Professor Bliss – Legal Profession (Ethics) – Spring 2021 Highlight = Main Rule Statement Purple = Rule #s and Cmts Cases/ Doctrines = Blue Case Names = Red Bliss Exam Stuff from Class: 5 C’s; Conflicts; If a question about writing a memo: What if interests do become adverse? What to do? Can you still reasonably claim that you are able to rep them both competently and diligently? How to handle confidentiality problems. What do you tell the L about how you communicate about confidentiality? To the extent reasonably necessary… 5 C’s Summary MR 1.1 Competence Confidentiality Intro to Confidentiality; MR 1.6(a); MR 1.6(b)(1) CRPC 1.6(b)(2) MR 1.6 Confidentiality Exceptions MR 1.6(b)(2), (3), (4), (5), (6), (7) Confidentiality and Related Doctrines MR 1.6(c); MR 3.3 Attorney-Client Privilege Work Product Doctrine Confidentiality: Two Privacy Concepts: Confidentiality v. Attorney- Client Privilege 1. Confidentiality (Broader of the 2) a. Source: Basic fiduciary duty (MR 1.6) b. Scope: Applies to all info relating to representation (NOT just client comms) c. Application: Always binds attorney d. Enforcement: Professional discipline for disclosure w/o permission (Bar penalties) 2. Attorney-Client Privilege (“A-C or “ACP””): a. Scope: Court privilege (evidentiary rule) b. Source: Applies only to confidential comms for purposes of legal representation c. Application: Binds attorney in court (or similar proceedings) d. Enforcement: Quash subpoena for L to testify or otherwise exclude privileged comms from evidence MR 1.6 L Shall (Must) not reveal info relating to the ref of a client; UNLESS the client gives informed consent, impliedly authorizes it, or MR 1.6(b) exceptions apply. Broadest rule, impact on case does NOT matter - complete protection unless any of the below - - - - “Info relating to the representation” = All information acquired in any matter on which the L is representing, from any source. EXCEPT for generally known information. All info during and after representation. Cmt 4: This includes info which “could reasonably lead to the discovery of such info” by a third person. “Shall not reveal” MR 1.6(a): Was it an “Intentional Disclosure?” → Expressly forbidden MR 1.6(c): Was it an “Accidental Disclosure?” → Inadvertent/ unauthorized disclosure of, or unauthorized access to, info related to representation. Cmt 18: “Reasonable Effort”: If inadvertent → 1) Sensitivity of info; 2) Cost of safeguards; 3) Difficulty of safeguards; 4) Would safeguards interfere w/ rep? MR 1.0(e): “Informed Consent” Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated: 1) Has L provided adequate info/ explanation about material risks? 2) Has L explained reasonably available alternatives to this course of action? (Implied Consent) “Impliedly Authorized” MR 1.6 Cmt. 5: No single definition here. Some examples are: 1) L admitting a fact that cannot be disputed before a tribunal; 2) L making a disclosure that contributes to a satisfactory resolution of a matter w/in the representation; 3) Ls may disclose info to other Ls w/in their firm as part of the representation. UNLESS: C has given instructions that info should only be shared w/ specific Ls, or there is an Ethics screening situation going on. MR 1.6(b) L May reveal info relating to the rep of C to the extent the L reasonably believes necessary All (b) Exceptions are: COULD be a Must rule w/in the statutes of your own state. Limited to the extent L believes reasonably necessary, All of them use May → no obligation to do so (UNLESS crime/fraud - MR 4.1 says Lawyers shall (must) not fail to disclose.) MR 1.6(a): Express Consent by C? → Done MR 1.6(b)(1): To Prevent Reasonably Certain Death or Substantial Bodily Harm Cmt 6: Reasonably certain injury will be suffered: 1) Will the injury be suffered imminently?; OR 2) Is there is a present and substantial threat of such harm at a later date if L fails to take action to end the threat? Is L REASONABLY CERTAIN about the injury? MR 1.6(b)(2): Property Fraud/ Crime (Before Act happens) Is it preventing a crime or fraud? E.g. Tortious Misrep; Contract Misrep; Omissions equivalent of fraud sometimes Is the crime or fraud reasonably certain to result in substantial injury? Is the injury to the financial interests or property interest of another? AND is it in furtherance of which C has used/ is using L’s services? Cmt 7: C can prevent this by refraining from the wrongful conduct. - - - - - - NOTE even though this is a “may” rule, other rules will require (must) withdrawing from representation and revealing the crime (MRs 4.1; 1.2(d)) MR 1.6(b)(3): Property Fraud/ Crime (After Act happens) substantial injury Did the act happen while L was employed by C? Was the act a crime/ fraud? Is it preventing, mitigating, or rectifying substantial injury to the financial interests or property of another? Is that injury reasonably certain to result or has it resulted; From C’s commission of a crime/ fraud in furtherance of which C used L’s services? IMPORTANT: MR 1.6(b)(3) Only applies AFTER the commission of the crime/ fraud. MAY disclose to protect interests of others/ mitigate damages. MR 1.6(b)(4): For L to secure legal advice about compliance w/ ethical rules MR 1.1 Cmt 6: Before L contracts w/ other Ls to assist in provision of legal services, ordinarily you get C’s informed consent here. MR 1.6(b)(5): For L to sue C or for L to defend himself Is L breaching confidence to assert defense for a crime or tort? Is it based on the conduct in/ during representation? OR To sue C for lack of pay? MR 1.6(b)(6): To comply w/ another law or court order L MUST raise all non-frivolous defenses to avoid this, but ultimately L must comply. Sarbanes-Oxley Act: Disclosures fit here if there is a Securities Violation in a public company → L does NOT need to have contributed, unlike MPRC. Overrules MR 1.6. MR 1.6(b)(7): To detect and resolve conflicts of interest due to a change in employment or firm ownership, UNLESS: It would compromise the AC Privilege; OR Otherwise prejudice C. Do Any exceptions apply or was consent given? Yes → Done No → Does another rule allow or restrict disclosure? MR 1.2(d) Scope of Representation: Can argue the scope of representation was limited by criminal conduct and therefore the info is beyond the scope of representation. MR 1.2(d) MR 3.3 Candor toward tribunal MR 8.4(c): Professional Misconduct - it is professional misconduct for an L to engage in conduct involving dishonesty, fraud, deceit, or misrep. Candor Toward the Tribunal MR 3.3 (a)(1): Bars false statements to courts by Ls themselves, not false testimony by C or other witnesses If L discovers that he made a false statement, L Must correct it. Punishment: Intentional misrepresentations meant to deceive court or opp party may have ramifications beyond discipline for violating rules. E.g. Statutes permit civil actions against Ls for such conduct. (a)(2): Requires more than avoiding falsehood. L must affirmatively disclose directly adverse law in controlling jurisdiction if opp does not do so. (a)(3): An L who knows C or other witness is going to lie to the court May not allow the witness to do so. If W does lie, L Must call on witness to correct the lie, if W won’t, L Must disclose the lie. - - 3.3(b): Rule imposes on Ls a duty to prevent not only false testimony, but also “criminal or fraudulent conduct” in connection w/ a case before a tribunal. (c): Duties stated in (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of info otherwise protected by MR 1.6. If L learns W gave false testimony, L Must take steps to correct the record UNLESS the case, including any appeals, has been completed. Duty to correct OVERRIDES duty of confidentiality. (d): Ex Parte Proceeding. IN a proceeding in which only one side makes a presentation to the court, L has a duty to tell the court about adverse facts as well as adverse law. MR 8.4(c): Professional Misconduct - it is professional misconduct for an L to engage in conduct involving dishonesty, fraud, deceit, or misrep. Attorney-Client Privilege: (See AC Privilege.jpg to supplement) Attorney-Client Privilege - Confidential comms btwn an L and C for the purpose of obtaining legal advice cannot be demanded or introduced for/as evidence. Scope can differ state to state b/c of common law stuff Q1 Are the 4 Elements satisfied? 1) Communication; Was the comm btwn an L and C? (Mail, phone, fax, email, etc.) Documents: W/ documents, only documents which ARE comms are privileged. Only the communication is privileged. 2) Privileged persons; Are the people present for the communication privileged? Allied parties may discuss privileged strategy. Lawyers Agents: Comms w/ Secretaries; Paralegals; Investigators are privileged. L’s sec’s notes of a privileged conversation are covered. Communication Facilitators: Interpreters; Parents (for minors); and Others to facilitate comms are privileged when present. CLARIFY ROLE OR RISK WAIVER Prospective Clients: Covered under AC Privilege Common Clients: Co-clients in matter are confidential btwn each other. Allied Parties: Allied co-counsel is confidential too. 3) Communication in Confidence; and Does C reasonably believe that the comm is confidential (when made)? Comm must be in private. If L or C reports on the ocmm to a non-privileged person → Waived Comm in public is NOT privileged. No reasonable expectation of privacy in elevators, hallways, other public places. Generally, school email servers and prison email servers are NOT confidential, could try to argue it though. 4) Communication for the Purpose of seeking Legal Advice What is the Comms purpose? Business or personal advice? → NOT w/in scope Comms partly for legal, partly for business? → ONLY legal portion w/in the scope of representation. Q2 Is the Privilege disputed? - - - Did C Waive it? Express: Did C reveal privileged info to a non-privileged person? Yes = Waived INCLUDES inadvertent disclosures Partial Waiver: If an L or C discloses part of a privileged comm, the part of the comm which closely relates to the partial express waiver is also waived. (gives context I guess?) Issue: Did C make an issue of a Comm? (E.g. alleges malpractice) Yes = Waived Did L Waive it? Inadvertent Waiver Inaction Waiver Court Order CRIME-FRAUD EXCEPTION Work Product Doctrine Applies to Documents: Primary goal is to protect L’s impressions and strategic thought. ONLY covers documents “created or collected in anticipation of litigation” Does NOT protect underlying facts UNLESS the “selection and compilation of the facts” reflects litigation strategy You can disclose stuff w/ L’s notes on it and redact the notes. Challenge by Opp Party: Do they have a substantial need for the material? AND Unable to obtain the material w/o substantial hardship. Applies ONLY to “ordinary” work product, but NOT pure strategy documents. Lawyer Client Relations Formation of Attorney Client Relationship: (Includes Competence analysis, we may not need it) Diligence on C Background: No strong rule, but nearly all L’s feel that it is important to do background research on a C to help determine if representation is acceptable for L. Check Facebook; Newspaper article; maybe call workplace/ possibly family if there is an additional question. Cs are known to lie when trying to get rep, especially if the case will be on contingency and they really need an L. Duties to Prospective Client: Can the Matter be Taken? Inexperienced on Matter MR 1.1(1): COMPETENCE: L needs “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Cmt 2: Either 1) Adequate Study; or 2) Association/ aid of L who is established in the field can permit competence. Typically Cmt 4: An L May accept representation where competence can be achieved by reasonable preparation. “Adequate Study” - study of caselaw done alone. Under Supervision - To claim association of L/ firm is sufficient, the inexperience L must “assiduously insist on genuine supervision” in the matter. Emergency Cmt 3: In emergencies, L May give advice beyond normal knowledge BUT it Must be reasonably necessary in the circumstances. Assistance Sought Would Violate Law or Ethics Rules - - MR 1.2(d): L shall (Must) not counsel C to engage in conduct that L knows is criminal or fraudulent. Cmt 9: Did L analyze the legal aspects? → allowed; Did L recommend means for the crime? → not allowed Conflicts of Interest violate professional rules: See Representation Issues - MR 1.7; MR 1.9. De Facto Relationship Has an Attorney-Client relationship been established? Did L mistakenly enter into an attorney-client relationship? Did Standard: Subjective Client standard - (Can be accidental) Does C have a reasonable belief that they have received legal advice from L? Yes → down; No → Done Did L give a disclaimer or limitation of scope? → Yes = Done; No = below Relationship has been formed if the above are satisfied. No billing or contract required. This establishes duty element for Professional malpractice claim. Withdrawal MR 1.16(d) Termination Responsibilities: In all cessations of representation, an L shall take steps, to the extent reasonably practicable to protect a C’s interests. Ls may retain papers to the extent permitted by other law. L Must comply w/ applicable law requiring Notice to or permission of a tribunal/ court when terminating a representation. (Judge may say no) Protect C’s Interests: If withdrawal is permitted, then upon termination of rep, an L shall take steps to the extent reasonably practicable to protect a C’s interests. E.g. Giving reasonable notice; Allowing time for employment of other counsel; Surrendering papers/ property to which the C is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. L May retain papers relating to the C to the extent permitted by other law. Mandatory Withdrawal: MR 1.16(a): 3 Means of Mandatory Withdrawal MR 1.16(a)(1): Will representation result in a violation of the rules or other law? Other law is not defined; argue that it could 1) be limited to criminalized conduct; or 2) that it means the whole scope of non-professional law. MR 1.16(a)(2): Does L’s physical or mental condition materially impair L’s ability to represent C? MR 1.16(a)(3): Was L discharged? Cmt 4: C generally has a right to discharge L at any time, for any reason. Cannot do it in bad faith to make the trial longer. Cmt 9: Even if wrongfully discharged, L Must still take all reasonable steps to mitigate consequences to C. Permissive Withdrawal (Voluntary Withdrawal): MR 1.16(b): Judge may say no. (2-7 apply even when there is a materially adverse impact on the client) MR 1.16(b)(1): Can withdrawal be accomplished w/o material adverse effect on C’s interests? MR 1.16(b)(2): Is C persisting in a course of action involving L’s services that the L reasonably believes to be a crime or fraud? Applies when an L discovers ongoing fraudulent conduct. Implied obligation to first try and dissuade any discovery of part conduct or future conduct. - - MR 1.16(b)(3): Has C used L’s services to perpetrate a crime or fraud? (Post-Crime) MR 1.16(b)(4): Is C insisting on taking action which L finds repugnant? Is there a fundamental disagreement w/ the scope or objectives of the rep? This necessarily is implicated by MR 1.7(a)(2) material limitation via personal interest of the L. MR 1.16(b)(5): C fails to substantially fulfill an obligation to the L regarding the L’s services and C has been given reasonable warning that the L will withdraw unless the obligation is fulfilled. (E.g. Non-payment of fees) Non-Payment: L Must give C “reasonable warning” MR 1.16(b)(6): The rep will result in unreasonably financial burden on L or has been rendered unreasonably difficult by the C. MR 1.16(b)(7): Other good cause for withdrawal exists. Catch-all exception. IMPORTANT: Difference btwn MR 1.16(a)(1) and MR 1.16(b)(1) MR 1.16(a)(1): requires withdrawal if L KNOWS that C is committing or plans to commit a crime. MR 1.16(b)(1): PERMITTED to withdraw if L has a REASONABLE BELIEF that C is engaging in criminal or fraudulent conduct. L MUST be certain of the crime/ fraud under (a)(1), but does NOT need to be 100% sure of the conduct under (b)(1) If L knows C plans to commit a crime/ fraud in the future, or in the process of committing an ongoing crime/ fraud in the present → MANDATORY WITHDRAWAL If L’s services have been used by the C to commit a past crime/ fraud (and there is no reason to believe it will recur) → VOLUNTARY WITHDRAWAL at L’s discretion Communication MR 1.4 MR 1.4(a): L Must: (1) Promptly inform the client of any decision which requires informed consent. Automatically Required Comms: Any rule requiring C input/ informed consent (2) Reasonably consult w/ C abt means by which C’s objectives are to be accomplished. L controls decisions of pure strategy per MR 1.2, he Must still consult C about the implications of the “means” Cmt 5: BUT no duty for strategy to be discussed in detail, only reasonably enough that C understands the matter “to participate intelligently” in decisions abt rep. (3) Keep client reasonably informed. Automatically Required Comms: Info concerning the ongoing matter; must reasonably inform C of significant developments. (Cmt 3) (4) Promptly comply w/ C requests for info; (C “owns” the info) Cmt 4: If prompt response is not feasible, L Must tell C when it will be ready. (5) Consult when L knows that expected assistance is not permitted by MR or other law. Automatically Required Comms: Must communicate w/ C when L knows representation will be illegal/ unlawful MR 1.4(b): L Must explain a matter to the extent reasonably necessary to permit C to make informed decisions regarding rep. Cmt 7: Withholding Info: Allowed if L reasonably believes C would “react imprudently to an immediate comms.” Justification - Acting in Cs temporary interests. HOWEVER, this may not be used as justification for withholding for L’s or 3P’s interest. - - May NOT be used as a justification for withholding info when the only reason is to serve L’s own interests or convenience. MR 1.2(d): L Must communicate w/ his client, and abide by the client’s decision in: Civil settlements; Criminal pleas; waiver of jury trial; whether D wants to testify or not. Control MR 1.2(a): C sets the scope. Objectives are C’s: Only a few strategic decisions are actually considered objectives. Criminal Pleas; Waiver of jury trial; Whether D wants to testify or not. Means are L’s: Decisions of strategy and tactics are solely w/in L’s control. L Must consult w/ C about the means though. MR 1.2(c): Limiting the Scope of Rep: L may limit the scope of rep if the limitation is: 1) Reasonable under the circumstances; and Cmt 7: Rule provides substantial latitude to limit representation scope if reasonable. 2) Informed Consent by C. (MR 1.0) Adequate info and explanation regarding material risks; Reasonably available alternatives. Cmt 6: Often, this may require L to advise the client to have independent counsel. Are limits contemplated by the Rules? Cmt 6: Has C limited objectives with the representation? (I.e. Defender insurer; Give quick telephone advice). Also could mean that an L will not use certain tactics (i.e. C thinks some tactics are too expensive) Lawyer-Client Relations Communication and Control MR 1.2; MR 1.4; MR 8.4 Control and Client Capacity Representation Issues Penalty for Failure to See a Conflict Legal: Fines, DQ, Enjoined from rep; or Malpractice suits. Professional: Ethics charges at the Bar. Practical: Business repercussions, client or general rep may diminish. Conflicts of Interest: Successive Representation (playbook problem) MR 1.9 Duties to Former Clients (JUST MR 1.9 ANALYSIS) QUESTION 1: 1) Is the matter either the “same” or “substantially related?” Matter: “Anything that is the subject of the representation… no need for adversary rep.” Prime concern is protection of confidences obtained in the first rep. Same Matter: If litigation/ transaction/ interaction is expressly the same as previously repped (even in the past) Substantially Related: Fact dependent, NOT issue dependent. TEST: 1) Is there a substantial risk that L repping former C would normally have learned confidential info in the first matter that; 2) Could be used to materially advance new C’s position? Westinghouse Case Playbook Problem: The matters are substantially related if you know the C’s playbook. (E.g. What their settlement ceiling is; How they will bluff, etc.) Fleischmann: L was DQ’d from a Metlife sex discrim case even though she knew nothing about sex discrim. She had worked w/ Metlife on different issues, BUT she knew their playbook (legal strategies and procedures for class actions) IF BOTH NO THEN L MAY PROCEED W/O CONSENT IF ONE YES THEN GO TO STEP 2 QUESTION 2: 2) Would the new rep present “material adversity” to the interests of former C? If yes → down to 3 QUESTION 3: 3) Can L obtain written consent? (C is highly unlikely to sign this, maybe advanced waivers?) Former Client Addendum Conflicts of Interest: Vicarious Disqualification and Prospective Clients MR 1.10: Imputed Conflicts (REQUIRES MR 1.7 ANALYSIS) MR 1.0: Screening - Denotes isolation of L from any participation. Cmt 9: Personally DQ’d L must acknowledge obligation not to communicate. Similarly, includes denial of access to related files. QUESTION 1: Is an L at a firm barred by MR 1.7 or MR 1.9? MR 1.10 Cmt 3: This rule ONLY prohibits conflicts based on confidentiality and client loyalty 1 L 1 Firm rule QUESTION 2: MR 1.10(a)(1): Current Firm Only Is it prohibited b/c of an L’s personal interest? (i.e. L cannot participate b/c he owns stock in a rival, etc.) Yes? → Down to next ? No? → Down to Former Firm MR 1.10(a)(2) Is there a significant risk of material limiting the representation by the remaining Ls in the firm? Yes? → Down to Former Firm MR 1.10(a)(2) No → L is SCREENABLE QUESTION 3: MR 1.10(a)(2): Former Firm Is the prohibition based on MR 1.9(a) or 1.9(b), AND arises out of the DQ’d L’s association w/ a prior firm? 1) DQ’d L is timely screened from any participation and receives no fee therefrom; AND Cmt 8 Only billables prohibited; not partnership shares - - 2) Written Notice to former C, including screening description, statement of firm & L compliance w/ rules; Statement that review before tribunal is fine and agreement to respond to objections or inquiries about procedures; AND 3) Certificates of compliance w/ Rules and screening given to C by screened L at reasonable intervals if requested. IF YES TO ALL 3 ABOVE THEN SCREENABLE. NO TO ANY? → MR 1.10(c): Screening does NOT require informed consent (though there are reporting requirements for some). However, C consent can cure current/ former firm imputed conflicts MR 1.10(3): Express waiver by C per MR 1.7 informed consent required. Duties to Prospective Client: QUESTION 1: Can the Matter be Taken? Inexperienced on Matter MR 1.1(1): Competence: L needs “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Cmt 2: Either 1) Adequate Study; or 2) Association/ aid of L who is established in the field can permit competence. Typically Cmt 4: An L May accept representation where competence can be achieved by reasonable preparation. “Adequate Study” - study of caselaw done alone. Under Supervision - To claim association of L/ firm is sufficient, the inexperience L must “assiduously insist on genuine supervision” in the matter. Emergency Cmt 3: In emergencies, L May give advice beyond normal knowledge BUT it Must be reasonably necessary in the circumstances. Assistance Sought Would Violate Law or Ethics Rules MR 1.2(d): L shall (Must) not counsel C to engage in conduct that L knows is criminal or fraudulent. Cmt 9: Did L analyze the legal aspects? → allowed; Did L recommend means for the crime? → not allowed Conflicts of Interest violate professional rules: See Representation Issues - MR 1.7; MR 1.9. Conflicts of Interest: Concurrent Conflicts MR 1.7: Concurrent Conflicts 1) Clearly ID the C(s); a) Is the C: Current?; Former?; Prospective?; Imputed?; Organizational C for Sufficiently related entity? 2) Determine whether a conflict of interest exists (do it for each C); a) Cmt 7: Ls must “adopt reasonable procedures for size of firm to determine the persons and issues involved in its work for purposes of conflict detection. i) Cmt 3: Huge firms are not excused from punishment b/c they did not do their due diligence in searching for conflicts of interest. (did not know one existed) b) Does a conflict exist? → i) MR 1.7(a)(1) - (2): Direct adversity - An L and 1 of his Cs may not (absent informed consent) be on the opposite side of the table from the C. (1) Cmt 7: Applies to both litigation AND transactions. (2) Cmt 6: CX: Even if not a party in the case, will the C be called as a witness by an adverse party? ii) MR 1.7(a)(2): Material limitation: Could a core function be negatively impacted? (1) If there is a significant risk that the rep of one or more will be materially limited by the L’s responsibilities to: Another C; Former C; or Personal interest of the L. 3) Consentable? a) Non-Consentable? → Decide who to keep or withdraw. b) Consentable? → Need informed consent in writing from all Cs who may be implicated. MR 1.7(a): Except as provided in (b), an L shall not recp a C if the rep involves a concurrent conflict of interest. 1) ID possible conflicts; a) MR 1.3: Diligence/ Zeal b) MR 1.6: Confidentiality c) MR 1.8: L’s own interests (Cmt 10; Cmt 11) d) MR 1.9: Former C responsibilities (Cmt 9); Any conflict imputed by the firm’s other activities. e) Positional Conflicts - Inconsistent Legal Positions: Usually, there is not conflict in taking inconsistent legal positions at trial level (Cmt 24). HOWEVER do you think the C will like this? i) AND Adverse Precedent against C would hurt this. ii) FACTORS for Inconsistent Legal Positions: (1) Level of trial (trial/ appellate?); (2) Is the issue substantive or procedural?; (3) Temporal relationship btwn matters; (4) Practical Significance of issue to the immediate and long-run interests of Cs involved. f) OTHER MATERIAL CONSIDERATIONS: i) Expectations of loyalty; ii) C right to choose counsel (over a problem); iii) Economic liberty of L; iv) Impartiality; v) Process integrity No actual representation of both sides (black & white in chess). 2) How likely is it “that a difference in interests will happen? I.e. is there a significant risk?; 3) If there is such a risk, would it “materially interfere w/ the L’s advice to or rep of a C? a) I.e. Is it material? i) Cmt 8: Material limitation: Impact on the L’s ability to consider, recommend, or carry out an appropriate course of action. If MR 1.7(a) is satisfied → down to MR 1.7(b): MR 1.7(b): Even if a concurrent conflict of interest under (a), an L may rep a C if: 1) L reasonably believes that he will be able to provide competent and diligent rep to each affected C; a) Would there be an adverse effect on the relationship? b) Would there be an adverse effect on the representation? 2) Is the conflict specifically prohibited by law?; a) No federal L may rep a C against the US regardless of consent by an official. 3) Would the rep involve the parties asserting interest against one another?; and a) E.g. Assertion by a claim by C1 against C2 repped by L in the same litigation or other proceeding before a tribunal. b) Per Se Non-Consentable. An L may NOT rep opp parties in the same litigation, regardless of consent. (MR 1.7 Cmt 23). c) No repping parties “aligned directly against each other in the same litigation. 4) Each affected C gives informed consent in writing. a) Consentability Factors: i) Are the conflicts reps related? If no factual interrelationship, conflict May be waivable. ii) Does the problem involve joint rep of very divergent interests? (1) If so, MAY NOT be possible to pursue interests w/o harming the other. iii) Is the conflict btwn 1 current C and 1 former C? (1) Former C interests may be ignored (but NOT for confidentiality) iv) Does L have friendship or bond or professional loyalty? (1) If so, may be unable to provide diligent rep, especially if the interests are divergent. v) How sophisticated is the C? (1) MR 1.7 Cmt 22 Sophisticated users of legal services are MORE CONSENTABLE. vi) MR 1.7 Cmt 22 C has other independent counsel? Nonconsentable Conflict: If L discovers a nonconsentable conflict, he MUST withdraw from the rep pursuant to MR 1.6 (see above). If opp party figures this out first, then motion for DQ Strategy: Motion for DQ can be raised at any time so you can wait til the trial is about to lose then raise the issue. BUT be prepared to explain to the Judge why you waited. He may still sanction you for being an asshole and failing to expedite litigation. Judge can say no, turns on the material nature of the and whether the movant L is acting in bad faith Ethics Rules: Ethical duty to tell the bar Conflicts of Interest: Lawyer-Client Conflicts Fee-Related Conflicts Fee Shifting - Evans v. Jeff: Maj said no ethical dilemma here b/c cL’s obligation is to rep the C’s interests, Court does NOT want to discourage settlements. CONCERNS ABOUT FEE SHIFTING: Fee shifting is designed to expand access to quality Ls in civil rights enforcement. Allowing settlements that include waiver of L’s fees disincentivizes quality Ls to take these cases. Secret Settlements A settlement that contains and NDA requiring P to keep confidential the settlement amount, terms, and/ or facts underlying the controversy. Generally backed by liquidated damages. Highlight = Main Rule Statement Purple = Rule #s and Cmts Cases/ Doctrines = Blue Case Names = Red ➔ Fees & Efforts to Expand Legal Access ◆ MR 1.5: Fees ● “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” 1.5(a). ● What is a reasonable fee? (Reasonable Fee Factors) ○ (Note Cmt.1 states that this list is not exclusive and each factor will not apply to each case -- they are just the most common factors used to show that a rate is reasonable.) ○ Time, labor, novelty, and skill required; ○ Likelihood other clients won’t come to lawyer; ○ Customary fee in the area; ○ Amount involved and the results; ○ Time pressures; ○ Nature and length of professional relationship with client; ○ Lawyer’s reputation and experience; and ○ Contingent or fixed fee. ● When is writing required? ○ Note: MR do not require a written fee agreement for every representation. ○ Fixed Fee Agreements - “preferably” in writing; not required. (1.5(b)) ○ Contingent Fee Arrangement - must be reduced to writing signed by the client and must state how the fee is calculated. (1.5(c)) ◆ Written-Contingent Fee Agreement MUST state ● 1) The % due to L in the event of settlement, trial, or appeal; ● 2) All expenses that will be charged whether or not he prevails; and ● 3) Whether expenses will be deducted before or after the contingent fee is calculated. ● When are contingent fees prohibited? ○ 1.5(d)(1): Certain domestic relations cases (where payment would be dependent on securing divorce, amount of alimony or support, or settlement of property) ◆ R1.5(d)(1) forbids a lawyer from entering into a contingent-fee arrangement for a domestic relations matter, where the fee depends on the securing of a divorce or the amount of alimony, support, or property settlement. ○ 1.5(d)(2): defendant in a criminal case ● Fee division between lawyers ○ No rules for lawyers in the same firm ○ 1.5(e): Limitations on lawyers from different firms. only allowed when: ◆ Proportional or joint representation for the representation ● Cmt. 7: Joint Responsibility ◆ Client agrees in writing to any fee shares ◆ Total fee must meet the MR fee reasonableness ◆ CB 883-895 ➔ Pro Bono & Obligations to the Public ◆ MR 6.1: Voluntary Pro Bono Publico Service ● Every lawyer has a professional responsibility to provide legal services to those unable to pay. ● A lawyer should aspire to render at least 50 hours of pro bono. ● Provide substantial majority of the 50 hours without fee or reduced fee. ◆ MR 6.2: Accepting Appointments ● Lawyer shall not seek to avoid appointment by a court to represent a person except for good cause; such as: ○ Representing client will likely result in violation of MR ○ Representing client is likely to result in unreasonable financial burden on the lawyer; or ○ Client/cause is so repugnant to lawyer that it will likely impair the clientlawyer relationship or lawyers ability to represent. ◆ MR 6.3: Membership in Legal Services Organization ● Lawyers may serve as directors, officers, or members of legal service organizations, even if the organization serves persons having interest adverse to a client of the lawyer. ● The lawyer shall not knowingly participate in a decision or action of the organization: ○ If participating would be incompatible with obligations to client under MR 1.7; or ○ Where the decision could have a material effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer. ◆ MR 6.4: Law Reform Activities Affecting Client Interests ● Lawyer may serve as director, officer, or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interest of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client. ◆ MR 6.5: Nonprofit & Court-Annexed Limited Legal Services Programs ● Lawyers who provide short-term limited legal services to a client without expectation by either lawyer or client, the lawyer will provide continuing representation in the matter is subject to: ○ (a)(1) MR 1.7 and 1.9(a) only if lawyer knows that the representation of the client involves a conflict of interest; and ○ (a)(2) MR 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by MR 1.7 or 1.9(a) with respect to the matter. ● Except as provided in (a)(2), MR 1.10 is inapplicable to the representation governed by this rule. ◆ CB 916-924 ➔ Advertising & Solicitation ◆ MR 7.1: Communications Concerning a Lawyer’s Services ● A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. ● See comments for further explanation and examples. ◆ MR 7.2: Communications Concerning a Lawyers’ Services: Specific Rules ● (a) a lawyer may communicate information regarding the lawyer’s services through any media ● (b) a lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may: ○ (1) pay the reasonable costs of advertisements or communications permitted by this rule; ○ (2) pay the usual charges of a legal service plan or a non-for-profit or qualified lawyer referral service; ○ (3) pay for a law practice in accordance with MR 1.17; ○ (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if: (i) the reciprocal referral agreement is not exclusive; and (ii) the client is informed of the existence and nature of the agreement; and ○ (5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services. ● (c) lawyers shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization by an appropriate authority of the state, US territory, or accredited by the ABA; and (2) the name of the certifying organization is clearly identified in the communication. ● (d) any communication made under this rule must include the name and contact information of at least one lawyer or law firm responsible for its content. ● Comments: ○ Paying Others to Recommend a Lawyer ○ Communications about Fields of Practice ○ Required Contact Information ◆ MR 7.3: Solicitation of Clients ● (b) Lawyers shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a: (1) lawyer; (2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or (3) person who routinely uses for business purposes the type of legal services offered by the lawyer. ● Lawyer shall not solicit professional employment even when not otherwise prohibited by (b) if: (1) the target of solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress, or harassment. ● Cmt. 1: a lawyer’s communication is not a solicitation if it is directed to the general public. ● See comments for more information. ◆ CB 755-772 ◆ CB 760-772 ➔ Civility ◆ MR 1.3: Diligence ● “A lawyer shall act with reasonable diligence and promptness in representing a client.” ● See comments. ◆ CB 366-378 ➔ Professional Discipline ◆ MR 8.1: Bar Admission & Disciplinary Matters ● Persons seeking admission to the bar, as well as lawyers, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by MR 1.6. ◆ MR 8.3: Reporting Professional Misconduct ● Lawyer who knows that another lawyer has violated the MR that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer, shall inform the appropriate professional authority. ● Lawyer who knows that a judge committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority. ● This rule does not require disclosure of information otherwise protected by MR 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. ◆ MR 8.4: Misconduct ● It is professional misconduct for a lawyer to: ○ Violate or attempt to violate the MR, or knowingly assist or induce another to do so, or do so through the acts of another; ○ Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; ○ Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; ○ Engage in conduct that is prejudicial to the administration of justice; ○ State/Imply an ability to improperly influence a government agency/official or to achieve results by means of violating MR or other law; ○ Knowingly assist a judge/judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or ○ Engage in conduct that lawyer knows/reasonably should know is harassment or discrimination. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from representation in accordance with MR 1.16. ◆ CB 68-73 ◆ CB 88-97 ➔ The End of the Layer-Client Relationship ◆ MR 1.16: Declining or Terminating Representation ● Required Termination ○ (a): Shall withdraw from representation of a client: ◆ When it will result in violation of the MR; client insists on taking illegal/unethical conduct ◆ Lawyers physical or mental condition materially impairs ability to represent (note: materially standard) ◆ Client ends relationships ● Optional Termination ○ (b) May withdraw from representing a client: ◆ Terminate for any reason if it will have no material adverse effect on client ◆ Reasonably believes or knows client is using lawyer’s services to perpetrate criminal or fraudulent acts ◆ Clients actions are repugnant (Doesn’t have to be illegal) ◆ Client fails to substantially fulfill obligation, lawyer needs to give client reasonable warning (unless obligation is fulfilled). ◆ Imposes unreasonable financial burden on lawyer or client has made representation unreasonably difficult. ◆ “Other good cause” ● Proper Mechanics for Terminating the Relationship ○ (c) Before a tribunal ◆ Follow tribunal’s rules ○ (d) In all cases ◆ Termination must be reasonable ◆ Lawyer must always mitigate damage to client that might be caused by termination ◆ Reasonably protect client’s interest ◆ Give reasonable notice ◆ Surrender files and refund fees provided in advance ◆ CB 247-257 ➔ Diversity & Demographics of the Profession ◆ CB 26-46 ➔ The Future of the Legal Profession ◆ **Videos** ETHICS FINAL RULE 1.0 DEFINITIONS IF APPLICABLE Quimbee: Exam 1: Failure to disclose stuff to the Bar ● Rule 8.1 - student did not disclose that he had been subject to disciplinary action ○ R8.1 Cmt 1: Basically says that the Rule extends to people seeking admission to the bar, and if that person makes a MATERIAL FALSE STATEMENT w/ an admission application, this may be grounds for subsequent discipline if that person is later admitted to practice law. ● RULE 1.0 DEFINES “KNOWINGLY” as actual knowledge, NOT “should have known” ● FAILURE TO DISCLOSE: Dean violated Rule 8.1 and maybe Rule 8.4 ○ VICARIOUS LIABILITY FOR FAILURE TO DISCLOSE WHEN YOU KNEW THAT SOMEONE MADE A FALSE STATEMENT ● Friend violated Rule 8.3 by failing to disclose Exam 2: Communications about legal services; L-C relationship; and Competence, legal malpractice, and other civil liability (ADVERTISEMENTS) ● Advertisements: ○ Rule 7.1: Prohibits L from making false or misleading comms about herself or her services. Communication IS FALSE IF: ■ “It contains a material misrepresentation of fact or law or omits a fact necessary to make the statement, considered as a whole, not materially misleading.” ■ ○ ○ ○ ○ R7.1 Cmt 3. even if an advertisement truthfully reports a lawyer’s achievements in previous cases, it could create the misleading impression that these results will repeat in other matters. Rule 7.2: Rule 7.3: Deals ONLY with DIRECT SOLICITATION, NOT general media advertising. Rule 7.4: ■ R7.4(a) permits L to say that she practices in a particular field of law. ■ R7.4(d) QUALIFICATION FOR R7.4(a) = FORBIDS L from stating or implying that she is a certified specialist in a field of law ● UNLESS: She has been certified as a specialist in that field by an organization specifically identified in the comm that has either been approved by an appropriate authority or accredited by the ABA. Advert can NOT mislead about experience, here, L has only been out for 3 years, that does NOT qualify as expert and experienced. Exam 3: Communications about legal services (ADVERTISEMENTS) ● Rule 7.3(a) forbids a lawyer from soliciting professional employment for pecuniary gain by direct live communication. ● R7.3 Cmt 1: defines a solicitation as an offer of legal services made through a “targeted communication initiated by the lawyer that is directed to a specific person.” ● R7.3 Cmt 2: explains the reason for the ban on direct in-person solicitation: there is too great a risk that a lawyer may take advantage of a vulnerable person and pressure that person to engage his services. (JUSTIFICATION) ● L sent a “Tout” to the hospital to pretend to be a “victim’s advocate”, he was really just there to send potential C’s to the L. ○ Rule 8.4(c) states that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” ○ As Rule 8.3(a) holds Attorney responsible for the tout’s deception, Attorney has violated Rule 8.4(c). ● Rule 1.5(c) requires a written contingent fee agreement, signed by the C. ○ MUST INCLUDE: ■ The agreement must state the method by which the fee will be determined and the % of the recovery that the lawyer will take. It must also state the way expenses are to be treated: whether they will be charged in addition to the fee, and if so, whether the expenses are also contingent or must be paid even if the claim is unsuccessful. ● Rule 1.1 Competence: ○ R1.1 Cmt 1 and Cmt2: L MUST be reasonably proficient and skillful, and his preparation, knowledge of the law and facts, and legal study and analysis must be adequate. ■ I.e. Competence is based on the reasonable and ordinary skill to be expected of an L under the circumstances of the representation. ● Rule 1.4; Rule 1.2: Rejecting Settlement offer w/o C’s consent. Exam 4: Client confidentiality; Conflicts of interest; ● Prospective (potential) Client: A potential client is not yet an actual client, and will not become one until the potential client and the lawyer agree that the lawyer will represent the client in the matter. ○ ● This means that a prospective C is NOT owed the full range of duties that an L would owe to an actual C. “Informed consent” Rule 1.0(e) defines it, treating consent as informed only if given after the L has “communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
