DIRTY TRICKS by cuiliqing

VIEWS: 52 PAGES: 56

									                        LEGAL PROFESSION
introduction
THE ROLES AND RESPONSIBILITY OF THE LAWYER
   1. Zealous Advocacy and Securing Justice According to the Law
          a. ―Clueless‖
                     i. Lawyers get things that they are not entitled to.
                    ii. ―Lawyering‖ subverts justice.
          b. Max Steuer and the Triangle Shirtwaist Fire
                     i. Two Dimensions
                            1. Outcome
                                      a. Was this the wrong outcome? Defendants ―should‖ have been
                                           guilty of manslaughter. Helps guilty defendants get off.
                            2. Means
                                      a. He made her look like she was lying; took advantage of her
                                           unspontaneous and rehearsed testimony.
                                      b. Typically rehearsed = lying. However, in her case she barely
                                           spoke English, so rehearsed was necessary. Injustice to
                                           witness to humiliate her.
                    ii. Arguments For Steuer
                            1. Role of Defense Attorney
                                      a. Can he be disengaged from the rules of morality?
                                      b. Zealous advocacy. Can mislead jury as long as within rules of
                                           the game.
                                                 i. Max raised a reasonable doubt.
                                                ii. He got his client what they were legally entitled to.
                            2. Role of Prosecution
                                      a. Should have prepared witness better.
                                      b. Overplayed his hand; tried to go for too much dramatic effect.
                            3. Role of Jury
                                      a. The responsibility for convicting or acquitting is in the hands
                                           of the jury. This is not Max’s responsibility.
                   iii. Arguments Against Steuer
                            1. Did he lie?
                                      a. Affirmatively? No.
                                      b. Deliberately induced misimpression? Yes. He invited and did
                                           a great deal to promote the drawing of a false inference.
                            2. Beyond Unjust Outcomes
                                      a. Harming innocent people is generally unjust. Disgracing
                                           people in public or destroying their reputation on the stand.
          c. ―The Scottsboro Boys‖
   2. What is the Role of the Lawyer?
          a. The Subin-Mitchell Debate
                     i. Subin: Lawyer as ―Monitor‖
                            1. Shouldn’t attempt to persuade jury that facts are true if you know them
                                 to be false.
                            2. The defense lawyer’s job is to monitor the state’s case; act as a quality
                                 inspector.
                    ii. Mitchell: Lawyer as ―Zealous Advocate‖
                            1. Attempts to knock down the distinction between monitor and zealous
                                 advocate.
                                      a. State must prove case beyond reasonable doubt.
                                         b.   Defense should ensure that this is established.
                                                    i. Problem (for Subin): how do you monitor a case if
                                                       not by attempting to raise doubts about the facts that
                                                       they introduce?
                                         c. Blurring of the lines between positively asserting and
                                              negatively undermining.
                                2.   Essentially, Subin is making the defense apply the reasonable doubt
                                     standard. This turns the defense lawyer into the trier of fact.
             b.   Zabella v. Pakel
                       i. Facts: D contractor borrows money from P employee. D declares bankruptcy
                           and doesn’t pay P. D then becomes president of large company and says that
                           he’ll pay P. D doesn’t pay P saying that the statute of limitations ran.
                      ii. No Difficult Moral Question: the court says that there is a clear moral
                           obligation to pay back Pakel. However, unjust result because of bankruptcy and
                           statute of limitations.
                     iii. Statute of Repose v. Statute of Limitations: the primary purpose of the statute of
                           repose is to limit the amount of time a party must worry about a possible suit;
                           the primary purpose of statute of limitations is to arbitrarily limit the time period
                           in which a suit can be brought because evidence erodes over time.
                                1. Fried: endorses this; within legal rules. Sticks to the law or client.
                                2. Postema: objects to this; not the purpose of the statute of limitations to
                                     help people get around debts. Defendant’s legal right exists because
                                     the system is imperfect. Where there is a defect in the law, the layer
                                     should take responsibility. Defendant’s lawyer should not help him get
                                     around debt.

COMPETING IDEALS OF LAWYERING
  1. Zealous Advocacy
         a. ―Why Lawyers Behave as They Do‖ (Haskell)
                  i. Haskell considers whether or not ―independent counseling‖ is feasible for large
                     elite law firms serving national corporations.
         b. ―The Lawyer as Friend‖ (Fried)
                  i. Two Criticisms of Lawyers
                          1. How they help get guilty off. Social harm results (2 aspects)
                                    a. Unjust outcome
                                    b. ―Exploitation‖
                          2. Mistreatment of others: ethically good people don’t do above.
                 ii. Justification: Lawyer as Friend Analogy
                          1. The A/C relationship is not fueled by market self-interest. The
                               relationship goes beyond this to ethical obligations.
                                    a. Allows one to favor an individual over the common good.
                          2. Market meets wants; lawyer meet needs.
                                    a. Doctor patient relationship is the same way.
                          3. Uses friendship to justify two obligations attorney owes client.
                                    a. Lawyer can devote as much time to a client as client is willing
                                        to pay for.
                                    b. Like a true friend, lawyer accepts client’s interest as his own.
                          4. Lawyers help guide people through the system and help people realize
                               their own autonomy (allow lives as full citizens).
                                    a. As attorneys, we don’t take the moral responsibility of ends
                                        achieved; sticks to the client or the law.
                                              i. The client has the legal rights and it is legitimate for
                                                  the lawyer to help the client realize these rights.
                                    b. I.e., even if client is porn king, the attorney must help client
                                        achieve autonomy by representing them; moral responsibility
                                        sticks to the client.
                                         c.  On Steuer: did the right thing by representing zealously. His
                                             job was to induce reasonable doubt about defendant’s guilt.
                                             Moral responsibility sticks to the law.
                     iii. Criticisms of Fried
                               1. Protecting autonomy does not fully describe the attorney’s role.
                               2. Some urgent needs can’t be met by lawyer.
                               3. Saying the client (porn king) or the legal system (Steuer) is responsible
                                   for the ends is unsound.
                                        a. Eichman, Nazi Germany: excuse of ―it’s my job‖ doesn’t
                                             work.
                                                    i. Fried’s Response: assumes a reasonably just legal
                                                       system. So, if it is defensible, you should direct all
                                                       criticism to the legal system, not the lawyer.
                                                   ii. The U.S. is just; Germany was not.
                                        b. Keating: it is not a good argument to think that lawyers can
                                             hide behind the rules to justify bad outcomes and mistreatment
                                             of individuals.
    2.   Independent Counseling
             a. ―The Moral Responsibility in Professional Ethics‖ (Postema)
                       i. Response to Fried: what people have a legal right to they might not have a
                          moral right to.
                      ii. On Steuer: if lawyer thinks that witness is lying, then cross-examination
                          techniques are fine, even if it involves humiliating the witness. But if lawyer
                          does not think the witness is lying, the lawyer is misusing the technique.
                          Exploiting the defects in the law is wrong.
                               1. Fried’s Response: this is what the client is entitled to, taking advantage
                                   of the system. Lawyer is just trying to show that the case is not proven
                                   beyond a reasonable doubt. It is the jury’s role to determine the truth.
                     iii. Summary of Fried v. Postema
                               1. Fried: lawyers are special purpose friends out there to enable clients to
                                   realize their legal rights, to get what they are entitled to under law, and
                                   their legal autonomy.
                               2. Postema: counters that this doesn’t hold when lawyers get their clients
                                   more than their clients are entitled to under the law because lawyers are
                                   able to exploit defects in the law and as a result clients get unjust
                                   benefits.
                               3. Outcome: Keating says that Postema is more convincing. The lawyer
                                   should not exploit the legal system. Postema doesn’t want lawyers to
                                   be able to wash their hands once they’ve given the Steuer/Fried
                                   counterargument.
             b. ―The Practice of Justice‖ (Simon)
                       i. Not discussed in class.

ONE LIMIT ON ZEALOUS ADVOCACY
  1. Obstruction of Justice: Physical Evidence
         a. Commonwealth v. Stenach
                   i. Facts: after the D attorneys retained possession of a broken rifle stock from a
                       rifle used by their client, who was being tried for murder, the trial court insisted
                       that they produce the rifle stock, and the Ds were later charged with hindering
                       prosecution and tampering with evidence. Court establishes rule, but Ds not
                       punished because of good faith.
                             1. If a normal person takes physical evidence with requisite intent it is
                                 likely to be obstruction of justice. This is tampering with physical
                                 evidence.
                             2. What About a Lawyer?
                                      a. Relevant Pro-Client Bodies of Law:
                     i. Evidence
                              1. A/C Privilege: under privilege, if client tells
                                  attorney (even gives a map of location of
                                  physical evidence) prosecution cannot get
                                  this information.
                    ii. Constitution
                              1. 5th Amendment: cannot be forced to self-
                                  incriminate.
                              2. 6th Amendment: right to effective assistance
                                  of counsel.
                   iii. Ethics
                              1. Duty of Confidentiality
                              2. Duty of Zealous Advocacy: it is in the
                                  client’s best interest not to hand over the
                                  evidence.
          b. Relevant Pro-State Bodies of Law
                     i. Obstruction of Justice: this kicks in when you
                         prejudice the state.
                    ii. Ethics
                              1. Not to assist in crime/fraud.
                              2. Officer of the court.
          c. Taking rifle back to office is different. It prejudices the
              prosecution’s ability to go and find it on their own. Lawyer
              has to assess the situation from the point of view of the court
              (he is an officer of the court, too).
3.   Rule: Lawyer must turn over physical evidence even without being
     asked for it (or return it unaltered). This does not apply to documentary
     evidence, where they can wait for the prosecution to ask for it.
          a. Exception (Physical): things that are illegal to posses, e.g.,
              drugs.
          b. Documentary Evidence: things like maps are physical
              evidence; office memos, testimony are documents.
          c. Physical Evidence: Two Options for the Lawyer
                     i. Leave it alone, or
                    ii. Examine it.
                              1. Return if unaltered (it is questionable that it
                                  is possible to examine it and leave it
                                  unaltered), or
                                        a. Stay in the dark about its
                                            evidentiary significance.
                              2. Turn over unasked.
                                        a. If you do alter the evidence, you
                                            get to take it and keep it for a
                                            reasonable amount of time after
                                            which you have to turn it over to
                                            the government.
4.   Two Ways to Introduce Evidence
          a. Independent authentication: not revealing it came through
              counsel (protects A/C privilege.)
          b. Stipulation: about where it was removed.
5.   Past v. Future Events
          a. Obstruction of justice occurs after there has bee a crime and
              the investigation has begun. When the crime is in the past you
              are in now way assisting in the crime.
          b. However, if the client seeks advice for ―next time,‖ then this
              would be assisting in the commission of a crime. Can’t
                                  engage in zealous advocacy about future; only about what
                                  happened to client in past.
b.   Lawyers and Incriminating Evidence
          i. Ethics Rules and Criminal Statutes
                  1. Criminal statutes in all jurisdictions make concealment or destruction
                       of evidence criminal although the circumstances that trigger the statues
                       vary.
                  2. Contraband statutes exist in all jurisdictions and make no exceptions
                       for criminal defense lawyers. You cannot possess certain items (e.g.,
                       drugs).
         ii. Lawyer’s Obligations as to Incriminating Evidence
                  1. Can’t take affirmative steps to conceal once item is removed from
                       source.
                  2. Can’t return it if it will be destroyed.
                  3. In light of these dangers, most jurisdictions require attorney to turn
                       over all physical evidence. Two caveats limit this rule:
                            a. Evidence created as part of a defense is protected by A/C
                                  privilege.
                                        i. The fact that certain communications between client
                                           and lawyer are in physical form does not change their
                                           privileged status.
                            b. Evidence that the state could not compel a defendant to
                                  produce against his will (e.g., a personal diary).
                  4. Lawyers can retain evidence for a ―reasonable‖ period of time for
                       investigatory purposes.
                  5. D.C. Minority Rule
                            a. Turn evidence over to bar counsel. If office refuses, attorney
                                  keeps.
                            b. Appears to state that a lawyer may do what Stenach did.
        iii. People v. Belge: The Dead Bodies Case
                  1. D admitted to his attorneys that he committed murder. D directed
                       attorneys to the bodies. Attorneys photographed, but didn’t disclose
                       discovery. Eventually exchanged information for plea bargain.
                  2. Court affirmed motion to dismiss on A/C privilege grounds; required
                       silence.
                  3. Conduct OK because
                            a. Attorneys never had possession.
                            b. Nor did they conceal or alter the bodies; they left them there.
        iv. Contraband: lawyers don’t often get accused of violating contraband statutes.
c.   MR 1.2 (d): Scope of Representation
          i. ―A lawyer shall not counsel a client to engage, or assist a client, in conduct that
             the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal
             consequences of any proposed course of conduct with a client and may counsel
             or assist a client to make a good faith effort to determine the validity, scope,
             meaning or application of the law.‖
d.   MR 1.6: Confidentiality of Information
          i. (a): ―A lawyer shall not reveal information relating to representation of a client
             unless the client consents after consultations, except for disclosures that are
             impliedly authorized in order to carry out the representation, and except as
             stated in paragraph (b).
         ii. (b): A lawyer may reveal such information to the extent the lawyer reasonably
             believes necessary:
                  1. (1): to prevent the client from committing a criminal act that the
                       lawyer believes is likely to result in imminent death or substantial
                       bodily harm; or
                                         a.  (2): 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.‖
             e.   MR 3.1: Meritorious Claims and Contentions
                      i. ―A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
                          therein, unless there is a basis for doing so that is not frivolous, which includes a
                          good faith argument for an extension, modification or reversal of existing law.
                          A lawyer for the defendant in a criminal proceeding, or the respondent in a
                          proceeding that could result in incarceration, may nevertheless so defend the
                          proceeding as to require that every element of the case be established.‖

SELF-GOVERNANCE AND GOVERNANCE BY OTHERS
   1. Sources of Obligation
          a. Ethics Codes
                    i. Every state has adopted a code of ethics for lawyers that operates as a set of
                       mandatory legal rules governing lawyer conduct.
                   ii. ABA Models: series of three codes that serve as models for state adoption.
                       None are directly controlling; however, they are the chief source for model
                       ethics codes and federal courts have frequently looked to both the ABA models
                       and the code for the state in which the particular federal court sits for governing
                       ethics rules.
                            1. The 1908 Canons of Ethics
                            2. The 1969 Model Code of Professional Responsibility
                            3. The 1983 Model Rules of Professional Conduct
          b. Who Regulates Lawyers?
                    i. Competing Authorities
                            1. State High Court: regulations are generally created, revised and
                                 enforced by highest court of the state.
                                     a. Legislation is excluded from participation in regulation of
                                          lawyers.
                                     b. Bar associations retain privileged and influential role in
                                          formulation of professional standards.
                            2. Self-Regulation: to the extent that the lawyer’s duties are specified by
                                 codes, this is a form of self-regulation. They are formulated and
                                 adopted by lawyers. Why? Two Views:
                                     a. Superior Knowledge and Expertise (O’Connor)
                                                 i. Clients can’t take care of themselves when they are
                                                     dealing with lawyers; they need a fiduciary duty.
                                                ii. In order to prevent lawyers from exploiting their
                                                     clients, they need to be subject to internal restraints.
                                     b. The Nature of a Profession
                                                 i. The nature of a profession is that they can govern
                                                     themselves; the first best solution is to internalize a
                                                     set of standards. External governance would be
                                                     second best.

                                          DUTIES TO CLIENTS

THE LAWYER-CLIENT RELATIONSHIP
   1. Formation and Termination
          a. Togstad v. Vesley, Otto, Miller & Keefe
                   i. Law
                  1.   Duty of reasonable care can arise towards client without having a full
                       A/C relationship. Can arise under tort or contract law.
                            a. Tort: duty can be triggered when you give legal advice in
                                circumstances where it is reasonably foreseeable that someone
                                will act on that advice and, if the advice is bad, will be harmed
                                by it.
                                       i. This happens at the moment of consultation.
                            b. Contract: when someone asks for legal advice and they rely
                                reasonably to their detriment on your bad legal advice.
                  2.   Duty does not arise out of professional responsibility, though there may
                       be a parallel in professional responsibility.
         ii. Facts
                 1.   Lawyer’s Perception: no billing, sort of casual. He told her that his
                      firm doesn’t do medical malpractice and that she should talk to another
                      lawyer. No money was exchanged.
                 2. Client’s Perception: he told her she didn’t have a case but that he’d
                      look into it. When she didn’t hear from him she took it as confirmation
                      that she didn’t have a case.
         iii. What Attorney Did Wrong
                 1. Didn’t follow through. Accepted representation to the reasonable
                      client’s perception thus breached duty.
                 2. Didn’t take client’s view of the meeting. The law provides a tilt
                      towards the client; lawyer has to assume that the client is reasonably
                      ignorant and vulnerable. The client’s unsophistication is reasonable.
                 3. Didn’t clarify. Left a lot of stuff dangling; should have been more clear
                      about going to another lawyer and there possibly being a statute of
                      limitations to deal with.
                           a. He should have made it clear to her that he was not going to
                                take her case.
                           b. He should have told her that he didn’t know what the statue of
                                limitations was, but that there is one.
         iv. Lawyers Giving Advice
                 1. No reasonable person would rely on advice given by lawyer at the gym;
                      won’t get nailed for this.
                 2. Law students are not members of the Bar; can’t be held liable.
          v. Malpractice Standards
                 1. Basic Standard of Care: The Reasonable Lawyer
                           a. Expert: malpractice lawyer would have to do fact checking
                                and tell the person about statue of limitation running. If he
                                doesn’t do this, then he would be liable for what an expert
                                would be liable for.
                                      i. If lawyer is going to take the case, he will be held to
                                          the standard of someone who is competent.
                           b. Generalist (one who doesn’t know specifics of malpractice
                                law): should refer person to malpractice lawyer and pay
                                attention to statute of limitations so that client doesn’t lose
                                rights.
         vi. Ethics Rules?
                 1. Require lawyers to be competent, but not very relevant to malpractice
                      claims.
                 2. No disciplinary action against the lawyers. Disciplinary committees
                      are concerned with getting the repeat offenders, not single instances,
                      like here. Malpractice litigation is about getting compensation for
                      client’s harms.
b.   Kriegsman v. Kriegsman
         i. Facts: Kriegsman obtained the Rose firm to represent her in a divorce case. She
            no longer had sufficient funds to pay and firm wants to get out of representing
            her.
        ii. Termination of Attorney/Client Relationships
                 1. By Clients
                           a. At will, unless
                                      i. Close to trial or at trial, in which case judge as a say.
                                          Why?
                                               1. Prevent delay tactics.
                                               2. Court docket/scheduling.
                           b. If client terminates, lawyer gets quantum meruit (value of
                                services rendered, not contract price).
                 2. By Lawyers
                           a. Fairly wide latitude. See MR 1.16(b)
                           b. Mandatory. See MR 1.16(a)
                           c. Discretionary. See MR 1.16(b)
                                      i. The Rule is discretionary unless the court rules
                                          otherwise.
                                     ii. If the client will be materially prejudiced by
                                          withdrawal of attorney, the client gets to keep the
                                          attorney even if it comes at a financial burden on the
                                          attorney. Why?
                                               1. Because the client is made worse off than
                                                    they would have been had they known the
                                                    attorney would withdraw. Lawyer initially
                                                    consented; client loses ability to pay in the
                                                    middle of representation. If the attorney
                                                    doesn’t carry though to completion, client
                                                    has to find another attorney, but has no
                                                    money. The key is detrimental reliance.
                                    iii. Take Home: client has the upper hand here.
c.   MR 1.16: Declining or Terminating Representation
         i. (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. (1): the representation will result in violation of the rules of
                      professional conduct or other law;
                 2. (2): the lawyer’s physical or mental condition materially impairs the
                      lawyer’s ability to represent the client; or
                 3. (3): the lawyer is discharged.
        ii. (b): Except as stated in paragraph (c), a lawyer may withdraw from representing
            a client if:
                 1. (1): withdrawal can be accomplished without material adverse effect
                      on the interests of the client;
                 2. (2): the client persists in a course of action involving the lawyer’s
                      services that the lawyer reasonably believes is criminal or fraudulent;
                 3. (3): the client has used the lawyer’s services to perpetrate a crime or
                      fraud;
                 4. (4): the client insists upon taking action that the lawyer considers
                      repugnant or with which the lawyer has fundamental disagreement;
                 5. (5): the client fails substantially to fulfill an obligation to the lawyer
                      regarding the lawyer’s services and has bee given reasonable warning
                      that the lawyer will withdraw unless the obligation is fulfilled.
                 6. (6): the representation will result in an unreasonable financial burden
                      on the lawyer or has been rendered unreasonably difficult by the client;
                      or
                            7. (7): other good cause for withdrawal exists.
                  iii. (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.
                  iv. (d): Upon termination of representation, a lawyer shall take steps to the extent
                       reasonably practicable to protect a client’s interests, such as giving reasonable
                       notice to the client, allowing time for employment of other counsel, surrendering
                       papers and property to which 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 extend permitted by other law.‖
         d. MR 1.18: Duties to Prospective Clients
                    i. (a): ―A person who discusses with a lawyer the possibility of forming a client-
                       lawyer relationship with respect to a matter is a prospective client.
                   ii. (b): Even when no client-lawyer relationship ensues, a lawyer who has had
                       discussions with a prospective client shall not use or reveal information learned
                       in the consultation, except as Rule 1.9 would permit with respect to information
                       of a former client.
                  iii. (c): A lawyer subject to paragraph (b) shall not represent a client with interests
                       materially adverse to those of a prospective client in the same or a substantially
                       related matter if the lawyer received information from the prospective client that
                       could be significantly harmful to that person in the matter, except as provided in
                       paragraph (d). If a lawyer is disqualified form representation under this
                       paragraph, no lawyer in a firm with which that lawyer is associated may
                       knowingly undertake or continue representation in such a matter, except as
                       provided in paragraph (d).
                  iv. (d): When the lawyer has received disqualifying information as defined in
                       paragraph (c), representation is permissible if:
                            1. (1): both the affected client and the prospective client have given
                                 informed consent, confirmed in writing, or:
                            2. (2): the lawyer who received the information took reasonable measures
                                 to avoid exposure to more disqualifying information than was
                                 reasonably necessary to determine whether to represent the prospective
                                 client; and
                                      a. (i): the disqualified lawyer is timely screened from any
                                           participation in the matter and is apportioned no part of the fee
                                           therefrom; and
                                      b. (ii): written notice is promptly given to the prospective
                                           client.‖
2.   Division of Labor Between Lawyer and Client
         a. Introductory Note
                    i. Ends and Means
                            1. Client decides ends, generally. What they are trying to accomplish.
                            2. Lawyer decides means, generally. How to accomplish it.
                   ii. Problem: not so straightforward. There is usually deliberation between attorney
                       and client to decide what can be achieved in light of different aspects of the law.
                       Client may have to reformulate ends.
         b. Scope of Lawyer’s Authority
                    i. Actual Authority (Lawyer Can Bind Client)
                            1. Express: if client’s behavior leads lawyer to think that he has consent
                                 to do something. It does not have to be in writing (along Togstad
                                 lines).
                            2. Implied: when authority is vested by law (e.g., trial tactics; lawyer
                                 does it regardless of client’s opinion).
                                      a. Client bound even if he disagrees. Why?
                                       i. Professional expertise/competence of the attorney;
                                           domain of the attorney, not the client. The client had
                                           the choice to pick the attorney; if they didn’t want to
                                           they could have picked someone else, or gone pro se.
                                                1. Also the interest in the court and opposing
                                                     counsel to be efficient.
                                      ii. Third parties need to be able to rely on what lawyer
                                           does in this domain.
                                     iii. Exceptions: if a lawyer was bribed, drunk, etc., the
                                           client is not bound.
          ii. Apparent Authority (Lawyer Can Bind Client Sometimes)
                   1. Settlement: lawyer could settle a case according to apparent authority
                       and reasonable standard.
                            a. Reasonable: opposing party/counsel would believe that the
                                 client’s counsel had authority to settle this matter. Why is this
                                 standard important?
                                       i. Want to prevent situations where the client’s counsel
                                           goes to the opposing side and settles without consent.
c.   International Telemeter Corp. v. Teleprompter Corp
           i. Facts: deal done, but not finalized; formalities incomplete. New management
              comes in and tries to get away with not doing the deal. They were not allowed
              to repudiate the contract.
          ii. Majority: lawyer had apparent authority to settle so the client is bound.
                   1. Lawyer can’t create apparent authority just by saying so; however, in
                       this case the failure to disavow reinforced the apparent authority.
         iii. Concurrence: client is bound, but by actual authority. The deal was actually
              done and the writing didn’t add anything.
                   1. Fear of Attorney Seizure: if you go the apparent authority route,
                       lawyers will be able to commit their clients by communicating boldly
                       with each other. Attorney might seize control of client’s right to settle,
                       which is core to client’s autonomy (Fried). Want and actual agreement
                       before client is bound.
                   2. Fear of Client Manipulation: On the other hand, if you insist on an
                       actual agreement, sophisticated clients will be able to manipulate
                       attorneys. If client’s can’t lose their right to settle easily, they can dupe
                       their own attorneys (opposite of Togstad/Kriegsman).
         iv. Why did the lawyer resign?
                   1. To save his reputation; independent interest that he can be trusted as a
                       lawyer. If he resigns, then it shows that he didn’t deliberately mislead.
                       He was upset about being kept in the dark by the old management and
                       thought it was an abuse of lawyer’s trust.
          v. Settlements
                   1. Lawyers have to sell their clients on deals that their clients are probably
                       going to fine disappointing.
                            a. Supposed to be both devoted to client, but have to make the
                                 client understand when she doesn’t have a good case.
                   2. What’s Allowed?
                            a. Legitimate: educating your client and getting the best deal
                                 possible.
                            b. Illegitimate: lawyer gets the most money possible with least
                                 work by settling early.
         vi. Allocation of Authority in Criminal Defense Cases
d.   MR 1.2: Scope of Representation and Allocation of Authority Between Client and
     Lawyer
           i. (a): ―Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s
              decisions concerning the objective of representation and, as required by Rule
                     1.4, shall consult with 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 is impliedly
                     authorized to carry out the representation. A lawyer shall abide by a client’s
                     decision whether to settle a matter. In a criminal case, the lawyer shall abide by
                     the client’s decision, after consultation with the lawyer, as to a plea to be
                     entered, whether to waive a jury trial and whether the client will testify.
                 ii. (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.
                iii. (c): A lawyer may limit the scope of the representation if the limitation is
                     reasonable under the circumstances and the client gives informed consent.
                iv. (d): A lawyer shall not counsel a client to engage, or assist a client, in conduct
                     that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the
                     legal consequence of any proposed course of conduce with a client and may
                     counsel or assist a client to make a good faith effort to determine the validity,
                     scope, meaning or application of the law.
3.   To Whom Is A Duty Owed?
        a. Greycas v. Proud
                  i. Facts: Crawford, Proud’s brother-in-law (also a lawyer), owned a farm that fell
                     on hard times. He approached Greycas, seeking large loan that he offered to
                     secure with farm machinery. He did not tell Greycas about his financial trouble
                     or that he had pledged the machinery to other lenders. Greycas agrees.
                          1. Condition of the Loan: Crawford is supposed to submit letter to
                               Greycas from counsel he would retain assuring that there were no prior
                               liens on the machinery. Proud provided this letter. One year later,
                               Crawford defaults and then commits suicide. Greycas finds out about
                               the prior liens. Proud doesn’t deny the misrepresentation, but claims he
                               had no duty of care to Greycas because Greycas had an adversarial
                               relationship with his client (Crawford).
                 ii. Court: Proud had a duty of care to Greycas.
                          1. Restatement: if you supply information for guidance of others in their
                               business transactions, you can be liable for negligent misrepresentation
                               that induces detrimental reliance.
                          2. Greycas’ Reliance
                                    a. No contributory negligence on Greycas’ part. He is allowed to
                                         expect other party to do his job; doesn’t have to make up for
                                         Proud’s lack of due care.
                                    b. Law does not require duplicative precautions unless one is
                                         likely to fail or the failure would be catastrophic. Therefore
                                         Greycas’ reliance was reasonable.
                          3. Posner: Why did they go for negligent misrepresentation and not fraud
                               or malpractice?
                                    a. There was a case for fraud because he knew that what he said
                                         wasn’t true.
                                    b. However, negligent misrepresentation is covered by
                                         malpractice insurance and fraud is not.
                iii. Negligent Misrepresentation v. Fraud
                          1. Fraud: requires intent to deceive.
                          2. Negligent Misrepresentation: requires carelessness.
                          3. Both require reasonable reliance that is detrimental.
        b. Pelham v. Greisheimer
                  i. Facts: legal malpractice is brought by children against mother’s divorce
                     attorney. Divorce decree said that father had to maintain his four children as
                     prime beneficiaries of life insurance policy. He remarried and named his new
                     wife the beneficiary.
                 ii. Court said that the Plaintiffs are not in the direct nature of 3 rd party beneficiaries.
                   1.  Test: for a nonclient to succeed in a negligence action against an
                       attorney, he must show that the primary purpose of the A/C relationship
                       was to benefit the 3rd party.
                  2. No Duty: main purpose was divorce. The kids were not 3 rd party
                       beneficiaries.
       iii. Three Types of Duties to Nonclients
                  1. Greycas Type: facilitate business transaction with 3rd party, produce an
                       opinion letter, liability becomes fraud (intent to deceive) or negligent
                       misrepresentation (carelessness).
                  2. Intended Beneficiary (Pelham Type): narrow category; has to be the
                       primary purpose of the representation.
                  3. Client owes fiduciary duty to X, then lawyer owes duty of care to X (3 rd
                       party).
c.   MR 1.1: Competence
         i. ―A lawyer shall provide competent representation to a client. Competent
             representation requires the legal knowledge, skill, thoroughness and preparation
             reasonably necessary for the representation.‖
d.   MR 2.3: Evaluation for Use by Third Persons
         i. (a): ―A lawyer may provide an evaluation of a matter affecting a client for the
             use of someone other than the client if the lawyer reasonably believes that
             making the evaluation is compatible with other aspects of the lawyer’s
             relationship with the client.
        ii. (b): When the lawyer knows or reasonably should now that the evaluation is
             likely to affect the client’s interests materially and adversely, the lawyer shall
             not provide the evaluation unless the client gives informed consent.
       iii. Except as disclosure is authorized in connection with a report of an evaluation,
             information relating to the evaluation is otherwise protected by Rule 1.6.‖
e.   MR 3.4: Fairness to Opposing Party and Counsel
         i. ―A lawyer shall not:
                  1. (a): 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 any such act;
                  2. (b): falsify evidence, counsel or assist a witness to testify falsely, or
                       offer an inducement to a witness that is prohibited by law;
                  3. (c): knowingly disobey an obligation under the rules of a tribunal,
                       except for an open refusal based on an assertion that no valid obligation
                       exists.
                  4. (d): in pretrial procedure, make a frivolous discover request or fail to
                       make reasonably diligent effort to comply with a legally proper
                       discovery request by an opposing party;
                  5. (e): in trial, allude to any matter that the lawyer does not reasonably
                       believe is relevant or that will not be supported by admissible evidence,
                       assert personal knowledge of facts in issue except when testifying as a
                       witness, or state a personal opinion as to the justness of a cause, the
                       credibility of a witness, the culpability of a civil litigant or the guilt or
                       innocence of an accused; or
                  6. (f): request a person other than a client to refrain from voluntarily
                       giving relevant information to another party unless:
                            a. (1): the person is a relative or an employee or other agent of a
                                 client; and
                            b. (2): the lawyer reasonably believes the person’s interests will
                                 not be adversely affected by refraining from giving such
                                 information.‖
f.   MR 4.1: Truthfulness in Statements to Others
         i. In the course of representing a client a lawyer shall not knowingly:
                                1.   (a): make a false statement of material fact or law to a third person; or
                                2.   (b): fail to disclose a material fact when disclosure is necessary to
                                     avoid assisting a criminal or fraudulent act by client, unless disclosure
                                     is prohibited by Rule 1.6.



COMPETENCE AND LOYALTY
OVERVIEW
   A. Sources for the Duty of Competence
          a. Ethics Codes: Rules: 1.1 Competence, 1.3 Diligence, 1.4 Communication. 2.1 Advisor,
               2.2 Intermediary
          b. Written and enforced when violations are deliberate—it tends to be egregious and
               intentional derelictions of duty that trigger discipline
                     i. e.g., even though lawyer was sued for negligence, he commits fraud (I’d say
                        that’s egregious) (?)
          c. The bar is concerned
                     i. Always the problem of self-regulation…
                    ii. But they’re too general to give you any more of an understanding than the
                        general standard of care—statutory negligence doesn’t mean very much (?)
   B. Tort Law:
          a. Aim to prevent harm from happening—by establishing standards that everyone is meant
               to conform to…
          b. Structurally it is identical to medical malpractice law
   C. Elements of legal malpractice
          a. Duty (to clients and 3d parties)
          b. Breach—according to custom of profession, ie. care that reasonable competent lawyer
               would provide
                     i. Not much attention paid to locality
                    ii. Specialty/Area of law sometimes establishes variance in breach
                   iii. Expert testimony is often used to establish ordinary care.
          c. Cause (actual/proximate)
          d. Harm
                     i. *Discipline: lawyers don’t get disbarred unless systematic. Not one time failure
   D. Constitutional right to effective assistance [Sixth Amdt.]
          a. In criminal law
                     i. Strickland

DUTY AND BREACH
COMPETENCE
A. Civil Malpractice
       a. Two types of excusable incompetence
                 i. Complexity—The area of the law upon which the conflict is compex (Lucas)
                ii. Uncertainty (Smith)
       b. Lucas v Hamm: Complexity and Custom [Wills and RAP]
                 i. General RULE—when you’re dealing with complex specialized subject in the law
                     you’re held to the standard of a specialist in that area, yet even specialists are limited
                          1. Main Question: Is the law so complex that even a specialist would not be
                              certain? If so then the lawyer is excused
                ii. Ct says: Lawyer is excused b/c RAP is technical and hard to understand and even a
                     specialist may have made the same mistake (?)
               iii. On the lawyer’s part, competence requires referral to a specialist or the standard is
                     set by what the specialist may have reasonably advised. (?)
                iv. Recognized duty of care to a third party—doing a will for a client, that benefits
                      another…when primary purpose of representation is to confer benefit on the third
                      party
                 v. CRITIQUE—holding lawyers to lesser standard than clients.
                                    a. A client is stuck with a mistake that they make.
                       i. OFER says: if its complicated enough then you don’t have to get it right
                               1. ―This is very funny unless you’re the client. You’re fucked‖
            b. Smith v Lewis: Uncertainty and Causation [Incompetence in divorce proceedings]
                       i. General Rule—competent lawyer uses the uncertainty to a strategic benefit
                               1. Main Question: Has the law ―figured itself out‖ to the extent that a
                                    reasonable argument can be made in favor of the client? If so, lawyer
                                    needs to make it.
                      ii. Ct. says: Lawyer is not excused if his mistake was based on a perceived
                          uncertainty that could should have been exploited for the benefit of the client
                          [exploiting uncertainty one of the main fuctions of a lawyer]
                               1. Forsaking a reasonable argument on the basis of uncertainty not
                                    allowed
                     iii. Dissent says: The ignorant lawyer paid no attention to uncertainty; and the
                          diligent lawyer would have given him knowledge of uncertainty but no
                          advantage—so even though its careless—its not harmful.
    B. Ineffective assistance of counsel [rule 1.1 Competence, 1.2 scope of rep, 1.4 communication]
            a. Strickland v Washington: [lawyer demoralized by client acting against his advice]
                       i. General Rule: Council is violates duty of effective assistance if 1) He acted
                          unreasonably and 2) His ineffective representation may have cost the client a
                          favorable decision
                               1. Competence: ―Unreasonably‖—considering all circumstances with a
                                    heavy deference to norms
                                         a. Strong presumption of reasonable lawyer
                               2. Prejudice: ―Costing the client a favorable decision‖—If there is a
                                    reasonable probability that it could have turned out differently
                                         a. Not a “but for” test, but close…
                                         b. Attorney’s error was sufficient to undermine confidence in
                                              outcome.
                      ii. Main Question(s): Was council’s mistake unreasonable? Could the outcome
                          have been different if he acted reasonably?
                               1. Ct. Says: Omitted evidence (lawyer’s mistake) would not have
                                    changed conclusion that aggravating circumstances
                                         a. Ineffective claim is meritless since client would have been
                                              convicted even w/ evidence
                                         b. Right to counsel = right to effective counsel
                     iii. Note: Standard of care is less stringent w/ regard ineffectice assistance of
                          council than a civil malpractice standard—in Smith, similar lack of investigation
                          and lawyer held liable
                               1. Prejudice is harder to prove in criminal than in civil.
                               2. Court upholds the idea that lawyer doesn’t have to investigate facts,
                                    just has to make a reasonable strategic choice
                                         a. All lawyer has to do is provide a justification for his actions
                                              based on a strategy
LOYALTY
   A. Milbank v Leo—Breach of Fiduciary Duty [Mrs. Leo’s lawyer turns around and helps someone
      else do the deal]
           a. General Rule—Breach of F/D easy to prove than malpractice
                     i. Causation standard can be relaxed with regard to F/D.
                    ii. Disloyalty itself, w/o regard for whether it effected the result, is punishable.
                            1. Breach of Confidentiality (inherent?)
                              2.   Ct says: Firm is guilty since it doubled crossed 1st client breached duty
                                   of loyalty and confidentiality
                                        a. Could have obtained consent
            b.   McDaniel v Gile—Intentional Infliction of Emotional Distress as a violation of F/D
                 [sexual favors]
                      i. General Rule—Lawyers can be liable for IIED where another person (not a
                          lawyer) wouldn’t be since they have a special duty of loyalty
                              1. Duty of loyalty: supposed to have her best interest in mind, but
                                   conditioning his representation of her on her sleeping w/ him is
                                   outrageous; exploitation of a vulnerable time
                              2. In some other kind of relp, asking for sexual favors might not be
                                   outrageous.
            c.   Mirabito v. Liccardo—Fraud [investment scam]
                      i. General Rule: Lawyers may be guilty of fraud in situations where a normal
                          person would not b/c they have a duty of loyalty to client
                              1. Lawyers can go into business w/ their clients, but not at the expense of
                                   their clients; full disclosure is required so that the client can back out.
                              2. Lawyer also has to advise client to get outside counsel
                                        a. Material Misrepresentation
                                                    i. Affirmative duty to disclose—Lawyer violates
                                                        professional standards b/c he did not disclose his own
                                                        personal interest or his own bankruptcy.
                                                   ii. Failure to disclose will support a fraud claim because
                                                        there is pre-existing duty to disclose
                                                             1. Boundary between keeping mouth shut
                                                                  when you don’t have a duty or concealing
                                                                  the information or affirmative duty to come
                                                                  forward with info that buyer doesn’t know—
                                                                  Better to always disclose about possible
                                                                  personal interests
                     ii. Bottom line is Disloyalty—by not disclosing put his interest ahead of his client
                              1. Ct. says: Fraud based on omission here (not usually based on
                                   omission); fraud claim succeeds even though it normally wouldn’t b/c
                                   of lawyer’s special duties. (F/D)
                              2. He failed to disclose: (1) that he was part of the deal (2) that he had
                                   filed for bankruptcy (3) and that he should find an independent attorney

CONFIDENTIALITY
   A. Sources
          a. Agency law—lawyers are agents of principles and agents usually owe confidentiality
              [Professional duty found in ethics codes]
                    i. Agency law: confidentiality can be trumped by 3p superior interest
                   ii. Ethics code more stringent than the agency law
                  iii. Model Rules of Professional Conduct: Protects all info ―relating to the rep‖
                       whether the lawyer learned the info before, during or after the representation
                            1. Rule applies whether or not disclosure would harm or embarrass the
                                client.
                            2. Note: Obstruction of justice (O/J) opposes A/C Priv. directly—If a
                                lawyer dishonors A/C Priv, he can be guilty of O/J
                                     a. Anything that tends to alter evidence or prejudice the govt.
                                         from getting the evidence can be O/J.
                            3. Ethics codes: interests of 3d parties don’t trump confidentiality
                                usually—always controversial because they involve saying something
                                is more important than the truth-finding mission of the court
                                     a. EX. Spousal privilege—bad thing for institution of marriage
                                         for one spouse to be able to coerce another
         b. Law of evidence—Atty-Client Privilege [A/C Priv.]
                   i. A/C Priv: Protected info cant be compelled as testimony in court
                             1. Meant to protect the important relationship between A/C—always
                                 controversial because they involve saying something is more important
                                 than the truth-finding mission of the court
                                       a. Motivation is to allow clients to speak freely w/ their attys
                                       b. Duty of confidentiality is broader than A/C Priv. (?)
B. Elements of A/C Priv
       a. A communication—broadly defined, any expression that conveys info to another, or any
            document revealing any expression
                   i. An example of what is not a communication?
       b. Made between privileged persons—Client, Prospective clients, Lawyer, and any agent
            of either the lawyer or the client who facilitates communication
                   i. Example: Like atty’s investigator
       c. In confidence—If at the time and circumstances of the communication, the
            communicating party reasonably believes that no one will learn the contents except a
            privileged person
       d. For the purpose of obtaining or providing legal assistance for the client—Includes
            any communicatiopn made w/ someone who is a lawyer or who the client or prospective
            client reasonably believes is a lawyer and who the client or prospective client consults for
            the purposes of obtaining legal assistance
                   i. Fraudulent use of this rule…
       e. Unless Wavied
                   i. Ex—Falling out among clients
C. What is privileged?
       a. Observations—usually NOT covered
                   i. The way a client looks is NOT covered
                  ii. Things that are evidence of events or occurrences are NOT covered
                             1. Unless in form of a communication by the client
       b. Documents:
                   i. If prepared for seeking legal advice, then COVERED.
                  ii. Preexisting docs are NOT covered
                             1. Map drawn during session is COVERED
                             2. Map brought in that was created before is NOT.
                 iii. Communications:
                             1. All are COVERED, oral, written, non verbal, if relevant to legal
                                 subject matter on which cl seeks advice
                             2. Underlying facts or evidence:
                                       a. NOT covered only a client’s communication is protected.
D. Privilege is lost if not made in secrecy
       a. Presence of 3d persons (other than agents of lawyer or client) destroys privilege
                   i. Communications made for public consumption (i.e. suicide note) NOT covered
                  ii. Client waives privilege if after confiding to atty., he tells 3d party what he aid
       b. Communications from lawyer to client: 2 approaches
                   i. Some courts hold that all communications from lawyer to client are COVERED
                  ii. Other courts extend privilege to statements made by lawyer only when the court
                        finds that the communication reveals evidence of clients confidence in lawyer
       c. Joint clients and cooperating parties
                   i. Co-client rule: If 2+ persons jointly retain lawyer to represent them in matter,
                        communications made by any of them to lawyer on subject of joint
                        representation are NOT covered against use by one joint client against another
                             1. Basically communications are COVERED until there is a falling
                                 out…then privilege is waived
       d. 5 well established exceptions to A/C Priv (Communication NOT covered)
                   i. Dispute concerning a decedent’s disposition of property
                  ii. Client crime or fraud
                  iii. Lawyer self-protection
                  iv. Disputes in which trustee or other fiduciary is charged with breach of F/D by
                       benefactor
                   v. Disputes between representatives of an organizational client and constituents of
                       the organization (?)
E. Exceptions
       a. People v Fentress—Lawyer calls mom for help w/ a client who had just murdered,
           [Breach of A/C Priv]
                 i. General Rule: If a client waives Priv. for a specific person [in this case the
                    police], a lawyer breaches A/C Priv. when he tell another 3d party—not
                    specified by client and not an agent—who is not an agent info that is protected
                    under Priv.If Priv. is violated the evidence collected due to breach is
                    inadmissible
                         1. Mom is not an Agent
                                   a. Even if Mom was an agent, agent would be violating Priv. if
                                        he told police
                         2. Circumstances were client’s life may be at risk
                                   a. Suicidal IntentionsFalls within exceptions of NY statute—
                                        you can (not required) breach duty of confidentiality to
                                        prevent a crime causing bodily harm or death
                                              i. Suicide included
                         3. Ct Says:
                                   a. (1) There was A/C relationship—Can be established by a
                                        phone call
                                   b. (2) Atty. breached confidentiality—Client does not waive A/C
                                        Priv. by allowing atty. to tell a specific 3d party as long as the
                                        3d party is a reasonable resource under the circumstances
                                        (Police in some cases)
                                   c. (3) Exceptions to A/C Priv.—Breaches allowed to prevent
                                        client’s suicide
       b. Crime Fraud Exception—Lawyers can’t help their clients commit frauds or crimes. If
           lawyer does this knowingly he is liable for commission of crime (accessory)
                 i. Knowingly: Assumption is that lawyer is unaware of the fact that lawyer has
                    been retained to commit a crime or a fraud
                ii. When clients seek legal advice to commit crime/fraud, that info is NOT covered
                         1. Lawyers ARE entitled to tell clients what the law is, but CANT advise
                              them on how to break the law
               iii. Past crimes/frauds vs ongoing crimes/frauds
                         1. Past: ARE COVERED; b/c this is how the lawyer figures out how to
                              best rep the client—If they weren’t covered, clients wouldn’t go to
                              lawyers b/c then court could just compel disclosure and would defeat
                              the case completely.
                                   a. …but past frauds that have not been rectified can be
                                        considered ongoing, if cons of fraud continue
                         2. Ongoing: CRIME-FRAUD EXCEPTION applies to ongoing and
                              future criminal activity
                         3. Client Identity/Motive
       c. Ohio Sealey: Client violates anti-trust laws, goes back to atty and says he’d like to
           continue doing same activity w/in bounds of the law. atty. says chances are slim [Good
           Faith—Atty’s INTENT]
                 i. General Rule:
                         1. (1) If atty. simply advices client that his conduct is probably illegal,
                              rather than giving recommendations for breaking the law or not getting
                              caught, communication is protected
                  2.  (2) If client continues to break law despite atty’s assessment that
                      conduct is probably illegal, conduct does not implicate atty./trigger C/F
                      Exception
         ii. Ct. says: Client wasn’t committing a crime qualifying the C/F exception.
                  1. Knowledge of the prediction (that atty. makes that chances are low)
                      does NOT amount to intent
d.   US v Bauer: Client makes false statements on bankruptcy report, despite advice of atty. it
     [Required Connection between client’s actions and atty.’s advice—Atty’s INTENT]
          i. General Rule:
                  1. (1) Atty. may be required to break privilege to show that he did not
                      intend to advice C/F
                  2. (2) In order to convict atty. under C/F exception there must be a causal
                      connection between advice and what client did in ignoring the advice
                            a. C/F exception does not apply when 1) Atty did not advise
                                 client to do it or 2) atty was not ―instrument‖ in C or F
                                       i. EX…?
e.   Lewinsky Case—Did Lew. consult her atty. for the purposes of obstructing justice?
     [MATERIALITY] (by the way fuck this case)
          i. Obstruction of justice
                  1. Defendant must intend to influence decision
                            a. In order to be guilty of obstructing justice her misstatements
                                 but be ―material‖
                            b. Material: ―Has a natural tendency to influence, or capable of
                                 influencing the decision of the tribunal‖
         ii. Crime Fraud Exception and 5th Amendment
                  1. Regardless of 5th Amendment, atty. may be compelled to subpoena
                            a. …Unless A/C Priv. established
                            b. Even if A/C Priv. established C/F exception may override
                  2. C/F exception is triggered…
                            a. Is conflicting testimony enough to invoke exception?
                            b. It appears that you just need a certain number of conflicting
                                 testimony
                            c. The threshold to trigger the exception is very low: “Sufficient
                                 conflicting testimony‖ (fuzzy idea)
                            d. If standard was just conflicting testimony you could probably
                                 kick it in almost every case…
                            e. Under federal law, seems to be a low threshold for invoking
                                 the exception making it very broad
                                       i. Nobody has the amount of money needed to go to the
                                           extent unless they’re hunting down the president
                                      ii. Very few cases get litigated to this extent…
f.   Tobacco Cases—what is constitutes FRAUD under C/F
          i. Co. wanted to do scientific research on tobacco ingredients but didn’t want info
             to get out to general public, so they bring lawyers into the loop
         ii. General Rule:
                  1. (1) Attys must be used in accordance with legal research/assistance not
                      to manipulate A/C Priv.
                  2. (2) FRAUD part is much more broad than crime
                            a. Equitably construed to encompass anything the layperson
                                 could construe as deceptive or dishonest
        iii. Ct. says: This was in bad faith b/c they weren’t really looking for legal
             assistance but trying to keep info out of court—Invokes C/F Exception
                  1. Lawyers responsible/guilty?…
        iv. A/C Priv. and Corporations
                  1. Problem: corporation is an artificial entity
                  2. Who is the client? What is the rationale?
                                            a. No Constitutional basis
               g.    Upjohn:
                           i. During internal investigation Co.’s lawyer sends questionnaire to all foreign
                              general mgrs and area managers—Protected?
                          ii. General Rule: TWO TESTS (old vs. new)…
                                   1. (1) Upjohn approach—new federal rule: Broad A/C Priv: [Based on
                                       Work Product Doc. rthaer than A/C Priv.] covers not only top people,
                                       as would be w/ control grp test, but also middle mgmt and even non
                                       mgmt.
                                            a. Should cover lawyer’s communication w/ employees who are
                                                 speaking to counsel at direction of superiors
                                            b. Provides good outcomes b/c client and atty. can communicate
                                                 freely = better advice from att
                                            c. ...But broad Priv. also may encourage more abuse
                                                       i. EX. Abuse: Big Tobacco doesn’t encourage
                                                           compliance w/ the law and justice, but rather the
                                                           opposite.
                                   2. (2) Control Group: Narrower: covers communication of anyone in a
                                       position to make decisions on behalf of control group—more analogous
                                       to the traditional ―client‖
                         iii. Court says: Reject (2) b/c this test doesn’t protect the gathering of facts from
                              people not in the control group, doesn’t adequately protect atty’s work product
                                   1. Upjohn Test not only protects giving of legal advice, but also delivery
                                       of info to the lawyer so that he can give the legal advice (work product)
                         iv. Conclusion
                                   1. UpjohnNew Test for Corporate A/C Priv.= broad test that protects
                                            a. (1) Communications from client (control grp) [traditional A/C
                                                 Priv.]
                                            b. (2) Communications from atty to client so long as this is legal
                                                 advice and reveals client confidences [taditional A/C Priv]
                                            c. (3) Questions and Answers atty. asks control group and non
                                                 control group [newBased on work product,
                                   2. Does not protect: underlying facts and preexisting documents
                                       [traditional A/C]
                                            a. IRS could interview Upjohn employees themselves, and
                                                 obtain the same facts that attys recorded in their writings
                          v. Prohibited Contact Rule: Enables corps to forbid opposing parties from having
                              contact w/ corp. employees who are not part of control group unless the lawyer
                              is present—This in combo w/ A/C priv and Wk-product provides expansive
                              protection.
               h.    Meehan v Hopps ---Former client moves to enjoin atty from participating in case,
                     alleging he had established A/C [Is a relationship established w/ and atty as a corporate
                     leader enough to establish A/C?]
                           i. General Rule: Attys represent the corporation, they don’t represent the
                              individual officers, directors, or shareholders.
                                   1. Attys first duty is to corporation;
                          ii. Ct. Says: Cannot enjoin.
                                   1. If lawyer to corp was also lawyer to corp employee, there would be
                                       conflict of loyalties.
                                   2. …But 1.13(d) requires lawyers to be very careful to make sure that
                                       employee knows that the corp. lawyer is not the individual’s lawyer—
                                       If there is reasonable belief that corp. lawyer is repping the individual,
                                       then the lawyer is1 [traditional]

1
 EF Hutton v BrownRepping both an org and its officer. Conduct of lawyers at hearings implied they were repping Brown.
Brown’s belief was reasonable and B was considered to be their client and they were disqualified from repping Hutton
                        iii. CONCLUSION on Crop. A/C Priv.
                                  1. What is the COVERED?—KEATINGS RULE:
                                            a. Communications
                                            b. Made by employees
                                            c. To counsel of corporation acting as such
                                  1. At the direction of corporate superiors
                                  2. In order to secure legal advice from counsel (IMPORTANT)
                        iv. Unsettled issues:
                                  1. Does it reach former employees?
               i. Advantages of Corporate Privilege
                          i. Increase Prosecution Costs. Government’s investigation is more expensive
                             and has to undertake its own investigation
                                  1. Expensive not only in money but also in efficiency since they lack the
                                       expertise of the business
                         ii. Better Bargaining Posture. There are ways in which you can waive it—
                             disclose information selectively so you can bargain with the government to
                             settle the case
                        iii. Trial Strategy. If you have to fight—you know that the other side doesn’t
                             know about ―where the bodies are.‖ So you can plan it better
       F.   Waiver of A/C Priv
               a. Once a privileged communication has been made, priv. continues indefinitely unless
                    action or inaction of client terminates the confidential status of the communication
               b. 2 ways client can waive privilege:
                          i. Consent—Disclosure of priv. in unprivileged setting (i.e. at a restaurant)
                         ii. By conduct inconsistent w/ maintaining the priv—If someone tries to get
                             privileged evidence in at trial, LAWYER MUST OBJECt
                                  1. If NOT--counts as WAIVER. Lawyers have implied consent to object
                                       for client. Ultimate authority belongs to client.
                                  2. ?—Isn’t this the lawyer waiving priv. NOT the client?
               c. Waiver by putting in issue—when client during litigation, puts into issue privd info; then
                    client waives priv on everything of same subject matter 2 [forensic rule]
                          i. If you disclose something that is privd, you waive priv in regard to other things
                             related to that subject—all or nothing standard
                         ii. EX--If client asserts claim/defense in a legal action saying he was acting on
                             advice of counsel, then you waive w/ respect to all that advice
                                  1. Partial disclosure is often misleading
                        iii. Waiver by subsequent disclosure—Dissemination of info to the public did NOT
                             waive priv. w/ regard to portions of the conversations not revealed 3
                                  1. If client publicly discloses portions of an priv. conversation, atty can
                                       only respond publicly with regard to that specific conversation
                                            a. Does NOT allow atty to waive entire priv.
                                            b. DISTINCTION b/c public disclosures create no risk of ―legal
                                                 prejudice‖
               d. Inadvertent disclosures—must be careful to claim priv on everything., bound by own
                    mistake
                          i. Traditionally—waives as much as the deliberate one does
                                  1. Inconsistent with the intention to preserve confidentiality
                         ii. Modern Trend—some courts offer more protection
                                  1. If not grossly negligent, the disclosure may be protected
                                  2. Rationale—modern discovery has made Inad. Dicv. more of a problem
                                       than in the past
                                            a. RESTATEMENT—waiver does not apply in cases where the
                                                 client or other disclosing person took reasonable precautions

2
    Von Bulow I
3
    Von Bulow II
                                            ABA—If lawyer receives privd material, he has an ethical
                                                  b.
                                            duty to return it unread to other side
             e. Incriminating Physical Evidence—1.2 (scope of rep), 1.6 (conf) 3.1 (meritorious
                claim/contentions, 3.4 (fairness to opposing party and counsel)
                      i. MAIN QUESTION—how are lawyers supposed to resolve their role?
                     ii. Conflict between what the law requires and the string duty to the client
             f. Commonwealth v Stenach—CT rejects argument that lawyers had no duty to turn over
                evidence
                      i. Lawyers have a responsibility under the ethics codes to turn over incriminating
                         physical evidence—rifle stock
                              1. Reconcile this with Spaulding, where the court ruled that a lawyer
                                  assumes no duty to disclose adverse evidence unless there is a proper
                                  request
                     ii. Punishment—Not clear whether criminal charges can be brought
                              1. Must produce evidence statutes require proof of an intention to hinder
                                  the prosecution
                                       a. Prosecutors are sympathetic
                                       b. SO…sanctions are easier
             g. MODEL RULES—criminal law trumps lawyer’s general duty of loyalty to client
                      i. State law differs4
             h. CASE LAW
                      i. Generally a lawyer must not act or assist in the destruction or unlawful
                         concealment of evidence
                              1. Cannot take affirmative steps to conceal evidence as in Stenhach
                              2. If a lawyer leaves evidence where he finds it he cannot be compelled to
                                  reveal information gained from priv. communication
                              3. BUT…once physical evidence is taken from its original resting place,
                                  the lawyer must not due anything that would conceal or destroy either
                                  the evidence itself or evidence of the evidence’s location5
                     ii. MAJORITY—lawyer required to turn over all physical evidence in his
                         possession…after a REASONABLE time allowed for investigatory purposes
                    iii. EXCEPT—
                              1. Evidence created as part of client’s defense
                              2. Evidence that the state could not compel the client to produce against
                                  his will
                                       a. EX. personal diary
                    iv. Dead Bodies Case--lawyers told of the whereabouts of two murder victims, but
                         did not disclose locations until months later
                              1. General Rule: A/C Priv. can be limited by ―basic standard of
                                  decency…‖ and the CT’s ability to dole out justice
     G. Self-Defense Exception & Protecting Other—1.6 conf
             a. Exceptions to the professional duty of conf.
                      i. Protection of attys. threatened by a claim or charge brought by client or third
                         party—Self-Defense Exception
                              1. Protection of innocent third parties who may be victimized by the client
                     ii. Ethics Code 1.6(b)(1)—Does NOT permit disclosure—in a way justifies
                         endangering life
                              1. Hard to find permission to disclose in ethics code unless you get
                                  consent of client
             b. Case Law—does permit disclosure in some cases.
                      i. WHEN self-defense exception applies
                     ii. A client charges a lawyer w/ wrongdoing in the course of representation

4
  Some states prohibit the destruction of evidence only when a person knows a legal proceeding in ongoing or about to take place;
other states when a person believes…; and other states prohibit destruction with the intent to prevent production of evidence;
5
  Mueller & Kirkpatrick
                   1.   Easy—since fairness and client’s waiver of A/C Priv. by putting the
                        lawyer’s representation at issue
         iii. A lawyer sues a client to enforce some duty owed to the lawyer—payment of a
               fee
                    1. Strong support in agency law
                    2. Confidential info will come out only if client defends the fee action by
                        attacking the lawyers representation or the amount charged
                             a. Fee arrangements are not usually protected
          iv. A third party accuses a lawyer of wrongdoing in the course of representing a
               client—perhaps in complicity w/ client
                    1. Troublesome since client has no control of the loss of confidentiality
c.   Spaulding v Zimmerman—S is minor, severely injured while riding in Z’s car, S’s dad
     brought suit against Z. S’s doctors didn’t discover that he had a life-threatening aorta
     aneurysm possibly resulting from the accident, Z’s neurobiologist noticed and pointed it
     out to Z’s attys. Parties settled w/o this info disclosed.
            i. General Rule: There is no rule that requires Ds to disclose adverse knowledge
               when parties are in adversary position
                    1. BUT…once they reach agreement to settle and are ready for approval,
                        the lawyers become officers to the court = duty to disclose
                    2. Criticism—creates a conflict btw what can be said early and can be said
                        later; if its going to come out anyway, is there a pt in keeping it to
                        yourself earlier?
                             a. There is a serious injury that Z is not paying for b/c they don’t
                                    have duty to disclose supposedly
                             b. S is a walking time bomb, could die any second and doesn’t
                                    even know.
                             c. NOTE—totally against the Hippocratic oath not to tell a
                                    patient that he’s in danger of dying.
                             d. There would not be a legal malpractice claim against S’s attys
                                    b/c they don’t have a duty to turn over every stone; there is no
                                    way they would have found out the Ds attys were keeping
                                    something from them.
d.   Meyerhofer v. Empire Fire and Marine Ins. Co.
            i. Goldberg analyzed IPO and said finder’s fee should be disclosed—should be
               disclosed because it’s a material fact that investors would like to know—if
               lawyer stands to make a lot of money from securities and also representing that
               everything is legally fine with the securities.
           ii. Firm refuses to disclose.
         iii. Duty of confidentiality—Communications took place with connection to the law
               firm.
                    1. Not A/C—b/c no request for testimony; has to do w/ duty of
                        confidentiality.
          iv. Issue
                    1. Whether or not particular lawyer (Goldberg) should be disqualified
                        from a case involving the wrong-doing of his firm.
           v. Self-defense exception—a matter of both duty of confidentiality and loyalty
                    1. If you turn sue your lawyer—you can’t sue your lawyer and tell them
                        he has to shut up as to all the discussions you’ve had with the lawyer
                    2. He’s entitled to assert all communications necessary to exculpate
                        himself.
          vi. Bad case for client—self-defense exception is broad (?)



                DIVIDED LOYALTIES
CLIENT-CLIENT CONFLICTS
GENERALLY
   A. In general, extremely routine and important
   B. Two types of conflicts
           a. Between clients
                     i. Concurrent: present and present; prospective and prospective; present and
                         prospective
                             1. relationship effects
                             2. direct or material adversity
                             3. concerned w/ loyalty
                    ii. Successive: former client and present; former and prospective
                             1. representation effects
                             2. one past & one present relationship
                             3. concerned with confidentiality—cant really be disloyal to the past one
                                  anymore.
                             4. 2nd client gets unfair advantage because he gets to use former client’s
                                  own confidences against the former client.
           b. Between lawyers and clients
   C. Four Basic Values of Conflicts
           a. trust: aspect of loyalty; confidence that attorney is on client’s side
           b. degree of commitment/zealous advocacy: having divided loyalties implies that the
               lawyer won’t push as hard for the one side
           c. confidentiality: forbid successive reps when permitting them would enable a lawyer to
               use confidential info acquired while working for former client to the advantage of the
               later client.
           d. appearance of impropriety: people will doubt outcome if the process looks bad (very
               vague, not in current rules)
   D. Issues addressed:
           a. Representation
           b. Relationship
   E. Model Rules

CONCURRENT CONFLICTS
    A. Generally
          a. Key Factors in Client-Client Conflicts
                  i. Degree of adversity between clients
                          1. Concurrent conflicts—are the matters in conflict sufficiently adverse
                          2. Implicates trust & loyalty of lawyer—can’t serve two masters at the
                               same time
                 ii. Degree of factual or legal relation between matters
                          1. Successive conflicts—are the matters in conflict sufficiently related
                          2. Implicates confidentiality above all else
          b. Antagonism vs. Divided Interests:
                  i. Antagonism: RELATIONSHIP EFFECT. Lawyer represents 2 clients with
                     unrelated matters, but parties are opposed to each other in such a way that if one
                     or both found out their lawyer was representing the other it would give them a
                     sense of distrust, disloyalty towards the lawyer.
                          1. can arise when matters are related or unrelated
                  i. Diverging Interests: REPRESENTATION EFFECT. Lawyer represents 2
                     clients, and their interests are not aligned, but related. If lawyer tries to
                     represent both he will not do a good job for either because their interests diverge
                     so much.
                          1. only arises when matters are related
                  HYPO: Civil rights suit against the city. Citizens civil rights have been violated by police.
                   c.
                  Victim sues both police and city. (2 clients).
                        i. if one lawyer reps both city and the police, the city will want to argue that it’s
                           the police’s fault, and the police will want to argue that it’s the city’s fault.
                                 1. Diverging interests: at this point, it is a potential conflict
                                 2. Antagonism: If the conflict develops, then it becomes antagonism
                                     because there is a loyalty issue.
        B. MR 1.7: Conflicts of Interest: Current Clients6
              a. A concurrent conflict of interest exists if:
                        i. the representation of one client will be directly adverse to another client; or
                       ii. 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, a lawyer may represent a client if:
                        i. Objective: the lawyer reasonably believes that she will be able to provide
                           competent and diligent representation to each affected client;
                       ii. Subjective: each affected client gives informed consent, confirmed in writing.
              c. ALSO—
                        i. the representation is not prohbitied by law
                       ii. the representation does not involve the assertion of a claim by one client against
                           another client represented by the lawyer in the same litigation or other
                           proceeding before a tribunal
              d. Other rules: MR 1.3 (diligence); MR 1.8 (Conflicts & prohibited actions); MR 2.1
                  (advisor); MR 1.15 (safekeeping property).

DIRECT ADVERSITY
   A.  Landmark: Westinghouse v Kerr-McGee.
          a. FACTS: Kirkland & Ellis represented Westinghouse (W) in anti-trust action, alleging restraint of trade in
                         uranium industry (anti-uranium industry). At same time, K&E produced report lobbying against proposed
                         breakup of the oil industry for API, composed of Kerr-McGee, Gulf, Getty and others (so pro uranium
                         industry). Report was released the day the suit was filed; and refuted any charge that oil companies restricted
                         uranium output. The 3 oil companies, who had provided K&E with confidential info for the report, moved to
                         disqualify K&E.
                   b.    ISSUE: Are oil co’s clients of K&E?
                              i. client believes they are consulting with their lawyer
                             ii. there is disclosure of conf info. (this cements A/C rel.)
                   c.    HOLDING: even when there is no official A/C rel., a fiduciary rel. may result out of the
                         work performed and circumstances under which conf info is divulged.
                              i. The oil cos retained reasonable belief that they were submitting conf info to
                                 K&E who was acting in their undivided interest.
                                      1. They were not aware that K&E was filing complaint for W.
                                      2. Violation of 1.7 because K&E needed informed consent.
                                      3. Factually related, so both diverging interests and antagonism are
                                           implied.
               d.        CONFLICT: both clients taking opposite positions on the same issue.
        B. Firms
               a.        Consent: rules are not relaxed for big firms, so they try to get consent.
               b.        Chinese Walls: K&E claimed to put up a barrier between different clients
                              i. the advantage of firms is pooling knowledge and expertise.
                                      1. openness within a firm is valued and walls barricade this.
                             ii. Ineffective mechanism: client cant know if the screen is effective, and firms
                                 cannot really prove it
                            iii. Criticism: concurrent conflicts are also about loyalty, screens only help prevent
                                 confidential information from being used ag a client.


6
    Consent plus rule—requires consent plus objective belief that lawyer’s representation is not affected
                                  Firm wants to make as much money as possible. With two opposing
                                    1.
                                  clients, firms will favor the client they want to win and who will bring
                                  in the most money (e.g., repeat business)
          c. Identifying Clients
                     i. firms are large and conflicts can creep up on you
                             1. Ex—K&E didn’t know they had a client (in the 3 oil cos.) until they
                                  started making a fuss about it.
                    ii. hard to manage the conflicts—but can circulate conflicts memos when they are
                        detected.
          a. Merger situations
                     i. generally don’t want to get rid of conflict by firing one client.
                    ii. in merger, want to get rid of the client before you merge w/ other firm  this
                        produces successive not concurrent conflict. BUT this is super tacky. so you
                        cant really do it.
    C. Family Conflicts
          a. relaxed rule—it isn’t something lawyers have control over
                     i. no imputed disqualification
          b. with consent, can solve any problem
          c. also see DR 5-105 p. 492 rule book; CA Rule 3-310 p. 424-427 rule book.

MATERIAL ADVERSITY
   A. Interests of two clients don’t have to be so opposed to be considered adverse to cause conflict
      which can affect representation.
           a. duty of loyalty might cause lawyer to be less committed to client with a different interest.
           b. duty of confidentiality may result in hesitancy to discuss related issues with second client
           c. duty of due diligence might cause lawyer to neglect one matter in favor of another that is
                more demanding of her time or more lucrative.
   B. Model Rule: lawyer shall not rep a client if the rep of the client may be materially limited by the
      lawyer’s responsibilities to another client or to a 3d person, or by the lawyer’s own interests,
      UNLESS
           a. lawyer reas believes the rep will not be adversely affected; and
                     i. Note: independent of actually outcome
           b. client consents after consultation. when rep of multiple clients in a single matter is
                undertaken, the consultation shall include explanation of the implications of the common
                rep and the advantages and risks involved.
   C.  Landmark: Fiandaca v Cunningham
           a.   FACTS: Class of female inmates brought action claiming they were denied equal protection because male
                   inmates had better facilities. Represented by NH Legal Assistance, public interest legal org (only such org in the
                   state). They also represented class of students (cognitively impaired—Garrity) at a state school in an unrelated
                   matter. State offered to convert one of the school buildings into a jail for women. Student class opposed and
                   NHLA, on behalf of female inmates, rejected the offer. State filed disqualification motion. TC held that state
                   denied equal protection and ordered facility built. State appealed saying court should have disqualified NHLA
                   from repping P class.
              b.   ISSUE: May L represent 2 clients when settlement offer made to one is contrary to the
                   interests of the other?
                         i. The Test: do divided loyalties adversely affect the rep?
              c.   HOLDING:
                         i. Material adversity: YES—representation effect.
                                  1. No reasonable lawyer would conclude that repping both clients will not
                                       create a conflict. NHLA couldn’t be fully loyal to both clients
                                  2. Doesn’t matter that outcome was not affected. Not an outcome-driven
                                       standard.
                        ii. Direct adversity: NO
                                  1. Trial judge would never have entertained the offer by the state—so the
                                       interests would never be directly opposing each other.
                       iii. TC should have disqualified.
                                           Necessity: court rejects NHLA’s argument that not wanting to take up
                                          1.
                                           more time is not enough to overcome the problem.
                                                a. Though necessity argument is different: women inmates can’t
                                                     just go out and get a new lawyer like Westingouse could.
                                                b. NHLA is the only public interest org. in the state
                                      2. Appearance of Impropriety: court is worried that the process looks
                                           corrupt because of the conflict.
                              iv. Retrial: but only have to redo remedy phase because the outcome would not
                                  have been different with respect to remedy
                                      1. divided loyalties might have affected representation, not remedy or fact
                                           that there was violation of equal protection.
        D. ANALYSIS
              a. Appearance of impropriety is the main reason why anyone can raise a conflict.
                       i. conflicts raise doubts about legitimacy of system:
                               1. was there fair adjudication? fair settlement? etc.
              b. Who brought the disqualification motion—State—not a party
              c. Clients are not complaining about conflict in this case. But it is given less weight
                 because:
                       i. class size is smaller than it could be
                               1. in which lawyer would really be king (??)
                      ii. the Garrity class is mentally incompetent and it’s harder to get them together to
                          agree on issues, let alone have them complain about it.
              d. Strategic use of Motions to Disqualify.
                       i. the timing of the offer of settlement is crucial and suspicious. they make the
                          offer 4 yrs after suit is filed, one day before trial such that if you disqualify ∏s
                          Ls it would take months before case will go to trial again.
                      ii. Even more so, if ∏s cant afford to go to trial, and the only public interest firm in
                          town is disqualified, the case might NEVER go to trial.
              e. Court recognizes this but uses harmless error standard—
                       i. would have to show really bad motives to prove this. Instead, retry remedy and
                          not the liability part of the trial.

CRIMINAL LITIGATION
        B. Cuyler standard:7
               a. when ∆ is challenging a conviction, asserting 6A violation of effective assistance of
                    counsel, habeas proceeding, conflict if:
                         i. actual conflict: lawyer actually represented conflicting interests
                        ii. prejudice: representation adversely affected lawyer’s performance.
        C.  Landmark: Cuyler v. Sullivan
               a. FACTS: S was accused of murder, along with 2 accomplices. S was tried first, separately from the other
                         two. Represented by 2 attys (L1 & L2), who also represented his accomplices. They did not present evidence at
                         his trial. S was convicted. S claimed that conflict of interest affected his rep. but conviction was affirmed. He
                         petitioned for habeas corpus. At the hearing:
                                 i. L1 testified that decision not to present evidence was due to weak state case.
                                ii. L2 testified that he didn’t want to reveal testimony of certain witnesses because of the upcoming
                                      trials of accomplices.
                   b.    JUDGMENT: CA reversed because existence of potential conflict meant that S was
                         denied effective assistance of counsel.
                   c.    ISSUE: did Ls violate client’s 6A guarantee of effective assistance of counsel?
                   d.    HOLDING:
                             ii. NO duty of trial judge to inquire into the impropriety of mult reps sua sponte
                                       1. Not per se forbidden to rep multiple clients
                                       2. Judge doesn’t have to investigate for potential conflicts, if the clients
                                           don’t bring them up


7
    Standard for ineffective assistance of counsel makes you prove more than the civil standard.
                               3. Pending then, decided now: federal courts do have to make
                                  investigation, state courts don’t.
                             4. how? judge asks questions. Has to get knowing waiver from the co-
                                  defendants. Lawyers coach answers, and many are protected by a/c
                                  priv. so investigation is not so useful.
                   iii. Mere potential of conflict of interest does NOT warrant conclusion that D was
                        deprived of right to counsel
                             1. Implications of doing otherwise: there would be no more multiple
                                  representation because the potentiality exists in every situation of mult
                                  rep.
                                       a. Only actual conflict should invalidate conviction.
                             2. Presumption: prejudice is presumed when there is an actual conflict.
                   iv. Conflict here was the lawyer who said didn’t want to present evidence b/c of the
                        upcoming trials of co-∆s
    D. Case law on adverse effect
           a. Glasser—Amount of prejudice is not the answer (Glasser). Have to show that conflict
               adversely affected the representation.
           b. Strickland required showing of prejudice. Here, don’t have to worry about outcome, just
               show that there was an adverse effect.
           c. Dukes—no adverse effect. lawyers repping dukes advised him to plead guilty b/c of the
               other co-D. could have just been unrelated good legal advice.

MULTIPLE REPRESENTATION
   A. PRO:
          a. cost-effective: pool resources and hire one better L than several bad ones.
          b. protect the innocent— if prosecutor is trying to frame one ∆ and all the info is pooled
             about the crime because ∆s have one L, better chances for ∆ to succeed against dirty
             prosecutor.
                   i. with separate defense Ls, prosecutor can take slightly different stories and make
                      it look like they’re lying..
   B. CON:
          a. prosecutors hate it.
          b. same lawyer, can coordinate perjured testimony among defendants.
          c. same lawyer, can coordinate strategy to protect mob bosses

JOINT REPRESENTATION
    A. Analysis
           a. consent dimension—full disclosure is predicate to consent. full disclosure can be
                problematic; must be updated.
           b. objective: whether a reasonable lawyer would think it could go on unaffected.
    B. Generally
           a. ISSUE: joint representation and duty disclose create a problem:
                     i. L has fiduciary duty to both clients but disclosing to one might harm the other
                    ii. clients will be hampered in what they say to L because they don’t want the other
                        side to find out.
           b. Support
                     i. one L is cheaper than two
                    ii. attorney for the situation—brings harmony, reps common interests in trying to
                        avoid conflict; but rules aren’t sympathetic to this idea.
           c. Re: Attorney-Client Privilege
                     i. Lose A/C privilege between both clients, if it goes to litigation, no one can assert
                        A/C privilege against the other.
                    ii. No duty of confidentiality between the 2 clients—no expectation of
                        confidentiality as between the clients.
                             1. lawyer cannot rep either if it goes to lit over a disagreement.
    C. HYPO: New York City Ballet
           L represents both dancer and ballet (NYCB) for first time in negotiating dancer’s contract
           a.
                 i. potential for conflict once they go hardball.
                         1. Ballet will want low price
                         2. Dancer will want high price
                ii. No direct adversity—interests do not oppose each other… yet.
               iii. Materially limited—L cannot do the best job for both clients.
        b. L already represents dancer: can she accept representation of NYCB in an unrelated real
           estate matter?
                 i. If L wants real estate job he will have to tell NYCB about the potential for
                    conflict (because he already represents the dancer).
                         1. If conflict arises, L would have to withdraw.
                ii. Dancer would want to know about possible representation of the ballet in the
                    unrelated matter because she might be nervous if the real estate deal is very
                    important to the lawyer.
                         1. she would be worried about L compromising his duty of diligence
                         2. L expects more repeat business from NYCB than dancer
               iii. even with consent, a reasonable lawyer would think this would adversely affect
                    relationship with both clients.
               iv. materially limited:
                         1. From the beginning: because lawyer will want negotiations to go into
                              cooperative zone, not combative zone, and he refrains from playing
                              hardball for the dancer due to his loyalty to the ballet
                         2. recall Fiandaca—this is one reason to disfavor joint rep.
                v. direct adversity: not now but potential. matters don’t have to be related to be
                    trouble for atty.
  D.  Landmark: State v. Callahan.
        a. FACTS: Seller (S) and Buyer (B) reached tentative agreement about sale of farmland over the phone.
                Decided that Callahan (L) handle transaction for both of them. B offered and S agreed. L prepared sale contract
                in accordance with terms provided by B without consulting S. L didn’t disclose to S that he had an ongoing
                business relationship with B . S thought she had second mortgage on her property, and L didn’t refer S to
                another lawyer till B defaulted on the final yearly payment. Then L told S that all she had was an insecure
                promissory note. Board of discipline of Ls recommended indefinite suspension of L for violation of disclosure
                rules. L appealed.
           b.HOLDING: L should have disclosed—
                   i. that he had a long term relp with B
                           1. would give S a chance to realize that L might have more loyalty to B.
         c. More specifically, should have disclosed
                   i. bad deal for F. If her were only repping her, he wouldn’t have allowed the deal
                      to go through
                  ii. When L’s financial condition deteriorated, should have told F.
  E. Simpson v James.
         a. FACTS: malpractice case brought by sellers of corporation’s assets against partners of a
             law firm that represented both buyers and sellers in transaction.
         b. HOLDING: malpractice: not protecting sellers’ interests as they should have.
                   i. divided loyalty problem
                  ii. interests of buyer and seller pull apart and the lawyer does not protect the seller
                      adequately.
                 iii. CA rule is consent only. MR consent +.

SUCCESSIVE REPRESENTATION
  A. RULE 1.9: DUTIES TO FORMER CLIENTS
        (a) a lawyer who has formerly represented a client in a matter shall not thereafter rep another
             person in the same/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 substantially related
           matter in which a firm with which the lawyer formerly was associated had previously
           represented a client
                 i. whose interests are materially adverse to that person; AND
                ii. about whom the lawyer had acquired information protected by 1.6 and 1.9(c)
                    that is material to the matter,
               iii. UNLESS the former client gives informed consent, confirmed in writing.
      (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:
                 i. use info relating to the representation to the disadvantage of the former client
                         1. except as these Rules would permit or require with respect to a client,
                              or when the info has become generally known; OR
                ii. reveal info relating to the rep except as these Rules would permit or require wrt
                    a client
B. Generally
      a. Distinguish: MR 1.9 is concerned with representation effects, not relationship effects.
                 i. Concern is that the L will be able, if matters are substantially related, to use info
                    acquired from former client against the former client in a present matter with
                    new client.
                ii. Implicates: duty of confidentially, not duty of loyalty as with concurrent
                    conflict.
      b. Rationale:
                 i. don’t want L to turn around and attack own work. this is why when matters are
                    unrelated, loyalty issue becomes irrelevant. (otherwise, every successive rep
                    would have loyalty problem)
      c. Substantial Relation Test
                 i. a factual test
                         1. Second Circuit vs. Fifth Circuit
                ii. must be criteria for ferreting out where former client confidences might be used
                    ag the former client
      d. Analysis:
                 i. Is there a former client?
                ii. Is there material adversity?
               iii. Is there substantial relation?
               iv. Is there consent of former client after consultation?
                v. Is there disqualification
               vi. Is there imputation?
      e. Note: consent only rule; no reas. requirement.
C.  Landmark: Brennan’s Inc. v. Brennan’s Restaurant. (motion to disqualify)
      a. FACTS: All corporate businesses owned and closely held by Brennan family. L jointly represented all family
               businesses in a successful application for registration of 3 trademarks. Dispute within family was resolved by
               dividing stock between 2 groups: Brennan’s Inc (BI) and Brennan’s Restaurants (BR). L chose to represent BR
               and severed connectioin to BI. Suit filed after both groups claimed ownership of trademarks. L retained L2 to
               help in defense of BR. BI moved to disqualify both L and L2. TC granted motion. Case on appeal.
          c.   QUESTIONS:
                   i. Former client: YES—joint representation.
                  ii. Material adversity: YES—BR and BI come out of the same former joint
                      representation; some part of former client is adverse to the other part.
                 iii. Substantial relation: YES—they’re fighting over trademark issues; L
                      represented both earlier for trademark and is no representing solely BR.
                 iv. Consent—NO.
                  v. Disqualification—
                          1. TC: despite no consent, there is no DQ because of initial joint rep—no
                               expectations of confidentiality between joint client
                          2. CA: even though there is no expectation of confidentiality, L cannot
                               use the confidential info against a former client.
                 vi. Imputation—NO
          d.  HOLDING: CA disqualifies L but not L2.
                   i. Duty of loyalty is at issue—not duty confidentiality.
                           1. L is disloyal but
                           2. L2 is not disloyal because he never worked for the joint client, BI. It is
                                not disloyal to attack someone you never worked for.
         e. DISCUSSION
                   i. Imputation would apply in that L could supply L2 with information that L
                       acquired from joint representation
F.   Allegaert v Perot (motion to disqualify)
         a. FACTS: at time of representation, W sees his interest as identical to P’s. W and P enter into business
               together. Ls that had represented P for some time represent both of them in stockholder derivative action which
               involves challenges to the business. W decides to freeride on P’s lawyers. W ends up going bankrupt and
               trustees in bankruptcy bring claim against P and want P’s lawyers disqualified because they represented W in
               stockholder action.
                 i. Distinguish Brennan’s: because lawyers have not switched sides. They have
                     always been with P.
       b. HOLDING: W went into representation knowing that he was aligning himself with P
           who had been a long standing client. Since he went in knowingly he is bound.
G. Though questions of law are different and seem unrelated what matters is what kind of facts you
   are going to get into.
       a. HYPO: First matter is a criminal tax prosecution and second is divorce action.
                 i. Tax case involves a lot of income and property facts. These are the same sort of
                     facts that will come up in divorce case when trying to divide assets. In fact, wife
                     prob wants this lawyer b/c he knows so much about husband’s finances.
                ii. Substantial Relation Tests:
                          1. Facts would probably even satisfy 2nd circuit here.
                          2. 5th circuit is less strict than 2nd.

SUBSTANTIAL RELATION
A. Tests
       a. Fifth Circuit [broad]—
                 i. to be substantially related, the prior representation need only be akin to the
                     present action in a way a reasonable person would understand as important to
                     the issues involved.
       b. Second Circuit [narrow]—
                 i. To be substantially related, relationship between two matters must be patently
                     clear, the issues identical or essentially the same.
       c. Restatements, §213, substantially related if:
                 i. current matters involve the work the lawyer performed for the former client (i.e.
                     SR btw the matters), OR
                ii. there is a substantial risk that representation of the present client will involve use
                     of information acquired in the course of representing the former client against
                     the former client, unless
                           1. that info has become generally known.
       d. Seventh Circuit—
                 i. Substantial relation if lawyer could have obtained confidential information in the
                     first case that could be used in the second later case.
                           1. i.e. nature of matters is such that facts are similar enough so that lawyer
                                in 1st rep. would have access to confidential info that would be useful in
                                2nd rep.
                ii. Excludes loyalty, which casebook editors thinks makes it too narrow. simplest to
                     apply
       e. Analytica—
                 i. Two matters are substantially related if L could have obtained confidential info
                     in the 1st representation that would have been relevant to the 2nd representation.
B. The law is messy:
       a. Caveat: loyalty concerns come up more than Analytica or Restatements allow.
          b. Majority doctrine: broader Fifth Circuit interpretation of substantial relation.
    C.  Landmark: In re American Airlines (disqualification motion)
          a. FACTS: Continental (C) sues American Airlines (AA) in Texas. Accuses AA of engaging in predatory
                  pricing. AA replies by seeking declaratory judgment in Illinois, and sues both C and Northwestern (NW). NW
                  replies by suing AA in Texas. TC in Texas says suits need to be consolidated, so consolidates 1 st and 3rd suits.
             b.   CLAIM: AA moves to disqualify Vinson and Elkins (VE) from representing NW:
                          i. VE was supposed to represent AA on this case but dumped them.
                                   1. NW accused AA of taint shopping, trying to conflict out VE as a law firm
                         ii. VE represented AA in prior substantially-related matters.
                                   1. TC says prior matters are only tangentially related. CA reverses.
             c.   HOLDING:
                      i. first representation is so closely related it would probably pass any of the SR
                         tests.
                               1. Memo from lawyer saying that the whole reason to monopolize the
                                   computer system would be to monopolize the market for air travel.
                                   Shows that monopolizing the comp system and monopolizing the
                                   market are SR.
                     ii. third rep (armadillo project) requires very broad test to find matters related.
                         Court uses 5th circuit test, which is broad enough. Matters here have to do with
                         how you define air travel markets.
                               1. Seems to create a rule that says each firm can only have one case in
                                   each industry (court rejects this claim by NW)
                    iii. VE’s prior representation of AA in substantially-related matters requires
                         disqualification of VE in this case. VE cannot represent NW.

IMPUTED CONFLICTS
RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST
   (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 from 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 with a firm, the firm is not prohibited from thereafter
        representing a person with 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.

MIGRATION
   A. Generally
          a. Rule: if lawyers who represent a client are disqualified, then the whole firm is
              disqualified
                   i. Information is not confined to the lawyers that handle the case in the firm
          b. Three Instances of Migration: variation in contact with former client…
                   i. 1st firm represents S; L works for 1st firm, but has nothing to do with S case. L
                       migrates to 2nd firm. New client comes to 2nd firm wanting representation against
                       S.
                            1. Is L disqualified? No. never had relationship with S
                            2. Firm is not disqualified.
             ii. Contact between S and L at 1st firm establishes A/C relationship; but not so
                 much that confidential info passed to L. L migrates to 2nd firm. New client
                 comes to 2nd firm wanting representation against S.
                     1. Is G disqualified? Yes. Otherwise would be disloyal to his former
                          client.
                     2. 2nd firm disqualified? No. They have no confidential info to use ag S.
            iii. G does tons of work for L at 1st firm and gets confidential info. G migrates to 2nd
                 firm. New client comes for representation against S.
                     1. Is G disqualified? Yes.
                     2. Is 2nd firm disqualified? Yes. Presumption that lawyers share.
B.  Landmark: Nemours Foundations v Gilbane, Aetna Federal Life Insurance
      a. FACTS: N and F are co parties. N is a property owner of a hospital and F does mechanical engineering for
              the hospital. F is represented by the Berg firm where L works. While L works there, he gets confidential info
              from N because they run a mock trial (F and N collaberate to do this) and he spends 4 months on the
              assignment. Although N was never a client of the Berg firm, N becomes client under a Westinghouse-type
              analysis, partial A/C relationship and partial fiduciary duty, then L migrates and goes to Biggs. Biggs
              represents Pierce, who is a sub-contractor on the opposite side of the litigation from F and N.
         b.HOLDING
                 i. Former Client: YES. N is considered a former client
                         1. not an official client, but L owed some duties to N on basis of
                              confidential info
                ii. Material adversity: YES. Matters are in direct opposition.
               iii. Substantial Relation: YES. Matters are identical.
               iv. Consent: NO. Biggs firm (2nd Firm) misses the conflict and never asks for
                    consent.
                         1. Too late to ask for consent by the time issue arises.
                v. Disqualification: YES. L is disqualified—either on confidentiality or loyalty
                    grounds.
                         1. conf: gets conf info from N when he was at Berg
                         2. loyalty: even w/o conf, loy would suffice b/c B is switching sides and
                              turning ag his former client.
               vi. Imputation: NO(??)
                         1. According to MR 1.10, Biggs firm should have also been disqualified
                              due to the fact that migrating L got confidential info. They were not
                              disqualified though.
                         2. Court relies on instead on MR 1.11 giving government lawyers special
                              treatment
       c. ANALYSIS
                 i. Doesn’t want to impute disqualification because you cannot get a local firm to
                    get litigation.
                         1. In Westinghouse could get another firm to take lit b/c there were
                              plenty. Not the case here. (Similar to situation in Fiandaca)
                ii. Implication: it would be harder for lawyers to migrate if you impute a bunch of
                    firms.
               iii. Will it taint outcome?
                         1. Fiandaca says forget strategic operations and use harmless error
                              standard.
                         2. Even if lawyer was only a 2nd yr associate, a total peon, even though he
                              probably did not make any strategic decisions, he did run into info
                              when working on it for four months. Its silly for the ct to say he
                              didn’t know anything based on strategy because substantial
                              relation test is a factual test.
C. Screening.
       a. subjective: cone of silence, lawyer has to keep mouth shut. lawyer encases himself in
           cone.
       b. objective: show us procedures by which you isolated this lawyer from the case that he’s
           not supposed to be participating in. (i.e. where files were kept, who had access, etc.)
             c.   Generally disfavored. (when succ conflict is not caught & no consent)
             d.   Consent rule: common practice to be able to get consent. these legal problems are
                  common, and client knows might one day be on other side of the fence.



LAWYER-CLIENT CONFLICTS
BUSINESS CONFLICTS

Model Rule 1.8(a) Conflict of Interest: Prohibited Transaction; CONSENT +
   (a) A lawyer shall not enter into a business transaction w/ a client or knowingly acquire an ownp,
       possessory, security or other pecuniary interest adverse to client UNLESS:
            (1) the transaction and terms on which lawyer acquires the interest are fair and reasonable to
                 the client and are fully disclosed and transmitted in writing in a manner which can be
                 reasonably understood by client;
            (2) the client is advised in writing of the desirability of seeking and is given a reasonable
                 opportunity to seek the advice of independent legal counsel on the transaction; and
            (3) the client gives informed consent, in writing signed by the client, to the essential terms of
                 the transaction and the lawyer’s role in the transaction, including whether the lawyer is
                 representing the client in the transaction.

    A. Generally
          a. Stringent rule: you can participate on a business transaction with a client only if
                     i. the terms of the deal for the client are ones you would recommend if you were
                        the client.
          b. Impartiality
                     i. lawyers are supposed to be impartial and loyal. if counsel has stake in seeing the
                        deal go through, then this threatens impartiality. Cant just give the client the
                        advice he wants to hear so the deal will go through; has to give best advice.
          c. Situations:
                     i. if you toss in your legal advice as part of business venture it seems to create
                        conflicts of interest. Mostly because to maximize your returns you will probably
                        do less work than if paid hourly.
                              1. Subject to restraint, of course, that stock is worth less if the project
                                  fails. ALSO billing creates bad incentive of billing too much.
                    ii. lawyers have opportunities to make big money with others that they cant make
                        by being a lawyer alone. This creates problems, though not as frowned upon as
                        having sex with a client.
          d. Ethics codes tend to favor clients
    B.  Landmark: Matter of Neville.
          a. FACTS: L goes into real estate transaction with client (B); L isn’t representing B in this
               particular transaction. L claims he just wrote up deal as B suggested.
          b. HOLDING:
                     i. B is a client.
                              1. Generally, if there is no retainer, the person is not a client; there was no
                                  retainer here, but the B was still a client.
                              2. MR 1.8: To be a client you only have to have had a relationship with
                                  L—don’t have to know whether L will represent you in the future.
                              3. Rationale: want to impose stringent rules so that basic trust that clients
                                  have of their lawyers won’t be undermined.
                                       a. Loyalty survives termination of the representation.
                                       b. This is about the relationship not the representation.
                                       c. Need a broad reading of ―client‖ to provide the protection of
                                            trust.
                                       d.   Don’t want it to be so narrow that lawyers can stab their
                                            clients in the back if they are not representing them on a
                                            particular matter.
                    ii. L violated the rule
                             1. L should have protected the client in the way he would if he were
                                  representing B and appraising the transaction from the perspective of
                                  the client.
                             2. Disclosures are inadequate: should have told B that:
                                       a. he is not representing B in this matter
                                       b. B should look to independent counsel
                                       c. every circumstance and fact that B needs to know to make a
                                            good decision.
                   iii. Note: the fact that N just wrote up what B suggested is not exculpatory.
   C.  Landmark: Committee of Prof Ethics v Mershon.
         a. FACTS: Formed a corporation with a long time client and developer in order to develop
              client’s land. L’s contribution to deal was legal services. L was paid with stock in
              corporation. P contributed the land, developer/engineer provided eng. services. Then P
              dies. Lawyer transfers stock to corporation, asks engineer to do it, but he refuses.
         b. DR5-104A: a lawyer shall not enter into a bus t/action w/ a client if they have different
              interests therein, and if the client expects the lawyer to exercise his prof judgment therein
              for the protection of the client, unless the client has consented after full disclosure.
         c. ISSUE: lack of disclosure.
         d. HOLDING:
                     i. full disclosure means more than just making ∏ fully aware of terms and nature
                        of transaction.
                    ii. fiduciary relationship demands showing that the transaction was in all respects
                        fairly and equitably conducted; that L fully and faithfully discharged all his
                        duties to his client and by seeing to it that his client either:
                             1. has independent advice, or
                             2. receives from such advice as the L would have been expected to give
                                  had the t/action been one btw his client and a stranger.
   D. Handling Property
         a. Commingling Money: mixing L’s money with the client’s money can be enough to disbar.
              Per se offense.
                     i. fiduciary obligations:
                             1. segregation
                             2. notification
                             3. record keeping
                             4. delivery
                             5. accounting.
                    ii. also applies to 3d parties involved.
                             1. there are client protection funds, rules for keeping money of multiple
                                  clients in one account, IOLTA funds etc.

OTHER CONFLICTS

   A. Sex With Clients (ABA standard) 3 concerns
          a. might breach fiduciary obligation to client
                    i. Ex—lawyer abuses client, manipulates via position of power, in divorce case
          b. might lose independent professional judgment because of romantic/sexual involvement
          c. prohibited conflict with L’s own interest results if that interest impairs or materially
              limits the representation
                    i. Ex—if the best thing for the client is to get back together with the ex, lawyer
                        might not allow this to happen
          d. Implication: puts A/C privilege at risk because contexts of conversation get fuzzy
                    i. how do you distinguish pillow talk from business talk?
    B. Advocate-Witness Rule. MR 3.7 when can an L act as a witness in the case she is trying?
         (a) a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary
             witness except where:
                (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 L would work substantial hardship on the client.
         (b) a lawyer may act as 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 Rule 1.7 or 1.9
    C. Discussion
           a. litigation department of one firm is not going to go up against another department in
                same firmso one firm shouldn’t represent 2 opposing clients.
           b. roles spin. witnesses testify about facts, and lawyers spin facts; put lawyer on stand, and
                he has crossed boundary to witness. he testifies as to meaning of legal doc, and this is a
                question of the court, not to be solved by testimony.
           c. cross examining lawyers: ask them about their ―understanding‖ of the document.
           d. practical reason for the rule: you never know when you’re going to turn around and
                attack your lawyer, and you should have another one for this. every t/action has a
                potential conflict in it, and can lead to lit. if your lawyer has to testify, you clearly need
                someone else to rep you.



          DUTIES TO OTHERS
DUTIES WITHIN ADJUDICATION
ABUSIVE LITIGATION
OVERVIEW
   A. Civil Liability of Lawyer for Pursuing A Frivolous Claim:
          a. Negligence: courts have rejected negligence claims brought against lawyers by people
               those lawyers had sued on behalf of a client.
                      i. courts have rejected argument that the ethics rules, i.e. rules against maintaining
                         frivolous suits, create a legal duty that extends to the opposing party.
                     ii. POLICY: free access to the courts
                              1. But… denies civil recovery based on violations of MR 3.1 when the
                                   purpose of those provisions is precisely to curtail frivolous filings.
                              2. Contrast Greycas—broader liability to third parties when L is acting as
                                   facilitator of transactions than when L is acting as advocate
          b. Abuse of Process: party is liable for abuse of process when it uses legal process
               primarily to accomplish a purpose for which it is not designed.
                      i. Elements:
                              1. ulterior purpose, and
                              2. a willful act that is improper in the regular conduct of the proceeding
                     ii. word ―primarily‖: excludes liability when process is used for intended purpose
                         but there is an incidental motive of spite or ulterior purpose to benefit the ∆..
                              1. But… Mozzochi, court rejects abuse of process claim against Ls that
                                   had maintained suit despite learning that allegations were untrue
          c. Malicious Prosecution: elements are: {against client?}
                      i. ∆ instituted proceeding against ∏
                     ii. proceeding was terminated in favor of ∏
                    iii. absence of probable cause for the proceeding
                                      Standard:8 whether on the facts as known to the L at the time she
                                        1.
                                      instituted suit, the suit was objectively tenable.
                       iv. ∆ acted out of malice or other improper purpose,
                                 1. once judge finds that prior action was not objectively tenable, fact that
                                      L never though it tenable, failed to do research is relevant to malice
                                 2. NOTE: reliance on counsel’s advice negates this element
                                           a. assuming client did not withhold facts from L
                        v. [and, in MIN: ∏ suffered damage (of the type required for this C/A)]
        B. High Stakes Litigation
               a. Premise: litigation expends money and transactions make money
               b. prisoner’s dilemma:
                         i. each party has same incentive to max position by increasing litigation
                            expendituresbenefits of expenditures are reduced or eliminated
                                 1. outcome of litigation is the same because each party attempts to
                                      counteract each other by raising expenditures
                        ii. they are left worse off than if they agreed to cooperate (e.g., limit expenditures)
               c. Ls in high-stakes litigation are the only one’s who benefit
                         i. Cases where amount at stake is large enough to justify large expenditures on
                            legal services.
               d. Impact: market produces income distribution where slight difference in perceived or
                   actual ability of Ls result in large variations in income.


STRATEGIC BUSINESS LITIGATION (SBL)
   A. Generally
           a. SBL is litigation that is brought to inflict a cost on the other side (make them spend
              time/$), not to vindicate a valid legal right
           b. Criticism:
                     i. From social standpoint: it is all cost and no benefit
                    ii. Behind a veil of ignorance, people don’t like SBL.
                   iii. But… but it can benefit individual parties in the short run
           c. Hypo: employee has a good idea and leaves to start own company. Might not be stealing
              any intellectual property, but her former employer might bring suit just to stamp her out
              as competition. World at large doesn’t know if it’s legit or not. As a result, venture
              capitalists will not want to invest because suit makes her seem like a risky co.
   B. Combating SBL Through Legal System:
           a. tort strategy. compensate for malicious prosecution
           b. Rule 11: Relies on courts during lit to figure out which claims are valid.
           c. lawyer as gatekeeper: L has ethical duty not to bring unjustified claims.
   C. Lawyer As Gatekeeper [Gilson]
           a. Rationale: always need a lawyer to bring suit, so if all lawyers don’t bring strategic ones,
              this type of suit cannot get off the ground.
                     i. Ls have expertise that clients do not
                    ii. Ls get info that courts don’t get, can judge validity of claim better.
                   iii. Ls can stop client’s from bringing unjustified claims altogether
           b. Lawyer’s Task:
                     i. objective: ask if there is a valid legal claim in the complaint.
                             1. SBL is: claim which reasonable person evaluating its merits, knowing
                                  what L knows, would say is not justified.
                             2. Criticism: good lawyers can draft things that look perfectly legit.
                    ii. subjective: look for motivations.
                             1. SBL is: a claim whose purpose is to inflict cost, not vindicate a legal
                                  right.
                                       a. But… you can vindicate legal rights spitefully too.

8
    Sheldon Appel Co. v. Albert & Oliker (Cal. 1989)
                                                   i. Postema/Fried. Are rights rights, should you get them
                                                       regardless? (???)
                               2. Criticism: hard to determine. Esp. because if L knows this is the
                                   standard, he is going to tailor the complaint to disguise true motive
                                        a. court wont be able to determine true motives.
  D. ISSUE: hard to screen out valid from strategic cases
            a. overinclusive: eliminate legitimate cases (takes away people’s property rights)
            b. underinclusive: invites people to assert claims that are actually strategic.
  E. Market & Decline of Professionalism:
            a. Supply Side. Why would lawyers agree to this when they would lose $ (no suits = no $)?
                       i. Professionalism. Not just in this profession for the $.
                               1. socially constructive: ethical resonsibility.
            b. Demand side. Why would clients buy something against their immediate self-interest?
                       i. No Expertise: don’t know what legal services they need
                               1. need L to provide diagnostic info: unsophisticated clients don’t know
                                   how good or bad their legal service was.
                      ii. Long Run: over long run, can tell how good L is.
                               1. In old days, when clients were represented by firms, they relied heavily
                                   on them because they didn’t have other strong alternatives.
                     iii. But…presently, there is in-house counsel for many companies which broker
                          long term relationships with firms.
                               1. They can bring SBL whenever they want, whereas before the firms had
                                   the upper hand and could refuse to represent on unjustified matter if
                                   they wanted to.
                               2. Now firms have to fight for jobs that they getdecline in
                                   professionalism
            c. CONCLUSION: Professionalism can save the market from being self-destructed, if we
                can get it back.
MODEL RULES
  RULE 3.1: MERITORIOUS CLAIMS AND CONTENTIONS
  A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is
  a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an
  extension, modification or reversal of existing law.
  Exception: A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that
  could result in incarceration, may nevertheless so defend the proceeding as to require that every
  element of the case be established.

    RULE 3.2: EXPEDITING LITIGATION
    A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

RULE 11 AND OTHER JUDICIAL REMEDIES
   A. Generally
           a. Premise: law of procedure is a set of legal empowerments accompanied by limitations
              and obligations
                    i. The function of law is govern by and takes its form from the law of criminal and
                       civil procedure.
                   ii. Litigation is the exercise of the power of the state over which lawyers have
                       important control
           b. Limitations:
                    i. Rule 11 sanctions
                   ii. Statutes of limitations—procedural options be exercised in timely fashion
                  iii. Requirements of court permission for procedural steps to be taken
                  iv. Regulation of discovery
           c. Obligations--
                    i. Self-employed business man
                   ii. Trusted agents of their clients
                                  iii. Assistants to the court
                                  iv. But… MR takes the procedural rule and waters it down.
                 B. FRCP 11
                              a. 1993 Text: by presenting to the court a pleading, written motion, or other paper, an
                                 attorney or unrepresented party is certifying that to the best of the person’s knowledge,
                                 information, and belief, formed after an inquiry reasonable under the circumstances:
                                        i. it is not being presented for any improper purpose, such as to harass or to cause
                                           unnecessary delay or needless increase in the cost of litigation.
CAVEAT: Even though words
―improper purpose‖ seems               ii. the claims, defenses, and other legal contentions therein are warranted by
subjective—courts require an               existing law or by a nonfrivolous argument for the extension, modification, or
objective determination of                 reversal of existing law or the establishment of new law
whether a reasonable lawyer          iii. the allegations and other factual contentions have evidentiary support or, if
acting as the lawyer did in this
case would have been acting                specifically so identified, are likely to have evidentiary support after a
for an improper purpose                    reasonable opportunity for further investigation or discovery; and
                                      iv. the denials of factual contentions are warranted on the evidence or, if
                                           specifically so identified, are reasonably based on a lack of information or belief
                              b. Compare 1983 version:
                                        i. 1993 is MORE demanding than 1983:
                                                 1. it covers later advocating of a position—whatever you file must have a
                                                      reasonable basis as long as it isn’t withdrawn.
                                                 2. law firm is vicariously liable for Rule 11 violations committed by its Ls
                                       ii. 1993 is LESS demanding than 1983:
                                                 1. ∏’s lawyers do not have to have all the facts initially:
                                                           a. can note: ―likely to have evidentiary support after a reasonable
                                                               opportunity for further investigation.
                                                 2. ∆’s lawyers can deny factual allegations by noting: ―reasonably based
                                                      on a lack of information and belief.‖
                                                 3. But… both are protected only to the extent it remains reasonable to
                                                      have failed to discover the fact of the matterTolerance of factual
                                                      contentions in initial pleadings does not relive litigants from the
                                                      obligation to conduct an appropriate investigation into the facts that is
                                                      reasonable under the circumstances.
                                     iii. Reliance on Client’s Word:
                                                 1. 1983: blind reliance on client would seldom have constituted a
                                                      sufficient inquiry
                                                 2. 1993: a lawyer is entitled to rely on client statements that are
                                                      objectively reasonable although relying on client statements without
                                                      other pre-filing inquiry may be sanctionable conduct (2nd Circuit)
                                                           a. pre-1993 decisions are still relevant: rest on reasonableness of
                                                               the lawyer’s conduct—determined by circumstances.
                                      iv. Incentive and Damages:
                                                 1. 1983: damages were awarded to the moving party
                                                           a. compensation is incentive to bring motions.
                                                 2. 1993: damages go to the court,
                                                           a. deterrence is incentive to bring motion; no gains involved.
                                       v. Drop in Number of Reported Rule 11 Cases
                                                 1. safe-harbor provisions: Rule 11 motion must be moved separately
                                                      from other motions and only after the targeted party has been given an
                                                      opportunity to withdraw the challenged statement within 21 days of
                                                      service of notice.
                                                 2. encouragement of prompt action: under 1983 Rule, motions could
                                                      be presented after final judgment; under 1993—motion should be
                                                      served promptly after inappropriate paper is filed and may be viewed as
                                                      untimely otherwise.
                                       discretionary sanctions: aim of sanctions is to deter violations and
                                        3.
                                       not to compensate the offended party; under 1983, sanctions were
                                       mandatory.
                                  4. damages: set as a reasonable attorney’s fees—possibility of mistaken
                                       imposition of sanctions tends to discourage legitimate ∏s from suing.
                        vi. NOTE: not applicable to discovery motions or papers filed in connection with
                             discovery.
                                  1. ALSO, different rules for civil rights cases and securities cases.
        C. Majority position (2nd/7th c): claim must be meritorious:
               a. one that is objectively justified in the sense that it would turn out to be justified by a
                    reasonable inquiry into the facts at the time the pleading was filed.
                          i. A pleading that a reasonable lawyer would file having undertaken a reasonable
                             inquiry.
        D. Reasonable Investigation
               a. Improper purpose tends to drop out with existence objective ground to justify
               b. Objective—lesson of Garr is that majority standard is more demanding because it
                    demands more work from people; the skepticism of dissent (majority position in 9 th
                    circuit & 2nd circuit)—demanding more work does not increase the quality of L’s work.
               c. If we’re looking into the basis of a complaint—someone should do it right.
                          i. judgment any lawyer has to make—how much work should I do in light of the
                             fact I could be judged by Rule 11? if a reasonable lawyer at the time of the
                             filing wouldn’t have filed it?
                         ii. this encapsulates the effectiveness of the reasonable investigation standard…
        E.  Landmark: Garr v US Healthcare.
               a. MAIN POINT: RULE 11 MINORITY RULE—each lawyer must conduct independent
                    reasonable inquiry into facts alleged in the pleading.
               b. FACTS:
                          i. Article comes out in WSJ about how the day before a company announced bad
                             news they sold a lot of stock. This would be a breach of fiduciary duty to
                             stockholders. Leaves everyone else stuck w/ their stock.
                         ii. ∏’s lawyer (Malone) happens to keep tabs on everything and rounds up some
                             ∏s. Sklar and Levin, also lawyers, follow his lead.
                        iii. Ct doesn’t like the lead lawyer but can only sanction him for not investigating
                             the ∏.
                                  1. ∏ drops out of litigation because his son has important business
                                       dealings with the company L is suing making his interest
                                       unrepresentative of the class and undermining the class suit
                        iv. Ct sanctions Levin and Sklar who piggyback on his complaint; run up a bunch
                             of clients and don’t do the legal work, rely on Malone’s inquiry.
               c. DISCUSSION
                          i. Impact: more like strict liability: if you file a bad complaintliable. (even if
                             you exercised tons of care)
                                  1. don’t get better complaints w/ more stringent standard
                                  2. if not, actually invites the very thing 11 is trying to reduce, excessive
                                       litigation (minority position increases satellite lit)
        F. Disney Hypo. If primary LA counsel gets the papers ready, does all the investigating, and sends
           them to local counsel to file, does Philly local counsel under Garr, have to double-check
           everything (basically redo?)
               a. Under Garr, best thing to do is create a paper trial that looks like reasonable care (as if
                    negligence standard). Do enough to look like reasonable care. 9
                          i. Impact: doing everything again bills the client twice for same work

REMEDIES FOR ABUSIVE LITIGATION
   A. MR on Abusive Litigation:

9
    Make sure to weigh the amount of paper accumulated in your research. Different jurisdictions require different minimum weights.
             Generally: tends to favor client over court—in support of zealous advocacy.
            a.
                   i. except for duties of loyalty and confidentiality (w/ exceptions to duty of conf)
          b. MR 3.1 claim may not be made unless there is a reason for doing so that is not frivolous,
             which includes a good faith argument for extension, modification or reversal of existing
             laww
                   i. Standard: lawyer can come up with good faith argument
                           1. fairly subjective—has to be made sincerely;
                                     a. ―would someone laugh at your argument?‖ low threshold test.
          c. MR 4.4 protecting 3d persons from harassing litigation.
                   i. Standard: Prohibits actions that have no substantial purpose except to
                      embarrass, delay, burden, harass [weaker than 3.1].
          d. MR 3.2 requires reasonable efforts to expedite litigation but only if those efforts are
             consistent with the interests of the client.
                   i. Standard: delaying litigation is allowed if a competent lawyer acting in good
                      faith would regard course of action as having some substantial purpose other
                      than delay (not too tough to satisfy)
                           1. realizing financial or other benefit from otherwise improper delay in
                                litigation is not a legitimate interest of the client.
    B.  Landmark: In Re Solerwitz (1988)
          a. FACTS:
                   i. 11,000 air traffic controllers were fired for an illegal strike. Federal Merit
                      System Protection Board rejected claims filed on behalf of the controllers and
                      then 4600 petitions for review were filed with appellate court.
                  ii. Court designated 12 cases as ―lead cases‖ that presented the most common
                      issues for review. (including one of Solerwitz’s—the lawyer: who represented
                      over 800 controllers)
                iii. Court decides these cases against the controllers—notifies petitioners and Ls in
                      all other pending appeals that:
                           1. written notification was necessary to continue their appeals, and
                           2. warned them of impropriety of maintaining frivolous appeals in cases
                                that presented legal issues and facts indistinguishable from lead cases
                 iv. L continued to file or maintain 144 claims that were the same as the lead cases
                  v. S was suspended from practice before Federal Circuit for 1-year period.
          b. HOLDING:
                   i. L’s briefs did not attempt to convince the court that the lead cases had been
                      incorrectly decided and should be overruled—merely repeated the same basic
                      arguments that the court had rejected in the lead cases.
                           1. Rationale: judicial economy. This goes against the whole reason we
                                designate cases as ―lead‖ in the 1st place.
          c. DISCUSSION:
                   i. Unjustified to file virtually identical cases after the lead cases decided
                           1. could have served legal client interests by filing all the claims and
                                moving to preserve them against tolling of SOL
                           2. could have then revised them if the lead cases were reversed
                  ii. Ethics experts thought it wasn’t so bad under 3.1 (frivolous) BUT you can not
                      make arguments in trial court (even if they could be made in appellate court)
                      because they have already been ruled on in the lead cases. 3.1 is generous
                      though if you could come up with reason to reverse at appellate level, then not
                      frivolous to bring claim.

FRIVOLOUS LEGAL ARGUMENTS
    A. Frivolousness
           a. The absence of a ―good faith argument for an extension, modification or reversal of
               existing law.‖
                     i. Beyond merely a baseless claim—must have a good-faith foundation.
    B. Golden Eagle Distributing Corp. v. Burroughs Corp. (1986)
                 a.   CORE PROPOSITIONS:
                           i. Rule 11 sanctions applies only if the entire paper is frivolous (not just part of it)
                          ii. Failure to cite controlling adverse authority is not sanctionable
                         iii. Failure to characterize a misleading statement of existing law as a request for a
                              change of law is not santionable.
                 b.   FACTS: Kirkland & Ellis (F) represented ∆ (B) in the litigation. Following sanctions
                      imposed by the TC on the motion for summary judgment:
                           i. Should have stated that position was grounded in a ―good faith argument for the
                              extension, modification, or reversal of existing law‖, not ―warranted by existing
                              law.‖
                          ii. Failed to cite contrary authority in violation of MR and Rule 11.
                         iii. F made the following arguments in their brief:
                                   1. law of transferor state does not apply dismissed by forum non
                                        conveniens; exception to a settled rule.
                                             a. misleading: statement based on authority that raised the issue
                                                  but did not decide it
                                   2. MN court would have dismissed the case on forum non conveniens
                                        grounds—
                                             a. misleading: failed to note that one prereq to such a dismissal
                                                  is that an alternative forum be available.
                                   3. damages for economic loss are not recoverable under CA law
                                             a. adverse authority: failure to cite exceptions to economic loss
                                                  doctrine—namely, 3 cases that allow such recovery.
                                             b. F argued that cases are distinguishable and not directly
                                                  adverse…
                 c.   HOLDING [Schroeder, C.J.]:
                           i. Issues with 1983 Amendments to Rule 11:
                                   1. may tend to chill creativity in advocacy and impede the traditional
                                        ability of the common law to adjust to changing situations.
                                   2. broadened availability of sanctions will lead to protracted and
                                        expensive satellite litigation over the appropriateness of sanctions.
                          ii. Second Circuit Test—sanctions should be imposed under Rule 11 if:
                                   1. after reasonable inquiry, a competent L could not form a reasonable
                                        belief that the pleading is well-grounded in fact and is warranted by
                                        existing law or a good faith argument for the extension, modification or
                                        reversal of existing law, or…
                                   2. a pleading has been interposed for any improper purpose
                                             a. complaint which complies with ―well-grounded in fact and
                                                  warranted by… law cannot be sanctioned as harassment under
                                                  Rule 11.10
                         iii. Application to this Case:
                                   1. TC held that Rule 11 imposes upon L a duty of candor: L cannot
                                        misstate the law, fail to disclose adverse authority or omit facts critical
                                        to application of law:
                                   2. Argument Identification: L should differentiate between arguments
                                        warranted by existing law and those for extension, mod. or rev. of
                                        existing law.
                                             a. Text of Rule 11 does not require the distinction to be made
                                             b. Often the distinction is not clear—the very reason for
                                                  litigation is that the law is not settled on the matter.
                                                        i. Since sanctions under Rule 11 are mandatory—
                                                            requiring them upon close questions:
                                                                  1. may lead to arbitrariness and


10
     Zaldiva r
                                                       2. decrease the chance for uniform
                                                          enforcement.
                                            ii. Ex—if judge already decides that question falls
                                                within the law, and you argue for an extension which
                                                she doesn’t agree with then you’re screwedyour
                                                reputation is harmed too.
                                  c. As an advocate you want to make the most aggressive
                                       argument on behalf of your client—and argue that it falls
                                       under the rule and not the exception.
                                             i. Conflict between L’s duty to zealously represent
                                                client and L’s own interest in avoiding rebuke.
                        3. Adverse Authority: L must cite directly contrary authority
                                  a. Same issues as above—mandatory sanctions would be
                                       imposed based on close decisions.
                                             i. L’s burden to research authority would increase
                                                greatly
                                            ii. Also… court would have to do excess research to
                                                make sure no adverse precedent failed to be cited.
       d. POLICY ARGUMENTS:
                i. You can’t trust courts to enforce this standard—courts themselves are biased
                   because once they issue actual rulings as to what the law is, they become very
                   uncharitable as to changing the law. Ls are forced to fit their facts within the
                   existing law.
               ii. Such impositions undermine and chill zealous advocacy—and it is not in the
                   nature of our adversary system to require lawyers to demonstrate to the court
                   that they have exhausted every theory both for and against their client.
              iii. Administrative inefficiency: Imposing mandatory sanctions on close decisions
                   leads to:
                        1. increase arbitrariness
                        2. decrease in uniformity of enforcement
C. Golden Eagle Distributing Corp. v. Burroughs Corp. (1987)
       a. PROCEDURE: dissent from denial of a sua sponte request for en banc hearing:
       b. HOLDING [Noonan, C.J., Sneed, C.J., Anderson, C.J., Hall, C.J., & Kozinski, C.J.]:
                i. The facts of this case are not a close call—clear misstatements of the law by F
                   which should be sanctionable.
                        1. the brief claims to be warranted by existing law, yet it goes against
                             directly contrary authority
                        2. moreover, the brief does not argue for an ext., mod. or rev. of existing
                             law
                                  a. they didn’t argue for extending existing law—they
                                       misrepresented the law it cited.
               ii. Vigorous advocacy is necessarily truthful advocacy (discussion of Fuller)
                        1. MR 3.3(a)(3)—L should not knowingly ―fail to disclose to the tribunal
                             legal authority in the controlling jurisdiction known to the L to be
                             directly adverse to the position of the client and not disclosed by
                             opposing counsel.‖
                                  a. ―underlying concept is that legal argument is a discussion
                                       seeking to determine the legal premises properly applicable to
                                       the case.‖
              iii. Discussion of Nix v. Whiteside—
                        1. unrestrained advocacy has been repudiated by modern authorities
                                  a. SC rejected such lack of restraint when it upheld L’s duty not
                                       to present perjury—it is not a conflict for L not to assist in the
                                       presentation of false testimony.
                        2. A client has as little right to the presentation of false argument as he
                             has to the presentation of false testimony.
                 iv. L has a duty to work within the boundaries of professional responsibility
                           1. Legal argument should be adversarial as sports—should also be
                                cooperative. Rules are designed to make the game a good game and if
                                you didn’t have any rules it wouldn’t be much of a good game.
    D. DISCUSSION:
          a. The first 2 problems with the brief are hard to rescue—and if you don’t sanction here
             you’re not going to be sanctioning too often.
                   i. Noonan opinion—
                           1. when majority rejects this view—they’re saying there’s too many close
                                cases and courts can’t be trusted because they’ve already taken position
                                on the side of the law.
          b. Effect of 1993 Amendments to Rule 11 on CORE PROPOSITIONS of Golden Eagle
             (committee notes to 1993 As):
                   i. Rule 11 sanctions applies only if the entire paper is frivolous (not just part of it)
                           1. rejected by 1993 As
                  ii. Failure to cite controlling adverse authority is not sanctionable
                           1. hasn’t been used by many courts as grounds to sanction Ls
                           2. Rationale: L has to know that its directly adverse and not cited by the
                                opponent.
                 iii. Failure to characterize a misleading statement of existing law as a request for a
                       change of law is not sanctionable.
                           1. arguments for a change of law are not violations of Rule 11 provided
                                they are non-frivolous.
                                     a. take into account L’s research into the issues to determine
                                         frivoloity
                           2. such arguments do not need to be identified—but if they are, should be
                                viewed with greater tolerance under the rule

PERJURY
OVERVIEW
   A. Def: crime to lie under oath in civil or criminal context.
          a. Rationale: it undermines the integrity of fact finding, a system in which the lawyer is
               herself an integral part.
                     i. perjury creates conflict between:
                              1. duties to client: loyalty and confidentiality, and
                              2. duties to court: not to put on false testimony
                    ii. As an officer of the court, lawyer is forbidden from putting false testimony on.
                              1. perjured testimony does not have a legitimate place in trial.
          b. Compare:
                     i. Crime-Fraud Exception: looks similar but focuses on client conduct.
                              1. don’t need perjury to trigger C-F exception. Recall Lewinsky.
                   iii. Perjury: focuses on attorney conduct. See Crary.
   C. The Four Rs of Perjury:
          a. Remonstrate: to say or plead in protest—with client confidentially.
          b. Rectify: have client correct the problem—e.g, withdraw the testimony
          c. Resign: if it will remedy the situation
                     i. not in middle of trial, but can be done at the beginning
                    ii. ISSUE: wont help because next lawyer will step in without info and client can
                         just lie to that lawyer; and the lawyer wont have the same ethical problem
                              1. NO, can resign in a way that forces client not to put on perjured
                                    testimony
                              2. AND, when next lawyer comes in, you let them know that you’re
                                    resigning because there is a problem with testimony.
          d. Reveal: tell the tribunal—reveal falsity to the court.
        D. Complications
              a. Criminal context: more complex because more constitutional law comes into play
                         i. 6A right to effective assistance of counsel
                        ii. right to self-incrimination
                       iii. right to take the stand (due process right)
              b. Civil context: not our concern too much
                         i. in court: lawyer has to be careful not to breach duty of loyaltydoesn’t want to
                            incriminate himself (he is undermining his own witness/client)
              c. In deposition: see Crary
        E. LESSON. (from Nix and 3.3)
              a. Dangerous if lawyer knows more than he needs to know to defend the client.
              b. Lawyer can minimize his own knowledge.
                         i. Enables lawyer to elicit minimum info and may enable client to perjure herself
                            without lawyer knowing. (unethical)
                                 1. Ex—when L1 drops case knowing of perjury and L2 refuses to inquire
                                      as to why L1 resigned

MODEL RULES
  RULE 3.3: CANDOR TOWARD THE TRIBUNAL
  (a) A lawyer shall not knowingly:
           (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
                material fact or law previously made to the tribunal by the lawyer;
           (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
                lawyer to be directly adverse to the position of the client and not disclosed by opposing
                counsel; or
           (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
                witness called by the lawyer, has offered material evidence and the lawyer comes to
                know of its falsity, the lawyer shall take reasonable remedial measures, including, if
                necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than
                the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
                false.
  (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person
      intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
      proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
      tribunal.
  (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply
      even if compliance requires disclosure of information otherwise protected by Rule 1.6.
  (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
      lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
      adverse.


CIVIL
    A.  Landmark: Committee on Prof Ethics v Crary.
          a. FACTS: Crary is representing Mrs. Curtis in a divorce proceeding and he is also sleeping
             with her. She gives deposition full of lies and he knows she is lying because he was
             sleeping with her on these occasions.
                   i. Crary’s Duty: he does not have to come forward and disclose the truth; he just
                      has to prevent the witness from lying.
                           1. Disclosing the truth would be a breach of his duty of loyalty and
                           2. would have severe consequences in her divorce/custody proceeding
                           3. And, he would be pointing to adultery on his own part. 11
                  ii. CLAIMS: duty to client is greater than duty to court
          b. HOLDING: Crary disbarred.

11
     A crime in Iowa. Probably in Oklahoma too.
                      i. No duty exists to client when client perjures himself (like crime-fraud) outside
                          the scope of A/C privilege.
                               1. Client is not entitled to L’s confidential assistance in breaking the law.
                     ii. He SHOULD NOT have allowed the deposition to go as far as it did
           c. NOTE: Disciplinary committee just reprimanded Crary while the court disbarred him.
                      i. The Bar values duties to client more that duties to courts
    B. Clinton & Lewinsky: connection between strategic unjustified litigation and false testimony–
           a. materiality req in law of perjury.
           b. Jones case. strategic, not a winning case, but very valuable because of discovery, which
                was enormously broad. (Rule 11 doesn’t apply to discovery)
           c. false testimony has to be material (i.e. Clinton lied, but not about material things)
           d. Bennett’s letter was smart b/c it called attn to Monica’s admission; put ct on notice.
    C. False Evidence Offered by Opposing Party
           a. not a big problem, opposing counsel will rarely know that her adversary is putting on
                false testimony
                      i. solution is cross-examination
           b. exception: when stance is not adversarial, (i.e. settlement) lawyer has to correct opposing
                side’s false impression.
           c. MR: in an ex parte proceeding if no one is there to represent the other side, L has to
                disclose all material facts (3.3(d))

CRIMINAL
   A. 2 constitutional rights:
          a. right to effective assistance of counsel (REAC)
          b. right to testify in one’s own defense.
   B. 3 duties attys have
          a. duty of conf
          b. duty of candor to ct (cant suborn perjury/cant assist client fraud)
          c. duty of loyalty/zealous advocacy
                      i. These duties conflict for lawyer in Nix.
   C. Right to Effective Assistance of Counsel
          a. Doctrine: interprets 6A right to EAC. Right is violated when:
                      i. L’s performance falls below that of a ―reasonably competent‖ L
                     ii. prejudice: L’s performance affects representation sufficiently to ―undermine
                         confidence in the soundness of the result.‖ (Nix)
   D.  Landmark: Nix [lawyer] v Whiteside [client].
          a. FACTS:
                      i. W was in an altercation and ended up stabbing the other guy.
                     ii. Before testifying W told L that he intended to say that he saw a gun in the
                         decedent’s hand, even though he had previously stated to the contrary.
                    iii. L told him this would be perjury and informed him that if he testified, he would
                         reveal his lie to the court.
                    iv. W did not testify falsely and was convicted of murder.
                     v. W appealed saying that Nix’s threats constituted denial of counsel under 6A.
                         Affirmed his conviction. Petitioned for habeus corpus in district court, which
                         was denied. Court of appeals reversed and case went to SC.
          b. ISSUE: Is the client’s REAC violated when client’s counsel, refuses (acc to 3.3) to permit
               client to give testimony counsel knows is false?
          c. HOLDING:
                      i. Eight Circuit: N didn’t provide REAC.
                               1. forced impermissible choice btw rt to counsel and rt to testify
                               2. interfered with his REAC—when they threatened to disclose
                                   information that was based on what W told them in confidence.
                     ii. SC: W’s REAC not violated. Client is not injured by being prevented from
                         putting on false testimony, because false testimony has no legitimate place.
                               1. ∆ has right to take the stand, but
                          2. has no right to testify falsely, and
                          3. suffers no prejudice when pressured not to testify falsely.
                          4. ALSO, counsel’s behavior fell within range of reasonable responses to
                             threatened client perjury
       d. Constitutional Conclusions
                i. Client does not suffer legally cognizable injury when dissuaded or prevented
                   from giving false testimony
               ii. Professional obligation imposed by MR 3.3 is constitutionally permissible when
                   counsel knows that the client would be giving false testimony
              iii. Non-Constitutional Corollary: lawyers must sometimes disclose client perjury
                   to avoid assisting fraud on the court.
E. Reasonableness Reasonableness
       a. Disagreement over what counts as reasonably effective
                i. W’s lawyers conduct was within range of reasonable conduct consistent with
                   6A—but not the only course of conduct.
       b. Reasonably Professional Responses to Client Perjury
                i. ISSUE: requisite response depends on the facts, especially on how certain L is
                   that proposed testimony is false.
                        1. state courts and state ethics codes take different approaches;
                             concurrences say other approaches may also be appropriate
                        2. issues of client perjury arise in different postures, requiring different
                             approaches
               ii. Three Approaches
                        1. If L knows C is lying, he must disclose, assuming persuasion has been
                             attempted and failed (Nix, MC, MR)
                        2. Free Narrative: if L cannot dissuade or have C withdraw, he can allow
                             client to give testimony without attorney assistance (CA).
                        3. Put on false testimony—if L cannot dissuade or get C to withdraw.
       c. Free narrative
                i. Purpose: meant to signal to the court that ∆ is lying without making jury
                   members aware and reconciling L’s duty to assist.
               ii. Procedure:
                        1. counsel stands mute while ∆ is speaking falsely, doesn’t do any direct
                             examination.
                        2. Counsel doesn’t discuss the false testimony in closing args.
                        3. Other Checks
                                  a. prosecution cannot comment negatively to jury regarding it.
                                  b. court cannot instruct jury that it may draw negative inference.
              iii. Validity: Eight and Ninth circuits approve and would probably be constitutional
                   under Nix.
              iv. Criticism: sacrifices both contending principles.
                        1. lawyer assists in putting on false evidence and departure from normal
                             questioning shows the court that lawyer knows.
               v. When it is required UNDER MR. when accused has constitutional right to
                   testify in her own defense.
       d. Put on false testimony
                i. L attempts dissuasion first, otherwise allows testimony (FL)
                        1. Rationale: right to testify > law prohibiting suborning perjury
               ii. Validity: Probably valid under Nix.
F. Knowledge Requirement
       a. How might accused be harmed by counsel’s refusal to put on her false testimony?
                i. Key Factor: whether and to what extent L has sufficient reason to think its false.
       b. Levels of Knowledge
                i. stated client intention to lie (e.g., Nix)
                        1. does not invade province of the jury
               ii. firm factual basis that testimony is (would be) false
                               1.   if it involves facts that are going to become known to jury, then it
                                    invades jury’s role
                               2. if lawyer knows something b/c client told her and client plans to lie
                                    about it, it would not invade jury’s role to refuse to assist client in
                                    lying.
                     iii. convinced beyond a reasonable doubt (―BRD‖) that testimony is false.
                               1. doesn’t apply lower std than applied to jury
                               2. whether it invades province of jury depends on whether lawyer knows
                                    BRD that her client will perjure herself on the basis of facts that will
                                    not become known to jury.
             c.   Non-possibilities
                       i. Good faith belief: not viable.
                               1. takes over jury’s role
                               2. allows defense counsel lower standard than the standard applied by
                                    juries to the prosecution’s case (BRD)
                      ii. Reasonable belief: not viable.
                               1. Still seems to be invading province of jury where it uses lower standard
                                    of proof than jury would apply.
                               2. MR 3.3 says lawyer MAY refuse to offer evidence that lawyer believes
                                    reasonably to be false. But in criminal cases this authority may be
                                    denied by constitutional requirements.
                                           a. Ex—what if ∆ and his friends recall ―seeing a gun‖ (didn’t
                                               really), could L refuse to allow testimony because he doesn’t
                                               reasonably believe?
             d.   Model Rule 3.3
                       i. knowledge denotes
                               1. actual knowledge, and
                               2. ―a person’s knowledge may be inferred from circumstances‖
                      ii. Scope: 3.3(b): 3.3(a) applies to end of proceeding, and apply even if disclosure
                          of info otherwise protected by 1.6.
                     iii. Mandatory for a lawyer to disclose knowledge to tribunal when persuasion
                          doesn’t work, if:
                               1. lawyer has actual knowledge that client intends to perjure
                               2. lawyer cant persuade
                               3. lawyer cant w/draw (trial began or is imminent)
             e.   Upshot:
                       i. if we insist that defense lawyers
                               1. neither act on a standard of proof lower than BRD, nor
                               2. simply on the basis of facts that will become known to the jury
                      ii. we would require that lawyers act only when they know of client perjury on the
                          basis of the facts that the jury will not learn.
                               1. this probably comes form otherwise confidential client
                                    communications.
                               2. BUT… duty of candor overrides duty of confidentiality requiring the
                                    lawyer to be disloyal to the client.




                                                  MODEL RULE 1.3: DILIGENCE
                                         “A lawyer shall act with reasonable diligence and
DIRTY TRICKS                             promptness in representing a client.”
[M.R. 1.3]
   A. Coaching Witnesses
           a. There is very little law on the subject of witness preparation other than ethical
              prohibitions on suborning perjury or using false evidence.
         b. Anatomy of a Murder
                  i. Former prosecutor (Bielger) defends a serviceman accused of killing his wife’s
                     rapist. During initial interview, learns that an hour elapsed between assault and
                     murder. Knew cause was legally defenseless; decided to give client the Lecture.
                 ii. The ―Lecture‖
                          1. Devise used by lawyers to coach their clients whereby the client won’t
                              know that they have been coached and the lawyer can preserve the
                              illusion that he hasn’t done any coaching.
                                   a. Layer: ―I merely explained the law.‖
                          2. The Problem: planting perjury.
                                   a. However, the legal system can’t detect this.
       c. Witness Preparation
                  i. Does make a difference.
                          1. Provides opportunities to encourage witnesses to adopt convenient, in
                              not necessarily accurate, testimony.
                          2. Some preparations are essential to coherent and accurate testimony.
                 ii. Does a lawyer commit malpractice by failing to prepare a witness?
                          1. Divergent opinions.
                                   a. Under adversarial system, it is not the job of the lawyer to
                                        bring all the facts to light, but to present them in the light most
                                        favorable to your side.
                                   b. Others contend that it often extends beyond ordering and
                                        refreshing of recollection.
                                              i. Mocks the solemn promise of the whole truth and
                                                  nothing but the truth.
                iii. Martha Stewart
                          1. Is a lawyer better off not ―knowing‖?
                                   a. You have more freedom of action if you don’t really know
                                        what your client did.
                          2. This case presents a situation where the lawyer would have been better
                              off knowing exactly client did.
                                   a. Disaster story of witness preparation. Martha did not commit
                                        a crime until she lied to the U.S. Attorney’s office.
                                              i. Note on obstruction of justice: anytime you are
                                                  anywhere in the ―zone‖ of a legal proceeding and say
                                                  something false, you can commit obstruction of
                                                  justice (not perjury).
B. Fostering Falsity
       a. Unfavorable Evidence: Two Options
                  i. Impeach the evidence: persuade the jury that a witness is lying or mistaken.
                 ii. Draw on ambiguities to reach unfavorable inference: persuade the jury to
                     draw favorable inferences.
       b. Views of Commentators
                  i. Subin, Harry:
                          1. Improper for an attorney who knows beyond a reasonable doubt the
                              truth of a fact established in the states case to attempt to refute that fact.
                          2. Monitoring role for defense lawyers.
                                   a. Attorney would work to ensure that the state proved all
                                        elements beyond a reasonable doubt.
                          3. Could also argue that burden of proof not met.
                 ii. Mitchell, John:
                          1. Attempt to raise reasonable doubt usually involves challenging the
                              persuasiveness of certain inferences from the testimony of the
                              witnesses.
       c. Michigan Ethics Opinion
                  i. Client charged with armed robbery and confided to attorney that he did rob
                     victim. Victim gave incorrect time to police. Defendant has alibi for time given
                     in report. Michigan opinion says that it would be ethical to present this
                     evidence.
                 ii. Duty of zealous advocacy requires lawyer to use any truthful evidence that
                     would help client.
C. Dirty Tricks in Court
       a. Deliberate Injection of Impermissible Matter
                  i. Alluding to a matter that the lawyer does not reasonably believe is relevant or
                     that will not be supported by substantial evidence.
                           1. Purpose sometimes to present adverse counsel with decision to object
                                (might lead the jury to conclude that attorney is attempting to withhold
                                evidence) or waive objection by failing to make it.
                                     a. Keeton: threat of professional discipline not adequate
                                          deterrent.
                           2. Consequentialist Approach: weighing probable value of the evidence
                                to you in its influence on the jury against the disadvantage of possible
                                reversal of a favorable verdict and judgment.
                 ii. Leading questions
                           1. Tempting because their effect cannot be erased by objection or
                                instruction.
                                     a. Once asked, the witness has been tipped off about how to
                                          respond.
       b. Asserting Personal Knowledge, Belief or Opinion [M.R. 3.4]
                  i. Keeton: to reconcile this rule with duty of zealous advocacy, the lawyer should
                     use non-verbal communication to portray client as honest and of just cause,
                     without regard to honest feelings and beliefs.
       c. Intimidation and Harassment [M.R. 4.4]
                  i. Keeton: Even if the judge doesn’t intervene during a
                     harsh cross-examination, the jury may sympathize                 MODEL RULE 4.4: RESPECT
                     with the witness. Thus,                                              FOR RIGHT OF THIRD
                           1. it is better not to object if the witness can                      PERSONS
                                take care of herself; and                             “(a) In representing a client, a
                           2. object when you are sure it will be upheld;             lawyer shall not use means
                                looks bad for other side.                             that have no substantial
       d. Dalkon Shield Deposition                                                    purpose other than to
                  i. Women suffered serious harms from intrauterine                   embarrass, delay, or burden a
                     birth control devise. Counsel reportedly engaged in              third person, or use methods
                     unsuccessful litigation tactics to encourage women to            of obtaining evidence that
                     withdraw complaints and prevent more filings.                    violate the legal rights of such
                           1. Had a right to make inquiries into the private          a person.
                                lives of the women because certain sexual
                                activities or unhygienic activities enhance
                                the environment for pelvic inflammatory
                                disease (PID).
                           2. However, they did not have a right to make unreasonable and
                                irrelevant inquiries.
                                     a. Questioned woman in presence of husband about sexual
                                          activities 10 years before fitted for shield, 15 before PID.
                                     b. Questions about crotch fabric of pantyhose; no connection to
                                          PID.
                 ii. Is it ethical to hit back? Two Arguments:
                           1. Self-defense: justified in hitting back.
                           2. Duty of fair play: could say rule only holds when reciprocal.
       e. Prego Cross-Examination
                                 i. Dr. Prego brought suit against public body operating NYC hospital where she
                                     claimed she contracted AIDS by pricking a finger with contaminated needle.
                                ii. Lawyer had task of discrediting her testimony
                                          1. Causation: questioned her about pregnancies and love life.
                                          2. Damages: asked another witness to estimate her life expectancy.
                       f. Trickery
                                 i. Ill-advised. Seen as dishonesty toward the court.
                                          1. Life is not an episode of ―Perry Mason.‖
                                          2. See United States v. Thoreen, below.
                D. Special Responsibilities of Prosecutors
                       a. In Brady v. Maryland, the Court held that prosecution must reveal, on request,
                            exculpatory evidence ―material either to guilt or punishment.‖
                                 i. Unclear how this applies, if at all, to guilty pleas. The SC has yet to abrogate a
                                     guilty plea based on prosecution’s failure to disclose Brady material.
                       b. When exculpatory evidence creates reasonable doubt, it must be revealed even without
                            request. (United States v. Agurs)
                       c. Prosecution has duty to preserve evidence.
                                 i. Does not violate DPC absent ―conscious effort to suppress exculpatory
                                     evidence.‖
                                ii. Must also meet two-part materiality test:
                                          1. Exculpatory value evident prior to destruction.
                                          2. Defendant unavailable to obtain comparable evidence by reasonably
                                               available means.

          COMMUNICATING WITH PARTIES AND WITNESSES
              A. Anti-Contact Rule [M.R. 4.2] 12
                       a. Communicating with Another Lawyer’s Client
                               i. Rule protects A/C relationship by ensuring commitment, confidentiality, and
                                  loyalty.
   MODEL RULE 4.2:            ii. Requires that lawyers communicate with other represented persons through their
  COMMUNICATION                   attorneys.
    WITH PERSON                        1. Allows direct communication where other party’s lawyer has consented
  REPRESENTED BY                           and where law otherwise authorizes direct communication.
        COUNSEL              iii. Law does not (and could not) prevent one client from communicating with
“In representing a                another.
client, a lawyer shall       iv. The Verdict
not communicate                        1. The rule continues to apply even if a lawyer knows or believes that the
about the subject of the                   other lawyer is violating a duty owed to her client or the client wants to
representation with a                      waive protection.
person the lawyer                      2. In the movie, plaintiff’s lawyer receives a settlement offer, but allows it
knows to be                                to expire without informing his client’s guardian.
represented by another                          a. In this situation, the lawyer should advise her client to talk
lawyer in the matter,                               directly with the opposing party.
unless the lawyer has         v. Purpose of the Rule
the consent of the other               1. To protect the A/C relationship from outside interference, prevent
lawyer or is authorized                    deception of a lay person, and protect confidential information.
to do so by law or a                   2. Fear that inexperienced client may lose legal rights or lose confidence
court order.”                              in her lawyer.
                             vi. Problems
                                       1. Primarily arise in situations where private lawyer or government
                                           agency needs or wants to make a factual inquiry before instituting
                                           formal proceedings.



         12
              Wording of the rule changed from ―person‖ to ―party‖ in 1995.
                 b.     Illustrative Case: Niesig v. Team I
                             i. FACTS: In conjunction with personal injury suit, Niesig moved for permission
                                to conduct ex parte interviews with defendant’s employees who were on the
                                construction site at the time of the accident. Team I opposed asserting that
                                Niesig’s lawyer could not have unapproved contact with its employees. Team I
                                asserted that all employee were ―parties‖ under the rule.
                            ii. HOLDING
                                      1. Not all employees of a corporation are parties under the rule. A party
                                          includes only corporate employees whose acts or omissions in the
                                          matter under inquiry are:
                                               a. binding on the corporation;
                                               b. imputed to the corporation for purposes of its liability; or
                                                          i. Note that this could include former employees;
                                                              however, the court held that they could be contacted
                                                              unless there is a confidentiality agreement.
                                               c. implementing advice of corporate counsel.
                                      2. Two Proposed Rules
                                               a. Too Narrow: “Control Group”
                                                          i. Gives insufficient regard to the motivating principles
                                                              of the rule and overlooks that fact that employees
                                                              other than the control group can bind the corporation.
                                               b. Too Broad: Upjohn Blanket Rule
                                                          i. Upjohn presented an entirely different subject with
                                                              different policy objectives.
                                                                   1. Privilege applies only to confidential
                                                                        communications with counsel; does not
                                                                        immunize underlying factual situation.
                                                                   2. A/C privilege serves societal objective of
                                                                        encouraging open communication, a benefit
                                                                        not present in this situation.
                                                         ii. Closes off avenues of informal discovery that may
                                                              serve both litigants and justice system in resolving
                                                              dispute expeditiously.
                                                        iii. Not necessary to shield corporation’s interests.
                                                                   1. Corporation should prepare employees.
                 c.    When Opposing Party is a Class
                             i. Still can’t contact them.
                 d.    When Represented Party is a Government Agency
                             i. Under Rule 4.2, contact is permissible when ―authorized by law.‖
                            ii. Comment 1 explains that contacting the government agency to speak with
                                government officials to speak about the matter is allowed.
                           iii. An ABA ethics opinion draws a distinction between litigation matters (e.g., a
                                tort claim) and broad policy matters. According to the opinion, communication
                                is allowed in the latter, but not the former.
                 e.    Application to Prosecutors
                             i. It is generally agreed that the rule applies once a formal charge has been made
                                against the represented defendant.
                            ii. Most decisions hold that pre-indictment investigatory activities are not subject to
                                the rule barring unusual circumstances, but there are cases extending the reach
                                of the rule.13
                 f.    Lawyers: Guardian Angels or Agents of the Devil?
                             i. Angels: when they protect clients from being taken advantage of by opposing
                                counsel.


13
     E.g., United States v. Hammad (2d Cir 1998).
                     ii. Agents: when their presence makes fact investigation more expensive and less
                         reliable.
    B. Fairness to Persons Not Represented by Counsel
           a. Covered by M.R. 4.3.

OBSTRUCTING JUSTICE
   A.  Illustrative Case: Commonwealth v. Stenach (See above)
   B. Obstruction of Justice
          a. The Crime
                      i. Basically: an attempt ―to stifle, suppress or destroy evidence knowing that it
                         may be wanted in a judicial proceeding or is being sought by investigating
                         officers.‖
                     ii. Conduct commonly treated as obstruction of justice:
                              1. Witness Tampering: attempting to alter or prevent the testimony of a
                                   witness.
                              2. Fraud on Court: interfering with a grand jury investigation.
                              3. Tampering with Physical Evidence: destroying evidence sought by a
                                   court or grand jury.
                    iii. May be found even if the means used are not unlawful.
          b.  Illustrative Case: U.S. v. Thoreen (See above)
          c.  Illustrative Case: People v. Kennelly
                      i. FACTS: attorney (Kennelly) arranges and conceals a bribe. His client is suing
                         another party in a civil case and settles so that he can leave the country, thus
                         making himself unavailable to testify against the other party in his criminal case.
                     ii. HOLDING: defendant was suspended from practicing law for one year.
                    iii. Federal Obstruction of Justice Statute: 18 U.S.C. § 1503
                              1. ―Whoever corruptly…endeavors to influence, intimidate, or impede
                                   any…officer…of any court of the United States…in the discharge of
                                   his duty…or corruptly…influences, obstructs or impedes, or endeavors
                                   to influence, obstruct, or impede, the due administration of justice, shall
                                   be fined…or imprisoned…or both.‖
                              2. Government must show that the conduct was likely to affect the
                                   administration of justice.
                    iv. Witness Tampering: 18 U.S.C. § 1512
                              1. Makes it a crime to ―corruptly persuade another person, or attempt to
                                   do so, or engage in misleading conduct toward another person, with
                                   intent to influence…the testimony of any person in any official
                                   proceeding.‖
                                        a. Easy Cases: bribery, threats, intimidation.
                                        b. Hard Cases: persuasion.
                     v. Persuasion
                              1. Giving someone a really good reason not to testify.
                                        a. Advising non-client to take the 5th in order to protect the
                                             lawyer giving advice is a corrupt motive.
                                        b. Scrooge: trying to protect your client and advising witness
                                             (Cratchit) to take the 5th. Benefits Cratchit too because he
                                             could incriminate himself.
                              2. Broad Holding: all it takes is one corrupt motive even if you have
                                   other good motives.
          d.  Illustrative Case: People v. Reichman
                      i. FACTS: as part of a drug sting, DA filed false charges and allowed a witness to
                         give false testimony to a county judge.
                     ii. HOLDING: fraud on the court. Surrounding circumstances do not excuse the
                         deception imposed on the court. Received public reprimand and ordered to pay
                         costs of the proceedings.
          e. Green, ―Zealous Representation Bound‖
                      i. Witness Tampering: What kind of advice can a lawyer give about taking the
                         5th?
                              1. Can’t ask what is best for the client. This might be obstruction of
                                  justice.
                                       a. Must ask, ―What advice can I give without being liable for
                                           obstruction of justice.‖
                                       b. May require a more cautious approach than the zealous
                                           advocate.
                              2. Most Precarious: Attorney for Organized Crime
                                       a. If she helps do certain things/give certain advice, she may be
                                           at risk of prosecution.
                                       b. Has duty to probe into what client is doing; requisite
                                           skepticism.
                     ii. Witness tampering is more complicated than the other kinds of obstruction of
                         justice.
                              1. Witnesses have legal rights.
                              2. Witnesses are the only ones who act in the end. Lawyers don’t.
                              3. Sometimes getting people to exercise their rights is obstruction of
                                  justice.



DUTIES WITHIN TRANSACTIONS
FRAUD
OVERVIEW
   A. Criminal Liability for Fraud
          a. Proof of Criminal Liability
                    i. Criminal Law operates on the basic premise that bad acts alone are not enough
                        to establish criminal liability—needs a culpable state of mind
                             1. Mens Rea requirement varies
   B. Fraud Elements
          a. MISLEADING STATEMENTS OR OMISSIONS…
                    i. OMISSIONS [complicated]: No general affirmative duty to speak and correct
                        someone’s misunderstanding of something, as long as they are non-clients
                   ii. If they are clients RECALL MIRABITO where atty. had a duty to come forward
                        after his client…
                  iii. If a failure to speak makes something the lawyer has said MATERIALLY
                        misleading (EXAMPLE?), he will be liable for FRAUD BY OMISSION (?—
                        what)
          b. …OF MATERIAL FACT—misleading statement or omission is important enough to
              influence the conduct of the person who is relying on the representation or omission to
              make the decision
          c. …MADE WITH KNOWLEDGE OF THEIR FALSITY—distinguishes from
              negligent misrepresentation
                    i. IN CONNECTION WITH PURCHASE AN SALE OF
                        SECURITIESSecurities Fraud
                   ii. INTENT can be made out if a person makes false statement recklessly, or w/
                        willful blindness to facts they have a duty to see.
                  iii. Does not include GROSS NEGLIGECE
          d. …UPON WHICH ∏ HAS REASONABLEY RELIED
          e. …TO HIS DETRIMENT—EX. economic loss
                    i. Standard of Proof
                             1. Civil – Preponderance of Evidence
                             2. Criminal – Beyond Reasonable Doubt
                            ii. Applied to ATTY—
                                    1. Plaintiff must show that
                                             a. The lawyer intended to deceive [general intent] and
                                             b. The plaintiff belonged to a class of people that the lawyer
                                                  might reasonably have foreseen being deceived [specific
                                                  intent]
                           iii. Can a lawyer rely on his client’s assertions
                                    1. Reasonable reliance—required to check matters easily verifiable if
                                             a. They are important or
                                             b. A reasonable lawyer would be suspect

UNITED STATES V. BENJAMIN
   A. FACTS: B and Howard (CPA) assisted Mende w/ sale of unregistered securities. Although shares
       were not exempt from registration, B wrote an opinion letter saying they were free and tradable.
       Though he knew they weren’t
   B. General Rule—―extensive participation‖ = conviction
            a. Primary liability (rare)
            b. Lawyers and accountants have a greater responsibility to know their client’s actions
                       i. Rationale—certain professionals should be more familiar w/ applicable legal
                          limits
            c. Argument for atty.— their job is not to judge their client but to believe him
   C. Ct. Says—atttys. cannot shut their eyes to what is plain to see
   D. ―Aiding and Abetting‖ = conviction
            a. Secondary liability (more common)
            b. In distinguishing between primary and secondary liability
                       i. What was the actor’s STATE OF MIND
                      ii. Did atty’s. actions facilitate the criminal scheme
            c. MARJORITY—mere knowledge of another’s purpose does not make someone guilty of
                aiding an abetting crim. conduct
                       i. BUT…routine professional acts for a lawyer—giving advice—may easily satisfy
                          the actus reus element
            d. Both Model Code and Model Rules make it UNETHICAL to facilitate a client’s crim.
                purpose
   E. O.P.M Case—At what point does evidence of fraud become so obvious that it is reckless or w/b
       for lawyer to say he didn’t know his client was committing fraud? 14
            a. Guidelines—
                       i. Rely on your instincts
                               1. Don’t represent people who are shady or who you don’t like or trust
                      ii. Don’t pretend you or your firm are invulnerable
                     iii. It pays to be fussy about the details of transactions
                     iv. Take disclaimers in opinion letters etc. very seriously
                               1. O.P.M. should have pushed Lehman Bros. despite LB’s disclaimers
                      v. Look at all the law that governs lawyers, not just the lawyer codes in isolation
                     vi. Learn about a major client’s business and ask about sudden changes in practice
                    vii. Inquire closely into a client’s termination of any long term advisors
                   viii. Avoid becoming on a single client unless you are sure of its integrity
                     ix. Don’t assume the atty.-client privilege or work product immunity will protect
                          files or communication
                               1. Any transaction can go sour and a corp. client will likely waive
                                    privilege
   F. More on securities—
            a. In some cases in which the lawyer assists an offeror in the sale of securities require that
                the lawyer exercise due diligence in checking the client’s factual representations

14
  Ponzy scheme: have to keep committing fraud to pay debts on old leases. Have to cover initial fraud w/ even bigger fraud, keeps
growing. This means that when lawyer resp kicks in really matters.
                   b.BUT...In other cases involving adversarial negotiations with a sale of stock, atty. is not
                     liable to purchasers who rely on the atty.’s neg. misrep. if ―the duties involved…are
                     clearly adversarial in nature‖ and not intended to benefit the purchaser (?)
        G. Prepaid legal services for those engaged in a crime
               a. An atty. CANNOT agree in advance to defend persons if and when they are arrested for
                     criminal offenses whose future commission is planned 15
        H. Atty. liability for facilitating client transactions that defraud third persons
               a. Klein v. Boyd--Lawyer prepares disclosure docs, client refuses to give disclosure docs to
                     investors. Atty. does nothing
                           i. General rule: Atty. should do all that he can to ensures that clients comply with
                               the law
                                     1. By not doing so the jury should be allowed to decide if atty. intended to
                                          conceal material
                                     2. Not putting his name on the documents is no excuse for responsibility

NEGLIGENT MISREPRESENTATION—TORT LAW
   A. Elements (1.1 comp, 2.3 evaluation for use by 3d persons)
          a. False, material misrepresentation or omission…
          b. State of mind:…Made carelessly—w/o adequate investigation of facts, can be an honest
               mistake and still be carelessly
          c. …Reasonably relied on
          d. …To that person’s detriment—economic loss
   B. Fraud v Negligent Misrepresentation
          a. Scienter Requirement: Neg. misrep. requires less mental state than fraud—
                     i. Fraud requires knowledge, which can sink down to recklessness or w/b
                    ii. Neg. misrep. requires carelessness ONLY—in a sense more stringent b/c you
                         can get nailed for just being careless
                   iii. BUT…fraud is trickier b/c if it is about w/b, slips into did/should analysis
   C. Greycas v. Proud
          a. Making false statements w/ the intent to defraud is fraudulent regardless of the
               relationship between the maker and the party he is ―helping‖
   D. Greyhound Case—comparative negligence
          a. Judgment for the atty. since the other side also was also deceitful
                     i. Greyhound barred from recovery b/c its negligence exceeded the lawyer’s
          b. ALSO, ―under the circumstamnces Greyhound had a independent obligation to
               investigate the existence of liens
   E. Relaxation of the privity requirement—discussed in
          a. TRADITIONALLY—a lawyer is only liable for negligence to those in privity of contract
               with the lawyer
                     i. Abolished in cases involving physical harm
          b. NEW STANDARD—Whether is a reasonably foreseeable that a lawyer’s absence of due
               care will directly harm a third person
                     i. Posner’s opinion in Greycas—NO privity needed if…
                              1. The purpose of the lawyer-client relationship was to benefit or
                                  influence a third person
                              2. Someone in the business of supplying information supplied info for the
                                  guidance of others—on which they have reasonably relied—in their
                                  business transactions
                    ii. In jurs. that have created exceptions to privity, the duty of care is generally
                         limited to situations in which the layer handling the transaction is dealing
                         directly with the injured client
                              1. FEW IF ANY decisions hold that a lawyer in adversarial litigation has
                                  a duty of care to opposing parties
                   iii. RESTATEMENT’s privity exceptions—DUTY OF CARE to NON-CLIENTS

15
     Such acts will lead to the lawyer being disbarred
                                         1.   When the lawyer—or the client w/ the lawyer’s blessing—invites the
                                              non-client to rely on the lawyer’s opinion
                                                   a. ―Atty.’s may owe a duty of care to non-clients when the atty.
                                                        know or should know that the non-clients will rely on the
                                                        atty.’s representation and that the non-clients are not too
                                                        remote from the attys. to warrant protection‖ 16
                                         2.   When the atty. knows a client intends as one of the primary objectives
                                              of the representation that the atty.’s services benefit a non client
                                                   a. EX—no privity requirement for a negligently drafted will
                                         3.   When the client is a fiduciary acting to perform similar functions for
                                              the non-client and the atty. realizes that appropriate action is necessary
                                              on his part to prevent a breach of the client’s fiduciary duty




16
     Restatement as applied in Petrillo v. Bachenberg

								
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