104 COMMUNICATING WITH ONE OF ADVERSE INTEREST A. DURING THE COURSE OF THE REPRESENTATION OF A CLIENT A LAWYER SHALL NOT: 1. COMMUNICATE OR CAUSE ANOTHER TO COMMUNICATE ON THE SUBJECT OF THE REPRESENTATION WITH A PARTY THE LAWYER KNOWS TO BE REPRESENTED BY A LAWYER IN THAT MATTER UNLESS THE LAWYER HAS THE PRIOR CONSENT OF THE LAWYER REPRESENTING SUCH OTHER PARTY OR IS AUTHORIZED BY LAW TO DO SO. 2. GIVE ADVICE TO A PERSON WHO IS NOT REPRESENTED BY A LAWYER, OTHER THAN THE ADVICE TO SECURE COUNSEL, IF THE INTERESTS OF SUCH PERSON ARE OR HAVE A REASONABLE POSSIBILITY OF BEING IN CONFLICT WITH THE INTERESTS OF THE LAWYER‟S CLIENT. B. NOTWITHSTANDING THE PROHIBITIONS OF (A), AND UNLESS PROHIBITED BY LAW, A LAWYER MAY CAUSE A CLIENT TO COMMUNICATE WITH A REPRESENTED PARTY, IF THAT PARTY IS LEGALLY COMPETENT, AND COUNSEL THE CLIENT WITH RESPECT TO THOSE COMMUNICATIONS, PROVIDED THE LAWYER GIVES REASONABLE ADVANCE NOTICE TO THE REPRESENTED PARTY‟S COUNSEL THAT SUCH COMMUNICATIONS WILL BE TAKING PLACE. MR 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 BY LAW TO DO SO OR A COURT ORDER. The NY retained the use of the word PARTY from the Model Code requires the context of litigation. The Model Rules changed to PERSON broader under the Model Rules, applies to a person, whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates. In NY the interpretation was effectively the same as person, but during new version of amendments the word person was replaced and prosecution and law enforcement complained (hinders investigation) so changed back to party use Code interpretation. 19 MR 3.4 Fairness to Opposing Counsel (f) A LAWYERS SHALL NOT: (F) REQUEST A PERSON OTHER THAN A CLIENT TO REFRAIN FROM VOLUNTARILY GIVING RELEVANT INFORMATION TO ANOTHER PARTY UNLESS: (1) THE PERSON IS A RELATIVE OR AN EMPLOYEE OR OTHER AGENT OF A CLIENT; AND (2) THE LAWYER REASONABLY BELIEVES THAT THE PERSON‟S INTERESTS WILL NOT BE ADVERSELY AFFECTED BY REFRAINING FROM GIVING SUCH INFORMATION. Comment: Paragraph f permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of a client. The above prohibitions apply only under certain conditions: The communication must occur while the lawyer is representing a client. A lawyer who is not acting in a representative capacity is not foreclosed by this rule from talking to another lawyer‟s client about the matter on which the other lawyer is representing the client. A client who is dissatisfied with a lawyer‟s performance can therefore shop for a new lawyer without fear that other lawyers will not speak to her. The communicating lawyer must know that the person with whom she is communicating is represented by another lawyer on the subject of the communication. Knowledge can be inferred from circumstances where there is substantial reason to believe that the person with whom communication is sought is represented and that a lawyer cannot evade the requirement by closing his eyes tot he obvious. The communicating lawyer is only forbidden to communicate about the subject of the other lawyer‟s representation. The prohibition does not apply if the other lawyer consents to the communication or if it is authorized by law. A violation occurs if a lawyer engages in the forbidden communication through a third party, such as an investigator or even a lawyer‟s own client. Even negligent failure to prevent might be grounds for discipline. The rule prevents a lawyer from: Getting a damaging admission from the opposing client; Learning a fact she would not learn if counsel were present to protect the opposing client; Settling or winning a concession in the matter without interference from the opposing counsel; Learning the opponent‟s strategy or gaining information protected by the atty-client privilege and the work-product privilege; Weakening the opposing client‟s resolve by casting doubt on the strength of his or her position; and Disparaging the opposing lawyer to his or her client. Purpose of No Contact Rule protects the primacy of the bubble against poachers, preserves the power of the atty (protects us v infantilizing the C and making dependent on the atty)the atty can waive and the majority opinion is that the C may not. Knowledge trigger need a rule of reason, can‟t be willfully blind, a fair preponderance of the evidence puts the atty on notice. Knowledge may be inferred from the circumstances. Duty to inquire? Ethics opinion suggest reasonable to do so when ambiguous, but the rules leave a fair amount of discretion as to how will behave. Consequences could cost representation (DQ) (egs ‟s lawyer disqualified after he accepted a call from represented ; bank‟s entire law firm DQ‟d after partner at firm had an unauthorized conversation with about the merits of the case). 20 Civil Matters What if the other party is a corporation or government? Neisig v. Team I (NY 1990, p. 111) The plaintiff was injured when he fell from a scaffolding at a construction site. He sued the general contractor and the property owner and the defendants brought in DeTrae Enterprises as third party defendants. The plaintiff wanted to interview employees of DeTrae who witnessed the accident Issue: Are the employees of a corporate party-entity also considered “parties” under DR 7-104(a)(1), which prohibits a lawyer from communicating directly with a party known to have counsel in the matter? The court ruled that the rule definitely covers corporate entities and although we must include some employees as parties because a corporation acts through its employees and a contrary reading would read corporations out the rule, if we were to include all employees as parties it would thwart all fact finding by lawyers. Which employees should be deemed “parties”? The court rejected the blanket rule (all current employees) and control group test. TEST: defines “party” to include corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel all other employees may be interviewed informally. The balance is struck between fairness to the corporation and the facilitation of information gathering. So essentially, those individual employees whose actions underlie the reason why the corporation might be subject to liability will be considered parties and thus cannot be contacted directly—those who were simply witnesses can be contacted. The rule does not prohibit contact with former employees. Bright line break, even if had been an employee had been a part of the group that would have been considered a “party.” Question if still acting under the advice of counselwhich part trumps? No subsequent case on, possibly the former employee is fair game. If the individual is represented by its own counsel then that lawyer is the relevant person to contact in terms of getting consent and the entity does not even have to be notified Criminal Matters The major issue that arises in the criminal context deals with the fact that often the government uses informants to get at a suspect that either is currently represented or sometimes not represented because the suspect has not yet been indicted. How does the No Contact Rule apply during investigations? US v. Hammad (2d Cir. 1988, p. 125) Defendant‟s dep‟t store burned due to alleged arson. AUSA discover that the store‟s owners had been previously audited for fraud, and believed (based on tip from informant) that fire was intended to destroy records to conceal Medicaid fraud. Goldstein (informant) agreed to cooperate with the government and tape a conversation with Hammad. He met with the defendants and told them he had been subpoenaed to appear in front of the grand jury. The Hammads did not deny the fraud to Goldstein but instead urged him to lie to the grand jury. He later showed them a sham subpoena supplied by the AUSA. Defendants were indicted and they contend that the evidence should be suppressed because of a violation of DR 7-104(A)(1). The government countered by claiming that the rule is not triggered until the onset of the adversarial process. 21 The basic problem is that a broad prohibition under 7-104 will handcuff the government in terms of making investigations and using informants—the government contends that career criminals with house counsel could immunize themselves from infiltration by informants. Issue: to what extent does DR 7-104(a)(1) restrict the use of informants by government prosecutors prior to indictment, but after the suspect has retained counsel in connection with the subject matter of a criminal investigation? The court stated that ordinarily you need permission of the other attorney to talk with his client (a represented person)—however the rule also allows for an exception when the contact is “otherwise authorized by law” and in this context a prosecutor is authorized by law to employ legitimate investigative techniques in conducting criminal investigations and thus the use of informants will usually fall into this exception. However the false subpoena was beyond the AUSA‟s authority. Held: Use of informants by government prosecutors in pre-indictment, non-custodial situations, absent the type of misconduct that occurred in this case will generally fall within the authorized by law exception and therefore will be okay. The prosecutor cannot do it himself or his aids, which is why the false subpoena went too far, Goldstein became the alter ego of the AUSA and that was unacceptable. Prof thinks reason is not analytically sound, court boils down to a unique problem so solve w/o really hindering law enforcement. In the end the evidence wasn‟t suppressed anyway b/c court found that it was an unexpected development in the law so the exclusionary remedy wasn‟t appropriate, next time they just won‟t use the fake subpoena trick. McDade Amendmentlawyers for the federal government shall be subject to state laws and rules governing attorney‟s in each state where attorney practices to the same extent and in the same manner as they apply to other attorneys in the state. Note re: DR 7-104(A)(2) During the course of the representation of a client a lawyer shall not: Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, IF the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client. A wishes to contact former employee (Neisig says that‟s okay) who are NOT represented as far as the attorney knows. Any concern? The rule speaks of the possibility of a conflict of interest between the non-represented person and the lawyer‟s client from the perspective of the non-represented person. Schizophrenic command. Can‟t easily do. Would want to minimize the other side b/c want informationconceptual flaw in the rule. If recognize conflict the only thing the attorney can do is advise to get own counsel. Is there a loophole in the language? (A)(1) is a prohibition against communication and (A)(2) is a prohibition against advising. Is just asking for information below advising? Or is the attorney impliedly advising the person to answer questions? The concern of the rule is with poaching, power disparities. Is this really a business generatoreverybody should get a lawyer. MR 4.3 on dealing with unrepresented persons asks less, easier to do: in dealing on behalf of a client with a person who is not represented, 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 interest of such person are of have a 22 reasonable possibility of being in conflict with the interest of the client. (No longer any easier to do than NY since the new rules added the underlined part!). Also out of body adviceif the unrepresented person misunderstands then disclosure. Note re: represented persons DR 7-104(B) Notwithstanding the prohibitions of (A), and unless prohibited by law, a lawyer MAY cause a client to communicate with a represented party, IF that party is legally competent, and counsel the client with respect to those communications, PROVIDED the lawyer gives reasonable advance notice to the represented party’s counsel that such communications will be taking place. Unless otherwise prohibited is a placeholder, there is no such law Legally competentmost people are Advance warningnotice rq On the recipient side going to want the contact thru attorney, will advise client not to talk to. Quite a wildcardcould be productive from society‟s point of view or could be very imbalanced (lets aggressive lawyer deploy these kind of tactics). NY is a novelty, but recognize reality that clients are hard to control, an effort to bring within official structure (conduct was going to be done anyway). Improper Acquisition of Confidential Information An attorney is precluded from acquiring, inadvertently or otherwise, confidential, or privileged information about his adversary‟s litigation strategy. Courts have dismissed claims where the litigant is a participant in the invasion of the opponent‟s confidential relationship. Lipin v Benderthe client surreptitiously read and took a confidential memo of the opposing party. Due to her egregious conduct her case was dismissed. See also „Consent/Waiver of privilege‟ supra. “Golden Rule challenge”ABA opinion suggests that a lawyer who mistakenly receives an opponent‟s confidential information should not examine it, but should instead request the opponent‟s instructions. Suggest that the better course of conduct is to give it backbut counterarg would be can‟t give it away b/c duty is to client. There is no rule on. Be careful about communications, and also think hard before automatically reaping the benefits. E. Terminating the AC Relationship NY DR 2-110 MR 1.16 and Comments Termination by the Client A client may fire his lawyer for any reason or no reason. Indigent criminal defendants cannot fire their court appointed lawyers, although they can ask for other representation. Even a client with a retained lawyer may not be permitted to fire counsel close to or during the trial b/c by then the interest of others (the courts and the opponent) in not delaying the trial will be given substantial weight. When a client fires a lawyer, the client may still be liable to the lawyer for fees earned up to the time of termination. 23 A lawyer who is fired is ethically required to go awaymandatory withdrawal. Even if for discriminatory reasons (federal civil rights claim, but ethical duty to go away). Termination by the Lawyer The lawyer’s right to terminate a professional relationship is circumscribed by Rule 1.16 and DR 2-110. Permissive withdrawal if the client persists in a course of action involving the lawyer‟s services that the lawyer reasonably believes is criminal or fraudulent (Rule 1.16(b)(1)). Where a law firm withdrew because it had good reason to believe that its client intended to commit perjury, it did not give up its right to unpaid fees. A lawyer can also withdraw if the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent (DR 2-110(C)(1)(e)). The lawyer CAN threaten to get out. The ethical right to withdraw does not free the lawyer from a breach of contract action, but that means the client has to pay a new lawyer to sue the old lawyer and has to prove damages. The MR has a provision that entitles a lawyer to withdraw for no reason at all if the withdrawal can be accomplished without material adverse effect on the interests of the client. (MR 1.16(b)). General principleminimize harm to client, give advance notice, change to find new counsel, make accommodations for, advise/suggest new counsel. Other permissive exceptionMR 1.16(b)(5) (no equivalent in Code), a lawyer may withdraw if the representation will result in an unreasonable financial burden on the lawyer even though the w/d will have a materially adverse effect on the client. Termination by DriftMost relationships end because the work ends. Some firms send a termination letter explaining that our representation of you is now concluded to avoid any current conflicts. DR 2-110 WITHDRAWAL FROM EMPLOYMENT A. IN GENERAL. 1. IF PERMISSION FOR WITHDRAWAL FROM EMPLOYMENT IS REQUIRED BY THE RULES OF A TRIBUNAL, A LAWYER SHALL NOT WITHDRAW FROM EMPLOYMENT IN A PROCEEDING BEFORE THAT TRIBUNAL WITHOUT ITS PERMISSION. 2. EVEN WHEN WITHDRAWAL IS OTHERWISE PERMITTED OR REQUIRED UNDER DR 2-110(A)(1), (B)OR (C), A LAWYER SHALL NOT WITHDRAW FORM EMPLOYMENT UNTIL THE LAWYER HAS TAKEN STEPS TO THE EXTENT REASONABLY PARCTICABLE TO AVOID FORESEEABLE PREJUDICE TO THE RIGHTS OF THE CLIENT, INCLUDING GIVING DUE NOTICE TO THE CLIENT, ALLOWING TIME FOR EMPLOYMENT OF OTHER COUNSEL, DELIVERING TO THE CLIENT ALL PAPERS AND PROPERTY TO WHICH THE CLIENT IS ENTITLED AND COMPLYING WITH APPLICABLE LAWS AND RULES. 3. A LAWYER WHO WITHDRAWS FROM EMPLOYMENT SHALL REFUND PROMPTLY ANY PART OF A FEE PAID IN ADVANCE THAT HAS NOT BEEN EARNED. B. MANDATORY WITHDRAWAL. A LAWYER REPRESENTING A CLIENT BEFORE A TRIBUNAL, WITH ITS PERMISSION IF REQUIRED BY ITS RULES, SHALL WITHDRAW FROM EMPLOYMENT, AND A LAWYER REPRESENTING A CLIENT IN TOHER MATTERS SHALL WITHDRAW FROM EMPLOYMENT, IF: 1. THE LAWYER KNOWS OR IT IS OBVIOUS THAT THE CLIENT IS BRINGING THE LEGAL ACTION, CONDUCTING THE DEFENSE, OR ASSERTING A POSITION IN THE LITIGATION, OR IS OTHERWISE HAVING STEPS TAKEN, MERELY FOR THE PURPOSE OF HARASSING OR MALICIOUSLY INJURING ANY PERSON. 2. THE LAWYER KNOWS OR IT IS OBVIOUS THAT CONTINUED EMPLOYMENT WILL RESULT IN VIOLATION OF A DISCIPLINARY RULE. 3. THE LAWYER‟S MENTAL OR PHYSICAL CONDITION RENDERS IT UNREASONABLY DIFFICULT TO CARRY OUT THE EMPLOYMENT EFFECTIVELY. 24 4. THE LAWYER IS DISCHARGED BY HIS OR HER CLIENT. C. PERMISSIVE WITHDRAWAL EXCEPT AS STATED IN DR 2-110(A), A LAWYER MAY WITHDRAW FROM REPRESENTING A CLIENT IF WITHDRAWAL CAN BE ACCOMPLISHED WITHOUT MATERIAL ADVERSE EFFECT ON THE INTERESTS OF THE CLIENT, OR IF: 1. THE CLIENT: a. INSISTS UPON PRESENTING A CLAIM OR DEFENSE THAT IS NOT WARRANTED UNDER EXISTING LAW AND CANNOT BE SUPPORTED BY GOOD FAITH ARGUMENT FOR AN EXTENSION, MODIFICAITON, OR REVERSAL OF EXISTING LAW. b. PERSISTS IN A COURSE OF ACTION INVOLVING THE LAWYER‟S SERVICES THAT THE LAWYER REASONABLY BELIEVES IS CRIMINAL OR FRAUDULENT. c. INSISTS THAT THE LAWYER PURSUE A COURSE OF CONDUCT WHICH IS ILLEGAL OR PROHIBITED UNDER THE DRS. d. BY OTHER CONDUCT RENDERS IT UNREASONABLY DIFFICULT FOR THE LAWYER TO CARRY OUT EMPLOYMENT EFFECTIVELY. e. INSISTS, IN A MATTER NOT PENDING BEFORE A TRIBUNAL, THE THAT THE LAWYER ENGAGE IN CONDUCT WHICH IS CONTRARY TO THE JUDGMENT AND ADVICE OF THE LAWYER BUT NOT PROHIBITED BY THE DRS. f. DELIBERATELY DISREGARDS AN AGREEMENT OR OBLIGATION TO THE LAWYER AS TO EXPENSES OR FEES. g. HAS USED THE LAWYER‟S SERVICES TO PERPETUATE A CRIME OR FRAUD. 2. THE LAWYER‟S CONTINUED EMPLOYMENT IS LIKELY TO RESULT IN A VIOLATION OF A DR. 3. THE LAWYER‟S INABILITY TO WORK WITH CO-COUNSEL INDICATES THAT THE BEST INTERESTS OF THE CLIENT LIKELY WILL BE SERVED BY WITHDRAWAL. 4. THE LAWYER‟S MENTAL OR PHYSICAL CONDITION RENDERS IT DIFFICULT FOR THE LAWYER TO CARRY OUT THE EMPLOYMENT EFFECTIVELY. 5. THE LAWYER‟S CLIENT KNOWINGLY AND FREELY ASSENTS TO TERMINATION OF THE EMPLOYMENT. 6. THE LAWYER BELIEVES IN GOOD FAITH, IN A PROCEEDING PENDING BEFORE A TRIBUNAL, THAT THE TRIBUNAL WILL FIND THE EXISTENCE OF OTHER GOOD CAUSE FOR WITHDRAWAL. MR 1.16 DECLINING OR TERMINATING REPRESENTATION (A) EXCEPT AS STATED IN PARAGRAPH (C), A LAWYER SHALL NOT REPRESENT A CLIENT OR, WHERE REPRESENTATION HAS COMMENCED, SHALL WITHDRAW FROM THE REPRESENTATION OF A CLIENT IF: (1) THE REPRESENTATION WILL RESULT IN A VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT OR OTHER LAW; (2) THE LAWYER‟S PHYSICAL OR MENTAL CONDITION MATERIALLY IMPAIRS THE LAWYER‟S ABILITY TO REPRESENT THE CLIENT; OR (3) THE LAWYER IS DISCHARGED. (B) EXCEPT AS STATED IN PARAGRAPH (C), A LAWYER MAY WITHDRAW FROM REPRESENTING A CLIENT IF: (1) WITHDRAWAL CAN BE ACCOMPLISHED WITHOUT MATERIAL ADVERSE EFFECT ON THE INTEREST OF THE CLIENT; (2) THE CLIENT PERSISTS IN A COURSE OF ACTION INVOLVING THE LAWYER‟S SERVICES THAT THE LAWYER REASONABLY BELIEVES IS CRIMINAL OR FRAUDULENT; (3) THE CLIENT HAS USED THE LAWYER‟S SERVICES TO PERPETRATE A CRIME OR FRAUD; (4) A CLIENT INSISTS UPON PURSUING AN OBJECTIVE THAT THE LAWYER CONSIDERS REPUGNANT OR WITH WHICH THE LAWYER HAS A FUNDAMENTAL DISAGREEMENT; (5) THE CLIENT FAILS SUBSTANTIALLY TO FULFILL AN OBLIGATION TO THE LAWYER REGARDING THE LAWYER‟S SERVICES AND HAS BEEN GIVEN REASONABLE WARNING THAT THE LAWYER WILL WITHDRAW UNLESS THE OBLIGATION IS FULFILLED; 25 (6) THE REPRESENTATION WILL RESULT IN AN UNREASONABLE FINANCIAL BURDEN ON THE LAWYER OR HAS BEEN RENDERED UNREASONABLY DIFFICULT BY THE CLIENT; OR (7) OTHER GOOD CAUSE OF WITHDRAWAL EXISTS. (C) A LAWYER MUST COMPLY WITH APPLICABLE LAW REQUIRING NOTICE TO OR PERMISSION OF A TRIBUNAL WHEN TERMINATING A REPRESENTATION. WHEN ORDERED TO DO SO BY A TRIBUNAL, A LAWYER SHALL CONTINUE REPRESENTATION NOTWITHSTANDING GOOD CAUSE FOR TERMINATING THE REPRESENTATION. (D) UPON TERMINATION OF REPRESENTATION, A LAWYER SHALL TAKE STEPS TO THE EXTENT REASONABLY PRACTICABLE TO PROTECT A CLIENT‟S INTEREST, SUCH AS GIVING REASONABLE NOTICE TO THE CLIENT, ALLOWING TIME FOR EMPLOYMENT OF OTHER COUNSEL, SURRENDERING PAPERS AND PROPERTY TO WHICHTHE CLIENT IS ENTITLED AND REFUNDING ANY ADVANCE PAYMENT OF FEE OR EXPENSE THAT HAS NOT BEEN EARNED OR INCURRED. THE LAWYER MAY RETAIN PAPERS RELATING TO THE CLIENT TO THE EXTENT PERMITTED BY OTHER LAW. Mandatory withdrawal illegal conduct unprofessional conduct is demanded Discharge right to discharge the lawyer at any time maybe not court appointed counsel help mentally ill clients Optional Withdrawal The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client‟s interests. Withdrawal is also justified if the client persists in a course action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Past misuse of services is grounds for withdrawal. Client refusal to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation. IV. Money Issues for Attorneys NY DR 2-106 and 5-103 MR 1.5 and Comments NY CPR 2-106 FEE FOR LEGAL SERVICES A. A LAWYER SHALL NOT ENTER INTO AN AGREEMENT FOR, CHARGE OR COLLECT AN ILLEGAL OR EXCESSIVE FEE. B. A FEE IS EXCESSIVE WHEN, AFTER A REVIEW OF THE FACTS, A LAWYER OF ORDINARY PRUDENCE WOULD BE LEFT WITH A DEFINITE AND FIRM CONVICTION THAT THE FEE IS IN EXCESS OF A REASONABLE FEE. FACTORS TO BE CONSIDERED AS GUIDES IN DETERMINING THE REASONABLENESS OF A FEE INCLUDE THE FOLLOWING: 1. THE TIME AND LABOR REQUIRED, THE NOVELTY AND DIFFICULTY OF THE QUESTIONS INVOLVED AND THE SKILL REQUISITE TO PERFORM THE LEGAL SERVICE PROPERLY. 2. THE LIKELIHOOD, IF APPARENT OR MADE KNOWN TO THE CLIENT, THAT THE ACCEPTANCE OF THE PARTICULAR EMPLOYMENT WILL PRECLUDE OTHER EMPLOYMENT BY THE LAWYER. 3. THE FEE CUSTOMARILY CHARGED IN THE LOCALITY FOR SIMILAR LEGAL SERVICES. 4. THE AMOUNT INVOLVED AND THE RESULTS OBTAINED. 5. THE TIME LIMITATIONS IMPOSED BY THE CLIENT OR BY CIRCUMSTANCES. 6. THE NATURE AND LENGTH OF THE PROFESSIONAL RELATIONSHIP WITH THE CLIENT. 7. THE EXPERIENCE, REPUTATION AND ABILITY OF THE LAWYER OR LAWYERS PERFORMING THE SERVICES. 26 8. WHETHER THE FEE IS FIXED OR CONTINGENT. C. A LAWYER SHALL NOT ENTER INTO AN ARRANGEMENT FOR, CHARGE OR COLLECT: 1. A CONTINGENT FEE FOR REPRESENTING A DEFENDANT IN A CRIMINAL CASE; OR 2. ANY FEE IN A DOMESTIC RELATIONS MATTER: a. THE PAYMENT OR AMOUNT OF WHICH IS CONTINGENT UPON THE SECURING OF A DIVORCE OR UPON THE AMOUNT OF MAINTENANCE, SUPPORT, EQUITABLE DISTRIBUTION, OR PROPERTY SETTLEMENT; OR b. UNLESS A WRITTEN RETAINER AGREEMENT IS SIGNED BY THE LAWYER AND CLIENT SETTING FORTH IN PLAIN LANGUAGE THE NATURE OF THE RELATIONSHIP AND THE DETAILS OF THE FEE ARRANGEMENT. A LAWYER SHALL NOT INCLUDE IN THE WRITTEN RETAINER AGREEMENT A NONREFUNDABLE FEE CLAUSE; OR c. BASED UPON A SECURITY INTEREST, CONFESSION OR JUDGMENT OR OTHER LIEN, WITHOUT PRIOR NOTICE OTHE THE CLIENT IN A SIGNED RETAINER AGREEMENT AND APPROVAL FROM THE COURT AFTER NOTICE TO THE ADVERSARY. A LAWYER SHALL NOT FORECLOSE ON A MORTGAGE PLACED ON THE MARITAL RESIDENCE WHILE THE SPOOUSE WHO CONSENTS TO THE MORTGAGE REMAINS THE TITLEHOLDER AND THE RESIDENCE REMAINS THE SPOUSE‟S PRIMARY RESIDENCE. 3. A FEE PROSCRIBED BY A LAW OR RULE OF COURT. D. PROMPTLY AFTER A LAWYER HAS BEEN EMPLOYED IN A CONTINGENT FEE MATTER, THE LAWYER SHALL PROVDE THE CLIENT WITH A WRITING STATING THE METHOD BY WHICH THE FEE IS TO BE DETERMINED, INCLUDING THE PERCENTAGE OR PERCENTAGES THAT SHALL ACCRUE TO THE LAWYER IN THE EVENT OF SETTLEMENT, TRIAL OR APPEAL, LITIGATION, AND OTHER EXPENSES TO BE DEDUCTED FROM THE RECOVERY AND WHETHER SUCH EXPENSES ARE TO BE DEDUCTED BEFORE OR AFTER THE CONTINGENT FEE IS CALCULATED. UPON CONCLUSION OF A CONTINGENT FEE MATTER, THE LAWYER SHALL PROVIDE THE CLIENT WITH A WRITTEN STATEMENT STATING THE OUTCOME OF THE MATTER, AND IF THERE IS A RECOVERY, SHOWING THE REMITTANCE TO THE CLIENT AND THE METHOD OF ITS DETERMINATION. E. WHERE REPRESENTATION IS IN A CIVIL MATTER, A LAWYER SHALL RESOLVE FEE DISPUTES BY ARBITRATION AT ELECTION OF THE CLIENT PURSUANT TO A FEE ARBITRATION PROGRAM ESTABLISHED BY THE CHIEF ADMISTRATOR OF THE COURTS AND APPROVED BY THE JUSTICES OF THE APP DIV. F. IN DOMESTIC RELATIONS MATTERS, A LAWYER SHALL PROVIDE A PROSPECTIVE CLIENT WITH A STATEMENT OF CLIENT‟S RIGHTS AND RESPONSIBILITIES AT THE INTIAL CONFRENCE AND PRIOR TO THE SIGNING OF A WRITTEN RETAINER AGREEMENT. The Model Rule 1.5 is substantially similar to the NY rule, except it has a part about fee splitting: (E) A DIVISION OF FEE BETWEEN LAWYERS WHO ARE NOT IN THE SAME FIRM MAY BE MADE ONLY IF: (1) THE DIVISION IS IN PROPORTION TO THE SERVICES PERFORMED BY EACH LAWYER OR EACH LAWYER ASSUMES JOINT RESPONSIBILITY FOR THE REPRESENTATION. (2) THE CLIENT AGREES TO THE ARRANGEMENT, INCLUDING THE SHARE EACH LAWYER WILL RECEIVE, AND THE AGREEMENT IS CONFIRMED IN WRITING; AND (3) THE TOTAL FEE IS REASONABLE. Fee splitting is handled in NY in DR 2-107. A. A LAWYER SHALL NOT DIVIDE A FEE FOR LEGAL SERVICES WITH ANOTHER LAWYER WHO IS NOT A PARTNER OR ASSOCIATE OF THE LAWYER‟S FIRM OR LAW OFFICE, UNLESS: 1. THE CLIENT CONSENTS TO EMPLOYMENT OF THE OTHER LAWYER AFTER A FULL DISCLOSURE THAT A DIVISION OF FEES WILL BE MADE. 2. THE DIVISION IS IN PROPORTION TO THE SERVICES PERFORMED BY EACH LAWYER OR, BY A WRITING GIVEN TO THE CLIENT, EACH LAWYER ASSUMES JOINT RESPONSIBILITY FOR THE REPRESENTATION. 3. THE TOTAL FEE OF THE LAWYERS DOES NOT EXCEED REASONABLE COMPENSATION FOR ALL LEGAL SERVICES THEY RENDERED TO THE CLIENT. 27 B. THIS DISCIPLINARY RULE DOES NOT PROHIBIT PAYMENT TO A FORMER PARTNER OR ASSOCIATE PURSUANT TO A SEPARATION OR RETIREMENT AGREEMENT. The Role of the Marketplace Brobeck, Phleger and Harrison v. Telex Corp. (9th Cir. 1979, p. 146) Plaintiff is suing defendant to recover $1million in attorney‟s fees. The parties entered into a contingency fee agreement wherein Telex would pay the firm $ 25K retainer and a contingent fee that shall not be less than $1M (to prepare a petition for cert after $ 259.5 million dollar jmt in Telex‟s favor against IBM was reversed, also IBM was awarded 18.5 M in a counterclaim against Telex). Brobeck filed the claim, found out petition was to be granted then Telex entered a wash settlement agreement with IBM. Brobeck sent Telex a bill and Telex refused to pay. Telex contends that the 1 million dollar fee was so excessive as to render it unenforceable. Whether a contract is fair or works an unconscionable hardship is determined with reference to the time when the contract is made and cannot be resolved by hindsight. The court found that the contract between Telex and Brobeck was not so unconscionable that no man in his senses and not under a delusion would make on the one hand, and as no honest an fair man would accept on the other. Brobeck‟s petition provided Telex with the leverage to secure a discharge of its counterclaim judgment, thereby saving it from possible bankruptcy in the event the Supreme Court denied its petition. Telex, a multi-million dollar corporation sought to secure the best attorney (Mo Lasky) it could find to prepare its petition for cert. Courts have broad authority to refuse to enforce contingent fee arrangements that award excessive fees. Unethical Fees Matter of Fordham (Mass 1996, p. 154) Father looking for a complete acquittal for his son on DUI charges. By coincidence father hooks up with attorney Fordham, an experience trial attorney, but never handled a criminal matter, told father didn‟t have the experience in DUI cases, but believed he could do it and described himself as efficient. He got the son off but his bills totaled over $ 50K. ‟s father goes to the disciplinary committee lawyer not only is out the money, but also gets disciplined. The lawyer was candid and straightforward about the billing up front and did get what the client wanted, but lawyer inexperience in criminal defense work can‟t justify the extraordinarily high fee (3-4times as much as an experienced lawyer for the same service), a client shouldn‟t be expected to pay for the education of a lawyer who spends time substantially in excess of what a prudent lawyer would have spent. The r‟ableness of the fee is to be considered in comparison to the fee customarily charged in the locality for similar services. How to reconcile Mo Lasky getting his fee and Fordham not? Sophistication of the clients is one reason. If a fee is likely to be completely out of line with what competing lawyers generally charge for the same service, then even if you think it is justified b/c of unusual factors (your special skill, the client‟s comfort level, complete disclosure), you had better go out of your way to explain everything in great detail. Paternalism present in the second case for Fordham‟s client that was not present with the sophisticated client. Contingent fee safe harbors defined in court rules by a standard schedule (1/3rd) or sliding scale depending on the size of the pie. Effective this Marchwritten letter of arrangement required. Shall include the scope of the services, an explanation of the fee, expenses and billing, right to arbitration where applicable. Formal requirement of 28 written notice, only off the hook if expect less than $3,000, pre-exiting relationship. Very paternalistic, not trusting you with your client, but in a litigious society with client suing their lawyers there is a lot of unhappiness. But engagement letter is very off-putting, front-loads the irritation. - It seems that there is a double standard—if you are a big name lawyer with a big rich client you can charge whatever you want, but if you are the small guy the courts are going to scrutinize your fees. - Discipline is not the only risk faced by lawyers who charge excessive fees or otherwise unethical fees, as courts have the authority to deny the fee altogether. - One court that did not allow any fee stated that a violation of DR 2-106 is an ethical transgression of a most flagrant sort as it goes directly to the heart of the fiduciary relationship that exists between attorney and client—to permit an attorney to fall back on the theory of quantum meruit when he unsuccessfully fails to collect a clearly excessive fee does absolutely nothing to promote ethical behavior—on the contrary this interpretation would encourage attorneys to enter exorbitant fee contracts, and be able to fall back on the safety of quantum meruit. Nonrefundable Fees Matter of Cooperman (NY 1994, p. 167) Issue: Whether attorney violated Code by repeatedly using special nonrefundable retainer fee agreements with his clients. Arrangements market by the payment of a nonrefundable fee for specific services, in advance and irrespective of whether any professional services were actually rendered (special retainer that wasn‟t refundable after attorney filed a notice of appearance). Held: The use of a special nonrefundable retainer fee agreement clashes with public policy because it inappropriately compromises the right to sever the fiduciary services relationship with the lawyer. Nonrefundable retainer fee agreements diminish the core of the fiduciary relationship by substantially altering and economically chilling the client‟s unbridled prerogative to walk away from the lawyer. This discharge power is a serious part of what the legal profession provides to the public. If the court literally means unfettered right to discharge then the rationale shouldn‟t depend on the size of the amount. HWR minimum fee arrangements and general retainers that provide for fees, not laden with the nonrefundability impediment irrespective of any services, will continue to be valid and not subject in and of themselves to professional discipline. A retainer fee should be in writing, but a contingent fee must be in writing. General retainersagreement between attorney and client in which the attorney agrees to pay a fixed sum in exchange for the attorney‟s promise to be available to perform, at an agreed price, any legal services that arise during a specified period. Fee in exchange for availability, separate charge from fees for services actually rendered. Some clients, particularly those who regularly retain lawyers, bargain for innovative fee arrangements that limit the right to discharge in exchange for lower fees. It would thus be counterproductive to preclude clients from bargaining for a reduction in fees in exchange for a reasonable limitation on the right to discharge the lawyer. The court did not hold that unrefundable retainers are per se unenforceable. There are many circumstances where, for example, preclusion of other representations or guaranteed priority of access to an attorney‟s advice may justify such an arrangement. C gets right to use firm name and availability. 29 Cravath gets to do it, but Cooperman doesn‟t. Difference comes down to economic clout, hard to defend otherwise on the court‟s broad language. Contingent Fees and Statutory Limits Fee depends on the occurrence or nonoccurrence of an event. Most prevalent in the personal injury area. A lawyer can agree that she will be entitled to a fee only if she achieves a particular result for a client. Or a percentage of the amount of money he saves the client. Contingent fees are generally forbidden in matrimonial or criminal cases. Whether a contingent fee is more favorable to the lawyer than an hourly fee depends on 5 factors: 1. the likelihood of the occurrence of the contingency 2. when it is likely to occur 3. probable size of the recovery 4. the amount of work required 5. amount of the lawyer‟s percentage. Define arrangement explicitly Statutory fee caps (re: standard 1/3 or sliding scale). Additional detail (1st dep‟t): required to file retainer stmt, deposit collection with registry of the court, inform client of collections, required to file closing statement with the court, required to disburse proceeds in a timely fashion. Settlement Contingent of Waiving Fee Recovery Evans v Jeff D. (SCt 1986) Fee award statuteaward attorney fees to prevailing party at the judges discretion from the government fisc in enumerate civil rights actions. Incentive for attorneys to provide services to , expensive litigation against the government (contingent fees no good b/c usual remedy is an injunction). Arguable conflict‟s relief conditioned on fee waiver. Stevens doesn‟t see it that way since the ends belong to the client. No ethical duty to seek fees, it the settlement reaches the client‟s objectives then no pinch. Ethical duty is to counsel client and meet client‟s objectives. Any alternative for the attorney? Could stipulate at the outset, or Simultaneous negotiationsshould be able to do on both the merits of C‟s claim and the settlement of A‟s fees (hard to see how it works mechanically). $ always pits A against C Lawyers Dividing Fees (Who Gets the Money?) DR 2-107 & 2-108 MR 5.6 Two contexts: within the firm and attorney‟s as separate entities. For a partner to benefit financially for bringing in a client does not mean that the partner has to work on the case. In fact may firms have what they call rainmakers who do not do much legal work but rather just specialize in bringing in clients. Partners also make money from associate time—the rule of thumb is that associate time is billed at an hourly rate the when multiplied by the number of hours worked will yield three times the associates salary. One third goes to the associate as salary, one third to support him (ie space, secretary etc), and the remaining third goes to the partners. 30 DR 2-108 AGREEMENTS RESTRICTING THE PRACTICE OF A LAWYER A. A LAWYER SHALL NOT BE A PARTY TO OR PARTICIPATE IN A PARTNERSHIP OR EMPLOYMENT AGREEMENT WITH ANOTHER LAWYER THAT RESTRICTS THE RIGHT OF A LAWYER TO PRACTICE LAW AFTER THE TERMINATION OF A RELATIONSHIP CREATED BY THE AGREEMENT, EXCEPT AS A CONDITION TO PAYMENT OF RETIREMENT BENEFITS. B. IN CONNECTION WITH THE SETTLEMENT OF A CONTROVERSY OR SUIT, A LAWYER SHALL NOT ENTER INTO AN AGREEMENT THAT RESTRICTS THE RIGHT OF A LAWYER TO PRACTICE LAW. MR 5.6 RESTRICTIONS ON RIGHT TO PRACTICE A LAWYER SHALL NOT PARTICIPATE IN OFFERING OR MAKING: (a) A PARTNERSHIP, SHAREHOLDERS, OPERATING, EMPLOYMENT, OR OTHER SIMILAR TYPE OF AGREEMENT THAT RESTRICTS THE RIGHT OF A LAWYER TO PRACTICE AFTER TERMINATION OF THE RELATIONSHIP, EXCEPT AN AGREEMENT CONCERNING BENEFITS UPON RETIREMENT; OR (b) AN AGREEMENT IN WHICH A RESTRICTION ON THE LAWYER‟S RIGHT TO PRACTICE IS PART OF THE SETTLEMENT OF A CLIENT CONTROVESRY. What about division outside the firm? To divide fees outside the firm, Rule 1.5 allows a fee division in proportion to the services performed by each lawyer. With the written agreement of the client, a fee division is also permissible if each lawyer assumes joint responsibility for the representation. Two bases: proportionality based on work or under joint responsibility can divide however A‟s see fit since assuming liability. NY is in the same place as the Model Rules. What about division of clients? If you‟re a departing lawyer what can you tell your clients? Think hard and tread carefullygrowing liability law. Free to communicate plan to clients that will be leaving firm, allowed to say where you‟re going. If telling to clients haven‟t actually worked forcrossing the solicitation line. MR 1.17 deals with the selling of a law firm (in a sense buying clients). Mandatory Pro Bono Plans NY EC‟s 2-25, 8-3, and 8-9 MR 6.1 and Comments MR 6.1 Voluntary Pro Bono Publico Service EVERY LAWYER HAS A PROFESSIONAL RESPONSIBILITY TO PROVIDE LEGAL SERVICES TO THOSE UNABLE TO PAY. A LAWYER SHOULD ASPIRE TO RENDER AT LEAST 50 HOURS OF PRO BONO PUBLICO LEGAL SERVICES PER YEAR. IN FULFILLING THIS RESPONSIBILITY, THE LAWYER SHOULD: (a) PROVIDE A SUBSTANTIAL MAJORITY FO TE 50 HOURS OF PRO BONO PUBLICO SERVICES WITHOUT FEE OR EXPECTATION OF FEE TO: (1) PERSONS OF LIMITED MEANS OR (2) CHARITABLE, RELIGIOUS, CIVIC, COMMUNITY, GOVERNMENTAL AND EDUCATIONAL ORGANIZATIONS IN MATTERS WHICH ARE DESIGNED PRIMARILY TO ADDRESS THE NEEDS OF PERSONS OF LIMITED MEANS, AND (B) PROVIDE ANY ADDITIONAL SERVICES THROUGH: (1) DELIVERY OF LEGAL SERVICES AT NO FEE OR A SUBSTANTIALLY REDUCED FEE TO PUBLIC SERVICE OR CHARITABLE GROUPS OR ORGANIZATIONS, INDIVIDUALS, GROUPS OR ORGANIZATIONS SEEKING TO SECURE OR PROTECT CIVIL RIGHTS, CIVIL LIBERTIES OR PUBLIC RIGHTS, OR CHARITABLE, RELIGIOUS, CIVIC, COMMUNITY, GOVERNMENTAL AND EDUCATIONAL 31 ORGANIZATIONS IN MATTERS IN FURTHERANCE OF THEIR ORGANIZATIONAL PURPOSES, WHERE THE PAYMENT OF STANDARD LEGAL FEES WOULD SIGNIFICANTLY DEPLETE THE ORGANIZATION‟S ECONOMIC RESOURCES OR WOULD BE OTHERWISE INAPPROPRIATE; (2) DELIVERY OF LEGAL SERVICES AT A SUBSTANTIALLY REDUCED FEE TO PERSONS OF LIMITED MEANS; OR (3) PARTICIPATION IN ACTIVITIES FOR IMPROVING THE LAW, THE LEGAL SYSTEM OR THE LEGAL PROFESSION. IN ADDITION, A LAWYER SHOULD VOLUNTARILY CONTRIBUTE FINANCIAL SUPPORT FOR ORGANIZATIONS THAT PROVIDE LEGAL SERVICES TO PERSONS OF LIMITED MEANS. NY CPR EC 2-25 and 8-3 EC 2-25—A lawyer has an obligation to render public interest and pro bono legal service. A lawyer may fulfill this responsibility by providing professional services at no fee or at a reduced fee to individuals of limited financial means or to public service or charitable groups or organizations, or by participation in programs and organizations specifically designed to increase the availability of legal services. In addition, lawyers or law firms are encouraged to supplement this responsibility through the financial and other support of organizations that provide legal services to persons of limited means. EC 8-3—The fair administration of justice requires the availability of competent lawyers. Members of the public should be educated to recognize the existence of legal problems and the resultant need for legal services, and should be provided methods for intelligent selection of counsel. Those persons unable to pay for legal services should be provided needed services. Clients and lawyers should not be penalized by undue geographical restraints upon representation in legal matters, and the bar should address itself to improvements in icensing, reciprocity, and admission procedures consistent with the needs of modern commerce. 80-85% of the legal needs of the poor are unmet. Voluntary Rule 6.1aspirational. 50 hours of time should be given to those in need. Should make a mandatory rule? Compelled attorneys grudgingly performing pro bono? They may suck, but better than having the poor do it themselves. Less than perfect, but not a bad idea. V. Conflicts of Interest A conflict of interest is involved if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s duties to another current client, a former client, or a third person. Goal of the prohibitions is to deliver independent professional judgment to clients. From a C‟s perspective the value of A is in loyalty and confidencesif A is pulled away, conflicted, then they are jeopardized and problems arise with delay, expense, inefficiency. From the A‟s perspective discipline (although not a lot a A‟s get disciplined for: hard to prove), possible affect of future business, harm to reputation (depends on what kind of client disappointed), possible disqualification (argument play out more in litigation context), liability for malpractice. Distinctions between concurrent and successive conflicts of interest: In a concurrent conflict situation, the lawyer may have loyalties divided between two or more clients. A lawyer representing co-defendants in a civil or criminal case may find that one wants to blame the other. Or the prosecutor may tell a lawyer that she is prepared to offer one of two criminal clients a generous plea bargain in exchange for testimony against the other client. 32 Concurrent conflicts need not be between or among current clients. The lawyer may have personal interests of his or her own at odds with those of a client. Canon 5 says that a lawyer should exercise independent professional judgment on behalf of a client, a direction that would presumably be difficult where the lawyer is influenced by the contrary interests of another client or another person or the lawyer‟s own interests. Obligations a lawyer has to a former client may limit the lawyer‟s ability to accept work for a new client. The term successive conflicts means a situation wherein an attorney represented client A against a company on a particular issue, then later he represented someone else against client A. Should we impute conflicts to partners or associates of the firm where the first attorney with the conflict worked? What about government to private sector and vice versa („the revolving door‟)? Note the advocate witness rule, which seeks to avoid a conflict between the lawyer‟s interest in being an advocate and the interest of the client, the adversary, or the system of justice in have the lawyer testify. In dealing with entity representation, employees can present conflict problems. Conflicts rules set a ceiling on firm size (p. 235), have an effect on law as a business. The more restrictive less mobility, reduction in firm size. CONCURRENT CONFLICTS OF INTEREST NY DRs 5-101 5-105 MR 1.7 DR 5-101 CONFLICTS OF INTERESTSLAWYER’S OWN INTERESTS A. A LAWYER SHALL NOT ACCEPT OR CONTINUE EMPLOYMENT IF IN THE EXERCISE OF PROFESSIONAL JUDGMENT ON BEHALF OF THE CLIENT WILL BE OR REASONABLY MAY BE AFFECTED BY THE LAWYER‟S OWN FINANCIAL, BUSINESS, PROPERTY, OR PERSONAL INTERESTS, UNLESS A DISINTERESTED LAWYER WOULD BELIEVE THE REPRESENTATION OF THE CLIENT WILL NOT BE ADVERSELY AFFECTED THEREBY AND THE CLIENT CONSENTS AFTER FULL DISCLOSURE OF THE IMPLICATIONS OF THE LAWYER‟S INTEREST. Self-policing rule, really an external limit? Note: hypothetical mental exercise “a disinterested lawyer” Client consent after full disclosure of lawyer‟s interest, put on lawyer to identify interest. DR 5-105 CONFLICT OF INTERESTSIMULTANEOUS RELATIONSHIP A. (FUTURE EMPLOYMENT) A LAWYER SHALL DECLINE PROFFERED EMPLOYMENT IF IN THE EXERCISE OF INDEPENDENT PROFESSIONAL JUDGMENT IN BEHALF OF THE CLIENT WILL BE OR IS LIKELY TO BE ADVERSELY AFFECTED BY THE ACCEPTANCE OF THE PROFFERED EMPLOYMENT, OR IF IT WOULD BE LIKELY TO INVOLVE THE LAWYER IN REPRESENTING DIFFERING INTERESTS, EXCEPT TO THE EXTENT PERMITTED UNDER PROVIDED FOR IN (C). B. (CURRENT REPRESENTATION) A LAWYER SHALL NOT CONTINUE MULTIPLE EMPLOYMENT IF THE EXERCISE OF INDEPENDENT PROFESSIONAL JUDGMENT IN BEHALF OF A CLIENT WILL BE OR IS LIKELY TO BE ADVERSELY AFFECTED BY THE LAWYER‟S REPRESENTATION OF ANOTHER CLIENT, OR IF IT IS WOULD LIKELY INVOLVE THE LAWYER IN REPRESENTING DIFFERING INTERESTS, EXCEPT TO THE EXTENT PERMITTED UNDER(C). C. (PERMISSIVE MULTIPLE REPRESENTATIONS) IN SITUATIONS COVERED BY (A) AND (B), A LAWYER MAY REPRESENT MULTIPLE CLIENTS IF (I) A DISINTERESTED LAWYER WOULD BELIEVE THAT THE LAWYER CAN COMPETENTLY REPRESENT THE INTEREST OF EACH AND (II) IF EACH CONSENTS TO THE REPRESENTATION AFTER FULL DISCLOSURE OF THE IMPLICATIONS OF SIMULTANEOUS REPRESENTATION AND THE ADVANTAGES AND RISKS INVOLVED (MORE YOU TELL THE BETTER OFF YOU ARE). 33 D. (LAW FIRM SETTING) WHILE LAWYERS ARE ASSOCIATED IN A LAW FIRM, NONE OF THEM SHALL KNOWINGLY ACCEPT OR CONTINUE EMPLOYMENT WHEN ANY ONE OF THEM PRACTICING ALONE WOULD BE PROHIBITED FROM DOING SO UNDER (A) OR (B), DR 5-101, 5-108 (A) OR (B) OR 9-109(B) EXCEPT AS OTHERWISE PROVIDED THEREIN. E. (MAINTAINING RECORDS) A LAW FIRM SHALL KEEP RECORDS OF PRIOR ENGAGEMENTS, WHICH RECORDS SHALL BE MADE AT OR NEAR THE TIME OF SUCH ENGAGEMENTS AND SHALL HAVE A POLICY IMPLEMENTING A SYSTEM BY WHICH PROPOSED ENGAGEMENTS ARE CHECKED AGAINST CURRENT AND PREVIOUS ENGAGEMENTS… .FAILURE TO KEEP SUCH RECORDS IS A VIOLATION BY THE FIRM. IN CASES WHERE THE FAILURE TO KEEP SUCH RECORDS IS A SUBSTANTIAL FACTOR IN CAUSING A VIOLATION OF (D) BY A LAWYER, THE FIRM, AS WELL AS THE INDIVIDUAL LAWYER, SHALL ALSO BE RESPONSIBLE FOR THE VIOLATION OF (D). MR 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS (a) EXCEPT AS PROVIDED BY PARAGRAPH (B), A LAWYER SHALL NOT REPRESENT A CLIENT IF THE REPRESENTATION OF THAT CLIENT INVOLVES A CONCURRENT CONFLICT OF INTEREST. A CONCURRENT CONFLICT OF INTEREST EXISTS IF: (1) THE REPRESENTATION OF ONE CLIENT WILL BE DIRECTLY ADVERSE TO ANOTHER CLIENT; OR (2) THERE IS A SIGNIFICANT RISK THAT THE REPRESENTATION OF ONE OR MORE CLIENTS WILL BE MATERIALLY LIMITED BY THE LAWYER‟S RESPONSIBILITIES TO ANOTHER CLIENT, A FORMER CLIENT OR A THIRD PERSON OR BY A PERSONAL INTEREST OF THE LAWYER. (b) NOTWITHSTANDING THE EXISTENCE OF A CONCURRENT CONFLICT OF INTEREST UNDER PARAGRAPH (A), A LAWYER MAY REPRESENT A CLIENT IF: (1) THE LAWYER REASONABLY BELIEVES THAT THE LAWYER WILL BE ABLE TO PROVIDE COMPETENT AND DILIGENT REPRESENTATION TO EACH AFFECTED CLIENT; (2) THE REPRESENTATION IS NOT PROHIBITED BY LAW; (3) THE REPRESENTATION DOES NOT INVOLVE THE ASSERTION OF A CLAIM BY ONE CLIENT AGAINST CLIENT REPRESENTED BY THE LAWYER IN THE SAME LITIGATION OR OTHER PROCEEDING BEFORE A TRIBUNAL; AND (4) EACH AFFECTED CLIENT GIVES INFORMED CONSENT, CONFIRMED IN WRITING. ClientLawyer Conflicts NY DR 5-104 MR 1.8 Business Interests Matter of Neville (Az 1985, p. 235) Neville was an attorney that represented BLY in real estate matters. Neville bought options in certain of Bly‟s properties. Then Neville, Bly and a third party entered into a contract, drafted by Neville, under which Bly‟s property in which Neville had an option would go to the third party, the third party‟s property would go to Neville, and Neville would give Bly a promissory note (with terms that are not advantageous to Bly). Issues: Does DR 5-104 only apply to those transactions on which the lawyer is representing the client? Does it require scienter? What is the standard to qualifying for the exception to the rule? BROAD NATURE OF THE RULE: (Issue #1)- the Rule is NOT transactional. A fiduciary duty exists b/t a lawyer and his client and it is not narrowly limited to specific transactions the lawyer is lawyering on. It exists as long as there is an attorney client relationship, as long as influence arising from an AC relationship continues. Client‟s can be expected to assume that one whom they‟ve come to look upon as their lawyer will protect them, or at least, not harm them. 34 NO SCIENTER NEEDED: (Issue #2)- It does not matter that an attorney may not have intent to defraud his client or act with improper motives. The rule contains no words which limit its applicability to cases where scienter is shown. EXCEPTION: (Issue #3)- NEED FULL DISCLOSURE! Saying that not acting as lawyer in this matter is not enough. Layperson just might think not going to have to pay, not that situation is one in which he must protect himself from his own lawyer. Full disclosure requires NOT ONLY an explanation of the divergence in interest between the lawyer and the client and an explanation about the need to seek independent counsel, BUT ALSO a detailed explanation of the risks and disadvantages to the client which flow from the arrangement. Need to go through with the client term-by-term. Need to fully explain all items that are either advantageous to the lawyer or disadvantageous to the client. Not only does this require proper disclosure of the conflict but also every circumstance and every fact which the client should know to make an intelligent decision concerning the wisdom of entering the agreement. THEN need consent. Problem: Duty to advise term by term might not be proven short of cratering the deal itself Very trick area, tricky rule, hard to remove lawyer‟s hat. HOW CAN ATTORNEY PROTECT HIMSELF? Best way is NOT deal w/ former client. The only concrete way is for attorney to provide full disclosure, get consent, and have client get a new independent counsel on the matterusually this type of disclosure results in the blow up of the deal. DR 5-104(A) attempt to create a safe harbor for business transactions between a lawyer and a client: A lawyer shall not enter into a business transaction with a client IF they have differing interests therein and IF the client expects the lawyer to exercise professional judgment therein for the protection of the client, UNLESS: 1. The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client AND are fully disclosed AND transmitted to the client in a manner that can reasonably be understood by the client; 2. The lawyer advises the client to seek the advice of independent counsel in the transaction; AND 3. The client consents in writing, after full disclosure, to the terms of the transaction and to the lawyer‟s inherent conflict of interest in the transaction. MR 1.8(a) has substantially the same factors as DR 5-104(a). NOTE: Postretainer fee agreementsafter payment of a retainer, the C and the A have a fiduciary relationship, C will have come to depend and assume that A is protecting C‟s interests not likely to see postretainer deals as being at arm‟s length and neither do courts. The language of the rules is broad enough to apply to fee arrangements entered into after creation of the professional relationship. This is a business transaction with a client proceed with caution b/c the rule applies. Acquisition of equity interest when accepting stock in lieu of standard fees will be viewed as a business transaction covered by these rules. (Also raises issues with regards to Rule 1.7, ABA opinion approves of but with lots of cautions). Media Rights Rule 1.8(d) and DR 5-104(B) forbid lawyers to acquire publicity rights to a story based on the subject of the representation before its conclusion. Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving literary or media rights to a portrayal or account based in substantial part on information relating to the representation. 35 The potential for conflict resides in the lawyer‟s interest in a better story, which may not be in accord with the client‟s best interest is the state negotiates a generous plea offer. Ca case held that a criminal has a DP right to promise counsel the media rights to his story if the knowingly waives the consequent potential conflict. No rule prevent a lawyer from negotiating media rights with a client after the representation has ended, which makes the rule only cosmetic since knew all along that could get the rights, so the same temptation exists during the trial anyway. Financial Assistance and Proprietary Interest Neither the Code nor the Model Rules permit a lawyer to advance more than court costs and the expenses of litigation. Both exclude living and medial expenses (Rule 1.8(e), 5-103(B)). In NY the client must remain ultimately responsible for such expenses. Under the MR the repayment may be contingent on the outcome, and if representing an indigent client a lawyer may pay court costs and expenses of litigation on behalf of the client (MR 1.8(e)(2), 5-103(B)(2)). It is said that the rule‟s purpose is to prevent clients from selecting a lawyer based on improper factors, avoiding unfair competition among lawyer on the basis of expenditures on clients. Persuasive? Choice is always fettered by practical concerns. RATIONALE: do NOT want lawyers attracting clients by offering them money; want to prevent a bidding war for clients from breaking out. Important public policy interest of avoiding unfair competition among lawyers on the basis of their expenditures to clients. Also there is concern that at some point the lawyer will just want to settle in order to stop ongoing costs, to put an end to the bills he is paying on the client‟s behalf. Counter-arg: If A‟s bid against each other, it decreases costs to C. Response: Big firms can advance litigation costs, small can‟t. Proprietary interest: A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for the client, EXCEPT the lawyer may (1) acquire a lien authorized by law to secure the lawyer‟s fee or expense; and (2) contract with a client for a reasonable contingent fee in a civil case (MR 1.8(i), NY DR 5-103(A)). Fee-Payor Interest INVOLVES: a lawyer getting paid by one person to represent another person. Egbills being paid by parent, insurance company, etc. CONFLICT: that the lawyer will respond to the money/fee payor and not to the concerns of the client. So that the interests of the payor and not the client are motivating the lawyer and therefore interfering w/ what may be in the client‟s best interests. RULES: DR 5-107(A)(1) and MR 1.8(f) permit these payments under certain circumstances. The client must give informed consent The payor must not interfere with the lawyer’s independence of professional judgment OR w/ the client lawyer relationship; AND Information relating to the representation is protected as required by Rule 1.6 (lawyer must protect client confidences). NOTE: the lawyer should make the fee payor aware of the fact that the fact and amount of the payment will not likely be privileged RELEASE VALVES 36 Extreme financial difficulty is a permissive w/drawal ground, EXCEPT if you‟re before a tribunal, need their approval. Have the fee payor pay in advance to cover this possibility and then bill against it. Related Lawyers and Significant Others DR 9-101(D) A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent in any matter a client whose interest differ from those of another party to the matter who the lawyer knows is represented by the other lawyer UNLESS the client consents to the representation after full disclosure and the lawyer concludes that the lawyer can adequately represent the interest of the client. (Note: not in MR 1.8(i) anymore). Avoiding even the appearance of impropriety problem. Rule extents to POSSLQ‟s (people of opposite sex sharing living quarter). CASE: Gellman v Hilal (NY 1994, p. 251) FACTS: ‟s attorney‟s wife represented the ‟s on another malpractice action involving the same medical procedure as this case. 1st: C(Dr‟s)—A(Wife-Brody) 2 nd: C()—A(Husband, Bogaty) v. Dr‟s CONFLICT: Dr‟s are worried about „pillow talk.‟ That the wife has their confidences, has already been paid her fees from the 1st case, and now has a financial and emotional interest in the outcome of this subsequent case. HELD: the Court denied the ‟s motion to have the ‟s attorney disqualified, stating that the possible conflict is checked by all other rules of professional ethics. The wife‟s professional responsibilities will prevent her from spilling confidencesthere are rules against this specifically. (MR is same). NOT CLIENT SENSITIVE: the court is valuing the diversity of the profession over the client‟s concerns here. Do not want to affect the market choice of who gets to be lawyersfinding a conflict here will affect lawyer/lawyer relationships, specifically the hiring of women. Prof: Case decided correctly on the rule, (9-101(D)), but isn‟t more protection needed when cases are not concurrent (if it were it would have been prohibited) & spouses are not being extra careful. Most lawyers are probably breaking the ethics rules & telling their spouses about stuff. Gender, Religion, Race Karen Horowitz Dilemma: NY Jew & Southern jury don‟t mix Does Partner have a conflict of interest? Does Karen have one? (Maybeshe wants to break stereotype, personal interest in being there v C‟s best chance of winning). She knows she will be a negative on the case. How do the rules guide us? MR 1.7 & DR 5-101. MR: Is her representation materially limited by the prejudicial reaction? Does representation mean result or advocacy? Unclear. Prof: Rule probably has a broad definition meaning more than the formalities of performancewritten in terms of the effectiveness that the client is looking for. DR: Test is easierthe disinterested lawyer. Easier to say she‟s out of the case. Prof: Under both rules, she‟s out. Partner should: (1) never have let her work on it in 1 st place (2) never taken the C, or (3) Let C know about it & allow them to consent up front. 37 ClientClient Conflicts Criminal Defense Lawyers Issues of concurrent conflicts between clients in criminal representation arise when a single attorney represents two or more suspects or defendants. Because criminal defendants are involved, constitutional principles also define the governing rules. A conflicted lawyer may (or may not) have been constitutionally ineffective w/i the meaning of the 6th Amendment; OR disqualification of a criminal defense lawyer may violate the accused‟s right to counsel of choice. Because these issues are intertwined with the 6th Amendment, the question of whether counsel faced a conflict of interest is only part of the analysis. Another issue is the kind of harm a must show to win relief. Cuyler v Sullivan (SCt 1980, p. 261) accused of murder, along with two accomplices. tried separately, his trial occurring first. His attorneys rested w/o presenting evidence. was convicted. He appealed, claiming he was denied effective assistance of counsel b/c of lawyers conflict of interest. Attorney testified that he didn‟t wish to reveal the testimony of certain witnesses, in view of the upcoming trial of the accomplices. The other ‟s were later acquitted. There is not a per se prohibition on multiple representation. Judge doesn‟t inquire on the front end about, if nobody objects (in the federal system there is a duty to inquire, but no a constitutional one). Not raising a defense is not per se deficientif attorney believes that the government has carried their burden of proof then can let it go to the jury w/o complicating things further. In order to establish a violation of the 6th Amendment, a who raised no objection at trial must demonstrate: (1) An actual conflict of interest (2) That adversely affected his lawyer’s performance Under Strickland a must normally demonstrate prejudice to prevail on a claim of ineffective assistance of counselproven by: An objective deficiency in counsel‟s performance (was it reasonable considering all the circumstances?), AND That had an outcome determinative costbut for the deficiency the outcome of the trial would have been different. It is easier for a who claims ineffective assistance of counsel based on a conflict to prevail than it is for a claiming other kinds of ineffectiveness. While the fact of an actual conflict will not generally result in automatic reversal of a conviction, neither must the show Strickland-type prejudice (presume prejudice if an actual conflict adversely affected the lawyer‟s performance). An unconstitutional multiple representation is never harmless error. Don‟t have to show that the adverse effect on counsel‟s performance cause the result of the trial. An attorney has an actual, as opposed to a potential conflict of interest when, during the course of the representation, the attorney’s and the ’s interest diverge with respect to a material factual or legal issue or to a course of action. United States v Schwartz (Feb. 28, 2002)the adverse effect on performance was the attorney advancing an implausible and factually unsupported theory that Volpe acted alone in an effort to obtain an acquittal for Schwartz without having to implicate another member of the PBA. The actual conflict was between his representation of Schwartz and his professional obligation to the PBA. 38 So Schwartz established and violation of his 6th Amendment right to effective assistance of counsel due to conflict, unless he effectively waived the conflict. The court found that the conflict was unwaivable: an actual or potential conflict cannot be waived if, in the circumstances of the case, the conflict is of such a serious nature that no rational would knowingly and intelligently desire that attorney’s representation. The Restatement‟s position is that a conflict is unwaivable if in the circumstances, it is not reasonably likely that the lawyer will be able to provide adequate representation to one or more of the clients. Held: Schwartz counsel suffered an actual conflict, that the conflict adversely affected his counsel‟s representation, and that the conflict was unwaivable. The court vacated Schwartz‟s conviction in the first trial and remanded for a new trial. Forced Disqualification of Defense Counsel What burden must the prosecutor meet in order to disqualify defense counsel? Wheat v US (SCt 1988) -Wheat was indicted along with Gomez and Bravo, for narcotics violations. Shortly before his trial, requested the court to allow him to substitute/add in as counsel Iredale (V Good A), who also represented G and B, who had pleaded guilty but whose plea bargains (on lesser charges) had not yet been accepted. The government objects, not wanting Iredale b/c too good, contending that if the court elects not to accept G‟s plea bargains, then would have to testify against them. And if the government calls B, then another problematic cross. This, the government said, would put Iredale in conflict among his clients. offered a waiver. But the court didn‟t allow Iredale to be added finding the strong probability of a conflict. was convicted and appeals contending that he had been denied his rights under the 6th Amendment. Even without an actual conflict as a matter of discretion the court can reject a waiver as matter of discretion (note if this were an actual conflict Iredale would have to stay out). Wide latitude is given b/c conflicts are hard to predict. Rhenquist trying to prevent ‟s from having both ways, if Iredale allowed and convicted, then can appeal on ineffective assistance claim. Interest in protecting judgments (“whipsaw” arg). Note tactical use of conflict rules by prosecution (government could create or avoid both raised conflicts). Conflict rules at the core are supposed to be for the client. Held: district courts refusal to substitute counsel was w/i its discretion and did not violate ‟s 6th Amendment right. The dist ct must recognize a presumption in favor of ‟s counsel of choice, but that presumption may be overcome by not only a demonstration of actual conflict (rare case when demo before trial), but also by a showing of a serious potential for conflict. Note: The burden on the prosecution to have defense counsel removed even over the objection of the accused is much lower at the front-end as compared to the high burden the imposed on the before a conviction can be vacated at the back-end. 39 Civil Cases Fiandaca v. Cunningham (1st Cir. 1987, p. 292) FACTS- involves an attorney & Legal Aid Society representing a class of female inmates suing the state prison for EP violation. Legal Aid also represents a class of mentally handicapped residents of psychiatric hospital (LSS). CONFLICT: one of the possible solutions to the female inmate problem proposed by the state is to move it to the psychiatric hospital, which does not want the prisoners moving in. The conflict is that the conflict-free counsel will make the offer to the prisoners, whereas the conflicted counsel will never ask for the LSS solution. Legal Aid rejected the proposal b/c they didn‟t want to hurt the latter class. Case goes to trial & state moves to DQ Legal Aid. DEFENSE (GOVERNMENT) IS RAISING THE CONFLICT ISSUE: government using the conflict/disqualification claim as a tactical move. Trial Ct found a conflict of interest, but didn‟t DQ b/c wanted to move case along. After Legal Aid left the case, tried to accept the settlement, but government refused (proof of manipulation). Legal Aid comes back in & case goes to trial. Female inmates win. Government appeals based on denial of DQ motion. HELD: It is irrelevant that state had bad faith. Legal Aid had a divided loyalty & conflict of interest. It was abuse of discretion not to DQ them. Court orders a new trial only on the remedial phase (At the remedy phase, unconflicted counsel could have taken the settlement deal of moving to LSS) and not on the litigation phase (since the judge said he would not approve the move to LSS, a trial was inevitable- “even if non-conflicted A was there, trial inevitable”). Even though the potential conflict was there from the beginning the court draws a distinction b/w the liability and remedial phase, basically for judicial economy reasons. Prof: Ct should‟ve remanded both phases. ORGANIZATIONS: conflicts run w/ the organizationa conflict for one person in the organization is imputed to all in that organization. A concurrent multiple conflict of interest belongs to everybody. Acting Adversely on an Unrelated Matter 1 v C() A :contract case A 2 v. C() :tort case Where the representation is a continuing one, adverse representation is prima facie improper. It‟s a loyalty issueordinarily not permissible, without advance consent. An attorney who fails to observe his obligation of undivided loyalty to his client injures his profession and demeans it in the eyes of the public. Goal of prohibition instilling confidence. Case law is very protective in this area. The usual remedy when a lawyer acts adversely to a current client, even on an unrelated matter, is disqualification although discipline and civil liability are also possible. HWR, a near-absolute prohibition on representations adverse to a current client can be tactically exploited by large companies to neutralize the best law firms. Because many conflict rules can be avoided by consent, law firms may ask Company X, before accepting its „small potatoes‟ business, to consent to prospective adverse representation on unrelated matters advanced waiver. See DR 5-105(C) Imputation Subsidiaries 40 Screening Counsel of choice The Insurance Triangle Public Service Mutual Insurance Co. v Goldfarb (NY 1981, p. 326) is the insurance company and 1 is a dentist who is covered under a professional liability policy issued by the . Patient claims the dentist sexually abused her during the course of treatment. The is claiming that its policy did not extend to cover instances of sexual abuse and it therefore does not have to pay. This action is being brought by the insurance company b/c it is seeking a declaratory judgment that it is not responsible to cover this sexual assault charge. claims that since one of the patient‟s allegations is covered by the policy (arising out of the unlawful or inappropriate physical contact which occurs during the course of dental treatment) Ins Co has duty to defend on all allegations. RULE: A claim w/in a stated insurance policy triggers a duty by the insurance company to defend (provide representation in the area). It‟s triggered when, as here, alleges it occurred during course of stated coverage. However, one who intentionally injures another may not be indemnified for any civil liability thus incurred b/c precluded by public policy. But the complaint against the Dr. also alleged unintended injury from intended acts he may seek indemnity from insurer for those claims. CONFLICT: Ins Co‟s lawyer will try to steer the settlement judgment away from claims under the coverage. An unconflicted lawyer would try to steer settlement to claims that ARE covered. Thus, this is different than regular fee-payor rules (pull is stronger than regular fee payor situation). CONCERN: Because of the routine player factor involved w/ insurance companies and the fact that they are footing all these bills, we are worried about the pull of an insurance company‟s influence on the attorney. The Ins Co is their employerthere‟s only one payment source & only one client source. NY RULE: Once you have a claim in the coverage area, the entitled to choose his own atty & insurer has a duty to pay. Ins co obligated to provide independent counsel for the defense. The duty to defend may be broader than the duty to indemnify (misconduct may end up outside the policy). OTHER STATES: Corp‟s are not A‟s & it is unauthorized practice of law to restrict the indep prof jment of a lawyer. The Advocate-Witness Rule NY DR 5-102 MR 3.7 A special conflict confronts attys who are or ought to be called as witnesses in a litigation in which they represent one of the parties. POLICIES: several somewhat overlapping and inconsistent policy rationales to the rule- The jury may accord the lawyer‟s testimony too much weight b/c of his “special knowledge of the case” Professional courtesy may handicap the opposing lawyer on cross-examination. The bar is ill-served when attorney veracity becomes an issue in a case. Lay observers might speculate whether counsel has compromised his integrity on the stand in order to prevail in litigation. The jury might not distinguish b/w the lawyer‟s role as witness and the lawyer‟s role as advocate and may accord the testimony too much weight. 41 DR 5-102 LAWYERS AS WITNESSES A. A LAWYER SHALL NOT ACT, OR ACCEPT EMPLOYMENT THAT CONTEMPLATES THE LAWYER‟S ACTING, AS AN ADVOCATE ON ISSUES OF FACT BEFORE ANY TRIBUNAL IF THE LAWYER KNOWS OR IT IS OBVIOUS THAT THE LAWYER OUGHT TO BE CALLED AS A WITNESS ON A SIGNIFICANT ISSUE ON BEHALF OF THE CLIENT, EXCEPT THAT THE LAWYER MAY ACT AS AN ADVOCATE AND ALSO TESTIFY: 1. IF THE TESTIMONY WILL RELATE SOLELY TO AN UNCONTESTED ISSUE 2. IF THE TESTIMONY WILL RELATE SOLELY TO A MATTER OF FORMALITY AND THERE IS NO REASON TO BELIEVE THAT SUBSTANTIAL EVIDENCE WILL BE OFFERED IN OPPOSITION TO THE TESTIMONY 3. IF THE TESTIMONY WILL RELATE SOLELY TO THE NATURE AND VALUE OF THE LEGAL SERVICES RENDERED 4. AS TO ANY MATTER, IF DISQUALIFICATION WOULD WORK SUBSTANTIAL HARDSHIP ON THE CLIENT B/C OF THE DISTINCTIVE VALUE OF THE LAWYER AS COUNSEL IN THE PARTICULAR CASE B. NEITHER A LAWYER NOR THE LAWYER‟S FIRM SHALL ACCEPT EMPLOYMENT IN CONTEMPLATED (SEE IT IN ADVANCE) OR PENDING LITIGATION IF THE LAWYER OR ANOTHER LAWYER IN HIS FIRM MAY BE CALLED AS WITNESS ON A SIGNIFICANT ISSUE OTHER THAN ON BEHALF OF THE CLIENT AND IT IS APPARENT THAT THE TESTIMONY WOULD OR MIGHT BE PREJUDICIAL TO THE CLIENT C. IF, AFTER UNDERTAKING EMPLOYMENT IN CONTEMPLATED OR PENDING LITIGATION, A LAWYER LEARNS OR IT IS OBVIOUS THAT THE LAWYER OUGHT TO BE CALLED AS A WITNESS ON A SIGNIFICANT ISSUE ON BEHALF OF THE CLIENT, THE LAWYER SHALL NOT SERVE AS AN ADVOCATE ON ISSUES OF FACT BEFORE THE TRIBUNAL, EXCEPT THAT THE LAWYER MAY CONTINUE AS AN ADVOCATE ON ISSUES OF FACT AND MAY TESTIFY IN CIRCUMSTANCES ENUMERATED IN 5-102(A)(1)-(4) D. IF AFTER UNDERTAKING EMPLOYMENT A LAWYER LEARNS OR IT IS OBVIOUS THAT THE LAWYER OR A LAWYER IN HIS FIRM MAY BE CALLED AS A WITNESS ON A SIGNIFICANT ISSUE OTHER THAN ON BEHALF OF HIS CLIENT THE LAWYER MAY CONTINUE THE LITIGATION UNTIL IT IS APPARENT THAT THE TESTIMONY IS OR MAY BE PREJUDICIAL TO THE CLIENT AT WHICH POINT THE LAWYER AND THE FIRM MUST WITHDRAW FROM ACTING AS AN ADVOCATE BEFORE THE TRIBUNAL. MODEL RULE 3.7 LAWYER AS WITNESS (a) A LAWYER SHALL NOT ACT AS ADVOCATE AT A TRIAL IN WHICH THE LAWYER IS LIKELY TO BE (1.SEE IT IN ADVANCE) A NECESSARY WITNESS UNLESS: (1) THE TESTIMONY RELATES TO AN UNCONTESTED ISSUE (2) THE TESTIMONY RELATES TO THE NATURE AND VALUE OF LEGAL SERVICES RENDERED IN THE CASE OR (3) DISQUALIFICATION OF THE LAWYER WOULD WORK SUBSTANTIAL HARDSHIP ON THE CLIENT (b) A LAWYER MAY ACT AS AN ADVOCATE IN A TRIAL IN WHICH ANOTHER LAWYER IN THE LAWYER‟S FIRM IS LIKELY TO BE CALLED AS A WITNESS UNLESS PRECLUDED FROM DOING SO BY 1.7 (LOYALTY TO A CLIENT) OR 1.9 (CONFLICT OF INTEREST: FORMER CLIENT) Comparison: NY imposes DQ only when a lawyer will be a witness on a significant issue. NY, like the MR, does not DQ other lawyers in the firm when one lawyer in the firm is disqualified b/c the lawyer ought to be called as a witness on behalf of the client. NY does prohibit an entire law firm from accepting employment in litigation if any lawyer in the firm may be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony would or might be prejudicial to the client. NY triggers ought to be called or may be called, difference if develops after representation, distinguish if testimony is on behalf or against client. MR is more streamlined, eliminates for/against distinction, general bar from a necessary witness also functioning as an advocate. 42 Escape valvesreally discretionary decision for judges, some view as waivable, some don‟t. EgA Cutler in Gotti trial, tapes made reference to him taking money under the table, would be factual voice in trial, Gotti said would take his chances, but the court says not waivable. Not a client rule, but a system rule. SUCCESSIVE CONFLICTS OF INTEREST NY DR 5-108 MR 1.9 NY CPR DR 5-108 CONFLICT OF INTERESTFORMER CLIENT A. EXCEPT AS PROVIDED IN DR 9-101(B) W/ RESPECT TO FORMER OR GOVERNMENT LAWYERS, A LAWYER WHO HAS REPRESENTED A CLIENT IN A MATTER SHALL NOT, WITHOUT THE CONSENT OF THE FORMER CLIENT AFTER FULL DISCLOSURE: (1) THEREAFTER REPRESENT ANOTHER PERSON IN THE SAME OR SUBSTANTIALLY RELATED MATTER IN WHICH THAT PERSON‟S INTERESTS ARE MATERIALLY ADVERSE TO THE INTERESTS OF THE FORMER CLIENT. (2) USE ANY CONFIDENCES OR SECRETS OF THE FORMER CLIENT EXCEPT AS PERMITTED BY DR 4-101(C) OR WHEN THE CONFIDENCE OR SECRET HAS GENERALLY BECOME KNOWN. B. EXCEPT WITH THE CONSENT OF THE AFFECTED CLIENT AFTER FULL DISCLOSURE, A LAWYER SHALL NOT KNOWINGLY REPRESENT A PERSON IN THE SAME OR SUBSTANTIALLY RELATED MATTER IN WHICH A FIRM WITH WHICH THE LAWYER FORMERLY WAS ASSOCIATED HAD PREVIOUSLY REPRESENTED A CLIENT: (1) WHOSE INTERESTS ARE MATERIALLY ADVERSE TO THAT PERSON; AND (MORE LIBERAL ON THE LAWYER) (2) ABOUT WHOM THE LAWYER HAS ACQUIRED INFORMATION PROTECTED BY DR 4-101(B) (EXCEPTION TO PRESERVATIONS OF CONFIDENCES OR SECRETS) THAT IS MATERIAL TO THE MATTER. C. NOTWITHSTANDING THE PROVISION DR 5-101(D) (CONFLICT OF INTERESTSIMULTANEOUS REPRESENTATION), WHEN A LAWYER HAS TERMINATED AN ASSOCIATION W/ A FIRM, THE FIRM IS PROHIBITED FROM THEREAFTER REPRESENTING A PERSON W/ INTERESTS THAT ARE MATERIALLY ADVERSE TO THOSE OF A CLIENT REPRESENTED BY THE FORMERLY ASSOCIATED LAWYER AND NOT CURRENTLY REPRESENTED BY THE FIRM ONLY IF THE LAW FIRM OR ANY LAWYER REMAINING IN THE FIRM HAS INFORMATION PROTECTED BY DR 4-101(B) THAT IS MATERIAL TO THE MATTER, UNLESS THE AFFECTED CLIENT CONSENTS AFTER FULL DISCLOSURE. MR 1.9 CONFLICT OF INTERESTFORMER CLIENT (a) A LAWYER WHO HAS FORMERLY REPRESENTED A CLIENT IN A MATTER SHALL NOT THEREAFTER REPRESENT ANOTHER PERSON IN THE SAME OR SUBSTANTIALLY RELATED MATTER IN WHICH THAT PERSON'S INTERESTS ARE MATERIALLY ADVERSE TO THE INTERESTS OF THE FORMER CLIENT UNLESS THE FORMER CLIENT GIVES INFORMED CONSENT, CONFIRMED IN WRITING. (b) A LAWYER SHALL NOT KNOWINGLY REPRESENT A PERSON IN THE SAME OR A SUBSTANTIALLY RELATED MATTER IN WHICH A FIRM W/ WHICH LAWYER FORMERLY WAS ASSOCIATED HAD PREVIOUSLY REPRESENTED A CLIENT, (1) WHOSE INTERESTS ARE MATERIALLY ADVERSE TO THAT PERSON; AND (2) ABOUT WHOM THE LAWYER HAD ACQUIRED INFORMATION PROTECTED BY RULES 1.6 (CONFIDENTIALITY OF INFORMATION) AND 1.9(C) THAT IS MATERIAL TO THE MATTER; UNLESS THE FORMER CLIENT CONSENTS AFTER CONSULTATION (c) A LAWYER WHO HAS FORMERLY REPRESENTED A CLIENT IN A MATTER WHOSE PRESENT OR FORMER FIRM HAS FORMERLY REPRESENTED A CLIENT IN A MATTER SHALL NOT THEREAFTER: 43 (1) USE INFORMATION RELATING TO THE REPRESENTATION TO THE DISADVANTAGE OF THE FORMER CLIENT EXCEPT AS THESE RULES WOULD PERMIT OR REQUIRE W/ RESPECT TO A CLIENT, OR WHEN THE INFORMATION HAS BECOME GENERALLY KNOWN; OR (2) REVEAL INFORMATION RELATING TO THE REPRESENTATION EXCEPT AS THESE RULES PERMIT OR REQUIRE W/ RESPECT TO A CLIENT. Private Practice Analytica, Inc v NPD Research, Inc. (7th Cir. 1983, p. 339) Malec (EE) works for NPD and they want to increase his stake & give him stock options. EE hires Fine, a partner in a law firm (S&F), to work on deal. In this matter NPD gave Fine info on its financial condition, sales trends and management in order to evaluate the stock, which the Co. adopted. NPD foots the bill for Fine‟s services. Later, EE leaves the Co. and his wife incorporates a new company, Analytica, (probably done through wife to avoid a non- competition clause) which is a competitive enterprise. Analytica brings an antitrust suit against NPD and retains Fine‟s law firm (S&F) in connection w/ its claim against NPD. NDP moved to disqualify Fine‟s law firm, and the lawyers are appealing an order that disqualified them from the representation. RULE: a lawyer may not presently represent an adversary of his former client if the subject matter of the two representations is substantially related, which means: if the lawyer could have obtained confidential info in the first representation that would have been relevant in the second. It is irrelevant whether he actually obtained such information and used it against his former client, or whether (firm context) different people in the firm handled the two matters and scrupulously avoided discussing them. WHETHER ADVERSARY IS A FORMER CLIENT? NPD is former client of S&F WHETHER THERE‟S A SUBSTANTIAL RELATIONSHIP BETWEEN THE TWO REPRESENTATIONS? Between what you represented them on and what you are opposing them on (Here, tax treatment of SH allocation & anti-competitive violation). BUT, we do NOT at the subject matter/area of law. It is not the kind of legal advice that the lawyer rendered in the two matter, but rather the factual information that the attorney learned: Whether A could have obtained confidential info in the former relationship that is potentially useful in the current case? ACTUAL USE OF INFO IS PRESUMED: most courts agree that there is a presumption that the confidential info acquired is useful in the current action. We don‟t req a demonstration of actual use, possibility of taint is sufficient. THE PRESUMPTION IS NOT REBUTTABLE, when the entire firm switches sides VERY EASY TO SATISFY STD Consequence in litigation DQ Posner notes: “There is an exception for the case in were a member or associate of a law firm (or government legal dep‟t) changes jobs, and later he or his new firm is retained by an adversary of a client at his former firm. In such a case, even if there is a substantial relationship between the two matters, the lawyer can avoid DQ by showing that effective measures were taken to prevent confidences from being received by whichever lawyers in the new firm are handling the matter.” Authorities are divided on whether screening can prevent imputation. Hot Potato Issuesomebody more attractive comes along and to free itself up law firm will want to withdraw from client to make it a former client (so they at least have a chance to try and pass the substantial relationship test, if current client end of story, doesn‟t matter if related or unrelated. Re: current client conflict rules are stricter). 44 Lawyers use withdrawal rule to drop the C like a hot potato & pick up the more lucrative C. But, courts say a LF‟s own economic interests have not been deemed an acceptable basis for withdrawal (Jelco). Note that an advanced waiver could survive hot potato scrutiny. Migratory Lawyers Tension: impinging career mobility v creating risks to clients Considerations: was the migratory lawyer‟s conflict personal or imputed? Even if it was personal, should we have tolerance for screening at the new firm to facilitate career mobility? 7th Cir (Posner‟s) is the minority in its willingness to permit the new firm of a migratory lawyer to avoid imputation of the lawyer‟s personal conflicts by erection of a screen. The Model Rules don‟t permit screens when private lawyer‟s change firms, but they do permit them when government lawyers enter private practice. Concept: LF1(A) C1 LF2(A) C2 v C1 Confidence going from C1 to LF1 and those confidences are presumed to be shared. Then A leaves for LF2 and now it‟s LF2 v C1. Is LF2 permitted to represent C2? Analysis: 1. Is there a substantial relationship between the prior and present representation? If NO, then the inquiry is over. 2. If YES, has the presumption of shared confidences with respect to the prior representation been rebutted? Rebuttable with time sheets, geography, affidavit from attorney. 3. If NO, has the presumption of shared confidences been rebutted with respect to the present representation? Rebuttable with screening, geographic isolation, physical separation (loss of force to that arg b/c of modern technology). Cromley v Bd of Ed (7th Cir. 1994) was a high school teacher bringing a claim that she had been denied various administrative positions for voicing First Amendment rights (blew whistle that she was sexually harassed). brought a motion to disqualify ‟s firm b/c after 2 years of preparation on the case, her attorney (Weiner) accepted a partnership in the law firm representing the s. Held: the court used the three-step analysis and affirmed the denial of the motion to disqualify ‟s firm. 1. There was a substantial relationship same case. 2. Because Weiner was ‟s attorney for two years, clearly he had confidential information can‟t rebut step two. 3. Whether the new firm demonstrated that it had established an effective screening procedure to block the disclosure of ’s confidences within the new firm? ‟s rebutted the presumption of shared confidences by describing the timely establishment of a screening process (p. 366). Types of institutional mechanisms that have been determined to protect successfully the confidentiality of the AC relationship: Instructions given to all members of new firm, of the attorney‟s recusal and of the ban on exchanges of information Prohibited access to the files and other information on the case Locked case files with keys to a select few Secret codes necessary for computers Prohibited sharing of fees derived from such litigation 45 NY Court of Appeals in migratory situation permitted screening, no disqualification, if second stage information likely to be unimportant, little significance in sharing. Second Circuit generally solicitous to attorney moving from big firm to small. Rebut at stage two since screening would be impossible at third stage. NY CPR DR 5-105(D): While lawyers are associated in a law firm, none of them shall knowingly accept or continue employment when any one of them practicing alone would be prohibited from doing so under DR 5- 101(A), DR 5-105(A) or (B), or DR 5-108 (A) or (B), or DR 9-101(B), except as otherwise provided therein. MR 1.10: IMPUTED DISQUALIFICATION: GENERAL RULE (a) WHILE LAWYERS ARE ASSOCIATED IN A FIRM, NONE OF THEM SHALL KNOWINGLY REPRESENT A CLIENT WHEN ANY ONE OF THEM PRACTICING ALONE WOULD BE PROHIBITED BY DOING SO BY RULES 1.7 OR 1.9, UNLESS THE PROHIBITION IS BASED ON A PERSONAL INTEREST OF THE PROHIBITED LAWYER AND DOES NOT PRESENT A SIGNIFICANT RISK OF MATERIALLY LIMITING THE REPRESENTATION OF THE CLIENT BY THE REMAINING LAWYERS IN THE FIRM. (b) WHEN A LAWYER HAS TERMINATED AN ASSOCIATION W/ A FIRM, THE FIRM IS NOT PROHIBITED FROM THEREAFTER REPRESENTING A PERSON W/ INTERESTS MATERIALLY ADVERSE TO THOSE OF A CLIENT REPRESENTED BY THE FORMERLY ASSOCIATED LAWYER AND NOT CURRENTLY REPRESENTED BY THE FIRM, UNLESS: (1) THE MATTER IS THE SAME OR SUBSTANTIALLY RELATED TO THAT IN WHICH THE FORMERLY ASSOCIATED LAWYER REPRESENTED THE CLIENT; AND (2) ANY LAWYER REMAINING IN THE FIRM HAS INFORMATION PROTECTED BY RULES 1.6 AND 1.9(C) THAT IS MATERIAL TO THE MATTER. (c) A DISQUALIFICATION PRESCRIBED BY THIS RULE MAY BE WAIVED BY THE AFFECTED CLIENT UNDER THE CONDITIONS STATED IN RULE 1.7. (d) THE DISQUALIFICATION OF LAWYERS ASSOCIATED IN A FIRM WITH FORMER OR CURRENT GOVERNMENT LAWYERS IS GOVERNED BY RULE 1.11. Government Service and the Revolving Door NY DR 9-101 MR 1.11 Screening is permitted b/c want to encourage government service. GM v City of NYAttorney Reycraft helps the government sue GM, then leaves the government and is privately hired by the city for an anti-trust action against GM. GM moves to DQ based on DR 9-101(B), city claims he had not “switched sides.” Held: He‟s out, court concerned with that former government lawyers not be allowed to profit from information learned about GM in their government employment. Armstrong v McAlpinconcern was that lawyers not be free to exploit government service, including confidential information gained during it, for private gain and the advantage of private clients. The remedy was screening of the attorney from participation rather than disqualification of the firm. NY CPR DR 9-101: AVOIDING EVEN THE APPEARANCE OF IMPROPRIETY A. A LAWYER SHALL NOT ACCEPT PRIVATE EMPLOYMENT IN A MATTER UPON THE MERITS OF WHICH THE LAWYER HAS ACTED IN A JUDICIAL CAPACITY. B. EXCEPT AS LAW SHALL OTHERWISE EXPRESSLY PERMIT 1. A LAWYER SHALL NOT REPRESENT A PRIVATE CLIENT IN CONNECTION WITH A MATTER IN WHICH THE LAWYER PARTICIPATED PERSONALLY AND SUBSTANTIALLY AS A PUBLIC OFFICER OR EE, AND NO LAWYER IN A FIRM IN WITH 46 WHICH THE LAWYER IS ASSOCIATED MAY KNOWINGLY UNDERTAKE OR CONTINUE REPRESENTATION IN SUCH MATTER UNLESS: (a) THE DISQUALIFIED LAWYER IS EFFECTIVELY SCREENED FROM ANY PARTICIPATION, DIRECT OR INDIRECT, INCLUDING DISCUSSION IN THE MATTER AND IS APPOINTED NO PART OF THE FEE; AND (b) THERE ARE NO OTHER CIRCUMSTANCES IN THE PARTICULAR REPRESENTATION THAT CRATE AN APPEARANCE OF IMPROPRIETY. 2. A LAWYER HAVING INFO THAT THE LAWYER KNOWS IS CONFIDENTIAL GOVERNMENT INFO ABOUT A PERSON ACQUIRED WHEN THE LAWYER WAS A PUBLIC OFFICER OR EMPLOYEE, MAY NOT REPRESENT A CLIENT WHOSE INTERESTS ARE ADVERSE TO THAT PERSON IN A MATTER IN WHICH THE INFORMATION COULD BE USED TO THE MATERIAL DISADVANTAGE OF THAT PERSON. A FIRM W/ WHICH THAT LAWYER IS ASSOCIATED MAY KNOWINGLY UNDERTAKE OR CONTINUE REPRESENTATION IN THE MATTER ONLY IF THE DISQUALIFIED LAWYER IS EFFECTIVELY SCREENED FROM ANY PARTICIPATION, DIRECT OR INDIRECT, INCLUDING DISCUSSION, IN THE MATTER AND IS APPORTIONED NO PART OF THE FEE THEREFROM. 3. A LAWYER SERVING AS A PUBLIC OFFICER OR EE SHALL NOT: (a) PARTICIPATE IN A MATTER IN WHICH THE LAWYER PARTICIPATED PERSONALLY AND SUBSTANTIALLY WHILE IN PRIVATE PRACTICE OR NON-GOVERNMENTAL EMPLOYMENT, UNLESS UNDER APPLICABLE LAW NO ONE IS, OR BY LAWFUL DELEGATION MAY BE, AUTHORIZED TO ACT IN THE LAWYER‟S PLACE IN THE MATTER, OR (b) NEGOTIATE FOR PRIVATE EMPLOYMENT W/ ANY PERSON WHO IS INVOLVED AS A PARTY OR AS AN ATTORNEY FOR A PARTY IN A MATTER IN WHICH THE LAWYER IS PARTICIPATING PERSONALLY AND SUBSTANTIALLY C. A LAWYER SHALL NOT STATE OR IMPLY THAT THE LAWYER IS ABLE TO INFLUENCE IMPROPERLY OR UPON IRRELEVANT GROUNDS ANY TRIBUNAL, LEGISLATIVE BODY, OR PUBLIC OFFICIAL. MR 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES (a) EXCEPT AS LAW WOULD OTHERWISE EXPRESSLY PERMIT, A LAWYER WHO HAS FORMERLY SERVED AS A PUBLIC OFFICER OR EMPLOYEE OF THE GOVERNMENT: (1) IS SUBJECT TO RULE 1.9(C) (2) SHALL NOT OTHERWISE REPRESENT A CLIENT IN CONNECTION W/ A MATTER IN WHICH THE LAWYER PARTICIPATED PERSONALLY AND SUBSTANTIALLY AS A PUBLIC OFFICER OR EE, UNLESS THE APPROPRIATE GOVERNMENT AGENCY GIVES ITS INFORMED CONSENT, CONFIRMED IN WRITING, TO THE REPRESENTATION. (b) WHEN A LAWYER IS DISQUALIFIED FORM REPRESENTATION UNDER PARAGRAPH (A), NO LAWYER IN A FIRM WHICH THAT LAWYER IS ASSOCIATED W/ MAY KNOWINGLY UNDERTAKE OR CONTINUE REPRESENTATION IN SUCH A MATTER UNLESS: (1) THE DISQUALIFIED LAWYER IS TIMELY SCREENED FROM ANY PARTICIPATION IN THE MATTER AND IS APPORTIONED NO PART OF THE FEE THEREFROM; AND (2) WRITTEN NOTICE IS PROMPTLY GIVEN TO THE APPROPRIATE GOVERNMENT AGENCY TO ENABLE IT TO ASCERTAIN COMPLIANCE W/ THE PROVISIONS OF THIS RULE (c) EXCEPT AS LAW OTHERWISE EXPRESSLY PERMIT, A LAWYER HAVING INFO THAT THE LAWYER KNOWS IS CONFIDENTIAL GOVERNMENT INFORMATION ABOUT A PERSON ACQUIRED WHILE LAWYER WAS A PUBLIC OFFICER OR EMPLOYEE, MAY NOT REPRESENT A PRIVATE CLIENT WHOSE INTERESTS ARE ADVERSE TO THAT PERSON IN A MATTER IN WHICH THE INFO COULD BE USED TO THE MATERIAL DISADVANTAGE OF THAT PERSON. AS USED IN THIS RULE, THE TERM “CONFIDENTIAL GOVERNMENT INFORMATION” MEANS INFORMATION THAT HAS BEEN OBTAINED UNDER GOVERNMENT AUTHORITY AND WHICH, AS THE TIME THE RULE IS APPLIED, THE GOVERNMENT IS PROHIBITED BY LAW FROM DISCLOSING TO THE PUBLIC OR HAS A LEGAL PRIVILEGE NOT TO DISCLOSE AND WHICH SI NOT OTHERWISE AVAILABLE TO THE PUBLIC. A FIRM W/ WHICH THAT LAWYER IS ASSOCIATED MAY UNDERTAKE OR CONTINUE REPRESENTATION ONLY IF THE DISQUALIFIED LAWYER IS TIMELY SCREENED FROM ANY PARTICIPATION IN THE MATTER AND IS GIVEN NONE OF THE FEE THEREFROM (d) EXCEPT AS THE LAW MAY OTHERWISE PERMIT, A LAWYER CURRENTLY SERVING AS A PUBLIC OFFICER OR EMPLOYEE: (1) IS SUBJECT TO RULES 1.7 AND 1.9 AND 47 (2) SHALL NOT: (i) PARTICIPATE IN A MATTER IN WHICH THE LAWYER PARTICIPATED PERSONALLY AND SUBSTANTIALLY WHILE IN PRIVATE PRACTICE OR NON-GOVERNMENTAL CAPACITY, UNLESS THE APPROPRIATE GOVERNMENT AGENCY GIVES INFORMED CONSENT, CONFIRMED IN WRITING; OR (ii) NEGOTIATE FOR PRIVATE EMPLOYMENT W/ ANY PERSON WHO IS INVOLVED AS A PARTY OR AS AN ATTORNEY FOR A PARTY IN A MATTER IN WHICH THE LAWYER IS PARTICIPATING PERSONALLY AND SUBSTANTIALLY, EXCEPT THAT A LAWYER SERVING AS A LAW CLERK TO A JUDGE OR OTHER OFFICER OR ARBITRATOR, MAY NEGOTIATE FOR PRIVATE EMPLOYMENT AS PERMITTED BY RULE 1.12(B)… (e) AS USED IN THIS RULE, THE TERM “MATTER” INCLUDES: (1) ANY JUDICIAL OR OTHER PROCEEDING, APPLICATION, OR REQUEST, FOR A RULING OR OTHER DETERMINATION, CONTRACT, CLAIM, CONTROVERSY, INVESTIGATION, CHARGE, ACCUSATION, ARREST, OR OTHER PARTICULAR MATTER INVOLVING A SPECIFIC PARTY OR PARTIES; AND (2) ANY OTHER MATTER COVERED BY THE CONFLICT OF INTEREST RULES OF THE APPROPRIATE GOVERNMENT AGENCY VI. ADVOCACY ISSUES DRs 7-101, 7-102, and 7-106 MRs 3.1, 3.2, 3.3 and 3.4 Five Views of Adversary Justice 1. Trial as tool for Resolution. Rifkind Article: A‟s role is to resolve the conflict/problem. The adversarial process produces “ctroom or judicial truth”, which is diff the real world truth. A C is not guilty or innocent until the jury says so. Believes that benefits of resolving disputes thru an orderly, fair system outweigh its costs. Present evidence to the fact finder that has been filtered through the rules of evidence and the adversary process which results in „courtroom truth”. If there are guilty people getting off, it can lead to reform & we‟ll change the rules. Over time, ctroom justice leads to law reform. We revere the process. 2. Adversaries. Frankel: Cynical of adversary system. There‟s manipulative discovery, “Here‟s my haystack, find the needle”. It comes down to who has more $ & power, not the truth. Reform is just changing the rules of game, but get same result. We should be at getting at the truth. 3. Morality. Schwarz: Focuses on civil litigation since it‟s an area where we can find an alt to a hard adversarial model. There is “truth” & our system can do a better job of getting there. There are two worlds: (1)adversarial system & (2) co-operative legal system (duty to system/tribunal is your most importantif one lawyer discovered id of witness or authority that other side missed, duty to produce it, even if hurtful to C). Under the co-operative sys: (1) deserving pty recovers, (2) truth really is produced by fact-finder, (3) human dignity is protected, (4) would still have a privilege. Points out that certain law reforms are in fact deviations from adversarial system (duty to disclose adverse authority & not lie to tribunal) 4. Advocate as Performance Artist. Ball: Truth in litigation is not so objective, pure & ascertainable; it is created. There is objective reality, but these roles & realities play off & define each other. Things like liability, damages, prox cause are products of a performance. The gap b/w the Rifkind & Franklin world is exaggerated. Prof: But a V is dead, & need to hold killer accountable. Role develops & vocabulary becomes meaningful & becomes real world truth. 5. Post: Lawyers are unpopular b/c: (1) they act, but don‟t admit it & (2) calls into question everyone‟s authenticity about their beliefsthat they are also acting. While lawyers are despised for being manipulative and filing too many lawsuits, they are respected for placing clients as their first priority and knowing how to protect their client‟s best interests. 48 Truth and Confidences Nix v Whiteside (SCt 1986) Whether the 6th Amendment right of a criminal is violated when an attorney refuses to cooperate with the in presenting perjured testimony at his trial? insisted on testifying after he changed his story to fit into a „self-defense‟ defense. Attorney sees as inconsistent, to him he couldn‟t do it, if he did do would have to advise the court, and indicated that he would seek withdrawal from the representation if continued to insist on committing perjury. What can attorney have done when faced with anticipated perjury? 1. Remonstrationtalk out of it (inside the bubble) 2. Threaten to discloseproblematic as can‟t disclose now, later on when carried out is when can, but trying to convince him not to commit perjury. 3. Threaten to withdrawalable to withdrawal now? Judge isn‟t going to let you quit if don‟t tell him why; misleading client is prohibited, outer boundary of remonstration. testifies that didn‟t actually see a gun, gets convicted and moves for a new trial, says deprived of a fair trial b/c of attorney‟s admonition. Appeals on ineffective assistance of counsel claim. The Court finds no prejudice under Strickland. The Court reviews the standard for an ineffective assistance claim under the 6th Amendment: (1) Re: Attorney conduct, objective standardthere is a strong presumption that counsel‟s conduct falls within the wide range of reasonable professional assistance; breach of an ethical standard does not necessarily make out a denial of the 6th Amendment guarantee of assistance of counsel. Ethical boundaryalthough counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any was assisting the client in presenting false evidence or otherwise violating the law. Ethical Rules are guidelines that define the realm of permissible attorney conduct. Here attorney didn‟t help client testify falsely, which he‟s not entitled to. The only thing A cost C is something he doesn‟t have a right toperjury End of Strickland inquiry if first prong not satisfied. Don‟t get to prejudice prong (re: the lapses in counsel‟s performance would have to render the trial so unfair as to undermine confidence in the outcome of the trial). Not a good job on where the 6th Amendment problem will be reached with ethics rules. Ethics rules as limit an attorney‟s defense of clientsneeds more judicial work, v hard issue. Blackmun‟s concurrencequestion is not whether attorney‟s behavior conformed to legal ethics. Ineffective assistance of counsel requires a claim of prejudice, which here couldn‟t show since the only effect of attorney‟s threat was that couldn‟t testify falsely. If not cognizable prejudice then no need to grade attorney conduct. Steven‟s concurrencean attorney‟s certainty that a change in a client‟s recollection is a harbinger of intended perjury should be tempered. What about surprise perjury? MR 3.3(a)(3) Candor Toward the Tribunal. 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. 49 The duty has evolved to a duty to rectify over loyal advocate instinct. Candor to the tribunal comes first, even if it requires the lawyer to reveal information that would otherwise be protected by Rule 1.6 (Comment 10). The standard for “knows” is less than a moral certainty, but more than a belief. Compare DR 7-102(B) Representing a Client Within the bounds of the Law. A lawyer who receives information clearly establishing that: (1) the client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person of tribunal, EXCEPT when the information is protected as a confidence or secret. If the lawyer‟s knowledge is based on a confidence or a secret then lawyer off the hook. Client confidence takes precedence. The rules are similar with respect to contemplated perjury. A lawyer shall not knowingly: Offer evidence that the lawyer knows to be false What if prior to sentencing of the lawyer’s client, a defense attorney is presented with the following three situations? 1) The judge is told by the custodian of criminal records that the has no criminal record and the lawyer knows this is in correct based on his own investigation or from his client‟s disclosure to him. 2) The judge asks the whether he has a criminal record and he falsely answers that he has none 3) The judge asks the ‟s lawyer whether his client has a criminal record. o In situations one and three there has been no client perjury so the MR‟s disclosure to the tribunal duty is not triggered and the lawyer is prohibited under MR 1.6 from disclosing the client‟s confidences. o In situation two, the client has lied to the court the Model Rule requirement would impose a duty on the lawyer, when the lawyer cannot persuade the client to rectify the perjury, to disclose the client‟s false statement to the tribunal. o Under DR 7-102(B)(1) the lawyer is not permitted to reveal the fraud if the information is protected as a confidence or secret if the client refuses or is unable the rectify the fraud. o In situation three, under the Model Rules, the lawyer would be in a difficult situationthe lawyer may not reveal the client‟s confidences, but also must not make any false statement of fact to the court. Fostering Falsity or Advancing Truth Cross-examining the Truthful Witness Max Steuer & Triangle Shirtwaist Fire Steuer through skillful cross (made her repeat story 8 times & points out inconsistencies) establishes that the witness (a victim of the fire and a poor immigrant) is testifying like a tape recorder, makes it appear as if it is a prepared script not a spontaneous recollection of actual events. She was really only an overly rehearsed witness. Kornstein Article: View that Steuer‟s cross was brililant and he celebrates the importance of cross- examination as the “greatest engine ever developed for the discovery of truth.” Ruben Article: Steuer‟s cross should not be celebrated because it played an important role in the acquittal and it “underscores the moral vacuum in which many lawyers operate.” Arg: convincing jury that truthful witness is lying goes too far, based on nature of ‟s actions & crime. 50 Under MR 8.4 (c) & (d) and DR 1-102 (A)(4) & (5) It is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit or misrepresentation or conduct that is prejudicial to the administration of justice. Literal Truth Bronston- shows the permissible range of coaching. Gave answer that didn‟t answer the question. Charged w/ perjury. The Supreme Court reversed the conviction b/c the statement was literally true & perjury requires a false statement. The Cross-Examiner had notice from the answer & should have caught it. Literal truth is NOT perjury w/in the parameters of the criminal law. What about w/in ethicsIs it deceit or misrepresentation under MR 8.4? If Bronson‟s lawyer had coached him to give literally truthful, but evasive and misleading answers (but not untruthful ones), would the lawyer have acted unethically? DeZarn- 6th Cir: Difference here is that intent of answerer to mislead is discernible & categorical answers to questions in no way gives notice to the questioner. He knew what the question was asking & hid behind the literal truth. If you know what the question really means, it is perjury to give a literally true & misleading statement, according to the 6th Cir. Not allowed to take literal advantage if knows the questioner made a mistake. Arguing for False Inferences A lawyer who asks the jury to draw an inference from the evidence when the evidence does not rationally support that inference may be in violation of MR 3.4. What if a lawyer knows that a witness is telling the truth can he still try to discredit the evidence to make to encourage the jury to believe that the witness is mistaken or lying? Can he ask the jury to draw a favorable inference to his client when the evidence is ambiguous, but the lawyer knows the inference is false? Subin-Mitchell Debate Subin: Truth is an obligation held by both sides. Would forbid defense lawyers from presenting a “false case” Right to present a defense is “not absolute” Criticizes the arbitrary line between use of perjured testimony which is not allowed, and the presentation of a “false case” which is allowed Defense attorney serves two functions: (1) Monitor state‟s case & hold them to their burdens of proof, and (2) Advocate the client‟s interests. Proposed Rule it shall be improper for an attorney who knows BARD the truth of a fact established in the state‟s case to attempt to refute that fact through the introduction of evidence, impeachment of evidence, or argument. Note: If the prosecution has a reasonable doubt, he‟s ethically required at the front end not to charge the & should drop charges in midst of trial. Mitchell: Criticizes Subin view the only interested party is the client, not society, not the legal profession Subin‟s model undercuts the lawyer‟s independence and fortitude before the decision comes out Subin‟s government monitoring role excludes tactics, impeachment, etc can include these in the 1st role & don‟t need the second. 51 Hardball and Incivility DR 7-106(C)(5) In appearing as a lawyer before a tribunal, a lawyer shall not: fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of intent not to comply. Mullaney v Aude (p. 500)Sanctions imposed for the adversarial use of gender bias name calling in the discovery process. VII. REAL EVIDENCE NY DR 7-103 MR 3.8 Special responsibilities of a prosecutor refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause, make timely disclosure of the existence of evidence that tends to negate the guilt of the accused, mitigate the offense or reduce the punishment (DR 7-103, MR 3.8). In Re Ryder (Va 1967, p. 513) A got call from former civil C, Cook. Cook had been charged criminally for robbing bank. Ryder knew that some of the $ the FBI obtained from Cook had been identified as “bait $.” A did not believe Cook‟s story: “I didn‟t do it.” A got power or attorney from Cookhis plan was to put $ in his own safety deposit box so it could later be excluded as privileged & so Cook would not dispose of the $. He had no doubt in his mind that eventually, the FBI would discover the $ in the account. Subin would say that the proper course of conduct is to give the evid ($ & shotgun) over to the cops. Counter: Message to crim ‟s would be: don‟t trust your lawyer & don‟t tell him everything. It’s clear that A intends to hide the evidence- affm act of concealment. Note: A‟s plan was foiled b/c subpoena was served on the bank & not him. Held: A‟s conduct went far beyond the receipt & retention of confidential info from his C, gets him suspended from practice. No canon of ethics or law permitted A to conceal from the bank its money to gain this C‟s acquittal. MR 3.4(a) Fairness to Opposing Party and Counsel. A lawyer shall not: unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do such an act. The Nixon Tapes: Could Nixon have destroyed them? No subpoena, but inevitable that one was coming, the attorney believed that destroying them would be destroying evidence (during any proceeding or discovery do not do it). Prof: If there was no subpoena, Nixon could have destroyed the tapes. Federal cases require a pending judicial proceeding for obstruction of justice. Williams view: “Nixon had no obligation to make or keep the tapes and could have argued that his motive in destroying them was to prevent secrets exchanged with other heads of government from being compromised.” 52 People v Meredith (Ca 1981, p. 527) Guys wanted to rob Wade & they ended up killing him. C: Meredith. A: Appointed Counsel. tells attorney where wallet is & that they tried to burn it. A sent investigator (no privil blown since he‟s agent of the A) to go get the wallet. He gives wallet to A, who gives it to police. Is it required that you turn wallet over to police? Cts are split. The MAJ of states, including CA here, say yesDuty to turn physical evidence directly related to a crime over to the authorities. Once they had wallet, government pushed to find out where it came fromA withdraws b/c of “advocate witness” problem. Rule: Ordinarily, “where the wallet was” is privileged, since info was gained in the course of repthe privilege extends to protect observations made as a consequence of protected communications. BUT, whenever defense counsel removes or alters evidence the statutory privilege does not bar revelation of the original location or condition of the evidence in question. Since there‟s no way to get the evidence back to the state it was in originally. The police would not be able to find it. The investigator and the attorney were compelled to testify. Prof: The A should have left the evidence thereno duty to disclose b/c observations are insulated from revelation. It‟s when counsel chooses to remove it to examine or test it that the original location and condition of the evidence losses protection of the privilege. What if you piled garbage on top of it? More like an affirmative act to conceal, but may not be an ethical violation. Note: On the way to turning over the wallet, you‟re allowed to test it, id it, ballistics, etc to ensure this is what we think it is. We say “fall back on crim law”duty goes only as far as the body of law. Compare to: MR about C perjury & duty to rectifythat‟s an aberration since it goes above & beyond the substantive law. VIII. LAWYERS FOR ENTITIES NY DR 5-109, EC 5-18 MR 1.13 Identity of Client Problems flow from the fact that while the lawyer‟s client is the organization, the lawyer must represent it through is officer and agents who are generally not their clients. In general courts are unwilling to presume the second relationshipthe interest is in protecting the independent representation for the entity. MR 1.13 and DR 5-109 are in substantially the same place. A lawyer employed by an organization represents the organization acting through its duly authorized constituents. If a lawyer for an organization knows that an officer, employee or other person associated with the org is engaged in an action, intends to act, or refuses to act in a manner related to the representation that is a violation of a legal obligation to the organization, OR a violation of law which might reasonably be imputed to the organization, AND is likely to result in substantial injury to the organization the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer‟s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the org concerning such matters. 53 Any measures taken shall be designed to minimize disruption of the org and the risk of revealing information relating to representation of persons outside the organization. Such measures may include among others: (1) Asking for reconsideration of the matter; (2) Advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) Referring the matter to a higher authority in the org, including, if warranted by the seriousness of the matter, referral to the highest authority that can act on behalf of the org as determined by applicable law. When dealing with an org’s director’s, officers, employees, etc., a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the org’s interests are adverse to those of the constituents with whom the lawyer is dealing (MR 1.13(d), DR 5-109(A)) duty to remind constituent who you work for, affirmative duty to explain (another version of dealing with unrepresented persons). A lawyer may also represent constituents, subject to provisions of MR 1.7 (MR 1.13(e)). Do a regular concurrent conflict analysis to see if can represent both. Hypos: house counsel of a large corporation is told by a high ranking officer: About to implement a business decision that the lawyer thinks is unwise, but defensible dumb, but defensible would not be a violation of officer‟s legal obligation no ethical duty for lawyer. About to implement a business decision that the lawyer recognizes could be profitable, but which certainly subjects the company to antitrust liability if discovered trigger duty b/c of violation of legal obligation. The general duty is to proceed as reasonably necessary in the best interest of the corporation. Then might do 1-3: speak to directly and ask to change mind (2nd one doesn‟t quite fit) to climbing the ladder. If board doesn‟t want to hear about it may resign, permissive withdrawal situation if a client‟s decision is to violate the law, here it is more on them than you. Failure to withdrawal not a disciplinary matter, balance choices based on personal circumstances (subtextif taken to highest level and advice rejected then okay to continue rep Conflicts and Confidentiality: Who is the Client in entity representation? Prior to Formation: In Jesse v Danforth (p. 554), a Wisconsin court held that once the corporation is created, it becomes the ONLY client retroactively, which meant that one of the organizers lost his claim that as a former client he could protest and seek disqualification of law firm that had received his confidential information in a new representation that is substantially related to the work the lawyer did for the corporate organizers in forming the corporation (re: successive conflict analysis: adverse to former client and matter of prior representation is substantially related to new representation). And not a current client under 1.13(a) b/c the current client is the entity. Extreme zeal in reluctance to find relationship with constituent, aggressive client entity identity. In interest in protecting entity, imaginary over real. Not the only approach, took the logic of 1.13 maybe too seriously, but influential opinion, coming out the other way starts to complicate the life of the corporate attorney. The Danforth analysis leaves unencumbered with former client conflict. 54 Corporate Officers and Employees: Unless the facts suggest otherwise, corporate lawyers will be deemed to represent the entity and not its officers, directors, employees or shareholders. Representation will normally not be imputed from conduct, such as when the board asks a lawyer to investigate possible wrongdoing w/i the entitykeep the first representation clean. Trigger in 1.13(d)‟s duty to explain identity of client is triggered when the lawyer knows or reasonably should know that the org‟s interest are adverse to those that he‟s dealing with. If just investigating for the entity would need to get people to answer questions. If asked are you my attorney before you know that interest are adverse may not want to give flat answer of no out of fear that people will clam up. If there constituent confesses gross criminal conduct adversity would trigger duty to explain that can‟t represent, may wish to get individual counsel, etc (Comment 7), the entity may want more information, but there is a line. Courts are even more reluctant than usual to find AC relationships between lawyers conducting an internal investigation and corporate constituents (conflicts would immobilize a lawyer). Parents and Subsidiaries: efforts to disqualify law firms based on prior work for subsidiarycourts are reluctant to impute that relationship as co-extensive with the parent. Eg/Sprint can‟t DQ Jones, Day from representing a against it b/c law firm represented an affiliate, but not the itself. Closely Held Entities: where one shareholder is seeking to get control over the company or is planning to start a competing business, the company‟s lawyer better remain neutral. In Murphy & Demory (p. 567), plotting with one against the other was found to be disloyal to the corporation. Corporate Breakup and Transformation: Tekni-Plex (NY 1996)Who controls attorney client privilege as to pre-merger communications? Control of the AC privilege with regards to confidential communications arising out of general business operations passed to management of new corporation. New corporation has the authority to assert the AC privilege to preclude law firm from disclosing contents of confidential communication to former sole shareholder of old corporation. As to communications relating to the merger negotiations between the old corporation and the law firm the new corporation did not succeed to the old corporation‟s right to control the AC privilege. Retaliatory Discharge and Whistleblowing Lawyers Within the Entitythe law of employment is employment at will. An in-house counsel has is a one client lawyer, economically dependent, can‟t sue your client hostage? Arguably yes (with some public policy exceptions, egdiscrimination). Say it goes bad in General Dynamics, attorney-Rose becomes whistleblower, gets discharged former client. Exceptions to causes of action that can maintain as former in-house counsel: contract claim that termination violated implicit just cause clause on employment a will upheld b/c attorney had ethical duties to report; tort claimability to maintain retaliatory discharge is qualified by privilege, i.e. can‟t breach privilege to maintain tort claim tricky to do. The Rights of Associates: Weider v Skala (NY 1992, p. 592)attorney-Weider gets in-kind services from colleague at firm and finds out he‟s dishonest, goes to partner. DR 1-103(A) places upon the lawyer the duty to report any potential violations of DR‟s that raise a substantial questions as to another lawyer‟s honesty, trustworthiness or fitness. Weider has to threaten firm before convincing it to report, then he‟s fired. Precedent on wrongful discharge with regards to the Squeal Rulecontract claim is recognized since lawyer 55 had professional obligation to squeal, can‟t be fired for (this rule incorporated as an implied term in contractual relationship between lawyers, didn‟t say all). Court doesn‟t uphold tort claim. IX. NEGOTIATIONS & TRANSACTIONS MR 4.1 Truthfulness in Statements to Others. 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 when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. “Material” from whose perspective? External, not subjective standardan objective person in the position of the person talking to. Tied to an enddefined by an objective, relevant to a law or fact issue. Prohibition on false statements of fact. But under generally accepted conventions in negotiations, certain types of statements are not taken as statements of material fact (egestimates or price or value placed on the subject of a transaction and a party‟s intention as to an acceptable settlement of a claim). “Fraud”conduct characterized as such in applicable law of jurisdiction and has a purpose to deceive. Duty to 3d person limited, compare with MR 3.3, not exceptions to duty to tribunal. A lawyer may have a duty to correct fraud on the tribunal, even if it means revealing confidences protected by Rule 1.6. HWR, if a client has engaged in criminal or fraudulent conduct against a third person, the lawyer‟s duty to take corrective action to avoid assisting the client is subordinate to Rule 1.6. This is true even though the client‟s crime or fraud will be financially devastating to 3d parties, even if revelation can stop the crime or fraud before it is concluded, and even thought the lawyer may have been the unwitting conduit of false information (lawyer who discovers C committing a fraud or crime on another cannot assist and will probably have to withdrawal noisy even, see below). Hierarchy: COURT MR 3.3 (NY DR 7-102(B)) CLIENT MR 1.6 (NY DR 4-101) 3d PARTY MR 4.1 Rubin v Schotenstein, Zox and Dunn (6th Cir. 1998, p. 600) While an attorney representing the seller in a securities transaction may not always be under an independent duty to volunteer information about the financial condition of his client, he assumes a duty to provide complete and nonmisleading information with respect to subjects he undertakes to speak. ABA Opinion 366 (1992, p. 612) Duty to Warn? Attorney gives opinion letter, then C‟s tell A that they have been falsifying orders, etc, and now going new counsel. 1. MR 1.2(d) not allowed to assist a client in conduct that the lawyer knows to be fraudulent. Mandatory withdrawal under 1.16. 2. How to effectuate withdrawal? What if anything must the lawyer do beyond the simple silent act of ceasing further activity on behalf of the client if required to withdrawal under the Rules? Continuing to assist without a noisy withdrawal if put provisions together duty to be noisy. “In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like (see Rule 4.1)” (Comment 10, Rule 1.2) In limited circumstances where silence would result in a violation of the lawyer‟s duty under Rule 1.2 not to assist a client‟s ongoing or intended future fraud then take the additional step of disaffirming work product. 56 (Note that to the dissent noisy withdrawal remains permissive.) Negotiating Settlements in Litigation Virzi attorney ethically obligated to inform the opposing counsel and the court prior to the conclusion of a settlement of the death of his client. Spaulding injured in a car accident, ‟s doctor examined and found an aneurysm of the aorta that had escaped the detection of ‟s lawyers. The doctor told ‟s lawyers, ‟s settled without disclosing the condition to the ‟s. Two years later discovered and brought an action for additional damages against ‟s and earlier settlement was vacated. Duty to disclose once the parties reached the settlement phase and required the permission of the court. Minor was involvedcircumstances make candor appropriate. ABA COMMISSION ON LAWYER ASSISTANCE PROGRAMS Programs to assist addicted lawyers and judges. The commission reviews lawyer assistance programs and make recommendations X. TRANSIENT LAWYERS & MULTIJURISDICTIONAL PRACTICE (MJP) Birbrower (Ca 1998, p. 719) Whether an out-of-state firm, not licensed to practice in the state, engaged in unauthorized practice of law when it performed legal services in Ca for a Ca-based client? Small NY firm represents ESQ that has a contract with Tandem, Ca law is to apply, will be site of arbitration. Law firm negotiates to the brink of arbitration with three quick trips to Ca (< 10 days). The parties settle. ESQ recovers from Tandem, but don‟t pay law firm, which brings a collection action. Client defends by saying UAP. The court fishes for a definition of “practice law”includes in definition legal advice and legal instrument and contract preparation, whether or not rendered in the course of litigation. See also Judiciary Law § 484. The court concluded that the firm engaged in the unauthorized practice of law finding sufficient contact with the state client. ABA‟s response is that regulation should remain state by state, but there should be an analogy to pro hac vice admission for lawyers who engage in transactional work. The concern of local counsel who object is against big invading poachers. Leis v Flynt (SCt 1979, p. 711) Flynt is being prosecuted in Ohio, want to bring NY 1st Amendment lawyers. Ohio usually liberally grants pro hac vice status, but refused to grant here. In a “pariah case” foreign counsel is often necessary b/c nobody local is willing to defend. Five justices find no constitutional protection for the practice of law under the DP clause. The dissent says there is such a right to practice, which would end the MJP debate. DP right to practice where the client needs us. Unauthorized Practice of Law NY DRs 3-101, 3-102 & 3-103 NY Judiciary Law §§ 484-485, 495 MRs 5.4 & 5.5 57 States license lawyers to ensure a level of quality and to protect their citizens. “The indicia of the practice of law, insofar as court proceedings are concerned, include the following: (1) representation of parties before judicial or admiiinistrative bodies, (2) preparation of pleadings and other papers incident to actions and special proceedings, (3) management of such action and proceeding, and non-court related activities such as (4) giving legal advice and counsel, (5) rendering a service that requires the use of legal knowledge or skill, (6) preparing instruments and contracts by which legal rights are secured.” SO, the rules below prohibit the unauthorized practice of law for both lawyers and laypersons. Out of state lawyers who “practice” within a state that they are not licensed are in violation of the rules. Unauthorized law practice can occur in two ways. A person who is not admitted to the bar of a jurisdiction may render legal services in that jurisdiction, or a person or entity that is not authorized to practice law may hire a licensed lawyer and offer his or her services to another. In the second situation the client is at least represented by counsel licensed in the jurisdiction, but restrictions nevertheless apply because of a presumed threat of lay interference with the professional relationship. CANON 3 “A lawyer should assist in Preventing the Unauthorized practice of Law.” NY CPR DR 3-101 Aiding Unauthorized Practice of Law A. A LAWYER SHALL NOT AID A NON-LAWYER IN THE UNAUTHORIZED PRACTICE OF LAW. B. A LAWYER SHALL NOT PRACTICE LAW IN A JURISDICTION WHERE TO DO SO WOULD BE IN VIOLATION OF REGULATIONS OF THE PROFESSION IN THAT JURISDICTION. NY DR 3-102 Dividing Legal Fees with a Non-Lawyer A. A LAWYER OR LAW FIRM SHALL NOT SHARE LEGAL FEES WITH A NON-LAWYER, EXCEPT THAT: 1. AN AGREEMENT BY A LAWYER WITH HIS OR HER FIRM, PARTNER, OR ASSOCIATE MAY PROVIDE FOR THE PAYMENT OF MONEY, OVER A REASONABLE PERIOD OF TIME AFTER THE LAWYER‟S DEATH, TO THE LAWYER‟S ESTATE OR TO ONE OR MORE SPECIFIED PERSONS. 2. A LAWYER WHO UNDERTAKES TO COMPLETE UNFINISHED LEGAL BUSINESS OF A DECEASED LAWYER MAY PAY TO THE ESTATE OF THE DECEASED LAWYER THAT PROPORTION OF THE TOTAL COMPENSATION WHICH FAIRLY REPRESENTS THE SERVICES RENDERED BY THE DECEASED LAWYER. 3. A LAWYER OR LAW FIRM MAY INCLUDE NON-LAWYER EMPLOYEES IN A RETIREMENT PLAN, EVEN THOUGH THE PLAN IS BASED IN WHOLE OR IN PART ON A PROFIT-SHARING ARRANGEMENT. Bright line rule against fee-splitting, only allowed to share with personnel within the firm (lawyer in personal injury do a lot to break). DR 3-103 Forming a Partnership with a NON-Lawyer A. A LAWYER SHALL NOT FORM A PARTNERSHIP WITH A NON-LAWYER IF ANY OF THE ACTIVITIES OF THE PARTNERSHIP CONSIST OF THE PRACTICE OF LAW. Stands in the way of multidisciplinary practice, prohibits partnerships with non-lawyers. New York State Judiciary Law §§ 484-485, 495 § 484 Must be admitted to practice as an attorney in New York to practice here. This does not apply to officers of societies for the prevention of cruelty to animals, duly appointed, when exercising the special powers conferred upon them; to law students who have completed at least two semester of law school when acting under a program approved by the 58 appellate division; or to those who took the bar and have not yet been notified and are acting under the supervision of the state. § 485 Violation of Certain Preceding Sections a Misdemeanor Any person violating the provisions of sections four hundred seventy eight through 484 shall be guilty of a misdemeanor. § 495 Corporations and Voluntary Associations Not to Practice Law 1. No corporation or voluntary association shall (a) practice or appear as an attorney-at-law for any person in any court in this state or before any judicial body, nor (b) make it a business to practice as an attorney at law, for any person, in any of said courts, nor (c) hold itself out to the public as being entitled to practice law, or to render legal services or advice, nor (d) furnish attorneys or counsel, nor (e) assume in any other manner to be entitled to practice law, nor (f) assume, use or advertise the title of lawyer or attorney, attorney at law, or equivalent terms in any language in such manner as to convey the impression that it is entitled to practice law or to furnish legal advice, services or counsel, nor (g) advertise that either alone or together with or by or through any person whether or not a duly and regularly admitted attorney at law, it has, owns, conducts, or maintains a law office or an office for the practice of law, or for furnishing legal advice, services or counsel. Parts omitted from original 7. This section does not apply to organizations which offer prepaid legal services; to non-profit organizations whether incorporated or unincorporated, organized and operating primarily for a purpose other than the provision of legal services and which furnish legal services as an incidental activity in furtherance of their primary prupose; or to organizations which have as their primary purpose the furnishing of legal services to indigent people. MR 5. 4 Professional Independence of a Lawyer (a) A LAWYER OR LAW FIRM SHALL NOT SHARE LEGAL FEES WITH A NONLAWYER, EXCEPT THAT: (1) AN AGREEMENT BY A LAWYER WITH THE LAWYER‟S FIRM, PARTNER, OR ASSOCIATE MAY PROVIDE FOR THE PAYMENT OF MONEY, OVER A REASONABLE PERIOD OF TIME AFTER THE LAWYER‟S DEATH, TO THE LAWYER‟S ESTATE OR TO ONE OR MORE SPECIFIED PERSONS; (2) A LAWYER WHO PURCHASES THE PRACTICE OF A DECEASED, DISABLED, OR DISAPPEARED LAWYER MAY, PURSUANT TO THE PROVISION OF RULE 1.17, PAY TO THE ESTATE OR OTHER REPRESENTATIVE OF THAT LAWYER THE AGREED UPON PURCHASE PRICE; AND (3) A LAWYER OR LAW FIRM MAY INCLUDE NONLAWYER EMPLOYEES IN A COMPENSATION OR RETIREMENT PLAN, EVEN THOUGH THE PLAN IS BASED IN WHOLE OR IN PART ON A PROFIT-SHARING ARRANGEMENT (4) (b) A LAWYER SHALL NOT FORM A PARTNERSHIP WITH A NONLAWYER IF ANY OF THE ACTIVITIES OF THE PARTNERSHIP CONSIST OF THE PRACTICE OF LAW. (c) A LAWYER SHALL NOT PERMIT A PERSON WHO RECOMMENDS, EMPLOYS, OR PAYS THE LAWYER TO RENDER LEGAL SERVICES FOR ANOTHER TO DIRECT OR REGULATE THE LAWYER‟S PROFESSIONAL JUDGMENT IN RENDERING SUCH LEGAL SERVICES. (d) A LAWYER SHALL NOT PRACTICE WITH OR IN THE FORM OF A PROFESSIONAL CORPORATION OR ASSOCIATION AUTHORIZED TO PRACTICE LAW FOR PROFIT, IF: (1) A NON LAWYER OWNS ANY INTEREST THEREIN, EXCEPT THAT A FIDUCIARY REPRESENTATIVE OF THE ESTATE OF A LAWYER MAY HOLD THE STOCK OR INTEREST OF THE LAWYER FOR A REASONABLE TIME DURING ADMINISTATION; (2) A NONLAWYER IS A CORPORATE DIRECTOR OR OFFICER THEREOF; OR (3) A NONLAWYER HAS THE RIGHT TO DIRECT OR CONTROL THE PROFESSIONAL JUDGMENT OF A LAWYER. 59 MR 5.5 Unauthorized Practice of Law A LAWYER SHALL NOT: (a) PRACTICE LAW IN A JURISDICTION WHERE DOING SO VIOLATES THE REGULATION OF THE LEGAL PROFESSION IN THAT JURISDICTION; OR (b) ASSIST A PERSON WHO IS NOT A MEMBER OF THE BAR IN THE PERFORMANCE OF ACTIVITY THAT CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW. XI. PREVENTING AND ADDRESSING PROFESSIONAL FAILURE Supervisory Responsibilities NY DRs 1-102(A), 1-104 MRs 5.1, 5.2, 5.3 ‟99 Amendments subject law firms to discipline encourage discipline, back-end hasn‟t yet materialized in any significant way, left with admonitions to the firm in general and the senior attorney in a particular matter. NY CPR DR 1-102 MISCONDUCT A. A LAWYER OR LAW FIRM SHALL NOT: 1. VIOLATE A DISCIPLINARY RULE. 2. CIRCUMVENT A DISCIPLINARY RULE THROUGH ACTIONS OF ANOTHER 3. ENGAGE IN ILLEGAL CONDUCT INVOLVING MORAL TURPITUDE. 4. ENGAGE INCONDUCT INVOLVING DISHONESTY, FRAUD, DECEIT, OR MISREPRESENTATION. 5. ENGAGE IN CONDUCT THAT IS PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE. 6. UNLAWFULLY DISCRIMINATE IN THE PRACTICE OF LAW, INCLUDING IN HIRING, PROMOTING OR OTHERWISE DETERMINING CONDITIONS OF EMPLOYMENT, ON THE BASIS OF AGE, RACE, CREED, COLOR, NATIONAL ORIGIN, SEX, DISABILITY, MARITAL STATUS, OR SEXUAL ORIENTATION. WHERE THERE IS AVAILABLE A TRIBUNAL OF COMPETENT JURISDICTION, OTHER THAN A DEPARTMENTAL DISCIPLINARY COMMITTEE, A COMPLAINT OF PROFESSIONAL MISCONDUCT BASED ON UNLAWFUL DISCRIMINATION SHALL BE BROUGHT BEFORE SUCH TRIBUNAL IN THE FIRST INSTANCE. A CERTIFIED COPY OF A DETERMINATION BY SUCH A TRIBUNAL, WHICH HAS BECOME FINAL AND ENFORCEABLE, AND AS TO WHICH THE RIGHT TO JUDICIAL OR APPELLATE REVIEW HAS BEEN EXHAUSED, FINDING THAT THE LAWYER HAS ENGAGED IN AN UNLAWFUL DISCRIMINATORY PRACTICE SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF PROFESSIONAL MISCONDUCT IN A DISCIPLINARY PROCEEDING. 7. ENGAGE IN ANY OTHER CONDUCT THAT ADVERSELY REFLECTS ON THE LAWYER‟S FITNESS TO PRACTICE LAW. DR 1-104 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER A. A LAW FIRM SHALL MAKE REASONABLY EFFORTS TO ENSURE THAT ALL LAWYERS IN THE FIRM CONFORM TO THE DISCIPLINARY RULES. B. A LAWYER WITH MANAGEMENT RESPONSIBILITY IN THE LAW FIRM OR DIRECT SUPERVISORY AUTHORITY OVER ANOTHER LAWYER SHALL MAKE REASONABLE EFFORTS TO ENSURE THAT THE OTHER LAWYER CONFORMS TO THE DISCIPLINARY RULES. C. A LAW FIRMS SHALL ADEQUATELY SUPERVISE, AS APPROPRIATE, THE WORK OF PARTNERS, ASSOCIATES AND NONLAWYERS WHO WORK AT THE FIRM. THE DEGREE OF SUPERVISION REQUIRED IS THAT WHICH IS REASONABLE UNDER THE CIRCUMSTANCES, TAKING INTO ACCOUNT FACTORS SUCH AS THE EXPERIENCE OF THE PERSON WHOSE 60 WORK IS BEING SUPERVISED, THE AMOUNT OF WORK INVOLVED IN A PARTICULAR MATTER, AND THE LIKELIHOOD THAT ETHICAL PROBLEMS MIGHT ARISE IN THE COURSE OF WORKING ON THE MATTER. D. A LAWYER SHALL BE RESPONSIBLE FOR A VIOLATION OF THE DISCIPLINARY RULES BY ANOTHER LAWYER OR FOR THE CONDUCT OF A NONLAWYER EMPLOYED OR RETAINED BY OR ASSOCIATED WITH THE LAWYER THAT WOULD BE A VIOLATION OF THE DISCIPLINARY RULES OF ENGAGED IN BY A LAWYER IF: 1. THE LAWYER ORDERS, OR DIRECTS THE SPECIFIC CONDUCT, OR, WITH KNOWLEDGE OF THE SPECIFIC CONDUCT, RATIFIES IT; OR 2. THE LAWYER IS A PARTNER IN THE LAW FIRM IN WHICH THE OTHER LAWYER PRACTICES OR THE NONLAWYER IS EMPLOYED, OR HAS SUPERVISORY AUTHORITY OVER THE OTHER LAWYER OR THE NONLAWYER, AND KNOWS OF SUCH CONDUCT, OR IN THE EXERCISE OF REASONABLY MANAGEMETN OR SUPERVISORY AUTHORITY SHOULD HAVE KNOWN OF THE CONDUCT SO THA REASONABLE REMEDIAL ACTION COULD BE OR COULD HAVE BEEN TAKEN AT A TIME WHEN ITS CONSEQUENCES COULD BE OR COULD HAVE BEEN AVOIDED OR MITIGATED. MR 5.1 Responsibilities of Partners, Managers or Supervisory Lawyers (a) A PARTNER 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 TOHTE 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 IN THE LAW FIRM IN WHICHHTE 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. Comments—In a small firm, informal supervision and occasional admonition ordinarily might be sufficient to fulfill a and b, but in a large firm or in practice situations in which intensely difficult ethical problems frequently arise, more elaborate procedures may be necessary. MR 5.2 Responsibilities of a Subordinate Lawyer (a) A LAWYER IS BOUND BY THE RULES OF PROFESSIONAL CONDUCT NOTWITHSTANDING THAT THE LAWYER ACTED AT THE DIRECTION OF ANOTHER PERSON. (b) A SUBORDINATE LAWYER DOES NOT VIOLATE THE RULES OF PROFESSIONAL CONDUCT IF THAT LAWYER ACTS IN ACCORDANCE WITH A SUPERVISORY LAWYER‟S REASONABLE RESOLUTION OF AN ARGUABLE QUESTION OF PROFESSIONAL DUTY. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document‟s frivolous character. MR 5.3 Responsibilities Regarding NonLawyer Assistants WITH RESPECT TO A NONLAWYER EMPLOYED OR RETAINED BY OR ASSOCIATED WITH A LAWYER: (a) A PARTNER IN A LAW FIRM SHALL MAKE REASONABLE EFFORTS TO ENSURE THAT THE FIRM HAS IN EFFECT MEASURES GIVING REASONABLE ASSURANCE THAT THE PERSON‟S CONDUCT IS COMPATIBLE WITH THE PROFESSIONAL OBLIGATIONS OF THE LAWYER; (b) A LAWYER HAVING DIRECT SUPERVISORY AUTHORITY OVER THE NONLAWYER SHALL MAKE REASONABLE EFFORTS TO ENSURE THAT THE PERSON‟S CONDUCT IS COMPATIBLE WITH THE PROFESSIONAL OBLIGATIONS OF THE LAWYER; AND 61 (c) A LAWYER SHALL BE RESPONSIBLE FOR CONDUCT OF SUCH A PERSON THAT WOULD BE A VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT IF ENGAGED IN BY A LAWYER IF: (1) THE LAWYER ORDERS OR, WITH KNOWLEDGE OF THE SPECIFIC CONDUCT, RATIFIES THE CONDUCT INVOLVED; OR (2) THE LAWYER IS A PARTNER IN THE LAW FIRM IN WHICH THE PERSON IS EMPLOYED, OR HAS DIRECT SUPERVISORY AUTHORITY OVER THE PERSON, AND KNOWS OF THE CONDUCT AT A TIME WHEN ITS CONSEQUENCES CAN BE AVOIDED OR MITIGATED BUT FAILS TO TAKE REASONABLE REMEDIAL ACTION. A lawyer should give all assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. A partner or supervisory lawyer CAN be disciplined under the above provisions even if he or she was unaware of another lawyer‟s misconduct. However, a Michigan court held that a partner is not vicariously liable in a disciplinary proceeding if he had no reason to suspect or guard against an associate‟s violation. A lawyer can be liable for those in his firm that he does not supervise if he knew or should have known of the wrongdoing. An attorney cannot avoid his professional obligations to a client by the simple device of delegating work to others. Although much of the blame must fall on the wrongdoer, if he or she is relatively inexperienced the supervising attorney‟s failure to monitor the progress of the attorney is not defensible. Discipline may be appropriate even though there is no dishonest motive for the misconduct. Failure to supervise may also lead to malpractice liability. Malpractice and Breach of Fiduciary Duty NY DR 6-102 MR 1.8(h) NY CPR 6-102 LIMITING LIABILITY TO CLIENT A. A LAWYER SHALL NOT SEEK, BY CONTRACT OR OTHER MEANS, TO LIMIT PROSPECTIVELY THE LAWYER‟S INDIVIDUAL LIABILITY TO A CLIENT FOR MALPRACTICE, OR, WITHOUT FIRST ADVISING THAT PERSON THAT INDEPENDENT REPRESENTATION IS APPROPRIATE IN CONNECTION THEREWITH, TO SETTLE A CLAIM FOR SUCH LIABILITY WITH AN UNREPRESENTED CLIENT OR FORMER CLIENT. MR. 1.8(h)A lawyer shall not make an agreement prospectively limiting the lawyer‟s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith. How will increased liability change lawyer‟s behavior?—Lawyers argue that greater legal exposure to clients or nonclients will make them timid, that they will begin to think of themselves first and their clients second, that they will no longer be as zealous in pursuit of their clients‟ goals, and that as a result the legal system will suffer. 62 Liability to Clients Who is the client is the first question that must be answered because some jurisdictions are less willing than others to recognize liability to nonclients, so it may be that either you were a client or you‟re out of court. The other reason we must determine if someone is a client is that even in places that give nonclients lots of room to sue lawyers, clients will have more room. Togstad v. Vesely, Otto, Miller & Keefe (Minn 1980, p. 768) The jury found that defendant attorney was negligent and awarded damages to plaintiff and his wife. Defendants appeal. Plaintiff began to experience severe headaches and was admitted to a hospital where a large aneurysm was discovered in his neck. The Dr. treated the problem by putting a clamp on the aneurysm to allow it to close. Togstad became unable to speak or move, was discovered in this state by a nurse who called the attending physician. The attending did not adjust the clamp, but when Dr. arrived later he removed it. Plaintiff is now paralyzed. Plaintiff‟s expert testified that the paralysis was caused by a lack of blood to the brain as a result of the clamp. The expert claimed that Dr. was negligent because he: 1. Failed to place the patient in intensive care or to have a special nurse conduct certain neurological tests every half hour, 2. Failed to write adequate orders; 3. Failed to open the clamp immediately upon discovering that the patient was unable to speak; and 4. Failed to have personnel capable of opening the clamp. Plaintiff met with defendant to handle the case and defendant stated that he did not think they had a legal case, however he would discuss it with his partner. HE stated that he would call them, never did, and plaintiff thought that they had come to the conclusion that there wasn‟t a case. The statute of limitations ran. In a legal malpractice action of the type involved here, four elements must be shown: 1. That an attorney-client relationship existed; 2. That defendant acted negligently or in breach of contract; 3. That such acts were the proximate cause of the plaintiff‟s damages; 4. That but for defendant‟s conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim. As to 1If plaintiff called on defendant for legal advice, the relationship has begun. Held that the relationship is present here. (re: liberal imputation of AC relationship). Detrimental reliance on his silence satisfies element. As to 2This case does not involve breach of contract. Miller failed to perform the minimal research that an ordinarily prudent attorney would before rendering legal advice in a case of this nature. He failed to inform her of the two year S/L. In rendering legal advice regarding a claim of medical malpractice, the minimum an attorney should do would be to request medical authorizations from the client, review the hospital records, and consult with an expert in the field. The court upheld the jury verdict finding that Miller was indeed negligent A deviated from the standard of care. Expert testimony established that customary to check medical records. The standard of careThe court looked at what an ordinarily prudent attorney would do before rendering legal advice in a case of this nature and concluded that Miller failed to do the minimal research necessary to satisfy that standard. ORDINARY PRUDENCE. 63 As to 3proximate cause: his negligence cost her her lawsuit against the doctor. The A‟s acts or omissions must be linked to injury at the actual outcome. Here C lost a meritorious claim of medial malpractice. As to 4but for this negligence she collects. Lawyer in Miller‟s position should have taken notes. To limit exposures, should have clued her in that the S of L exists. Saying not your area of the law is not sufficient. Breach of Fiduciary Duty IF a client suffers a loss as a result of a lawyer‟s conflict of interest and therefore breach of fiduciary duty, he will be able to sue in malpractice. Causation requirements are eased when a plaintiff can show a breach of fiduciary duty. IF a lawyer uses a client‟s confidential information to the client‟s disadvantage, an malpractice action will lie. A breach of fiduciary duty will occur if a lawyer helps another agent of a client violate the agent‟s fiduciary duties to the client. Is Sex With Clients a Breach of Fiduciary Duty? Tante v Herring (Ga 1994) Herrings allege that Tante caused physical and mental harm to Mrs. Herring by taking advantage of confidential information regarding her emotional and mental condition to convince her to have an affair with him. His performance of legal services was fine. Tante was a fiduciary with regard to the confidential information provided to him by his client just as he would have been a fiduciary with regard to money or other property entrusted to him by a client. He took advantage of her condition, and therefore breached his fiduciary duty. Attorney acquired information about her vulnerabilities and used it to his advantage breach. There is current legal debate as to whether sex with clients is okay, a recent NY code amendment states that a lawyer shall not begin sexual relationship with a client in a domestic relations matter. Discipline NY DR 1-102 NY Judiciary Laws §§ 486-a & 487 MR 8.4 NYS Judiciary Law §§ 486-a and 487 487 An attorney or counselor who: 1. is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, 2. wilfully delays his client‟s suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for, Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action. MR 8.4 MISCONDUCT IT IS PROFESSIONAL MISCONDUCT FOR A LAWYER TO: (a) VIOLATE OR ATTEMPT TO VIOLATE THE RULSE OF PROFESSIONAL CONDUCT, KNOWINGLY ASSIST OR INDUCE ANOTHER TO DO SO, OR DO SO THROUGH THE ACTS OF ANOTHER; 64 (b) COMMIT A CRIMINAL ACT THAT REFLECTS ADVERSELY ON THE LAWYER‟S HONESTY, TRUSTWORTHINESS OR FITNESS AS A LAWYER IN OTHER RESPECTS; (c) ENGAGE IN CONDUCT INVOLVEING DISHONESTY, FRAUD, DECEIT OR MISREPRESENTATION; (d) ENGAGE IN CONDUCT THAT IS PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE; (e) STATE OR IMPLY AN ABILITY TO INFLUENCE IMPROPERLY A GOVERNMENT AGENCY OR OFFICIAL; OR (f) KNOWINGLY ASSIST A JUDGE OR JUDICIAL OFFICER IN CONDUCT THAT IS A VIOLATION OF APPLICABLE RULES OF JUDICIAL CONDUCT OR OTHER LAW. Why do we discipline attys? Communicative to society, deterrence, pre-empting others to regulate, protect clients, part of the pitch. How does it relate to malpractice? Does discipline stear/guide ‟s in seeking malpractice. Other remediesprivate sanctions, egwithin firm Steps on the sanction scale: a huge majority of complaints wash out/noting commences. If sanction is below the disbar, suspension, censure level then remains private. Supervision Treatment Letter of Admonition Censure Disbarment Criminal contempt Client Funds DR 9-102 MR 1.15 NY CPR DR 9-102 Preserving Identity of Funds and Property of others; Fiduciary Responsibility; Commingling and Misappropriation of Funds or Property; Maintenance of Bank Accounts; Record Keeping; Examination of Records. MR. 1.15 Safekeeping Property (a) A LAWYER SHALL HOLD PROPERTY OF CLIENTS OR THIRD PERSONS THAT IS IN A LAWYER‟S POSSESSION IN CONNECTION WITH A REPRESENTATION SEPARATE FROM THE LAWYER‟S OWN PROPERTY. FUNDS SHALL BE KEPT IN A SEPARATE ACCOUNT MAINTAINED IN THE STATE WHERE THE LAWYER‟S OFFICE IS SITUATED, OR ELSEWHERE WITH THE CONSENT FO THE CLIENT OR THIRD PERSON. OTHER PROPERTY SHALL BE IDENTIFIED AS SUCH AND APPROPRIATELY SAFEGUARDED. COMPLETE RECORDS OF SUCH ACCOUNT FUNDS AND OTHER PROPERTY SHALL BE KEPT BY THE LAWYER AND SHALL BE PRESERVED FOR A PERIOD OF 5 YEARS AFTER TERMINATION OF THE REPRESENTATION. (b) UPON RECEIVING FUNDS OR OTHER PROPERTY IN WHICH A CLIENT OR THIRD PERSON HAS AN INTEREST, A LAWYER SHALL PROMPTLY NOTIFY THE CLIENT OR THIRD PERSON. EXCEPT AS STATED IN THIS RULE OR OTHERWISE PERMITTED BY LAW OR BY AGREEMENT WITH THE CLIENT, A LAWYER SHALL PROMPTLY DELIVER TO THE CLIENT OR THIRD PERSON ANY FUNDS OR OTHER PROPERTY THAT THE CLIENT OR THIRD PERSON, SHALL PROMPTLY RENDER A FULL ACCOUNTING REGARDING SUCH PROPERTY. (c) WHEN IN THE COURSE OF REPRESENTATION A LAWYER IS IN POSSESSION OF PROPERTY IN WHICH BOTH THE LAWYER AND ANOTHER PERSON CLAIM INTERESTS, THE PROPERTY SHALL BE KEPT SEPARATE BY THE LAWYER UNTIL THERE IS AN ACCOUNTING AND SEVERANCE OF THEIR INTERESTS. IF A DISPUTE ARISES CONCERNING THEIR 65 RESPECTIVE INTERESTS, THE PORTION IN DISPUTE SHALL BE KEPT SEPARATE BY THE LAWYER UNTIL THE DISPUTE IS RESOLVED. (d) Keep property and money separate from your own… (e) Acts Justifying Discipline Purposes of Discipline Vindicates the public‟s interest in preventing unethical behavior. According to the ABA, the purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession. - protect the public - protect the integrity of the legal system - deter further unethical conduct - educate other lawyers and the public Sanctions o In NY, a disbarred lawyer may apply for readmission in 7 years. o Disbarment is the most severe sanction, while suspension is less harsh. o Censure is a public reprimand, and the fact that it is public is significantly foreboding. o The ABA recommends that jurisdictions include Restitution, assessment of costs, limitation upon practice, appointment of a receiver for a law practice, requirement that the lawyer retake a bar examination or the professional ethics portion of it, and mandatory CLE. o TO determine the appropriate sanction the ABA says to consider: 1. the duty violated; 2. the lawyer‟s mental state 3. the actual or potential injury caused by the lawyer‟s misconduct; and 4. the existence of aggravating or mitigating factors. Dishonest or Unlawful Conduct Unauthorized withdrawal from an attorney‟s trust or escrow account is a basis for discipline. It is unethical to commingle trust funds with one‟s own money and even worse, to make actual use of trust funds. IN RE WARHAFTIG Respondent continually issued checks to his own order for fees in pending real estate matters. He would replace the advance when the funds were received for the real estate closing. He maintained his own list of fees taken in advance. It contained the list of clients and the amounts he anticipated earning from these clients in pending real estate closings. When he earned the fee, he would delete the name from the list. Upon learning of the impending audit, respondent deposited 11 thousand dollars into the trust account. He explained at the ethics hearing that he had a gigantic cash flow burden, and that his wife had cancer and his son needed counseling. The court recognized that it consistently held that a lawyer’s subjective intent, whether it be to borrow or to steal, is irrelevant to the determination of the appropriate discipline. 66 Held: The court found that he was effectively borrowing monies from one group of clients in order to compensate himself, in advance for matters being handled for other clients. The court held that he must be disbarred not withstanding the mitigating factors or his subjective intent. INTENTIONALLY TAKING A CLIENT‟S MONEY WITHOUT AUTHORIZATION, EVEN IF TEMPORARILY AND WITH AN INTENT TO RETURN IT, WILL ALMOST ALWAYS RESULT IN SERIOUS DISCIPLINE. In NJ there is no reinstatement. Wharftig out forever. In other states may seek reinstatement. The conversion of funds is the capital offence in lawyer disciplinary codes. Banks have no discretion, but report bounced checks. Racist and Sexist Conduct Matter of Jordan Schiff The case involved deposition misconduct. Public censure is recommended. Schiff showered a female adversary with sexist obscenities, partly off the record and partly on the record, in pursuance of a generally obstructive pattern of conduct. The court cited mitigating factors such as an unblemished record and his age as reasons why the punishment was not more severe. Sexual relations with a client DR 5-111 Flat prohibition in MR 1.8(j) The lawyer’s private life Some states mandate disbarment for all felonies, others review them on a case by case basis. many states look down on domestic abuse to the point of disbarment or suspension for an attorney accused or convicted of domestic abuse. “Squeal Rules” DR 1-103 MR 8.3 Failure to report another attorney’s misconduct MR 8.3 requires lawyers to report misconduct of other lawyers under certain circumstances. The rules require reporting misconduct only if it raises a substantial question as to another lawyer’s honesty, trustworthiness or fitness as a lawyer. The rules exclude reporting if the basis for a lawyer‟s knowledge is confidential information. DR 1-103 DISCLOSURE OF INFORMATION TO AUTHORITIES A. A LAWYER POSSESSING KNOWLEDGE, (1) NOT PROTECTED AS A CONFIDENCE OR SECRET, OR (2) NOT GAINED IN THE LAWYER‟S CAPACITY AS A MEMBER OF A BONA FIDE LAWYER ASSISTANCE OR SIMILAR PROGRAM OR COMMITTEE, OF A VIOLATION OF DR 1-102 THAT RAISES A SUBSTANTIAL QUESTION AS TO ANOTHER LAWYER‟S HONESTY, TRUSTWORTHINESS OR FITNESS IN OTHER RESPECTS AS A LAWYER SHALL REPORT SUCH KNOWLEDGE TO A TRIBUNAL OR OTHER AUTHORITY EMPOWERED TO INVESTIGATE OR ACT UPON SUCH VIOLATION. B. A LAWYER POSSESSING KNOWLEDGE OR EVIDENCE, NOT PROTECTED AS A CONFIDENCE OR SECRET, CONCERNING ANOTHER LAWYER OR A JUDGE SHALL REVEAL FULLY SUCH KNOWLEDGE OR EVIDENCE UPON PROPER REQUEST OF A TRIBUNAL OR OTHER AUTHORITY EMPOWERED TO INVESTIGATE OR ACT UPON THE CONDUCT OF LAWYERS OR JUDGES. 67 MR 8.3 Reporting Professional Misconduct (a) A LAWYER HAVING KNOWLEDGE THAT ANOTHER LAWYER HAS COMMITTED A VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT THAT RAISES A SUBSTANTIAL QUESTION AS TO THAT LAWYER‟S HONESTY, TRUSTWORTHINESS OR FITNESS AS A LAWYER IN OTHER RESPECTS SHALL INFORM THE APPROPRIATE PROFESSIONAL AUTHORITY. (b) A LAWYER HAVING KNOWLEDGE THAT A JUDGE HAS COMMITTED A VIOLATION OF APPLICABLE RULES OF JUDICIAL CONDUCT THAT RAISES A SUBSTANTIAL QUESTION AS TO THE JUDGE‟S FITNESS FOR OFFICE SHALL INFORM THE APPROPRIATE AUTHORITY. (c) THIS RULE DOES NOT REQUIRE DISCLOSURE OF INFORMATION OTHERWISE PROTECTED BY RULE 1.6 OR INFORMATION GAINED BY A LAWYER OR JUDGE WHILE SERVING AS A MEMBER OF AN APPROVED LAWYERS ASSISTANCE PROGRAM TO THE EXTENT THAT SUCH INFORMATION WOULD BE CONFIDETIAL IF IT WERE COMMUNICATED SUBJECT TO THE ATTORNEY CLIENT PRIVILEGE. This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. XII. LAY SERVICES, ANCILLARY BUSINESSES & MULTIDISCIPLINARY PRACTICE (MDP) DRs 1-106, 1-107, 3-102 & 3-103 MR 5.4 MDPcross professional p‟ship in a multiple service provider setting. Prohibition of fee-splitting/p‟ship with non-lawyers prevents Arg is that core values of legal services are at stakecorrupt our product. Arg that their notion of competence less than ours: independent professional jmt, protection of client confidences. Probably most compelling arg is at the conflicts level if other parts of the MDP are helping adversaries (accounting, consulting, investing). Could extend our rules to them? Bulk of legal profession is resistant to, against the psychology of practicing at Wal-Mart. MDP issue as window on huge class component in regulation of lawyers. NY state bar against liberalization, half-steps proposed: DR 1-106, 1-107, law firms branch out beyond tradition through affiliated orgs. Just stating to develop. XIII. FREE SPEECH RIGHTS OF LAWYERS NY DR 7-107 MR 3.6 NY CPR DR 7-107 Trial publicity: A. Shall not make an out of court statement if prejudice is possible B. Examples of prejudicial statements. C. A lawyer may state the following without elaboration: see Code 68 MR 3.6 Trial Publicity Basically same as NY Lawyers enjoy First Amendment protection for two kinds of speech, with two exceptions. They can criticize the government, including courts and judges and speak about public issues, subject only to such narrow limitations as the First Amendment will permit. Exceptions 1. Less freedom than others to speak publicly about his or her own cases 2. They can be disciplined for false or reckless accusations against judges. Lawyers free speech issues are raised in three contexts: 1. When a lawyer speaks to the press on a case with which she is associated 2. When a lawyer criticizes a judge or the courts; 3. When a lawyer objects to the fact that an integrated bar association is using his dues to promote causes the lawyer opposes. Comment on Pending Cases A gag order has a double value. Unlike legal ethics rules, a gag order restrains both lawyers and nonlawyers, from speaking. There are 3 problems with gag orders 1. Although violations are easy to detect, violators are hard to catch, especially if the source is in a government agency where hundreds of people may have access to the information 2. Investigation and prosecution may be the job either of the very agency whose personnnel are suspect or of an agency that works closely with it; and 3. Appellate courts differ in their tolerance for gag orders. Gentile v. State Bar (SCt 1991) Hours after his client was indicted on criminal charges, Gentile held a press conference. The client was subsequently acquitted. The State bar then filed a complaint against Gentile for violation of Nevada Supreme Court Rule 177—publicity. Petitioner called a press conference to counter what the police and prosecutors were saying, namely that to accused police have been cleared by polygraph tests. Rule 177 only prohibits the dissemination of information that one knows or reasonably should know has a substantial likelihood of materially prejudicing an adjudicative proceeding (Prohibition on extrajudicial comment). Petitioner sought only to stop a wave of publicity he perceived as prejudicing potential jurors. He also stated that the investigation had taken a toll on his client. An attorney may take reasonable steps to defend a client‟s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. Held: The Court held that the rule is void for vagueness because it failed to provide notice of the prohibited conduct. The Court then goes on to explain the proper analysis. It states that the case does not revolve around protected speech, he could not have learned what he revealed at the press conference through the discovery process or other special access afforded to attorneys, for he spoke to the press on the day of indictment. Respondent here has not demonstrated any sufficient state interest in restricting speech of attorneys to justify a lower standard of First Amendment scrutiny. 69 A Very low justification exists for a lower standard of scrutiny for statements made by a defense attorney. A defendant cannot speak without fear of incriminating himself and prejudicing his defense. Blanket rules restricting speech of defense attorneys should not be accepted without careful First Amendment Scrutiny Rule 177 permits all comments to the press absent a substantial likelihood of materially prejudicing an adjudicative proceeding. If as a regular matter speech by an attorney about pending cases raised real dangers of this kind then a substantial governmental interest might support additional regulation of speech. The rule which punished petitioner‟s statement here represents a limitation on First Amendment freedoms greater than is necessary or essential to the protection fo the particular governmental interest, and does not protect against a danger of the necessary gravity, imminence, or likelihood. Counting the justices What about his behavior saved Gentile? On the vagueness issue two good things on record that attempted to reach safe harbor: (i) stayed up an worked through the rule and (ii) invokes the rule in Q&A in not answering every question. Made a diligent effort to find vagueness, lack of notice DP problem. Hard to be the next Gentile. Good for Gentile, but not really for the speaking lawyer, just balancing, not strict scrutiny under the 1st Amendment. Cling to list of safe harbors in MR 3.6(b). Criticizing the Administration of Justice Be careful if you criticize a judge. The baseline rule to remember is : As a matter of professional consciousness, you should know that you should not take a shot against a judge unless you are positive you are correct. Criticizing particular judges NY DR 8-102 MR 8.2(a) See above rule, don‟t do it unless you know you are correct. It injures the profession and the public as they may lose faith therein. Matter of Holtzman Public release by petitioner of a letter charging Judge Irving Levine with judicial misconduct in relation to an incident that allegedly occurred in the course of a trial on criminal charges of sexual misconduct. Whether the attorney violated a DR must be determined in light of what a reasonable attorney, familiar with the Code and its ethical strictures, would have notice of what conduct is proscribed. The court found that petitioner was plainly on notice that her conduct in this case, involving public dissemination of a specific accusation of improper judicial conduct under the circumstances described, could be held to reflect adversely on her fitness to practice law. She published the statement before she had any of the minutes of the trial, without speaking with the court officers, without meeting or discussing the incident with the person who reported it to the ALJ. Petitioner knew or should have know that such attacks are unwarranted and unprofessional, serve to bring the bench and bar into disrepute, and tend to undermine public confidence in the judicial system. Therefore, petitioner‟s conduct was properly the subject of disciplinary action under DR 1-102(A)(7), and it is of no consequence that she might be charged with other violations of the DR. Professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person, the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations. 70 THUS, THE ISSUE IS WHETHER THE CRITICISM ADVERSELY AFFECTS THE ADMINISTRATION OF JUSTICE AND ADVERSELY REFLECTS ON THE ATTORNEY‟S JUDGMENT AND, CONSEQUENTLY, HER ABILITY TO PRACTICE LAW. IT IS THE REASONABLENESS OF THE ATTORNEY‟S BELIEF (OBJECTIVE STANDARD) NOT HER STATE OF MIND THAT IS DETERMINATIVE OF WHETHER SHE ACTED REASONABLY. DR 8-102 STATEMENTS CONCERNING JUDGES AND OTHER ADJUDICATORY OFFICERS A. A LAWYER SHALL NOT KNOWINGLY MAKE FALSE STATEMENTS OF FACT CONCERNING THE QUALIFICATIONS OF A CANDIDATE FOR ELECTION OR APPOINTMENT TO A JUDICIAL OFFICE. B. A LAWYER SHALL NOT KNOWINGLY MAKE FALSE ACCUSATIONS AGAINST A JUDGE OR OTHER ADJUDICATORY OFFICER. MR 8.2(A) JUDICIAL AND LEGAL OFFICIALS (a) A LAWYER SHALL NOT MAKE A STATEMENT THAT THE LAWYER KNOWS TO BE FALSE OR WITH RECKLESS DISREGARD AS TO ITS TRUTH OR FALSITY CONCERNING THE QUALIFICATIONS OR INTEGRITY OF A JUDGE, ADJUDICATORY OFFICER, OR PUBLIC LEGAL OFFICER, OR OF A CANDIDATE FOR ELECTION OR APPOINTMENT TO JUDICIAL OR LEGAL OFFICE.