PROFESSIONAL RESPONSIBILITY
1. RULE 1.1 (COMPETENCE)
A. A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation
i.
Comments
1. Relevant factors: complexity of the matter, lawyer’s experience/training &
specifically to the filed in question, the preparation the lawyer is able to
give, and whether it is feasible to refer the matter to/consult with a
lawyer with established competence in the field in question
2. A lawyer does not need to specialize in the matter, they can still
adequately represent after preparation/consultation
a. If consulting lawyers outside the firm, you need the client’s permission
ii.
3. Competent handling of a particular matter includes inquiry into and
analysis of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent
practitioners
Notes
1. According to Comment [6], you do not have to inform the client or obtain
their consent if the other attorney is a member of your own
firm/organization.
2. According to Comment [6], if the other lawyer is not a member of your
own firm/organization, then informed consent from the client is
“ordinarily” required. The only circumstance in which it would not be
required is if it was impracticable under the circumstances (this would be
very rare).
3. Emergencies
a. Comment [3] governs emergency situations and provides much greater
latitude with regard to competence requirements.
b. “In an emergency, a lawyer may give advice or assistance in a matter
in which the lawyer does not have the skill ordinarily required where
referral to or consultation or association with another lawyer would be
impractical. Even in an emergency, however, assistance should be
limited to that reasonably necessary in the circumstances, for ill-
considered action under emergency conditions can jeopardize the
client’s interest.”
c. Common situations: someone in jail needing immediate representation
at a bail hearing or preparing a will for someone who has been
unexpectedly injured and may die quickly.
4. Investigations
a. § Lawyers are not required under Rule 1.1 to chase down every
witness or every document that may be available. They are required to
conduct a “reasonable” investigation into the factual basis of the
client’s case.
b. If a lawyer reasonably believes that they have sufficient evidence to
win a case, they are not required to conduct additional investigation in
order to locate duplicative evidence.
B. HYPOS & CASES
i.
Dahl v. Dalh (180)
1. Counsel for Ms. Dahl in a divorce proceeding made severl major procedural
errors. Failed to file proper expert witness reports, pretrial disclosures and
financial declarations.
2. All errors had a harmful effect on Ms. Dahl as her husband was awarded full
custody.
ii.
Attorney Grievance Commission of Maryland v. Kendrick (186)
1. Kendrick was a close friend of Judith Kerr and was appointed representative
of her estate SHe was very inexperienced in probate matters.
2. She committed numerous missteps causing the small estate to be open from
1999 until 2007
2. RULE 1.2 (SCOPE OF REPRESENTATION AND ALLOCATION OF
AUTHORITY BETWEEN CLIENT AND LAWYER)
A. (a) lawyers must abide by client’s decisions & objectives & means of pursuit
i.
can take action on behalf of the client and must abide by their client’s decision
on whether or not to settle
ii.
In a criminal case, the lawyer must abide by the clients decision after
consultation as to pleas entered, waiving a jury trial, and whether the client
testifies
1. Comments
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a. Sometimes a lawyer and client may disagree about the means to be
used to accomplish the client’s objectives, but the Rules do not discuss
how these disagreements should be resolved
1. Other law may be applicable
2. Try and consult with client to come to a mutual resolution but if
unsuccessful a lawyer may withdraw from representation (Rule
1.6(b)(4)) or a client may discharge the lawyer (Rule 1.6(a)(3))
b. Clients can give a lawyer permission to take specific action on the
client’s behalf without further consultation (unless there has been a
material change) (Rule 1.4)
1. but a client may revoke this authority at any time
c. if a client appears to have a diminished capacity use Rule 1.14 as
guidance
B. (b) A lawyer representing a client (even by appointment) does not constitute an
endorsement of the client’s political, economic, social or moral views or activities
C. (c) A lawyer can reasonably limit the scope of representation if (1) reasonable
under circumstances and (2) client gives informed consent
i.
Comments
1. A limited representation may be appropriate if the client has limited
objectives for representation, or to exclude specific means that the client
thinks are too costly or the lawyers regards as repugnant or imprudent
2. The limitation must be reasonable under the circumstances
3. Does not exempt the lawyer from the duty to provide competent
representation
D. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct the
lawyer knows is criminal or fraudulent
i.
A lawyer may discuss the legal consequences of any proposed course of conduct
with a client
ii.
And may counsel for assist a client to make a good faith effort to determine the
validity, scope, meaning or application of the law
a. Comments
i.
Does not preclude the lawyer from giving an honest opinion
about the actual consequences of client’s conduct
ii.
When the client’s cause of action has already begun, a lawyer
can not continue assisting a client in conduct that the lawyer
originally thought was proper but then discovers is criminal
or fraudulent
1. Lawyer must withdraw (Rule 1.6(a)) or in extreme
circumstances withdraw and disaffirm any opinion, document or
affirmation, etc. (Rule 4.1)
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iii.
Attorneys are agents who get permission from the principle,
which is the client, to work on their behalf
1. Client has authority pertaining to the objectives of
representation (settle, plea, trial, testify, etc.)
2. Attorney has general control over means by which the clients
objective should be pursued
E. Determining the validity or interpretation of a statute or regulation may require a
course of action involving disobedience of the statute or regulation
F. HYPOS & CASES
i.
Red Dog v. Deleware
1. Native American not wanting to try and avoid the death sentence case.
2. This choice was within the client’s rights and therefore the lawyer violated
rule 1.2.
ii.
Iowa Supreme Court Disciplinary Board v. Engelmann (119)
1. Attorney Engelmann inflated the sales in his HUD-1 forms on behalf of his
clients.
3. RULE 1.4 (COMMUNICATION)
A. (a) A lawyer shall:
i.
promptly inform the client of any decision or circumstance with respect to
which the client’s informed consent is required;
ii.
reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;
iii.
keep the client reasonably informed about the status of the matter;
iv.
promptly comply with reasonable requests for information; and
v.
consult with the client about any relevant limitation on the lawyer’s conduct
when the lawyer knows that the client expects assistance not permitted by the
Rules of Professional Conduct or other law
B. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation
i.
Comments
1. (a)(1) requires the lawyer get the client’s consent before taking action
unless a prior discussion with the client resolved what action the client
wants the lawyer to take
2. (a)(2) reasonably consult with client about means to be used to
accomplish the client’s objectives
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3. when a client requests information, we have a duty to promptly respon d
but in some circumstances you can delay responding when the client
would be likely to react imprudently to an immediate communication
C. Discipline Corner Case (page 205)
i.
Karen Thomas failed to communicate and act diligently and compently on behalf
of ehr client in securing an adoption.
4. RULE 1.5 (FEES)
A. (a) Lawyers can not make an agreement for, charge, or collect an unreasonable fee
or an unreasonable amount for expenses. Factors to consider:
i.
the time and labor required, novelty/difficulty of the question involved, skills
needed
ii.
would acceptance of the client’s case preclude other employment
iii.
what is normally charged locally for similar legal services
iv.
the amount involved and results obtained
v.
time limitations imposed by client/circumstances
vi.
nature and length of the professional relationship with client
vii.
experience, reputation, and ability of the lawyer
viii.
whether the fee was fixed or contingent
1. not an exclusive list
B. (b) must communicate what the fee will be and the basis for the fee with the client.
Preferably in writing, before or within a reasonable time after commencing
representation (except when a regularly represented client already knows the deal).
Must also inform client of any changes in fee, expenses, or rates.
C. (c) If using a contingent fee (when it is allowed) it must be in writing, signed in
writing, with method of fee (including percentages that shall accrue to the lawyer if
settlement, trial, or appeal/litigation and other expenses that may be deducted from
the recovery/when deductions will take place – before or after contingent fee is
calculated). The agreement must state what expenses the client will be reliable for
whether or not you win the case. If you are using a contingent fee, you need to
produce a written document stating the outcome of the matter, recovery/remittance
to the client and method of determination.
D. (d) A lawyer will not enter into an arrangement for, charge, or collect:
i.
a contingent fee for divorce upon the amount of alimony, support, or property
ii.
a contingent fee for representing a defendant in a criminal case
E. (e) A division of a fee between lawyers who are not in the same firm may only be
made if:
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i.
division is in proportion to the work done by each lawyer or each lawyer
assumes joint responsibility for the representation
ii.
the client agrees to the arrangement in writing with each lawyers share written
down; and
iii.
the total fee is reasonable
F. Notes
i.
ii.
iii.
iv.
v.
§ Comment [3] governs disputes over money in the lawyer’s possession.
§ If there is a dispute as to these funds, “the disputed portion of the funds
should be kept in the trust account . . . and the undisputed portion of the funds
should be promptly distributed.”
§ For example, assume a lawyer collected $1500 from a client under an
agreement that $1000 would be used to pay bail and $500 was for future fees.
The lawyer works five hours (a $500 fee), but bail is denied. The client
demands the entire $1500 back.
§ The lawyer should send the client $1,000 immediately because there is no
dispute that belongs to the client. It was to pay bail and bail was denied.
Under no circumstances can the lawyer keep the $1000 as it is the client’s
money.
The lawyer should leave the $500 in the trust account. The lawyer believes he
is entitled to this amount as a fee and the client disputes that. Under no
circumstances can the lawyer transfer the $500 to the fee account before the
dispute it resolved
G. HYPOS AND CASES
i.
Sallee v. Tennessee Board (147)
1. Attorney Yarboro was suspended from the practice of law for one year
charging an unreasonable fee in a wrong-ful death case.
2. Looked at factors from rule 1.5 (fees)
3. Found that the attorney’s fees were unreasonable.
5. RULE 1.6 (CONFIDENTIALITY OF INFORMATION)
A. (a) A lawyer can not reveal information relating to the representation of a client
without the client’s consent (impliedly authorized in order to carry out
representation or it is permitted by (b))
i.
Comments
1. This prohibition also applies to disclosures by a lawyer that do not in
themselves reveal protected information but could reasonably lead to the
discovery of such information by a third person
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2. A lawyer’s use of a hypothetical to discuss issues relating to the
representation is permissible so long as there is no reasonable likelihood
that the listener will be able to ascertain the identity of the client or the
situation involved
B. (b) A lawyer may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary:
i.
to prevent reasonably certain death or substantial bodily harm;
ii.
to prevent the client from committing a crime or fraud that is reasonably certain
to result in substantial injury to the financial interests or property of another;
iii.
to prevent, mitigate or rectify substantial injury to the financial interests or
property of another that is reasonably certain to result or has resulted from the
client’s commission of a crime or fraud in furtherance of which the client has
used the lawyer’s services
iv.
to secure legal advice about the lawyer’s compliance with these Rules
v.
to establish a claim or a defense on behalf of the lawyer in a controversy
between the lawyer and client, to establish a defense to a criminal charge or civil
claim against the lawyer based on conduct the client was involved in, responded
to allegations to in any proceeding concerning the lawyer’s representation of the
client
vi.
to comply with other law or a court order
vii.
to detect or resolve conflicts of interest arising from the lawyer’s change of
employment or from changes in the composition/ownership of a firm, but only if
the revealed information would not compromise the attorney client privilege or
otherwise prejudice the client
C. (c) A lawyer shall make a reasonable effort to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the
representation of a client
i.
Comments
ii.
1. Does not constitute a violation of paragraph (c) if the lawyer has made
reasonable efforts to prevent the access or disclosure
Notes
1. Most withdraw issues turn on whether the matter is pending before a
tribunal
2. If it is, the court decides if the lawyer can withdraw
3. If the case is not pending before a tribunal, the lawyer can decide for
themselves. For the most part, under Rule 1.16(b), a lawyer can withdraw
if one of the circumstances in Rule 1.16(b)(1)-(6) is present or there is
other “good cause.”
4. It does not matter if the client objects.
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5. It does not matter if the client will experience a material adverse effect.
6. Really, in these circumstances if the withdrawing lawyer takes reasonable
steps to protect the client’s interests (notice and opportunity to obtain
replacement counsel + returning client property), the withdrawal will
comply with the Rules
6. RULE 1.7 (CONFLICT OF INTEREST: CURRENT CLIENTS)
A. (a) except as provided in paragraph (d), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict fo
interest exists if:
i.
(1) the representation of one client will be directly adverse to another client; or
ii.
(2) there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer’s responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer
B. (b) notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
i.
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation of each affected client;
ii.
(2) the representation is not prohibited by law;
iii.
(3) 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; and
iv.
(4) each affected client gives informed consent, confirmed in writing
C. Comments
i.
Resolution of a conflict of interest problem under this Rule requires the lawyer
to:
1. Clearly identify the client or clients
2. Determine whether a conflict of interest exists
3. Decide whether the representation may be undertaken despite the
existence of a conflict/ whether the conflict is consentable
a. If so, consult with clients affected under paragraph (a) and obtain
their informed consent, confirmed in writing
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ii.
A conflict of interest may exist before representation is undertaken, in which
event the representation must be declined, unless the lawyer obtains the
informed consent of each client
iii.
If a conflict arises after representation has been undertaken, the lawyer
ordinarily must withdraw from the representation, unless the lawyer has
obtained the informed consent of the client under the conditions of paragraph
(b)
iv.
Loyalty to a current client prohibits undertaking representation directly adverse
to the client without that client’s informed consent
1. Absent consent a lawyer may not act as an advocate in one matter
against a person the lawyer represents in some other matter, even when
the matters are wholly unrelated
v.
Simultaneous representation in unrelated matters of clients whose interests are
only economically adverse, such as representation of competing economic
enterprises in unrelated litigation, does not ordinarily constitute a conflict of
interest and thus may not require consent of the respective clients
vi.
Even when there is no direct adverseness, a conflict of interest exists if there is a
significant risk that a lawyer’s ability to consider, recommend or carry out an
appropriate course of action for the client will be materially limited as a result of
the lawyer’s other responsibilities or interests
vii.
The critical questions are the likelihood that a difference in interests will
eventuate and, if it does, whether it will materially interfere with the lawyer’s
independent professional judgment in considering alternatives or foreclose
courses of action that reasonably should be pursued on behalf of the client
viii.
A lawyer’s duties of loyalty and independence may be materially limited by
responsibilities to former clients under Rule 1.9 or by the lawyer’s
responsibilities to other persons, such as fiduciary duties arising from a lawyer’s
service as a trustee, executor or corporate director
ix.
The lawyer’s own interests should not be permitted to have an adverse effect on
representation of a client
x.
A lawyer is prohibited from engaging in sexual relations with a client unless it
began prior to the attorney-client relationship formation
xi.
Some conflicts are nonconsentable – lawyer cannot properly ask for a clients
consent – when representing multiple clients, need to resolve the question of
consentability on a client by client basis
xii.
Consentability is typically determined by considering whether the interests of
the clients will be adequately protected if the clients are permitted to give their
informed consent to representation burdened by a conflict of interest
xiii.
Informed consent requires that each affected client be aware of the relevant
circumstances and of the material and reasonably foreseeable ways that the
conflict could have adverse effects on the interests of that client
xiv.
A client who has given consent to a conflict may revoke the consent and, like any
other client, may terminate the lawyer’s representation at any time
xv.
Can not represent opposing parties in the same litigation under (b)(3)
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xvi.
Conflict of interest exists if there is a significant risk that a lawyer’s action on
behalf of one client will materially limit the lawyer’s effectiveness in
representing another client in a different case
xvii.
Factors relevant in determining whether the clients need to be advised of the
risk include: where the cases are pending, whether the issue is substantive or
procedural, the temporal relationship between the matters, the significance of
the issue to the immediate and long-term interests of the clients involved and
the clients’ reasonable expectations in retaining the lawyer
1. If there is a significant risk of material limitation, the lawyer mus t refuse
one of the representations of withdraw from one or both matters
D. Notes
i.
Advance waivers are never valid for non-consentable conflicts under Rule 1.7
7. RULE 1.8 (CONFLICT OF INTEREST: CURRENT CLIENTS:
SPECIFIC RULES)
A. (a) A lawyer shall not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security or other pecuniary interest adverse to
the client unless:
i.
(1) the transaction and terms on which the lawyer acquires the interest are fair
and reasonable to the client and are fully disclosed and transmitted in writing in
a manner that can be reasonably understood by the client;
ii.
(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
iii.
(3) the client gives informed consent, in a 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
1. Comments
a. Must meet (a)’s requirements even when the transaction is not closely
related to the subject matter of the representation
b. (a) Applies to lawyers engaged in the sale of goods or services related
to the practice of law and to lawyers purchasing property from
estates they represent
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i.
It does NOT apply to ordinary fee arrangements BUT must
meet (a)’s requirements if when the lawyer accepts an
interest in the client’s business or other nonmonetary
property as payment of all or part of a fee
ii.
It does NOT apply to standard commercial transactions
between the lawyer and client for products or services that
the client generally markets to others since the lawyer has
no advantage in the dealing
c. (a)(1) requires that the transaction must be fair to the client and that
its essential terms be communicated to the client, in writing, in a
manner that can be reasonably understood
d. (a)(2) requires that the client also be advised, in writing, of the
desirability of seeking the advice of independent legal counsel and
requires that the client be given reasonable opportunity to obtain
such advice
e. (a)(3) requires that the lawyer obtain the client’s informed consent, in
a writing signed by the client, both to the essential terms of the
transaction and the lawyer’s role
B. (b) A lawyer shall not use information relating to representation of a client to the
disadvantage of the client unless the client gives informed consent, except as
permitted or required by these Rules
1. Comments
a. (b) applies when the information is used to benefit either the lawyer
or a third person, such as another client or business associate of the
lawyer
b. Does NOT prohibit uses that do NOT disadvantage the client (even if
they advantage the lawyer over the general public)
c. (b) prohibits disadvantageous use of client information unless the
client gives informed consent (except as permitted by these rules)
C. A lawyer shall not solicit any substantial gift from a client, including a testamentary
gift, or prepare on behalf of a client an instrument giving the lawyer or a person
related to the lawyer any substantial gift unless the lawyer or other recipient of the
gift is related to the client. For purposes of this paragraph, related persons include a
spouse, child, grandchild, parent, grandparent or other relative or individual with
whom the lawyer or the client maintains a close, familial relationship
1. Comments
a. A lawyer may accept a gift from a client, if the transaction meets
general standards of fairness
i.
A present given at a holiday or as a token of appreciation is
allowed BUT substantial gifts are not allowed –
presumptively fraudulent
b. A lawyer may not suggest that a substantial gift be made to the
lawyer or for the lawyer’s benefit, except where the lawyer is related
to the client as mentioned in (c)
c. Informed consent here should include advising the client concerning
the nature and extent of the lawyer’s financial interest in the
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appointment and the availability of alternative candidates for the
position
2. Notes
a. Prohibits a lawyer from soliciting any substantial gift from a client,
unless the client is related to the lawyer. (Note: “related to” includes a
spouse, child, grandchild, parent, grandparent, or other relative or
individual with whom the lawyer or the client maintains a close,
familial relationship.”
b. Under 1.8(c), a lawyer may not prepare any instrument—such as a will
or trust document—in which the lawyer or a family member of the
lawyer will receive a substantial gift from the client, unless the client
is also related to the lawyer.
c. Prohibits the mere act of solicitation as well as preparing instruments
in which you receive a substantial gift.
d. Lawyers can receive even substantial gifts if they are truly unsolicited
and the lawyer has no role in preparing documents
D. Prior to the conclusion of representation of a client, a lawyer shall not make or
negotiate an agreement giving the lawyer literary or media rights to a portrayal or
account based in substantial part on information relating to the representation
1. Comments
a. (d) does NOT prohibit a lawyer representing a client in a transaction
concerning literary property from agreeing that the lawyer’s fee shall
consist of a share in ownership in the property in the agreement
conforms to rule 1.5
2. Notes
a. Prohibits a lawyer from making or negotiating an agreement for media
rights concerning information related to the representation prior to
conclusion of the representation.
b. If the representation has concluded, you are permitted to negotiate for
the media rights.
c. Only extends to media rights related to the representation. Can
negotiate for media rights (as a fee) if wholly unrelated to the
representation
E. A lawyer shall not provide financial assistance to a client in connection with pending
or contemplated litigation, except that:
i.
(1) A lawyer may advance court costs and expenses of litigation, the repayment
of which may be contingent on the outcome of the matter; and
ii.
(2) A lawyer representing an indigent client may pay court costs and expenses
of litigation on behalf of the client
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1. Comments
a. Lawyers may not subsidize lawsuits or administrative proceedings
brought on behalf of their clients (includes making/guaranteeing
loans to clients for living expenses – would encourage lawsuits they
may not have actually pursued)
b. Lawyers CAN lend a client court costs/litigation expenses (includes
medical examination, costs of pertaining evidence) AND allows
lawyers representing indigent clients to pay court costs/litigation
expenses regardless of whether they will be repaid
2. Notes
a. Prohibits lawyers from providing financial assistance to a client to
facilitate anticipated or pending litigation.
b. Two exceptions:
i.
(1) advancing court costs and expenses of litigation if repayment is
contingent on the outcome of the matter; and
ii.
(2) paying court costs for an indigent client with no expectation of
repayment.
1. Note, however, that even for an indigent client you are limited
to court costs and litigation expenses. You cannot pay other
bills—like rent or a cell phone bill even if these are necessary
for your client to continue to the case.
c. Includes lending/giving money directly to the client, paying expenses
on their behalf, or assisting the client in obtaining a loan (i.e. serving
as a co-signer on a loan)
F. A lawyer shall not accept compensation for representing a client from one other
than the client unless:
i.
(1) the client gives informed consent
ii.
(2) there is no interference with the lawyer’s independence of professional
judgment or with the client-lawyer relationship; and
iii.
(3) information relating to representation of a client is protected as required by
Rule 1.6
1. Comments
a. When a third person is paying the lawyer/compensating the lawyer
(in whole or in part), lawyers are prohibited from accepting or
continuing such representations unless the lawyer determines that
there will be no conflict of interference with the lawyer’s independent
professional judgment and there is informed consent from the client
b. Sometimes it will be sufficient for the lawyer to obtain the client’s
informed consent regarding the fact of the payment and the identity
of the third-party payer
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i.
If the fee arrangement however creates a conflict of interest
for the lawyer, the lawyer must comply with Rule 1.7
G. A lawyer who represents two or more clients shall not participate in making an
aggregate settlement of the claims of or against the clients, or in a criminal case an
aggregated agreement as to guilty or nolo contendere pleas, unless each client gives
informed consent, in a writing signed by the client. The lawyer’s disclosure shall
include the existence and nature of all the claims or pleas involved and of the
participation of each person in the settlement
1. Comments
a. Before any settlement offer or plea bargain is made or accepted on
behalf of multiple clients, the lawyer must inform each of them about
all the material terms of the settlement, including what the other
clients will receive or pay if the settlement or plea offer is accepted
2. Notes
a. Prohibits lawyers from participating in an aggregate settlement of
claims for or against multiple clients or making an aggregate guilty or
nolo contendere agreement unless each client provides informed
consent in writing.
b. See Arce v. Burrow, 958 S.W.2d 239 (Tex. App. 1997).
c. Keep aggregate settlements distinct from class action representations
H. A lawyer shall not:
i.
(1) make an agreement prospectively limiting the lawyer’s liability to a client for
malpractice unless the client is independently represented in making the
agreement; or
ii.
(2) settle a claim or potential claim for such liability with an unrepresented
client or former client unless that person is advised in writing of the desirability
of seeking and is given a reasonably opportunity to seek the advice of
independent legal counsel in connection therewith
1. Comments
a. Agreements prospectively limiting a lawyer’s liability for malpractice
are prohibited unless the client is independently represented in
making the agreement because they are likely to undermine
competent and diligent representation
b. Does NOT prohibit a lawyer from entering into an agreement with the
client to arbitrate legal malpractice claims, provided such agreements
are enforceable and the client is fully informed of the scope and effect
of the agreement
c. Does not limit the ability of the lawyers to practice in the form
entering into an agreement with the client to arbitrate legal
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malpractice claims, provided such agreements are enforceable and
the client is fully informed of the scope and effect of the agreement
d. NO limit on the ability of the lawyers to practice in the form of a
limited liability entity, where permitted by law, provided that each
lawyer remains personally liable to the client for his or her own
conduct and the firm complies with any conditions required by law
e. Agreements settling a claim or a potential claim for malpractice are
NOT prohibited by this Rule
i.
The lawyer must first advise the person in writing of the
appropriateness of independent representation in connection
with such a settlement – must give the client or former client a
reasonable opportunity to find and consult independent
counsel
2. Notes
a. Under Rule 1.8(h)(1), you cannot prospectively limit malpractice
liability (essentially an advance waiver) unless the client is
independently represented in making the agreement.
b. Under Rule 1.8(h)(2), you cannot settle a malpractice claim or a
potential claim unless the client is advised in writing of the desirability
of seeking independent counsel and given an opportunity to do so.
c. This rule does not bar agreements to arbitrate legal malpractice claims
in jurisdictions where such agreements are enforceable as long as the
client fully understood the significance of the agreement. Cmt. [14].
I.
(i) A lawyer shall not acquire a propriety interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except that the lawyer may:
i.
(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
ii.
(2) contract with a client for a reasonable contingent fee in civil case.
1. Comments
a. Lawyers are prohibited from acquiring a propriety of the interest in
litigation
b. Exceptions: exception for certain advances of the costs of litigation is
set forth in (e) and (i) sets forth exceptions for liens authorized by the
law to secure the lawyer’s fees or expenses and contracts for
reasonable contingent fees
i.
Jurisdiction determines
c. When a lawyer acquires by contract a security interest in property
other than that recovered through the lawyer’s efforts in the
litigation, such an acquisition is a business or financial transaction
with a client and is governed by the requirements of (a)
2. Notes
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a. Prohibits lawyers from acquiring a proprietary interest in the subject
matter of the client’s litigation or other matter.
b. Two exceptions:
i.
Can acquire a lien permitted by law to secure fees and expenses.
ii.
Permitted to contract for a contingency fee in a civil case.
c. See In Re Fischer, 202 P.3d 1186 (Colo. 2009) for discussion of liens
authorized by law and contrasting with deeds of trust.
d. Most of the issues under 1.8(i) relate to prohibitions on litigation
financing by attorneys and are beyond the scope of any course on
Professional Responsibility
J.
(j) A lawyer shall not have sexual relations with a client-lawyer relationship
commenced
1. Comments
a. Prohibits the lawyer from having sexual relations with a client
regardless of whether the relationship is consensual and regardless of
the absence of prejudice to the client
b. When the client is an organization this Rule prohibits a lawyer for the
organization (inside or outside the counsel) from having a sexual
relationship with a constituent of the organization who supervises,
directs or regulates consults with that lawyer concerning the
organizations’ legal matters
2. Notes
a. Prohibits a lawyer from having a sexual relationship with a client
unless those relations existed prior to the formation of the attorneyclient relationship.
b. “Sexual relations” has been read relatively broadly by courts to include
sexually provocative text messages and photographs as well as more
overt forms of physical contact.
c. Bottom Line: Just avoid any types of sexual conduct or overtures with
clients.
K. (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs
(a) through (i) that applies to any one of them shall apply to all
1. Comments
a. A prohibition on conduct by an individual lawyer in paragraphs (a)
through (i) also applies to all lawyers associated in a firm with the
personally prohibited lawyer
2. CASES & HYPOS
a. Gerry Wysocki works in a Midwestern law firm, where he
frequently represents farmers in various matters relating to their
16
agricultural businesses. Tom Takala consults with Gerry because
he fears that the government will take a substantial part of his
land through eminent domain. In explaining the situation, Tom
also reveals that his farming business is struggling and that he was
thinking of selling other parts of his land to investors willing to
take a chance with his business. Because Gerry knows the region’s
economy rather well, he sees this as a great opportunity to invest
some inheritance money. Besides, Gerry thinks that he would be
able to build a successful truck stop on Tom’s land if Tom’s farm
fails. Gerry advises Tom on Tom’s eminent domain question and
then proposes to draft a contract to buy Tom’s land that would
contain certain clauses regarding Gerry’s future participation in
Tom’s business. How should Gerry proceed to acquire Tom’s
lands?
i.
ii.
Answer: Raises issues under both 1.8(a) and 1.8(b).
Must comply with 1.8(a)(1)-(3) to proceed.
1. Terms of transaction must be fair and reasonable to Tom
and disclosed in writing in language he can understand.
2. Tom should be advised of desirability of seeking
independent counsel and given time to do so.
3. Need to obtain Tom’s informed consent, in writing, and
signed.
iii.
Need to avoid using any confidential information to the client’s
disadvantage.
iv. Need to be alert to the precarious situation in which the
lawyer’s own financial interests compromise the duty of
loyalty. This would raise issues under Rule 1.7(a)(2).
b. Attorney helped his client obtain a $200,000 settlement for his
client after she was involved in an automobile accident. Following
the settlement, the client, who stated she had an alcohol problem,
asked the attorney to hold the money on her behalf. He later
advised her that she should invest her settlement, with him as an
equal partner, in purchasing Coca-Cola collectibles (and other
business ventures) to later resell for a profit. Their business was
ultimately a bust and she lost a significant portion of her
settlement. The attorney argues that upon receiving the settlement,
he was no longer acting as her attorney, that he was merely trying
to help her financially as a friend. The client contacts you, a local
17
lawyer, and contends that her lawyer acted unethically and seeks
your help in recovering her lost money. Discuss her options.
i.
Answer: Client Options:
1. File a civil action for breach of fiduciary duty.
2. File a grievance with the appropriate disciplinary
authority.
ii.
Based on In Re Davis (Ind. 2001).
iii.
In Davis, the attorney advised his client to invest her settlement
money into suspect schemes that were largely unsuccessful.
iv. Attorney argued that the attorney-client relationship ended
upon receipt of the settlement money.
v.
Court rejected these arguments and found that the attorney
had violated Rule 1.8(a) by entering into a business transaction
without making proper disclosures to the client about their
adverse interests or advising her to seek independent counsel.
vi.
Court emphasized that the attorney “purposely took advantage
of his unsophisticated client for his personal pecuniary
benefit . . . which warranted a significant period of
suspension.”
8. RULE 1.9 (DUTIES TO FORMER CLIENTS)
A. (a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client unless
the former client givens informed consent, confirmed in writing
i.
Notes
1.
According to 1.9(a), the lawyer is prohibited from representing the new
client in the same or a substantially related matter in which the new
client’s interests are materially adverse to the interests of the former
client UNLESS the former client gives informed consent, confirmed in
writing.
2. Questions:
a. Are the matters the same or substantially related?
b. Are the interests between the two clients materially adverse?
3. Has the former client given informed consent, confirmed in writing?
(Note: Rule 1.9 only requires informed consent from the former client).
18
4. § 1.9(a) is triggered anytime a lawyer wants to represent a new client
whose interests are potentially adverse to a former client that was actually
represented by the lawyer.
B. (b) A lawyer shall not knowingly represent a person in the same or a substantially
related matter in which a firm with which the lawyer formerly was associated had
previously represented a client
i.
(1) Whose interests are materially adverse to that person; and
ii.
(2) About whom the lawyer had acquired information protected by Rules 1.6
and 1.9(c) that is material to the matter; unless the former client gives informed
consent, confirmed in writing
1. Notes
a. According to 1.9(b), a lawyer is prohibited from representing a new
client in the same or a substantially related matter in which a firm
with which the lawyer formally was associated had previously
represented a client if the new client’s interests are materially adverse
to the former client and the lawyer acquired confidential
information that is material to the matter from the former client
UNLESS the former client gives informed consent, confirmed in
writing.
b. Questions:
i.
Has the lawyer moved firms?
ii.
Was the former client a client a client of the prior firm?
iii.
Are the matters the same or substantially related?
iv.
Are the interests materially adverse?
v.
While at the prior firm, did the lawyer acquire material
confidential information from the former client?
vi.
Has the former client given informed consent, confirmed in
writing?
c. 1.9(b) is triggered anytime a lawyer wants to represent a new client
whose interests are potentially adverse to a former client of a prior
firm but was not represented by the lawyer directly
C. (c) A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter shall not thereafter:
i.
(1) Use information relating to the representation to the disadvantage of the
former client except as these Rules would permit or require with respect to a
client, or when the information has become generally known; or
ii.
(2) reveal information relating to the representation except as these Rules
would permit or require with respect to a client
1. Notes
19
a. Addresses two circumstances:
i.
Lawyers who stop representing one client and want to represent a
new client whose interests are potentially adverse to the old client
(side-switching conflicts).
ii.
Lawyers who change law firms and the lawyer wants to represent
a new client whose interests are adverse to a former client of the
prior firm (migratory lawyer conflicts).
b. Rules are related—both involve representing a new client whose
interests are adverse to a former client—but migratory lawyer
scenarios present unique complications and are governed by different
provisions in Rule 1.9.
c. Applies to all actual former clients of a lawyer and two sets of clients
with respect to migratory lawyers—former clients of the prior firm
(not actually represented by the lawyer) and former clients of the new
firm (also not actually represented by the lawyer).
d. Prohibited from revealing or using confidential information acquired
by the lawyer to the disadvantage of the client. Such information can
be used or revealed if: (1) it is now generally known; (2) disclosure is
permitted under Rule 1.6; or (3) the former client waives with
informed consent
2. Comments
a. after termination of a client-lawyer relationship, a lawyer has certain
continuing duties with respect to confidentiality and conflicts of interests
and thus may not represent another client except in conformity with this
Rule
b. The scope of the “matter” for purposes of this rule depends on the facts of a
particular situation or transaction (a lawyer’s involvement in a matter can
also be a question of degree)
c. Matters are “substantially related” for purposes of this Rule if they involve
the same transaction or legal dispute or if there otherwise is a substantial
risk that confidential factual information as would normally have been
obtained in the prior representation would materially advance the client’s
position in the subsequent matter
d. information that has been disclosed to the public or to other parties
adverse to the former client ordinarily will not be disqualified
i.
20
passage of time may be relevant in determining whether two
representations are substantially related
e. organizational client: knowledge of specific facts gained in a prior
representation that are relevant to the matter in question ordinarily will
preclude such a representation
f.
A former client is not required to reveal confidential information learned
by the lawyer in order to establish a substantial risk that the lawyer has
confidential information to use in the subsequent matter
i.
A conclusion about a possession of such info may be based on the
nature of the services the lawyer provided the former client and
information that would in ordinary practice be learned by a lawyer
providing such services
g. when lawyers leave a law firm you need to consider several considerations:
(1) the client previously represented by the former firm must be
reasonably assured that the principle of loyalty to the client is not
compromised, (2) the rule should not be so broadly cast as to preclude
other persons from having reasonably choice of counsel and (3) the rule
should not unreasonably hamper the lawyers from forming new
associations and taking on new clients after having left a previous
association
h. (b) operates to disqualify a lawyer only when the lawyer involved has
actual knowledge of information protected by 1.6 and 1.9 (c) - lawyer, if
having no knowledge of information protected, and the new firm can
represent another client in the same matter even though the interests of
the two clients conflict
i.
depends on the situation's facts and working presumptions reasonably
may be made about the way lawyers work together
i.
Independent of the question of disqualification of a firm, a lawyer
changing firms has a duty to preserve confidentiality of former clients
j.
(c) - the fact that a lawyer has once served a client does not preclude the
lawyer from using generally known information about that client when
later representing another client
k. former clients can give written consent to allow lawyers to do these things
however
3. HYPOS & CASES
a. Former employees are suing the defendant, Boston Scientific, for
unlawfully firing them when they reported fraudulent billing within
the company. Attorney Hasan was employed as in-house counsel for
the defendant corporation prior to the initiation of this suit. During
her time as in-house counsel, her duties included investigating
21
matters directly related to those at issue here. Two years after leaving
the defendant-corporation, Hasan became associated with the
plaintiff’s law firm, Tank & Blank. Upon learning of her new
employment, Boston Scientific moved to disqualify Hasan and to
impute her conflict of interest under Rules 1.9 and 1.10 to her new
firm, Tank & Blank. Tank & Blank argues that even though there
was not a proper screen in place, Hasan was de facto screened
because she was not in the office very often nor did she disclose any
confidential information. Should Hasan be disqualified? Should
Hasan’s conflict of interest be imputed to Tank & Blank?
i.
Answer: Hasan should be disqualified under Rule 1.9 and her
conflict of interest should be imputed to the entire firm under
Rule 1.10.
ii.
Hasan is disqualified because Boston Scientific is a former
client, the matters are substantially related, and the interests are
materially adverse.
iii.
Tank & Blank is disqualified under the imputation rule and for
failure to follow a proper notice and screening procedure.
iv. The argument that she was “de facto” screened will not be
sufficient. The rule lays out a clear procedure for timely
screening and written notice to the former client. None of those
procedures were followed here.
v.
Note that Tank & Blank likely could have proceeded with the
representation if it had followed a proper notice and screening
procedure at the outset.
b. Ms. Rodriguez contacted the Justice Project (“JP”) seeking legal
assistance in her dispute with Mr. Petrof and various collateral
matters related to her rental property. Upon visiting JP, Rodriguez
spoke to paralegal Keyda Montalban. In her initial conversation,
Rodriguez gave Montalban basic information pertaining to her legal
problems concerning accessibility to Rodriguez’s apartment.
Rodriguez also conveyed relevant financial and background
information to determine her eligibility for legal assistance. While
employed at JP, Attorney Phillips was responsible for reviewing
Montalban’s intake file, but the parties dispute the extent of that
review function. With Rodriguez’s consent, JP subsequently referred
her case to the Legal Assistance Corporation of Central (LACC) for
legal assistance, which filed an action against Petrof eight weeks
later. Petrof hired the law firm of Kemp and Kemp as defense
counsel as it assigned the case to a newly hired lawyer, Attorney
22
Phillips. Rodriguez filed a motion to disqualify Phillips as the
defendant’s counsel on conflict of interest grounds because Phillips
worked at JP, which had advised Rodriguez about her dispute with
Petrof. The judge asks you to draft a memorandum discussing how
you would rule on the case. Should Phillips be disqualified?
i.
Answer:Attorney Phillips should be disqualified.
ii.
The Petrof matter at JP is the exact same case just assigned to
Phillips by Kemp & Kemp. Rule 1.9 prohibits Phillips
representation of Petrof absent consent.
iii.
While Rodriguez only communicated with Montalban about her
legal matter, the paralegal is an agent of attorney Phillips and
Rodriguez might have reasonably believed she had authority to
establish as attorney-client relationship with her with respect to
the Petrof matter. He also reviewed her intake file, which
contained confidential information about her case.
iv. Based on the case of Rodriguez v. Montalvo (D. Mass. 2004).
v.
On nearly identical facts, the court found that the attorney’s
relationship to the former representation exposed him to an
“intolerably strong temptation to breach his duty of
confidentiality to the former client” because the representations
were adverse and substantially related. The court disqualified the
attorney
9. RULE 1.10 (IMPUTATION OF CONFLICTS OF INTEREST:
GENERAL RULE)
A. (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
i.
(1) the prohibition is based upon a personal interest of the disqualified lawyer
and does not present a significant risk of materially limiting the representation
of the client by the remaining lawyers in the firm; or
ii.
(2) the prohibition is based on Rule 1.9 (a) or (b), and arises out of the
disqualified lawyer’s association with a prior firm, and
1. (i) the disqualified lawyer is timely screened from any participation in
the matter and is apportioned no part of the fee therefrom;
2. (ii) written notice is promptly given to any affected former client to
enable the former client to ascertain compliance with the provisions of
this Rule, which shall include a description of the screening procedures
employed; a statement of the firm’s and of the screened lawyer’s
23
compliance with these Rules; a statement that review may be available
before a tribunal; and an agreement by the firm to respond promptly to
any written inquiries or objections by the former client about the
screening procedures; and
3. (iii) certifications of compliance with these Rules and with the
screening procedures are provided to the former client by the screened
lawyer and by a partner of the firm, at reasonable intervals upon the
former client’s written request and upon termination of the screening
procedures
a. Notes
i.
ii.
iii.
iv.
Rule 1.10 mandates that when one lawyer has a current-client or
former-client conflict of interest, that conflict is imputed to all
members of the lawyer’s law firm.
Rule 1.10(a)(1) does not impute conflicts that are based on the
personal interest of the disqualified lawyer as long as it doesn’t
present any risk of material limitation by remaining lawyers in the
firm. This would include Rule 1.8 conflicts and any other personal
interest conflict under Rule 1.7. (Note: Rule 1.8(k) has its own
imputation rule).
Rule 1.10(a)(2) creates an exception for former-client conflicts
related to migratory lawyers if certain notice and screening
procedures are employed for other members of the firm
If the conflict is based upon Rule 1.9(a) or (b) and arises out of the
disqualified lawyer’s association with a prior firm, the conflict is
not imputed to other lawyers in the new firm IF:
1. The disqualified lawyer is timely screened from participation in
the matter and apportioned no part of the fee from the
representation; and
2. Written notice is promptly given to the former client (See Rule
1.10(a)(2)(ii) for what must be included in the notice); and
3. Certifications of compliance are given to the former client at
regular intervals and upon termination of the screening
procedures
B. (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
i.
24
(1) the matter is the same or substantially related to that in which the formerly
associated lawyer represented the client; and
ii.
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and
1.9(c) that is material to the matter
1. Notes
a. o Another migratory lawyer scenario—a firm wants to represent a
new client whose interests are potentially adverse to a former client of
a lawyer who has since left the firm.
b. The prior firm is prohibited from representing the new client if the
matter is the same or substantially related to that in which the
formerly associated lawyer represented the client, the interests are
materially adverse, and any lawyer remaining in the firm has
confidential information that is material to the matter
C. (c) A disqualification prescribed by this rule may be waived by the affected client
under the conditions stated in Rule 1.7
D. (d) The disqualification of lawyers associated in a firm with former or current
government lawyers is governed by Rule 1.11
i.
Comments
1. the term “firm” denotes lawyers in a law partnership, professional corporation,
sole proprietorship or other association authorized to practice law; or lawyers
employed in a legal services organization or the legal department of a
corporation or other organization
2. (a) does not prohibit representation where neither question s of client loyalty
nor protection of confidential information are presented
a. (a)(1) applies to lawyers currently associated with a firm
b. when moving firms 1.9(b) and 1.10(a)(2) and (b) apply
3. (a) does NOT prohibit representation by others in the law firm where the
person prohibited from involvement in a matter is a non-lawyer
a. (a) does NOT prohibit representation if the lawyer is prohibited from
acting because of events before the person became a lawyer, however,
ordinarily must be screened from any personal participation in the matter
to avoid communication to others in the firm of confidential information
that both the nonlawyers and the firm have a legal duty to protect
4. (b) operates to permit a law firm in certain circumstances to represent a
person with interests directly adverse to those of the client represented by a
lawyer who formerly was associated with the firm
a. the firm may NOT represent a person with interests adverse to those of a
present client of a firm and may NOT represent the person where the
matter is the same or substantially related to that in which the formerly
25
associated lawyer represented the client and any other lawyer currently in
the firm has material information protected by 1.6 and 1.9(c)
5. (a)(2) removes imputation otherwise required by (a) but unlike section (c) , it
does so without requiring that there be informed consent by the former client instead it requires that the procedures laid out in sections (a)(2)(i)-(iii) be
followed
a. (a)(2)(i) does not prohibit the screened lawyer from receiving a salary or
partnership share established by prior independent agreement, but that
lawyer may not receive compensation directly related to the matter in
which the lawyer is disqualified
ii.
HYPOS & CASES
1. Sue Ortiz was terminated by Zena Liu, her employer. Ortiz alleges her
termination was in retaliation for filing a workers’ compensation action.
Ortiz hired attorney Nakisha Williams, who filed an action against Liu
seeking damages for Ortiz’s wrongful termination. In response, Liu’s
attorney filed a motion to disqualify both Williams and her law firm
because Williams had served as Liu’s in-house counsel for 14 years.
Liu’s counsel alleges that during Williams’s 14 years of employment
with Liu, Williams had obtained confidential information about Liu’s
company and that Williams was now directly involved in similar actions.
Should Williams be disqualified?
a. Answer: Williams should be disqualified.
b. Based on Franzoni v. Hart Schaffner & Marx (Ill. App. 3d 2000).
c. Three-prong inquiry for determining if representations are
substantially related:
i.
A factual reconstruction of the scope of the former representation;
ii.
Whether it is reasonable to infer that the confidential information
allegedly given would have been given to a lawyer representing a
client in those matters;
iii.
Whether the information is relevant to the issues raised in the
litigation pending against the former client.
d. As former in-house counsel to Liu, Williams would have received
substantial confidential information about employment practices,
policies, and procedures that would be material to the current
litigation.
e. Note: Not required to point to any actual confidential information in
the attorney’s possession—it is enough to warrant disqualification if it
is reasonable to infer that the attorney would have such information in
light of the nature of the prior representation
26
2. Plaintiffs, Celebrity Chefs, are suing Kmart for breach of contract,
conversion, and trademark infringement. Alleging a conflict of interest,
plaintiffs filed a motion to disqualify Kmart’s counsel and his firm. The
law firm representing Kmart, Seltzer Caplan, had previously represented
the plaintiffs in two cases to recover sponsorship and advertising fees.
Plaintiffs allege that during the course of these two representations,
Seltzer Caplan learned confidential information about their business
and litigation strategies. They argue that because Seltzer Caplan
possesses this knowledge, counsel and Seltzer Caplan as a whole must
be disqualified. However, Seltzer Caplan argue that not only is the
current case not related to its prior representation of the plaintiffs, but
also, the attorneys that worked on those cases did not disclose the
confidential information to anyone else in the firm, and they are no
longer with Seltzer Caplan. How should the motion be decided?
a. Answer: § Seltzer Caplan should not be disqualified.
b. § Involves a former client conflict and the attorneys who formerly
represented Celebrity Chefs have left the law firm. Rule 1.10(b).
c. § Under these facts, disqualification of the firm is not necessary unless
the matters are substantially related and remaining lawyers have
material confidential information. Here, there is no evidence that the
lawyers who actually represented Celebrity Chefs shared confidential
information with other lawyers at Seltzer Caplan. There might also be
questions about “substantially related” but we would need additional
facts to complete that analysis.
d. Note: the lawyers who actually represented Celebrity Chefs would
absolutely be disqualified and if they were still with Seltzer Caplan,
the entire firm would be disqualified as well. Here, you have a limited
exception when the disqualified lawyer has departed and there is no
evidence they shared confidential information.
3. Former employees are suing the defendant, Boston Scientific, for
unlawfully firing them when they reported fraudulent billing within the
company. Attorney Hasan was employed as in-house counsel for the
defendant corporation prior to the initiation of this suit. During her time
as in-house counsel, her duties included investigating matters directly
related to those at issue here. Two years after leaving the defendantcorporation, Hasan became associated with the plaintiff’s law firm,
Tank & Blank. Upon learning of her new employment, Boston Scientific
moved to disqualify Hasan and to impute her conflict of interest under
Rules 1.9 and 1.10 to her new firm, Tank & Blank. Tank & Blank
27
argues that even though there was not a proper screen in place, Hasan
was de facto screened because she was not in the office very often nor
did she disclose any confidential information. Should Hasan be
disqualified? Should Hasan’s conflict of interest be imputed to Tank &
Blank?
a. Answer: Hasan should be disqualified under Rule 1.9 and her
conflict of interest should be imputed to the entire firm under Rule
1.10.
b. Hasan is disqualified because Boston Scientific is a former client,
the matters are substantially related, and the interests are materially
adverse
10.
RULE 1.14 (CLIENT WITH DIMINISHED CAPACITY)
A. (a) When a lawyer believes that a client is mentally impaired and their capacity to
make adequately considered decisions related to representation are diminished, the
lawyer shall, as far as reasonably possible maintain a normal client – lawyer
relationship with the client
B. (b) When the lawyer reasonably believes that the client has diminished capacity, is
at risk of substantial physical, financial, or other harm unless action is taken and
cannot adequately act in the client’s own interest, the lawyer may take reasonably
necessary protective action, including consulting with individuals or entities that
have the ability to take action to protect the client and, in appropriate cases, seeking
the appointment of a guardian ad litem, conservator or guardian
C. (c) Still protected by Rule 1.6. When taking protective action, the lawyer is impliedly
authorized under Rule 1.6(a) to reveal information about the client, but only to the
extent reasonably necessary to protect the client’s interests
i.
Comments
1. In determining the extent of the client’s diminished capacity, the lawyer
should consider and balance such factors as: the client’s ability to
articulate reasoning leading to a decision; the substantive fairness of a
decision; and the consistency of a decision with the known long term
commitment sand values of the client
2. Must be careful, because not all guardians will work in the client’s best
interest – which may impose a duty on the lawyer to report the guardian.
Also, establishing that a client has diminished capacity can be very
harmful to the client for other reasons
11.
28
RULE 1.15 (SAFEKEEPING PROPERTY)
A. (a) A lawyer holding property for a client or third party connected to
representation, it must be held separate from the lawyer’s own property/funds in a
separate account (within the state). Records shall be kept after termination of
representation for a set number of years
B. (b) A lawyer can deposit his own money into the client account, only to pay for bank
service charge on that account
C. (c) Lawyers need to deposit legal fees and expenses into the client trust account, and
can only be withdrawn by the lawyer only as fees are earned or expenses incurred
D. (d) Must tell client or third party when you have funds/property that is in their
interest. If a client or third person requests any funds or property that they are
entitled to receive, lawyer must give it to them upon request/full accounting/
besides exceptions permitted by law or agreement
E. (e) When in the course of representation, a lawyer is in possession of property in
which two or more persons claim interests in, the property shall be kept separate by
the lawyer until the dispute is resolved but must promptly distribute any portions of
property not in dispute
F. HYPOS & CASES
i.
In re Sather (page 158)
1. Frank perez hired attorney Sather in a civil rights lawsuit.
2. Sather charged perez a non-refundable flat fee of 20k for the representation
3. Sather spent the money was suspended for not returning the unearned fees
and knowingly misrepresenting the nature of the fees paid to the client.
12. RULE 1.16 (DECLINING OR TERMINATING
REPRESENTATION)
A. (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:
i.
representation will violate a rule of professional conduct or law
ii.
lawyers physical or mental condition material impairs his ability to represent
the client
iii.
the lawyer is discharged
1. Comments
a. A lawyer should not accept representation in a matter unless it can be
performed competently, promptly, without improper conflict of
interest and to completion
29
b. A client has a right to discharge a lawyer at any time, with or without
cause, subject to liability for payment for the lawyer’s services
c. A lawyer may withdraw if the client refuses to abide by the terms of
an agreement relating to the representation, such as an agreement
concerning fees or court costs or an agreement limiting the objectives
of the representation
B. (b) Except as stated in paragraph (c), A lawyer can withdraw when:
i.
will not have a material adverse effect on the client’s interests
ii.
client is acting in a way that seems criminal/fraudulent
iii.
client is asking lawyer to act in a criminal or fraudulent way
iv.
client wants to action the lawyer finds repugnant or has a fundamental
disagreement with
v.
after reasonable warning of withdraw, client still has not fulfilled an obligation
to the lawyer regarding services
vi.
unreasonable financial burden on lawyer to take case
vii.
other good cause for withdrawal
C. (c) Must give a tribunal notice before terminating the representation and if the
tribunal refuses withdrawal, the lawyer must continue to represent the client
D. (d) Upon termination the lawyer needs to take reasonable steps to protect the
client’s interests, such as giving reasonable notice to the client, allowing time for
employment of other counsel, give client their file and other relevant documents
and other property to which the client is entitled to, refund any unearned fees
(lawyer may retain papers relating to the client to the extent permitted by other
law)
i.
Comments
1. A client has a right to discharge a lawyer at any time, with or without
cause, subject to liability for payment for the lawyer’s services
2. A lawyer may withdraw if the client refuses to abide by the terms of an
agreement relating to the representation, such as an agreement
concerning fees or court costs or an agreement limiting the objectives of
the representation
E. HYPOS & CASES
i.
In re Kelly (167)
1. Michael McGibbon hired Thomas Kiley and associates for a medical
malpractice claim. The firm filed the suit and entered an appearance.
2. Pamela Swift was his attorney and then she wanted to take a sabbatical from
the practice and at the hearing the court ordered Kiley represent McGibbon.
30
13.
RULE 1.18 (DUTIES TO PROSPECTIVE CLIENTS)
A. (a) A person who consults with a lawyer about the possibility of forming a clientlawyer relationship with respect to a matter is a prospective client
B. (b) Even if no relationship ensues, a lawyer who has learned information from a
prospective client shall not use or reveal that information except as Rule 1.9 would
permit with respect to information of a former client
i.
Notes
1. Rule 1.18(b) states that a lawyer shall not use or reveal information
2.
3.
4.
5.
6.
7.
learned from a prospective client except as Rule 1.9 would permit with
respect to information of a former client.
Rule 1.9 then links back to Rule 1.6.
Bottom line: You cannot use or reveal information learned from a
prospective client unless:
The information has now become generally known.
One of the Rule 1.6(b) exceptions applies.
You have consent from the prospective client.
This is true even if the revelation would somehow benefit the prospective
client. If the information is not generally known and it does not fall into a
Rule 1.6(b) exception, then it can ONLY be revealed with client consent.
C. (c) A lawyer shall not represent a client with interests materially adverse to those of
a prospective client in the same or 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 (d). If a lawyer is disqualified
from representation on a matter, lawyers in the same firm may not take on or
continue representation, except what is in (d)
D. (d) When a lawyer has received disqualifying information as mention in (c),
representation is permissible if:
i.
both the affected client and the prospective client have given informed consent,
confirmed in writing, or;
ii.
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
1. (i) the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom; and
2. (ii) written notice is promptly given to the prospective client
a. Comments
i.
31
Prospective clients do not get all the protections of an actual
client
ii.
iii.
Whether communications, including written, oral, or
electronic constitute a consultation depends on the
circumstances
A consultation is likely to have occurred is a lawyer, either in
person or through the lawyer’s advertising in any medium,
specifically requests or invites the submission of information
about a potential representation without clear and
reasonably understandable warning and cautionary
statements that limit the lawyer’s obligations, and a person
provides information in response
1. A consolation does not occur if a person provides information to
a lawyer in response to an advertising that merely describes the
lawyer’s education, experience, areas of practice, and contact
information, or provides legal information of general interest
a. This person is not expecting a relationship to come out of it
2. A person who communicates with a lawyer for the purpose of
disqualifying the lawyer is not a prospective client
iv.
Lawyer can not represent a client with adverse interests of
their other clients – need written consent of the other clients
v.
Even in the absence of an agreement, the lawyer is not
prohibited from representing a client with interests averse
to those of the prospective client in the same or a
substantially related matter unless the lawyer has received
from the prospective client information that could be
significantly harmful if used in the matter
3. HYPOS & CASES
a. Company A had a meeting with a large law firm regarding a
potential lawsuit against company B and requests information
about the firm’s services. Expecting to receive an engagement
letter from the firm, company A was surprised when the firm
decided to represent company B in a law suit against company A
in a similar, but separate matter. The firm claims it screened the
attorneys that met with company A, but company A still moved to
disqualify the firm under Rule 1.18 for failing to maintain
confidences and sharing privileged information received during
their meeting. Company A has provided no concrete evidence on
what information was shared and has not shown proof that the
firm’s representation of company B caused significant harm.
Advise how the court should decide the disqualification motion.
Does the fact that the firm screened the attorneys that attended
the meeting with company A make a difference?
32
i.
Answer: The firm will likely not be disqualified.
ii.
Company A has not offered any evidence that it provided
information to the law firm that would be significantly harmful
in the current matter (a requirement under Rule 1.18 for
disqualifying conflict).
The firm seems to have complied with the screening
procedures in Rule 1.18(d), which would enable the firm to
continue with the representation even though the lawyers who
actually met with Company A might be disqualified.
iii.
4. In re Marriage of Perry (page 107)
a. Karen Perry called the law office of Fail Foheen to discuss the potential
of filing for a divorce. She spoke with Goheens assistant but ultimately
hired a different attorney.
b. Her husband obtained Goheen, KAren moved to disqualify Goheen
stating she was a prospective client.
c. Rule 1.20 creates duties to prospective clients, so the question is not if
Karen shared any confidential information with Goheen but rather
whether the information could be significantly harmful to Karen.
d. The Information was not harmful so Goheen was not disqualified.
14.
RULE 3.1(MERITORIOUS CLAIMS AND CONTENTIONS)
A. 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. 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.
i.
Comments
1. the advocate has a duty to use legal procedure for the fullest benefit of the
client’s cause, but also a duty not to abuse legal procedure
2. the filing of an action or defense or similar action taken for a client is not
frivolous merely because the facts have not first been fully substantiated or
because the lawyer expects to develop vital evidence only by discovery
3. required of lawyers, that they inform themselves about the facts of their
client’s cases and the applicable law and determine that they can make good
faith arguments in support of their client’s position ultimately will not prevail
33
4. The action is frivolous, however, if the lawyer is unable either to make a good
faith argument on the merits of the action taken or to support the action taken
by a good faith argument for an extension, modification or reversal of existing
law
ii.
Notes
1. Prohibits lawyers from:
a. Asserting a frivolous claim.
b. Asserting a frivolous defense.
c. Taking a frivolous position on an issue in a proceeding.
2. Frivolous = Cannot be supported by a good faith argument under existing
law or a good faith argument for changing the existing law.
3. Not frivolous because facts are not fully developed or need to be
substantiated through discovery.
4. Not frivolous just because attorney believes it will not ultimately prevail.
5. Not frivolous in a criminal proceeding to challenge every element of the
crime
iii.
HYPOS & CASES
1. In re Olsen: (Case about relying solely on clients factual claims)
a. What does this case teach us about relying solely on the client’s
factual account in asserting claims and defenses?
i.
An attorney can rely on the client’s factual assertions, but we have
an ongoing professional duty to independently assess the factual
and legal bases for a client’s claims.
ii.
Relying on the client’s account must be objectively reasonable. So,
you cannot continue to rely solely on the client’s account when it is
contradicted by credible evidence.
b. Was Olsen’s professional misstep the filing of the complaint, or the
filing of the opposition to the motion to dismiss?
i.
Probably the filing of the opposition to the motion to dismiss.
When he filed the complaint, it was likely objectively reasonable to
rely on the client’s account. But, when he received the motion to
dismiss, he needed to conduct some independent investigation of its
allegations to ascertain their merit before opposing the motion
iv.
34
Both Rule 3.1 and FRCP 11 allow an attorney to file a factual claim with a
tribunal if he reasonably believes that the claim will have evidentiary
support after discovery. Does this mean that an attorney may rely solely on
his client’s factual allegations in drafting and filing a civil complaint,
without any factual inquiry whatsoever? Suppose that you are a workers’
v.
15.
compensation attorney and a new client approaches you claiming to have
been injured on the job site. The client has no visible signs of injury. May
you file a workers’ compensation claim on his behalf without seeking and
analyzing documents substantiating both his employment and his injury?
Should you?
1. Answer: Rule 3.1 makes it clear that the attorney has a duty to inform
himself about the facts of his client's cases and the applicable law and
determine that he can make good faith arguments in support of the
client’s position.
2. Here, a very minimal factual investigation—at least verifying
employment and injury—would be required. That minimal information
may not tell him whether the claim is viable, which is okay, but he must
do some factual investigation.
3. Remember the overlap between the ethical standards and pragmatic
lawyering. The rules may allow filing of a claim on information and
belief if it is reasonable, but this could be a very unwise decision from a
financial standpoint
You are an insurance defense attorney. Your client, Providential Insurance
Co., represents a chain of “big box” stores. A large percentage of your
practice is defending “slip and fall” cases that allegedly occur on store
property. May you routinely include a defense of contributory negligence in
your answers to complaints without conducting any interviews or analyzing
video security footage to determine whether the plaintiff may have been
partially responsible for the accident?
1. Answer: No, it is unreasonable for a lawyer to conclude that all retail
slip and fall claims involve contributory negligence--- without any
further investigation on the store’s part.
2. That would be like a plaintiff’s lawyer presuming—without more— that
all employment terminations are unlawful.
3. Comment 2 requires that all claims or defenses have a “good faith”
basis in fact or law. Without some factual information, you cannot have
a good faith basis to assert the defense of contributory negligence.
4. This hypothetical also reminds you that the provisions of Rule 3.1 apply
equally to claims and defenses.
RULE 3.2(EXPEDITING LITIGATION)
A. A lawyer shall make reasonable efforts to expedite litigation consistent with the
interests of the client.
i.
35
Comments
1. Some occasions where the lawyer can property seek a postponement for
personal reasons
2. NOT proper to:
a. routinely fail to expedite litigation solely for the convenience of the
advocates
b. failure to expedite for the purpose of frustrating an opposing party’s
attempt to obtain rightful redress or repose
c. realizing financial or other benefit from postmonment
3. Important question is whether a competent lawyer acting in good faith would
regard the course of action as having some substantial purpose other than
delay
16.
RULE 3.4 (FAIRNESS TO OPPOSING PARTY AND COUNSEL)
A lawyer shall not:
A. (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;
B. (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law;
C. (c) knowingly disobey an obligation under the rules of tribunal, except for an open
refusal based on an assertion that no valid obligation exists;
D. (d) in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally propre discovery request by an
opposing party;
E. (e) in trial, allude to any matter that the lawyer does ont 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
F. (f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
i.
(1) the person is a relative or an employee or other agent of the client; and
ii.
(2) the lawyer reasonably believes that the person’s interests will not be
adversely affected by refraining from giving such information
1. Comments
36
a. fair competition in the adversary system is secured by prohibitions against
destruction or concealment of evidence, improperly influencing witnesses,
obstructive tactics in discovery procedure, and the like
b. applicable law in many jurisdictions makes it an offense to destroy
material for the purpose of impairing its availability in a pending
proceeding or one whose commencement can be foreseen (falsifying
evidence is also a crime)
c. (a) applies to evidentiary material generally, including computer info
i.
applicable law may permit a lawyer to take temporary possession of
physical evidence of client crimes for the purpose of conducting a
limited examination that will not alter or destroy material
characteristics of the evidence
ii.
applicable law may require the lawyer to turn the evidence over to the
police or other authorities depending on the circumstances
d. (b) - It is NOT improper to pay a witness’s expenses or to compensate an
expert witness on terms permitted by law
i.
most jurisdictions it is improper to pay an occurrence witness any fee
for testifying and that it is improper to pay an expert witness a
contingent fee
e. (f) permits a lawyer to advise employees of a client to refrain from giving
information to another party, for the employees may identify their
interests in those of the client
2. Notes
a. •
Model Rule 3.4(a) states that a lawyer shall not “unlawfully
obstruct another party’s access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential
evidentiary value or counsel or assist another person to do any such
act.”
b. • It is also a violation of 3.4(d) to make a frivolous discovery
request.
c. • Discipline may be imposed under 8.4(c) if you attempt to hide or
obscure the evidentiary value of a responsive document by burying it
among a large number of non-responsive documents.
d. Discovery abuses are much more likely to be punished with litigation
sanctions than professional discipline
17.
37
RULE 3.5(IMPARTIALITY AND DECORUM OF THE TRIBUNAL)
A lawyer shall not:
A. (a) seek to influence a judge, juror, prospective juror, or other official by means
prohibited by law;
B. (b) communicate ex parte with such a person during the proceeding unless
authorized to do so by law or court order;
C. (c) communicate with a juror or prospective juror after discharge of the jury if:
i.
(1) the communication is prohibited by law or court order; or
ii.
(2) the juror has made known to the lawyer a desire not to communicate; or
iii.
(3) the communication involves misrepresentation, coercion, duress or
harassment; or
D. (d) engage in conduct intended to disrupt a tribunal
i.
Comments
1. during a proceeding a lawyer may not communicate ex parte with a person
serving in an official capacity in the proceeding unless authorized by law to do
so
2. a lawyer may on occasion communicate with a juror or prospective juror after
they are discharged if permitted by a court order or the law - but must respect
if they decline to talk with you
3. the duty to refrain from disruptive conduct applies to any proceeding of a
tribunal, including a deposition
ii.
Notes
1. Avoiding ex parte contact with judges and jurors (3.5(b))
2. Refrain from (and report) any attempts to destroy evidence or improperly
3.
4.
5.
6.
18.
38
influence jurors or witnesses (3.5(a))
Rule 3.5(d), comment. [4] prohibits conduct that us “intended to disrupt a
tribunal.”
Profoundly discourteous behavior is also occasionally punished under the
catch-all provisions of Rule 8.4(d).
This rule has been used to impose discipline when attorneys shout or use
profanity during trial or depositions, assault or threaten to assault
witnesses, parties, opposing counsel, or court personnel, impugn the
integrity of the court, or refuse to comply with court directives.
Remember, it has to actually disrupt the proceedings—all manner of
offensive behavior may occur and it would not lead to discipline
RULE 4.1 (TRUTHFULNESS IN STATEMENTS TO OTHERS)
In the course of representing a client a lawyer shall not knowingly:
A. (a) make a false statement of material fact or law to a third person; or
B. (b) fail to disclose a material fact to a third person when disclosure is necessary to
avoid assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by Rule 1.6
i.
Comments
1. generally no affirmative duty to inform an opposing party of relevant facts
2. A misrepresentation can occur if the lawyer incorporates or affirms a
statement of another person that the lawyer knows is false or by partially true
but misleading statements or omissions that are the equivalent of affirmative
false statements
a. dishonest conduct that does not rise to the level of a false
statement/misrepresentation are addressed in Rule 8.4
3. This rule refers to statements of fact
a. not a statement of fact in negotiations: estimates of price/value placed on
the subject of a transaction and a party’s intentions as to an acceptable
settlement of a claim, and the existence of an undisclosed principal except
when non-disclosure of the principle would constitute fraud
4. a lawyer can avoid assisting a client’s crime/fraud by withdrawing from
representation
a. sometimes may be necessary for the lawyer to give notice first and to
disaffirm an opinion, document, or affirmation, etc.
5. In extreme cases, substantive law may require a lawyer to disclose information
relating to the representation to avoid being deemed to have assisted the
client’s crime/fraud.
a. if the lawyer can avoid assisting a client’s crime or fraud only by disclosing
this information, then under (b) the lawyer is required to do so, unless
disclosure is prohibited by Rule 1.6
ii.
Notes
1. Rule 4.1 prohibits a lawyer from making any false statement of material
fact to a third person during the course of representation of a client.
2. It also requires disclosure of a material fact where necessary to prevent a
crime or fraud, unless disclosure is prohibited by Rule 1.6.
3. Rule 4.1 has a carve out for negotiations known as the “puffing”
exception. In comment [2] it excludes statements regarding price, value,
or settlement intentions because these are statement of opinion and not
fact.
39
iii.
HYPOS & CASES
1. In re crossen
a. Primarily instructive of the limits on an attorney’s authority to engage
in misrepresentation under Rules 4.1 and 8.4(c).
i.
Remember that attorneys are also prohibited under these rules
from hiding or misrepresenting their own identity in order to gain
information from an opponent or witness. For example, creating a
fake social media profile and then sending a friend request to
someone to gain access to their account
2. Imagine that you represent a client who alleges that he was not hired for
a position of salesperson at a retail clothing store because of his race. In
order to develop evidence of discrimination before filing a lawsuit on his
behalf, may you ask paralegals or investigators in your office to go
“undercover” to the clothing store and apply for the same job? If your
state does not have an “investigatory” exception to Rule 8.4, either
expressly in the rule or by judicial construction, would you be
comfortable putting your license on the line by engaging in such
deception?
a. Answer: Some jurisdictions specifically exempt this type of “testing”
in cases of employment or housing discrimination. Others have
disciplined this type of conduct under Rule 4.1 and Rule 8.4(c).
b. Whether you, personally, would be willing to risk it is a very personal
decision
19. RULE 4.2 (COMMUNICATION WITH PERSON REPRESENTED
BY COUNSEL)
A. In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is
authorized to do so by law or court order
B. Comments
i.
This rule only applies in circumstances where the lawyer knows that the person
is in fact represented in the matter
ii.
applies to communications with any person who is represented by counsel
concerning the matter to which the communication relates
40
iii.
a lawyer must immediately terminate communication with a person if, after
commencing communications, the lawyer learns that the person is one with
whom communication is not permitted by this rule
iv.
this rule does not prohibit communication with a represented person, or an
employee or agent of such a person, concerning matters outside the
representation
1. nor does this rule preclude communication with a represented person who
is seeking advice from a lawyer who is not otherwise representing a client in
the matters
v.
can not make communications that violate this rule through the acts of another
vi.
Parties to a matter may directly communicate with each other, and a lawyer is
not prohibited from advising a client concerning a communication that the client
is legally entitled to make (can also communicate with person if there is an
independent justification or legal authorization to do so)
vii.
Communications authorized by law:
1. lawyer on behalf of client who is exercising a constitutional or other legal
right to communicate with the government
2. investigate activities of lawyers representing government entities, directly
or investigative agents, prior to the commencement of criminal or civil
proceedings
viii.
ix.
if uncertain if a communication is permitted/exceptional circumstances to
usually not allowed communications -get court order
need consent for constituents of an organization who supervise, directs or
consults with the organization’s lawyer concerning the matter or has authority
to obligate the organization with respect to the matter or whose act or omission
in connection with the matter may be imputed to the organization for purposes
of civil or criminal liability
1. do not need consent to talk to a former constituent
2. if a constituent has their own counsel, need that counsel's consent only
x.
communications with a person not known to be represented by counsel in the
matter are subject to rule 4.3
C. Notes
i.
ii.
iii.
41
• Rule 4.2 prohibits any contact with a represented person on the subject of
the representation without permission from the attorney.
• Cannot be waived by the client—can only be waived by the attorney.
• Includes any person who is independently represented by counsel
(opposing parties and witnesses represented by counsel).
iv.
Includes even “cc’ing” the client on a communication with the attorney
without the permission of the attorney because that is communication on the
subject of the representation
D. HYPOS & CASES
i.
Messing, Rudavsky & Weliky, pc v. Harvard College:
1. § According to Messing, which employees are you prohibited from
contacting under Rule 4.2 if the organization has counsel?
2. Control Group Test
3. § Those who exercise managerial responsibility in the matter.
4. § Those alleged to have committed the wrongful acts at issue in the
litigation.
5. Those who have authority on behalf of the organization to make decisions
about the course of the litigation
ii.
With little knowledge of a company’s business, how is a lawyer supposed
to know which employees are considered “represented” by corporate
counsel for purposes of the Messing test? Suppose that you represent a
golfer who was injured when he tripped over an unmarked sprinkler
head at a private country club. After filing suit, you wish to conduct
informal interviews with the president of the club, the head greenskeeper,
an employee of the club who was mowing the grass nearby the accident at
the time your client tripped, and your client’s caddy. Which individuals
may you interview without getting permission from counsel for the
country club?
1. President of the Club is a volunteer member and not an employee. But
Comment 7 to Rule 4.2 uses the word “constituent” rather than
“employee.” Counsel for the accident victim would be wise to check with
counsel for the Country Club before approaching the President to ascertain
whether opposing counsel considers the President represented for purposes
of the matter.
2. The caddy and the greenskeeper seem like regular fact witnesses to the trip
and fall accident with no managerial authority over the conduct in
question. It is likely safe to contact them directly.
3. The head greenskeeper is likely a person whose act or omission is directly
at issue in the case, so he is probably off limits under the no-contact rule
without permission from opposing counsel
iii.
You represent one spouse in an increasingly bitter divorce. After a
contentious pretrial hearing, your client informs you, “I just want to talk
to my husband personally and see if we can work out some of these issues
42
between ourselves.” May you counsel your client to talk to a represented
opposing party without running afoul of Rules 4.2 and 8.4? What values
behind the “no-contact” rule are at risk and what values are not at risk in
a situation involving party-to-party contact?
1. Rule 8.4 generally prohibits an attorney from violating the ethical
rules through the acts of another.
2. Comment [4] to Rule 4.2 resolves this issue and states that party-toparty contact is not prohibited by the rule
iv.
Suppose that you want to investigate an opposing party in litigation. May
you ask a paralegal to send the party a “friend request” on Facebook so
that the two of you can peruse the party’s personal information, without
running afoul of Rule 4.2?
1. Whether a “friend request” or other social media interaction violates
Rule 4.2 has been the subject of ethical opinions from an increasing
number of jurisdictions.
2. Most courts have concluded that it is permissible to observe the public
pages of a represented party’s social media page, but actively sending
that party a prompt to allow access to more protected pages (or
instructing someone else to do so on your behalf) violates Rule 4.2
v.
You represent one spouse in a divorce contest. You have made a generous
settlement offer to opposing counsel, but she has not responded, and she
has failed to return several of your phone calls. May you send opposing
counsel a registered letter reiterating the offer, and this time copy her
client on the letter so that you can be sure the opposing party has been
informed?
1. This is prohibited communication with a represented person under
Rule 4.2.
2. If you are legitimately concerned about whether opposing counsel has
filled his professional obligation to convey the settlement offers to his
client, you should 1) email him and ask him directly, or 2) to bring the
matter up at the next pre-trial conference with the judge and have the
judge inquire of opposing counsel
20.
RULE 4.3 (DEALING WITH UNREPRESENTED PERSON)
A. In dealing on behalf of a client with a person who is not represented by counsel, a
lawyer shall not state or imply that the lawyer is disinterested. When the lawyer
knows or reasonably should know that the unrepresented person misunderstands
43
the lawyer’s role in the matter, the lawyer shall make reasonably efforts to correct
the misunderstanding. The lawyer shall not give legal advice to an unrepresented
person, other than the advice to secure counsel, if the lawyer knows or reasonably
should know that the interests of such a person are or have a reasonable possibility
of being in conflict with the interests of the client
i.
Comments
1. in order to avoid a misunderstanding, a lawyer will typically need to identify
the lawyer’s client and, where necessary, explain that the client has interests
opposed to those of the unrepresented person
2. situations involving unrepresented people whose interests may be adverse to
those of the lawyer’s client - the possibility that the lawyer will compromise the
unrepresented person’s interests is so great that the Rule Prohibits the giving
of advice, apart from the advice to obtain counsel
3. does NOT prohibit a lawyer from negotiating the terms of a transaction or
settling a dispute with an unrepresented person - as long as the lawyer
explains that he represents an adverse party and is not representing the
person, the lawyer may disclose settlement agreements/offers, prepare
documents and explain their meaning
ii.
Notes
1. The rules for communication with unrepresented persons are in Rule 4.3.
2. Your primary obligation is to avoid misleading that person about your
role in the matter and to refrain from providing any legal advice other
than the advice to secure counsel
21.
RULE 4.4 (RESPECT FOR RIGHTS OF THIRD PERSONS)
A. (a) In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarass, delay, or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such a person
B. (b) A lawyer who receives a document or electronically stored information relating
to the representation of the lawyer’s client and knows or reasonably should know
that the document or electronically stored information was inadvertently sent shall
promptly notify the sender.
i.
Comments
1. does not imply that a lawyer may disregard the rights of third persons for their
client’s benefit
44
a. there are legal restrictions on methods of obtaining evidence from third
persons
2. (b) recognizes that lawyers sometimes receive a document or electronically
stored information that was mistakenly sent or produced by opposing parties
or their lawyers
a. if a lawyer knows or reasonably should know that it was inadvertently
sent, this rule requires that the lawyer promptly notify the sender in order
to permit that person to take protective measures
ii.
i.
it is outside the scope of these rules (up to other law/jurisdictions)
whether the lawyer needs to take additional steps (like deleting the
information, returning the documents) AND when there is no law on
point for this, it up to the professional judgment of the lawyer to decide
what to do
ii.
This rule does not address the issue of when a lawyer receives
information they know or should reasonably know may have been
inappropriately obtained by the sending person
Notes
1. Inadvertent Disclosures: Rule 4.4(b) also specifies our obligations when we
receive documents (often during discovery) that we know or reasonably
should know were inadvertently sent.
i.
Often privileged documents or work product documents.
b. The rule specifies that you must notify the sending attorney, but does
not resolve whether you must return the document or whether you can
use it in litigation
22.
-
RULE 8.1 (BAR ADMISSION AND DISCIPLINARY MEASURES)
Aa applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall not;
A. (a) knowingly make a false statement of material fact; or
B. (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 Rule 1.6
1. Comments
a. (b) also requires correction of any prior misstatement in the matter
that the applicant or lawyer may have made and affirmative
45
clarification of any misunderstanding on the party of the admissions
or disciplinary authority of which the person involved becomes aware
23.
RULE 8.3 (REPORTING PROFESSIONAL MISCONDUCT)
A. (a) A lawyer who knows that another lawyer has committed a violation of the Rules
of Professional Conduct that raises a substantial question as to the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate
professional authority
B. (b) A lawyer who knows that a judge has committed a violation of applicable rules of
judicial conduct that raises a substantial question as to the judge’s fitness for office
shall inform the appropriate authority
C. (c) This Rule does not require disclosure of information otherwise protected by Rule
1.6 or information gained by a lawyer or judge while participating in an approved
lawyers’ assistance program
i.
Comments
1. A report about misconduct is not required where it would involve a
violation of Rule 1.6 (but a lawyer should encourage a client to consent to
disclosure where prosecution would not substantially prejudice the
client’s interests)
2. This rule limits the reporting obligation to those offenses that a self
regulating profession must prevent
a. Substantial – seriousness of the possible offense, not the quantum of
evidence
3. Duty to report does not apply to a lawyer retained to represent a lawyer
whose professional conduct is in question or when the lawyer learns of
another lawyer/judges misconduct in participation in an approved
lawyers or judges assistance program
24.
RULE 8.4 (MISCONDUCT)
o
It is a professional misconduct for a lawyer to:
A. (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist
or induce another to do so, or do so through the acts of another;
B. (b) commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects;
i.
Comments
1. Offenses involving moral turpitude
46
2. Include offenses concerning some matters of personal morality, that have
no specific connection to fitness for the practice of law
3. A lawyer should be professionally answerable only for offenses that
indicate lack of those characteristics relevant to law practice
C. (c) engage in conduct involving dishonestly, fraud, deceit or misrepresentation;
D. (d) engage in conduct that is prejudicial to the administration of justice;
E. (e) state or imply an ability to influence improperly a government agency or official
or to achieve results by means that violate the Rules of Professional Conduct or
other law; or
F. (g) engage in conduct that the lawyer knows or reasonably should know is
harassment or discrimination on the basis of race, sex, religion, national origin, etc.
Does not affect ability to withdraw under Rule 1.16
i.
Comments
ii.
1. A lawyer does not violate paragraph (g) by limiting the scope or subject
matter of the lawyer’s practice or by limiting the lawyer’s practice to
members of underserved populations in accordance to these Rules and
other law
Notes
1. (c) :“It is professional misconduct for a lawyer to engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation.”
a. There are no limitations in this rule. The conduct can occur anywhere
(in the jurisdiction where you are licensed or elsewhere). The conduct
does not have to be criminal. The conduct does not have to be
connected to the practice of law in any way.
2. (e) § “It is professional misconduct for a lawyer to state or imply an ability
to influence improperly a government agency or official or to achieve
result by means that violate the Rules of Professional Conduct or other
law.”
a. It is enough to simply state an ABILITY to improperly influence a
government official (including a judge). Simply suggesting a judge
will give you preferential treatment for some reason violates this rule.
b. You have violated the rule even if you don't plan to actually use
improper influence. Just implying you could improperly influence an
official is enough.
3. HYPOS & CASES
a. In re Crossen (403)
47
25.
i.
Attorney Crossen represented one of the family members in a multi
million shareholder derivative suit.
ii.
In an effort to have a Mass. judge recuse himself, Crossen took
part in an intricate plot to uncover evidence of the judge’s bias.
iii.
Crossen set up and recorded sham job interviews witht the judge’s
former law clerks in order to coax the clerk into unveiling facts
about the judge’s deliberative process and alleged bias.
LEGAL MALPRACTICE
A. 3 types of legal malpractice
i.
Negligence
1. Elements
a. (1) The existence of an attorney-client relationship – establishes a
duty on the attorney
i.
the client’s reasonable belief that the lawyer is the client’s
legal advisor establishes a professional relationship
b. (2) a negligent act or omission constitutes a breach of that duty
i.
usually established by expert testimony if needed
c. (3) the proximate cause of injury
d. (4) actual damages suffered by plaintiff
i.
ii.
iii.
but for the lawyer’s negligence, the outcome would have
been different
Breach of Fiduciary Duty
Breach of Contract
a. statute of limitations may vary for each claim
2. The disciplinary system is not designed to compensate individuals for
injuries caused by their lawyer’s wrongful conduct
a. Clients can file a civil action for damages – legal malpractice lawsuit
i.
ii.
Lawyer breaching a standard of reasonable or ordinary care contract breach
Negligence – fiduciary breach
1. It will always be a breach of fiduciary duty to refuse to return
client property even if the client has discharged you
3. 4 Circumstances where lawyer might be liable to a non-client
a. 4 Circumstances where lawyer might be liable to a non-client
b. where the lawyer invites the non-client to rely on the lawyer’s work
48
c. lawyer knows that the services are intended by the client to primarily
benefit the non-client
d. where the client acts as trustee/guardian/fiduciary and the lawyer
knowingly assists the client in breaching his obligation
4. Conduct that constitutes a breach of civil standard of care owed to a
client giving rise to liability for malpractice does not necessarily
constitute a violation of an ethical duty to represent the client
competently
iv.
a. A lawyer who makes a good faith effort to be prepared and to be
thorough will not generally be subject to professional discipline,
although he or she may be subject to a claim for malpractice
Notes
1. Remember the distinction between malpractice liability and professional
discipline.
2. A lawyer is subject to discipline under Rules 1.2 and 1.4 for failure to
communicate a settlement offer to a client and/or rejecting such an offer
without consulting with the client. However, the lawyer will only be
subject to malpractice liability if the client suffered damages as a result.
3. For example, if a lawyer declined a $250,000 settlement offer without
consulting with the client, but the client subsequently received a $500,000
jury verdict, the lawyer would be subject to discipline but would not be
liable for malpractice (no damages).
26.
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Incompetence in a criminal case can violate the defendant’s 6th Amendment right to
effective assistance of counsel
B. Defendant must show:
i.
Deficient performance of counsel
a. Counsel made errors so serious that the counsel was not functioning
as the counsel guaranteed to the defendant by the 6 th Amendment
b. Reasonableness under prevailing professional norms
c. If the investigation reveals evidence that is harmful to the client, the
criminal defense attorney has no obligation to use it at trial or to
disclose it to the prosecution
ii.
Prejudice
1. Counsel’s error was so serious as to deprive the defendant of a fair trial,
whose results is realizable
49
2. There is a reasonable probability that, but for counsel’s errors, the result
of the proceeding would have been different
3. Courts are to presume that counsel’s conduct falls within the wide r ange
of reasonable professional assistance (burden of proof on the defendant)
C. Notes
i.
A conflict of interest on the lawyers part can be enough for a defendant to prove
prejudice
1. But where there is substantial evidence of guilt, counsels conduct does not
matter there is no viable claim for ineffective counsel
ii.
Immigration law: even if law is complex or deportation is unclear as a
consequence, attorneys need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse immigration consequences
(deportation)
iii.
Extrajudicial comments about pending litigation
1. According to Rule 3.6, a lawyer is prohibited from making an extrajudicial
statement that the lawyer knows or should know will be disseminated to
the public and has a substantial likelihood of materially prejudicing an
adjudicative proceeding.
2. In 3.6(b) there is a list of “safe harbor” statements that the lawyer may
make without fear of discipline under the rule.
D. HYPOS & CASES
i.
ii.
50
One of your clients is a small automobile repair shop with fewer than ten
employees. The owner comes to your office one day and states that she is
being investigated by the state attorney general for failing to pay
mechanics overtime in violation of the state prevailing wage law. The
client delivers to you her laptop computer, which she claims contains all
of her payroll records for the past three years. What should you do with
the computer
1. Answer: You may keep the computer for as long as it takes to
download all of the relevant data and store it for your own use.
2. You may not alter or destroy any data on this computer.
3. You also may not retain the computer indefinitely for the purpose of
keeping it out of reach of law enforcement.
The D.C. Ethics Committee opined that it would not violate the
jurisdiction’s disciplinary rules for a lawyer to “script” testimony of a
witness before her appearance at a tribunal, so long as the attorney was
not putting words into the witness’s mouth that the attorney knows or
should know to be false. But is such formal scripting wise as a tactical
matter? Imagine what impression such rigid adherence to a script might
leave on the finder of fact, and how it might be exposed on crossexamination. Federal Rule of Evidence 612 allows a court to order
opposing counsel to inspect any writing used by a witness to refresh the
witness’s recollection, either before or during testimony
1. This is not an ethical issue. It is a tactical issue.
2. A witness who is testifying from a rehearsed script is likely to come
across as stilted and incredible. Our clients are generally not trained
actors. A skilled cross examiner can easily unmask scripted testimony
by simply varying one of the direct examiner’s questions ever soslightly to see if the witness is able to testify from memory of the event
rather than memory of the script. Such a slip-up will not be lost upon
the jury.
3. Also, as the hypothetical notes, Federal Rule of Evidence 612 allows
the judge discretion to make available to the cross examiner any
writing that was used by the witness to refresh her memory either
before or during her testimony. If the cross examiner asks the witness
whether she reviewed any documents with the lawyer prior to
testifying and she testifies “yes,” the script may be revealed.
E. Truth Telling Rules
i.
51
Summary of truth-telling rules:
1. With respect to the law:
a. The lawyer must not knowingly make a false statement of law to the
court.
b. The lawyer must correct any previously made material false statement
of law.
c. The lawyer must disclose directly adverse law from the controlling
jurisdiction if it has not been disclosed by opposing counsel.
2. With respect to the facts:
a. The lawyer must not knowingly make a false statement of fact to the
court.
b. The lawyer must correct any previously made false statement of
material fact.
c. The lawyer must disclose to the tribunal all known material facts if the
proceeding is ex parte.
3. With respect to evidence:
a. The lawyer must not knowingly offer false evidence, including
testimony or other tangible evidence.
b. If the lawyer knows that false evidence was offered in the past, he or
she must take reasonable remedial measures to rectify until the
conclusion of the proceedings
27.Attorney-Client
Privilege
A. Exceptions to Attorney Client Privilege:
•
52
Crime-Fraud
• A client’s confidential communications with counsel are not
protected from disclosure when made for the purpose of furthering
a crime or fraud.
• The client’s intent alone triggers the exception and requires
disclosure; it does not matter whether the lawyer unwittingly
participated in the client’s scheme.
• In Re Grand Jury Investigation:
• Two Part Test for Crime-Fraud Exception?
• “First, the party must show that ‘the client was
engaged in or planning a criminal or
fraudulent scheme when it sought the advice
of counsel to further the scheme.’
• Second, it must demonstrate that the attorneyclient communications for which production is
sought are ‘sufficiently related to’ and were
made ‘in furtherance of [the] intended, or
present, continuing illegality.’”
• Application 1:
• Over a year ago, a high-ranking political figure from a
poor nation met with Attorney Fonseca in his New York
City law office. The politician asked Fonseca how he could
“discreetly” bring large sums of money into the United
States for the purchase of valuable real estate and
manufacturing businesses. The client wanted to avoid
publicity and insisted that Fonseca handle everything. The
client preferred to transact business on a cash-only basis.
Fonseca helped the client with several transactions. The
U.S. Attorney has charged Fonseca with money laundering
and has asked him for all of his documents regarding this
client as well as disclosure of the nature of their
communications. The government told Fonseca that if he
cooperates, he will not be charged with a crime. Fonseca
believes that the documents and communications are
protected by the attorney-client privilege, but he wants to
know whether he can make the disclosures to avoid
criminal charges. He contacts you, a professional
•
•
•
53
responsibility and criminal defense lawyer, for advice.
Advise Fonseca.
Answer 1:
• Based on In re Grand Jury Subpoena (S.D. Iowa 2000).
• There, the court held that the government had made the
necessary prima facie showing that the crimefraud exception applied to the allegedly privileged
communications.
• The attorney-client communications were not privileged
because they were for the purpose of helping the defendant
launder money.
• Communications also not privileged because they were
business communications/services.
• Here, even if Fonseca and the politician’s communications
were for facilitation of legal services, the communications
are not privileged because they were in furtherance of the
politician’s money laundering activity.
Application 2:
• Imagine that the CEO of a small local bank recently retired
from his position. The new CEO is a friend of yours and
consults you about possible financial improprieties by the
former CEO. When you contact the former CEO, he says
that he relied on the advice of the bank’s lawyer at the
time. The former CEO and that lawyer refuse to disclose
their communications about the legal propriety of the
former CEO’s financial dealings, claiming that the
dealings are protected by the attorney-client privilege. Are
the former CEO and the lawyer correct?
Answer 2:
• The former CEO and the lawyer are not correct.
• The U.S. Supreme Court indicated in Commodity Futures
Trading Com v. Weintraub, 471 U.S. 343 (1985) that the
authority to assert and waive a corporation's attorney-client
privilege passes along with control to new management
from old management.
• A former manager cannot assert privilege "even as to
statements that the former [manager] might have made to
counsel concerning matters within the scope of [his or her]
corporate duties."
• On this theory too, new managers can waive the attorneyclient privilege regarding communications between former
managers and the corporation's lawyers.
• To ensure communications are protected:
• Mark all questionnaires and notes as “highly confidential.”
•
•
•
•
54
Advise employees, in writing, that questionnaires and
interviews are for the purpose of obtaining legal advice and
should be kept strictly confidential.
• Employees should be directed by their corporate superiors
to speak with counsel.
• Questioning should be limited to matters within the scope
of the employees’ corporate duties.
• Any documents produced should be stored in a secure
manner.
• Former Employee’s Communications Protected?
• Cases are in conflict.
• Some jurisdictions hold that former employees are no
longer agents of the entity-client and communications with
them are not privileged.
• Other jurisdictions hold that former employees have a
continuing duty under the rules of agency to convey
information to the entity-client and the privilege lingers.
Application 3
• Jane Hankins manages a 40-person law firm. She suspects a
firm partner, Tom Jones, of mishandling a client’s funds.
Hankins asks two associates to conduct an internal factual
investigation of the matter. The grand jury subpoenas the two
associates to learn about their discussions with Hankins. The
two associates claim that as lawyers their discussions with
Hankins are protected by the attorney-client privilege. The
government contends, however, that the privilege is
inapplicable because the two associates are merely employees
on a fact-finding mission. Hankins asks you, a professional
responsibility expert, whether the firm will be successful in
claiming that the privilege protects her communications with
the two associates. Discuss the firm’s chances of success.
Answer 3
• Firm will likely be successful in asserting the privilege.
• Based on United States v. Rowe (9th Cir. 1996).
• In Rowe, the Court held that the associates were essentially acting
as in-house counsel for the firm.
• The court held that the associates fact-finding pertained to legal
advice because litigation was anticipated by the firm from day one.
• The court further noted that resolution of any legal problem
requires an attorney to first ascertain the factual background by
sifting through facts to identify the legally relevant. This was
exactly what the associates did on behalf of the firm in this case
Application 4
• Attorney Irving represents a company and its CEO concerning
his executive assistant’s recent allegation that she was
wrongfully terminated. She alleges that the CEO began
sexually harassing her after she confronted the CEO about his
financial misrepresentations about the company to lenders. She
•
•
•
55
claims her termination is really a case of sexual discrimination.
The executive assistant’s lawyers have not yet filed an action in
court but are threatening one unless a suitable settlement is
offered. Attorney Irving asks for all of the executive assistant’s
emails on her company laptop for the period of the alleged
sexual harassment up to her termination, including emails to
the lawyers representing her in this wrongful termination
matter. The executive assistant refuses to turn over the laptop
and her emails to her lawyers claiming they are protected by
the attorney-client privilege. Attorney Irving has concluded
based on preliminary investigation that the employee’s
allegations may have some merit but that there is also evidence
supporting the CEO’s claim that the executive assistant’s work
was unsatisfactory.
• § Are the former executive assistant’s emails privileged? How
does the fact that her lawyers have not filed a complaint affect
Attorney Irving’s strategy in resolving this matter? What other
possible ethics issues loom in Attorney Irving’s decision to
represent the company and the CEO?
• Answer 4
• The former assistant’s emails are probably privileged.
• Key question: Did the employee have a reasonable
expectation of privacy in the communications made on a
company laptop or server?
• Courts often look to whether the employee used a company
email system (no reasonable expectation of privacy) or a
web-based email system that is password protected
(reasonable expectation of privacy).
• The fact that she has not filed a complaint has no bearing on the
application of the privilege. The communications were clearly
made “for the purpose of obtaining legal advice or services.”
• Other ethical issues?
• Potential conflict of interest in representing the company
and CEO simultaneously because the interests of the two
are in potentially in conflict.
• Irving owes undivided loyalty to his client (the company)
and its interests likely diverge from those of the CEO.
Joint Clients Exception
• The joint-clients exception provides that a communication to a
lawyer that is relevant to a matter of common interest between the
joint clients is not privileged when one joint client proceeds against
another joint client
Self-Defense Exception
• The attorney-client privilege does not protect confidential
communications related to a client’s action against his counsel
concerning the quality of his representation.
Certain Testamentary Communications
B. Waiver:
▪ Can occur through intentional disclosure or inadvertent disclosure.
▪ Can be waived by the client directly or by the client’s agent.
▪ Client permanently waives the privilege by voluntarily disclosing to a
non-privileged third party (i.e. a friend or a reporter).
▪ Failure to timely object to the use or attempted discovery of privileged
communications constitutes a waiver of the privilege.
Selective Waiver:
• A party voluntarily waives the privilege for communications in one
case but later asserts the privilege over the same communications in
another case.
• Rejected by most courts. In the federal courts, only the 8th Circuit
recognizes selective waiver.
In Re Pacific Pictures Corp.:
▪ Main Takeaways
▪ Even if documents are requested through an
official subpoena, a party must object and refuse
to produce the privileged information to preserve
the privilege.
▪ Disclosing documents without objection or
redaction is a waiver of the privilege.
▪ If you waive privilege and share the
communications with a third party, you cannot
later assert privilege over the same
communications vis-à-vis another party.
▪
▪
56
What is this court’s rationale for holding that a
client’s voluntary disclosure of otherwise
privileged materials to selected recipients
constitutes a general waiver of the privilege?
o Privilege is not necessary to encourage full
communication between a client and an
attorney when the client feels comfortable
sharing the information with third parties.
o The court should not expand the
privilege—extending the privilege is a
legislative and not a judicial function.
Why does the court find that selective waiver
does not serve the purpose of the attorney-client
privilege?
o The court found that “selective waiver does
not serve the purpose of encouraging full
disclosure to one’s attorney in order to
obtain informed legal assistance; it merely
encourages voluntary disclosure to
government agencies [or other third
parties], thereby extending the privilege
beyond its intended purpose.”
▪ Why did the court reject the Petitioners’
argument that waiver should not apply to these
disclosures because they were made pursuant to
a government subpoena?
o “Toberoff both solicited the subpoena and
[then] “chose not to assert the privilege
when it was appropriate to do so . . . .” (p.
278). “That is, even though the subpoena
specifically contemplated that Toberoff may
choose to redact privileged materials, he
did not.”
Partial Disclosure and Subject Matter waiver:
▪
Parties are not permitted to waive privilege and disclose a portion
of a larger communication while maintaining privilege over the nondisclosed portions.
▪
A party may seek all portions of a single communication and
related privileged communications to prevent the opposing party from
unfairly distorting the context or meaning of its partial disclosure.
▪
In such situations, courts find a general waiver of the entire subject
matter of the communication or related privileged communications that
are “reasonably necessary to provide a complete and balanced
presentation.”
Inadvertent Disclosures:
▪ Three Approaches Followed by Courts
▪ Lenient Approach
▪ Strict Approach
▪ Middle of the Road Approach (also called the “middle test”)
(1) the reasonableness of the precautions taken to prevent
inadvertent disclosure in view of the extent of document
production
(2) the number of inadvertent disclosures
(3) the extent of the disclosures
(4) the promptness of measures taken to rectify the disclosure
(5) whether the overriding interest of justice would be served by
relieving the party of its error.
Real Life Application:
▪ The defendants produced documents, including Exhibits 3, 8, 22, 25, and
34, that they wished to claw back under the court’s blanket protective
order concerning discovery and protection of possible privileged
information. The defendants raised a generalized objection that these
57
exhibits were protected by the attorney-client privilege. The plaintiffs
filed a motion to compel re-production. Exhibits 3, 8, and 25 were
entered as exhibits, formed the basis of questions, and were partially
read into the record. The defendants did not object to introduction of
Exhibits 22 and 34 and permitted the plaintiffs’ counsel to use the
exhibits to ask a witness questions. Did the defendants’ conduct
constitute an inadvertent waiver of the privilege?
Answer:
▪ Based on Hologram USA, Inc. v. Pulse Evolution Corp. (D. Nev. 2016).
▪ In Hologram, the court found that the defendant’s conduct amounted to a
waiver of the privilege.
▪ Court found that the defendants failed to object in a timely manner to the
use of the exhibits. The defendants could not merely rely on a generalized
objection to an exhibit that was not disputed. Objections must be
specific.
▪ Therefore it is likely that the defendants in this problem waived the
privilege, whether inadvertently or not.
Real Life Application 2:
▪ During discovery, the defendant disclosed two letters written to him by
his attorney. The plaintiff argued that this disclosure constituted a
voluntary waiver of the defendant’s attorney-client privilege and, as a
result, the plaintiff asked to review all of the files and records of the
defendant’s attorney. The defendant maintains the letters were
inadvertently disclosed by his paralegals during a large document
request. The defendant argues that the privilege is only waived, if at all,
regarding these two letters, and not as to other, related documents. Did
the production of the two letters during discovery act as a waiver of the
attorney-client privilege? [I would like you to use the middle of the road
approach to answer this question].
Answer 2:
28. Facts supporting no waiver:
A. Large document request, but only two disclosures.
B. Overriding interests of justice support not finding waiver.
29. Facts supporting waiver:
A. No evidence that reasonable precautions were taken to avoid disclosure.
B. No evidence that the defendant made prompt efforts to “claw back” the
documents.
Likely outcome = Waiver (Remember the privilege holder must produce
sufficient evidence to establish that there was not a waiver and that seems
unlikely on these facts).
30.
58
WORK PRODUCT DOCTRINE
A. § Two types of work product
i.
ii.
iii.
Ordinary
1. The types of documents generated in the regular course of legal practice.
2. Notes, interview summaries, drafts of documents, etc.
3. Can be discovered by the opposing party if that party shows: (1) a
substantial need for the material and (2) that the party is unable to find the
substantial equivalent without undue hardship.
Opinion
1. Any work product containing the lawyer’s mental impressions, opinions,
and strategy.
2. Extremely difficult, if not impossible, to obtain from an opponent.
HYPOS AND CASES
1. Schaeffler v. united states:
a. o We already analyzed attorney-client privilege in this case. Focus in
this excerpt is on work-product immunity for the EY Tax Memos.
b. o Tax Memo was protected work product because it was prepared at a
time that appellants believed litigation was highly probable AND
contained analyses of the strengths, weaknesses, and likely outcomes
of potential legal arguments. However, the court noted that these
documents would be protected even if litigation had not been
anticipated because it was highly detailed legal advice and analysis.
c. o Was not the type of document that would be prepared in the
ordinary course of business.
. Common Interest Doctrine
31
A. Applies when you have multiple parties and multiple lawyers—each
party having separate counsel.
B. Should be distinguished from joint representation in which multiple
people share one lawyer.
C. Operates as a kind of “safe harbor” from the requirement that protected
communications be between privileged persons.
D. The common interest doctrine treats all lawyers and clients who are
pursuing a common legal interest as a single attorney-client unit where
information can be pooled or shared and remain confidential.
How does the common interest doctrine promote the policies of the attorneyclient privilege?
▪ It encourages full client disclosure for effective representation,
which is the core purpose of attorney-client privilege.
59
It promotes cost-efficient representation because common interest
members can share information and expenses in pursuit of their
common legal matter.
What must a common interest privilege claimant show?
▪ All the normal elements of the attorney-client privilege.
▪ All clients and attorneys with access to a particular communication had in
fact agreed upon a joint approach to the matter communicated.
▪ The information was imparted with the intent to further the
common/joint approach
When does common interest doctrine not apply?
• Communications between group members with no lawyer present.
• Communications between a group member another member’s lawyer.
• If one member decides to use communications made in a joint strategy
session against another member in subsequent adverse litigation
Common legal interest agreements
▪ Common interest agreements should be memorialized in a clear writing.
▪ Example in Exhibit 5.1
▪ Primary Benefits:
▪ Important evidence of the nature and scope of the common legal
interest.
▪ Aids courts in later determining which communications relate to
that nature and scope.
▪ Permit signatories to waive the use of their common interest
communications in future litigation against another common
interest member.
▪
31.
OTHER NOTES
A. Preamble
i.
[1] A lawyer in the legal profession is a:
1. representative of clients
2. officer of the legal system
3. public citizen with special responsibilities for the “quality of justice
ii.
[2] As a representative of clients – various functions
1. Advisor
a. Provide the client with an informed understanding of the client’s legal
rights and obligations and explains their practical implications
2. Advocate
a. Assert the client’s position under the adversary system’s rules
3. Negotiator
a. Seek a result advantageous to the client but consistent with
requirements of honest dealings with others
60
iii.
[3] A lawyer may serve as a third-party neutral
1. A nonrepresentational role helping the parties to resolve a dispute
a. Rules that apply: 1.12 & 2.4
b. Different Rules apply to lawyers who are not active in practice/
lawyer acting in a non-professional capacity
iv.
[4] A lawyer should be competent, prompt, and diligent
1. Should maintain communication with a client
2. Keep confidential information concerning client-attorney relationship
v.
[5] Lawyer’s conduct should conform to the requirements of the law
1. Use law for legitimate purposes only
2. Do not use law to harass or intimidate others
3. Respect other lawyers, judges, etc.
vi.
[6] Public Citizen
1. seek improvement of
a.
The law
b. Access to the legal system
c. Quality of service rendered by the legal profession
2. Cultivate knowledge of the law beyond its use for clients
3. Employ that knowledge to reform the law
4. Work to strengthen legal education
5. Further the public’s understanding and confidence in the law
6. Be mindful of the deficiencies of law
7. Ensure equal access to the system of justice
vii.
[7] Lawyers are guided by the Rules of Conduct, substantive law, and procedural
law
1. Guided by personal conscience and peers
viii.
ix.
[8] Public will be more likely to seek legal advice when they know their
communications will stay private
[9] Ethical Problems
1. Conflict between a lawyer’s responsibilities to a client, the legal system
and the lawyer’s own ethical interests
a. Rules of Professional Conduct and professional and moral judgment
guided by basic principles resolve this
i.
x.
Principle: The lawyer’s obligation to protect and pursue a
client’s legitimate interests, within the bounds of the law,
while maintain a professional attitude towards all people
involved in the legal system
[10] The legal profession is largely self governed
1. Ultimate authority over the legal profession is vested largely in the court s
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xi.
[11] Self regulation helps maintain the legal profession’s independence from
government domination
1. Avoid abuse of legal authority
xii.
[12] We have a responsibility, as a profession, to assure that the regulations are
in the public’s interest
1. Should be able to self regulate our peers and ourselves
xiii.
Three primary Role of the attorney (1) public citizen, (2) fiduciary, and (3)
officer of the court
a. All of these are missing the term morality
B. Scope
i.
Different types of rules – some rules are partly obligatory and disciplinary and
partly constitutive and descriptive in that they define a lawyer’s professional
role
1. Imperatives
a. “shall” or “shall not”
b. Define proper conduct
2. Permissive
a. “may”
b. Defines areas under the Rules where the lawyer has discretion to
exercise professional judgment
3. Nature of Relationships
4. Comments
a. “should” does not add obligations but provide guidance
ii.
Other legal context that shapes a lawyer’s role
1. Court rules, statutes, laws defining specific obligations of lawyers,
substantive law, and procedural law
a. Comments are sometimes used to inform of these
iii.
Regulation through voluntary compliance and reinforcement by peer and public
opinion, and enforcement through disciplinary proceedings
1. Rules are a framework for ethical practice of law
iv.
Substantive law determines whether there is a client-attorney relationship
1. Duties from an attorney-client relationship flow only after the client has
requests the lawyer to render legal services and the lawyer has agreed to
do so
2. Can attach when a lawyer agrees to consider whether a client-lawyer
relationship shall be established
a. May be a question of fact
v.
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Failure to comply with an obligation or prohibition imposed by a Rule is a basis
for invoking the disciplinary process
1. Discipline is based on facts and circumstances that exi sted at the time of
conduct in question
a. Take into account that lawyers often act upon uncertain or
incomplete evidence of the situation
b. The Rules presuppose that whether or not discipline should be
imposed for a violation, and the severity of a sanction, d epend on all
the circumstances (willfulness/seriousness of the violation, previous
violations, etc.)
vi.
Violation of a Rule should not itself give rise to a cause of action against a lawyer
nor should it create any presumption that a legal duty has been breached
1. Violation of a Rule does not necessarily warrant non-disciplinary remedy
but, since the Rules do establish standards of conduct, a lawyer’s violation
of a Rule may be evidence of breach of the applicable standard of conduct
2. The Rules are designed to provide guidance and structure for regulating
conduct through disciplinary agencies
3. Not designed to be a basis for civil liability
C. Rule 3.3(a)
i.
(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
3. Offer evidence that the lawyer knows to be false.
a. If a lawyer’s client, or a witness called by the lawyer, has offered
material evidence and the lawyer finds out it is false, the lawyer shall
take reasonable remedial measures (including possibly disclosing it to
the tribunal)
b. A lawyer may refuse to offer evidence, other than testimony of a
defendant in a criminal matter, that the lawyer reasonably believes is
false
i.
Comments
1. “Tribunal” denotes a court, an arbitrator in a binding arbitration
proceeding or a legislative body, administrative agency or other
body acting in an adjudicative capacity
a. will render a biding judgment directly affecting a party’s
interest in a particular matter
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2. sets forth special duties of lawyers as officers of the court to
avoid conduct that undermines the integrity of the adjudicative
process & to present the clients case with persuasive force
3. the lawyer must not allow the tribunal to be misled by false
statements of law or fact or evidence that the lawyer knows to be
false
4. there are circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation (Rule 1.2(d))
5. The prohibition against offering false evidence only applies if the
lawyer knows that the evidence is false
a. A lawyer’s reasonable belief that evidence is false does not
preclude its presentation to the trier of fact
b. A lawyer’s knowledge that evidence is false, however, can be
inferred from the circumstances
6. Although paragraph (a)(3) only prohibits a lawyer from offering
evidence the lawyer knows to be false, it permits the lawyer to
refuse to offer testimony or other proof that the lawyer
reasonably believes is false
7. This Rule does not permit a lawyer to refuse to offer the
testimony of such a client where the lawyer reasonably believes
but does not know that the testimony will be false
a. Unless the lawyer knows the testimony will be dales, the lawyer
must honor the client’s decision to testify
8. Lawyers have a special obligation to protect a tribunal against
criminal or fraudulent conduct that undermines the integrity of
the adjudicative process
9. Withdrawal: The lawyer may be required under Rule 1.16(a) to
seek permission of the tribunal to withdraw if the lawyer’s
compliance with this Rule’s duty of candor results in such an
extreme deterioration of the client-lawyer relationship that the
lawyer can no longer competently represent the client
a. A lawyer may reveal information relating the the
representation only to the extent reasonably necessary to
comply with this Rule or Rule 1.
ii.
Notes
1. o Prohibits a lawyer from knowingly making a false statement
of law or fact to a tribunal and failing to correct a prior false
statement of material fact or law to a tribunal.
2. o Both are prohibitions in the attorney’s own conduct.
3. o Note that (a)(1) does not have a materiality requirement—
any knowing misstatement is a violation.
64
4. o The duty to disclose a prior misstatement only extends to
material facts and law.
5. Does not apply to pleadings or other litigation documents.
Cmt. [3]. These are treated as assertions of the client and not
of the lawyer
6. (a)(2) Remove the double negative in the rule and flip this
into an affirmative duty—lawyers have an affirmative duty to
disclose legal authority in the controlling jurisdiction even if it
is adverse to the client’s position unless it has been disclosed
by opposing counsel.
a. Has to be primary authority (cases, statutes, regulations).
Does not include any secondary authority (treatises, law
review articles, etc.).
b. Has to be from the controlling jurisdiction. Persuasive
authority from other jurisdictions need not be disclosed.
c. Has to be directly adverse (dicta and holdings applicable
only by analogy need not be disclosed).
d. Not subject to discipline for inadvertently overlooking a
case under Rule 3.3. But that could raise questions under
Rule 1.1 regarding competence in the representation.
7. (a)(3) o Prohibits a lawyer from offering evidence the lawyer
knows to be false.
a. First, this applies to ALL evidence—so, documentary
evidence and exhibits as well as testimonial evidence
offered by the client or a witness.
b. Second, the lawyer’s “knowledge” is critical. The duties
are different if you know evidence is false as opposed to
suspecting it may be false.
c. Third, the lawyer’s duties depend on whether the conduct is
prospective (the client expresses an intent to offer false
evidence) or retrospective (the client has already offered
false testimony and the lawyer has just discovered it).
d. Finally, the duties of the lawyer vary depending on whether
the proceeding is civil or criminal
8. (d) Imposes special obligations to disclose material facts in ex
parte proceedings.
a. Must disclose every material fact known to you that will
enable the tribunal to make a decision even if those facts
are adverse to your clients position.
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b. This rule is a response to the elimination of the normal
checks of the adversarial system in ex parte proceedings
c. Perjury in civil cases (Prospective):
● If you know the client/witness intends to testify falsely:
1. § Counsel client/witness not to testify falsely and clearly
explain the consequences (including withdraw from
representation).
2. § If client/witness agrees and lawyer is reasonably confident
perjury will not occur, proceed with representation as normal.
3. § If client/witness persists, lawyer must refuse to offer the
evidence (refrain from questions eliciting false testimony or
refuse to call to stand).
4. § If you suspect, but do not know, the client/witness intends to
testify falsely:
5. § Discuss the consequences of lying and encourage
client/witness to offer only truthful testimony.
6. § Lawyer may choose to refuse to offer the testimony or resolve
the doubt in favor of the client and offer the testimony. (But
remember you duties if you later come to know the testimony
was indeed false.)
d. Perjury in civil cases (retrospective):
i.
If you know that a client/witness has testified falsely:
1. § Counsel client/witness to correct the record. Cmt. 10
2. § Seek permission to withdraw from the representation. Cmt.
15
3. § Disclose the perjury in order to correct the record if
necessary to undo the effect of the false testimony. Cmt. 10
4. o Remember the “Four Rs”:
5. § Recess the proceedings immediately.
6. § Remonstrate with the client—try to persuade the client to
correct the perjury himself.
7. § Resign from the representation by seeking to withdraw.
8. § Reveal the perjury, if it is the only effective way to rectify the
consequences of the perjury.
e. Perjury in criminal cases
i.
If you know the defendant-client intends to testify falsely:
1. § Counsel the client not to lie and explain the consequences
(including attorney withdrawal).
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2. § Even if the client insists on lying, you cannot refuse to let
them take the stand. When client is on the stand, you should
only ask questions about which you know the client will testify
truthfully. If the client insists on offering other testimony,
which the lawyer knows is false, the client must testify in
narrative and without participation by the lawyer. Lawyer also
has a duty at that point to take reasonable remedial measures.
3. o If you suspect, but do not know, that testimony the
defendant-client intends to offer is false:
4. § Counsel client to testify truthfully.
5. § Allow the testimony and participate in its presentation.
6. § If client actually offers testimony that the attorney later
discovers was false, take reasonable remedial measures.
7. § When duty to remedy terminates
8. o The duty to take remedial actions terminates when the
proceedings are concluded.
9. o According to comment. 13, the proceedings are concluded
when the court enters final judgment and the judgment is either
affirmed on appeal or the deadline for filing a notice of appeal
has passed.
10. o So, you only have a duty to correct false evidence or
testimony if you discover the falsehood before the conclusion of
the proceedings.
f. Rule 3.3(B):
1. Lawyer’s have a duty to protect the adjudicative process from
conduct that would undermine that process. This would include
bribery, intimidating witnesses, jurors, or court officials,
unlawfully destroying documents or other evidence, and so on.
2. 3.3(b) requires a lawyer to take reasonable remedial measures,
up to and including disclosure, when they know that a person
(including their own client) is engaged or has engaged in such
conduct
ii.
HYPOS AND CASES
1. In re Richards:
a. This case primarily demonstrates the scope of a
misrepresentation of fact to a tribunal.
b. It includes direct misstatements—just outright lying about a
fact.
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c. But it can also include material omissions that create a
misunderstanding about the factual context.
d. Here, the lawyer omitted parts of a transcript while quoting
others with no indication that certain parts of the dialogue
had been omitted. The court found this was a material
misrepresentation under Rule 3.3(a)(1).
e. Remember, something similar can happen with selective
quotation of the law.
2. In re thonert
a. The respondent in this attorney disciplinary matter was
admonished under Rule 3.3 for failing to disclose to an
appellate tribunal controlling authority known to him, and
not disclosed by opposing counsel, that was directly
adverse to his client's position.
b. The Court concluded that he must have been aware of the
undisclosed adverse authority because he had also been
counsel in that case. The rule allows a court to infer
knowledge from the circumstances.
3. Committee on Professional Ethics v. Crary
● What should Crary have done when his client began to lie
during the deposition?
○ Recess the proceedings. Ask for a break in the
deposition.
○ Remonstrate with the client. Explain her obligations
to testify truthfully and encourage her to correct the
record herself.
○ Refuse to continue with representation at the
deposition if the client would not correct the record.
● Here, disclosure was not really necessary because
opposing counsel already knew he client was lying. This is
about the attorney’s obligation not to sit by idly while the
client testified falsely.
4. You are scheduled to try a motor vehicle accident case, and
your primary witness (the plaintiff) inexplicably fails to show
up to court. The case is marked “no further continuances,”
and you know that the judge will be reluctant to grant you an
extension. May you tell the judge that your client has had a
medical emergency and request a continuance on that basis?
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a. o The lawyer’s fabrication of a medical emergency to
obtain a continuance clearly violates Rule 3.3(a)(1). It
would be known to be false when made to the tribunal,
and therefore materiality is irrelevant.
b. This type of falsity is relatively harmless and almost
impossible to detect. But that type of argument implies
that the goals of the client (the ends) may sometimes
justify the means (lack of candor to the court), which is
contrary to the express priorities of the rule
5. You are representing one party to a divorce action in probate
court. Your client is seeking alimony from her longtime
husband. At the preliminary hearing after the divorce
complaint is filed, you lodge an affidavit of financial
condition stating that your client is an unemployed
homemaker. After oral argument, the judge orders the
husband to make a temporary payment of $1,000 per week to
your client pending a final decree of divorce. Following this
preliminary hearing, your client obtains a part-time job
earning $750 per week. Although your statement to the court
was accurate when made, it no longer reflects the financial
condition of the client. Do you have an ethical duty to inform
the court of your client’s recent employment, or does that
duty, if any, rest on the procedural rules of the probate court?
a. Answer: o The divorce attorney did not “offer evidence
that [he knew] to be false” at the preliminary support
hearing (See Rule 3.3(a)(3)) or knowingly make any false
statement of fact to the court (See Rule 3.3(a)(1)). The
client was actually unemployed at the time the affidavit
was filed. The fact that she later obtained a part-time job
will likely come out in interrogatories, depositions, or at
trial.
b. o Any obligation to affirmatively update her financial
status would depend on the terms of the court’s
preliminary order and the rules of the court, but not on
the rules of professional conduct.
c. If, for example, the court’s temporary alimony order
places an affirmative duty on counsel to notify the court
of any change in financial circumstances, an attorney
69
may be in violation of Rule 3.4(c) for “knowingly
disobey[ing] an obligation under the rules of a tribunal.”
6. Is dicta in an appellate opinion suggesting how a court would
likely come out in a factual setting not immediately before the
court ever “authority” within the meaning of Rule 3.3(a)(2)?
Even if it is “authority,” can it ever be “directly” adverse to
the position of a client?
a. Answer: o The definition of dicta is an observation or
remark that is not essential to a determination of a case
and therefore lacks the force of adjudication.
b. o If language lacks the force of adjudication (stare
decisis) then it cannot be “legal authority” under Rule
3.3.
c. Of course, it may be difficult to determine whether
something is mere dicta in an opinion or whether it is
central to the holding. Perhaps the best practice in such
situations (although not ethically required under Rule 3.3
because it is not known by the lawyer to be directly
adverse to his client’s position) is to drop a footnote in
your brief or memoranda recognizing the adverse
language and arguing that it is dicta and therefore not
controlling
7. Suppose that you are an assistant district attorney
representing the state on appeal from an assault and battery
conviction. The defendant unsuccessfully raised a claim of
self-defense at trial. The trial judge refused to allow the
defendant to admit evidence of prior violent conduct on the
part of the victim that was unknown to the defendant at the
time of the fight. Your case is on direct appeal before the state
supreme court. You are aware of an opinion from a threejudge panel of the state appeals court in another case holding
that prior acts of violence of the victim should be admitted in
a case involving self-defense, even if those acts were not
known to the defendant. Defense counsel does not cite this
opinion in his brief. Do you have an obligation to cite it in
your brief, even if you go on to argue that it was erroneously
decided? That is, does the word “controlling” in Rule 3.3(a)
refer to the word “authority” or to the word “jurisdiction”?
70
a. Answer: o The word “controlling” in rule 3.3(a)(2) refers
to the jurisdiction, not to the authority.
b. Thus, even though the state’s highest court is not bound
by decisions of the intermediate appellate court, that
opinion is “legal authority” in the state and must be
disclosed by the prosecutor if not disclosed by the
defendant in his brief
8. Suppose that you represent a defendant in a motor vehicle
tort case. You have examined your client’s phone records and
compared them to the police report. You know to a
substantial degree of certainty that your client was on her cell
phone to her boyfriend at the time of the accident. At her
deposition in response to questions from opposing counsel,
your client denies that she was “using” her cell phone at the
time of the crash. What are your options under comment [10]
to Rule 3.3?
a. Answer: This hypothetical tests the meaning of “know”
under Rule 3.3.
b. At a minimum, you should remonstrate with the client.
i. Ask for a break and discuss your concerns with your
client.
ii. Explain her duty to testify truthfully.
iii. Explain how the cell phone records may be used on
cross-examination and how it will affect her
credibility at trial.
iv. Ask her to explain to you what she meant by “using”
the phone at the time of the accident and encourage
her to amend or elaborate on her testimony when you
go back on the record.
c. If you later conclude that the client intentionally testified
falsely, and the proceedings have not concluded, you
should take further remedial actions, up to and including
disclosure
9. Imagine a similar case as in hypothetical #1, but the client’s
testimony occurs at trial. Your client has testified in a way
that contradicts not only her cell phone records (produced by
the plaintiff in discovery) but also her prior statements to you
during private meetings. What are your options at trial?
Would a motion to withdraw from representation (a so-called
71
noisy withdrawal) be an adequate substitute for affirmatively
disclosing the adverse fact to the court? Can such a motion
“undo the effect” of the false evidence within the meaning of
comment [10]?
a. Answer: •
Now you KNOW your client is lying
because her trial testimony directly conflicts with the
documentary evidence and confidential statements she
made to you during preparation for trial.
b. •
You have an obligation to take some form of
remedial action under Rule 3.3.
c. •
You should begin with a recess and remonstration
with the client.
d. •
If remonstration with your client fails, Model Rule
3.3 would require that you move to withdraw from
representation and, likely, disclose the factual basis for
your withdrawal motion.
e. If the judge refuses to allow you to withdraw, you may not
rely on your client’s testimony regarding cell phone use in
your closing argument
10. § You represent a UPS driver who claims that he suffered a
back injury on the job. In litigation against the company, the
plaintiff testified during his deposition that he now walks with
a cane and that he is unable to carry on normal day-to-day
activities like carrying groceries, picking up his small
children, and bending over to tie his shoes. Prior to trial,
opposing counsel presents you with photographs allegedly
taken by his private investigator showing your client jogging,
skiing, and playing golf since the time of the alleged accident.
What should you do?
a. Answer: You need to meet with your client and ask him
whether these photographs indeed depict activity that took
place after the workplace accident. If they do, you have a
duty to seek remedial measures (both comment 1 and
comment 10 to Rule 3.3 make clear that the requirements
of the rule apply to depositions).
b. If you now know the evidence is false and it was material,
you have a duty to withdraw or correct the deposition
testimony. You should encourage the client to do so on
his own.
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c. If the client is not willing to either correct the record or
dismiss the case, you should move to withdraw from the
representation and consider whether disclosure is
necessary to undo the effect of the perjury
11. You represent a defendant corporation in a shareholder
derivative action. The federal district judge granted summary
judgment in favor of your client. Plaintiffs have filed a brief
on appeal to the Circuit Court. They have neglected to cite a
case from another Circuit that directly supports their position
in the litigation. Do you have an obligation to cite this case in
your brief, even if it is to distinguish the case or argue that its
reasoning is unpersuasive?
a. Answer: The defendant’s lawyer has no obligation to cite
this decision in his brief.
b. An opinion from another circuit is not legal authority in
a “controlling jurisdiction” within the meaning of Rule
3.3(a)(2).
D. Rule 8.5 (Disciplinary Authority; Choice of Law)
i.
(a) Lawyer is subject to disciplinary authority in the jurisdiction they are
admitted to practice regardless of where the conduct occurs. A lawyer is also
subject to legal authority in other jurisdictions where they have provided or
offered legal services. A lawyer can be subject to discipline of both this
jurisdiction and another jurisdiction’s disciplinary authority.
ii.
(b) Choice of Law; Rules of professional conduct shall be applied as follows in
this jurisdiction:
1. for conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits, unless the rules of the
tribunal provide otherwise; and
2. for any other conduct, the rules of the jurisdiction in which the lawyer’s
conduct occurred, or, if the predominant effect of the conduct is in a
different jurisdiction, the rules of that jurisdiction shall be applied to the
conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct
conforms to the rules of a jurisdiction in which the lawyer reasonab ly
believes the predominant effect of the lawyer’s conduct will occur .
E. Chapter 1: The Role and Responsibility of Lawyers
i.
Model Rules are not law & various jurisdictions will adopt their own version
ii.
Through lawyers, individuals are able to gain access to governmental
power in the protection of their lives, liberty and property (protect the
rights of society as a whole & adversary system)
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1. The lawyer’s actions directly affect the extent of governmental power to
be imposed in favor of or against people and their property
2. Lawyers are instruments of government power
a. Abusing the power makes them an instrument of state oppression
iii.
Lawyers owe a special duty to (1) the integrity of the system of justice, (2) the
rule of law, and (3) the rights and obligations of individuals
iv.
Lawyers are largely self regulated
1. Some external regulations: federal and statue legislatures, administrative
agencies, constitutional law/international treaties, Congress
a. When we fail to regulate ourselves properly, other entities step in
2. The rules of professional conduct are a form of self regulation
a. Judiciaries (state supreme courts) are primarily made up of lawyers
b. The Rules of PC are drafted/adopted/enforced by lawyers
3. Lawyers have a social contract with citizens that allow lawyers to
self regulate as long as they practice in good faith
4. Sarbanes-Oxley Act (enacted by Congress): requires attorneys to report up
regarding potential violations to create minimum standards of
professional conduct for attorneys practicing before the SEC (business)
v.
The Bad Man Perspective (Holmes)
1. The practice of law is not concerned with the moral implications of those
laws/ the client’s or lawyer’s actions
a. Focuses on the actual monetary and physical consequences of
breaking the law
i.
Focuses on our role to predict and advise clients of
consequences � not concerned with moral implications
b. Self interests are dependent on their relationships to others and
implications of what they are doing and how that affects those
relationships
i.
ii.
iii.
vi.
Lawyers have their own self interests as well
Not autonomous
Need to have a moral dialogue with your client to get a better
understanding of their goals which will lead to more
effective representation
Critique of the Bad Man Perspective
1. Clients goals and decisions are not made in a vacuum, they depend on
what their relationships are to others
a. Autonomous self-interest: views clients as individualistic and
atomistic entities whose goal is to pursue and maximize their self
interest aggressively without regard to others
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b. Relational self-interest: relationally self-interested professionalism
understands clients as attempting to pursue and maximize their self
interest in relation to others
vii.
Communication, Moral Dialogue, and Role Morality
1.
Rule 1.2: A lawyer shall abide by the client’s decisions concerning the
objectives of representation
a. An attorney takes on a role morality where the lawyer acts as an
agent for the client’s purposes
b. A lawyer cannot escape being a moral agent
i.
Lawyers must assume personal and moral responsibility for
the consequences of their professional actions
2. Rule 1.4 requires an attorney disclose anything to their own clients that
could affect the settlement of a case.
a. Why? Settling is a decision trusted entirely for the client – need to tell
them any relevant information
3. Principle Responsibility: Guardians of Due Process
a. We are instruments of state power. If we abuse that power then we
become an instrument of state oppression
b. Provide individuals with access to an entire branch of government
viii.
5 Principles of Professionalism
1. Continue to grow in personal conscience over his or her career
a. Requires awareness that your conduct affects others, a reasoning
process to determine the moral goodness or blameworthiness of a
person’s conduct or intentions, and a sense of obligation to do and be
what is morally good
2. Must comply with the ethics of our legal duty – the minimum standard for
lawyer’s professional skills and ethical conduct set by the Rules
a. Conduct below the minimum floor of competence can impose
discipline
3. Strives throughout career to realize the ethics of aspiration – the core
values and ideals of the profession
a. Internalizing the highest standards for the lawyer’s professional skills
and ethical conduct
b. Core values of the profession: competent representation including
reasonable diligence and reasonable communication with the client,
loyalty to the client, confidentiality of client information, zealous
advocacy on behalf of the client constrained by the officer of the legal
system role, independent professional judgment, public service to
improve the quality of justice, particularly to maintain and improve
75
the quality of the legal profession and to ensure equal access to the
justice system
c. Ideals: commitment to seek and realize excellence at the principles of
professionalism and the core values and ideals of the profession,
integrity, honesty, and fairness
4. Agree to hold other lawyers accountable for meeting the minimum
standards set forth by the Rules and encourage them to realize the core
values and ideals of the profession
5. Agrees to act as a fiduciary where devotion to serve the client and public
good overcomes the lawyer’s own self interests
a. Devote time to helping serve the public good – pro bono work
ix.
Professional Responsibilities in Litigating, Advising, and Transactional Planning
1. Litigation – client has usually already acted and so your goal is to
mitigate liability or maximize competition
a. Safeguards in place: other party, the judge, and jury will limit your
creativity in your interpretation of the law
b. A third party neutral will decide in litigation how the law will actually
be interpreted
c. Lawyers in litigation have duties of candor to the court; they are
required to disclose controlling adverse authority and cannot make
false statements of law or fact
d. Need to provide independent and candid advice about what the law
requires – Model Rule 2.1 – not spun to be what the client wants –
clients need an honest assessment of the law that puts them on notice
of the chances of liability, prosecution or sanctions
2. Advising/Transactions- you have the power to shape your client’s conduct
a. No safeguards – lawyer can interpret law and advise client however
they wish � can lead to more risks
b. The attorney’s interpretation of the law will shape the client’s conduct
and the consequences of that conduct (including 3rd parties and
client’s own long term interests and exposure to civil or criminal
liability for those actions)
c. Lawyers as advisors must not construe must not construe and stretch
the law to mean that anything a government actor wants to do is
legal
3. Model Rule 1.2 prohibits a lawyer from counseling a client to engage in or
assist the client in engaging in criminal or fraudulent activity
a. But lawyers are allowed to advise a client regarding the legal
consequences of any proposed course of conduct and the validity,
scope, meaning, or application of the law
F. Chapter 2: Regulations on the Legal Profession
76
i.
3 Main Regulations:
1. Regulation of admission to the Bar
2. Lawyer’s discipline
3. Legal Malpractice
ii.
Who Possess the Power to Regulate?
1. The Highest State Court
a. Create a code/rule and regulate discipline of lawyers who break them
b. Lawyers can be subject to more than one jurisdiction’s rules at a time
c. Usually the Supreme Court
d. Integrated where the high court requires bar membership to practice
law for example and non-integrated where bar association
membership is voluntary
2. American Bar Association
a. Control admission into the bar
i.
ii.
Heavily regulated, each state has discretion over who to
admit, limits on state’s admissions
To get admitted into the bar you must (1) successfully
complete the educational course of study, (2)
successfully complete the bar exam, (3) successfully
complete the character and fitness test
b. Usually acceptance can be limited to ABA accredited schools to ensure
quality control
3. Character and Fitness Test
a. Requisite Fitness
i.
Mental health, sufficiently emotionally stable, free of mental
affirmatives, free from chemical dependence
b. Rule 8.1
i.
Imposes an affirmative duty on applicants, or a lawyer
recommending the applicant, to disclose facts necessary to
correct any misapprehensions about the applicant to help
provide admissions with a more complete picture of the
advocate
1. Prohibits an applicant, or lawyer recommending applicant, from
making a false statement of material fact in connection with a bar
admission application
iii.
Lawyer Discipline
1. There is no statute of limitations in most jurisdictions for filing a lawyer
discipline action
2. Rule 8.4 is the primary rule for defining the scope of professional
misconduct
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a. If you violate any rule in the model rules, you have also likely violated
Rule 8.4 and will you will likely be charged with both
b. Can’t knowingly make a false statement, misinterpret facts, or omit –
but if it was a genuine mistake it does not count – it is knowingly that
is a key term there
3. Drug and Alcohol Abuse, Financial Misconduct, etc. can get you in trouble
4. Disciplinary Process
a. Grievance, Intake, After Investigation, Hearing, Panel Findings,
Appeal, Appeal to full board
i.
ii.
Must cooperate with investigations – Rule 8.1
Clients, other lawyers, judges, etc. can initiate the process
iii.
Can suggest an alternative discipline program for lesser
misconduct
iv.
Lawyers can not be disbarred for asserting their fifth
amendment right not to testify at the disciplinary hearing,
but the assertion can be considered together with other
evidence to substantiate a charge of misconduct
v.
Potential sanctions: disbarment, suspension, public
reprimand (public censure with no removal from practice),
private reprimand (no removal), or full restitution to the
complainant, substance abuse treatment, etc.
b. 4 factors courts should consider
i.
ii.
The duty violated
The lawyer’s mental state (intentional or negligent)
iii.
The seriousness of the actual or potential injury
iv.
The existence of aggravating or mitigating factors
1. Aggravating factors: prior disciplinary offenses, selfish motive,
multiple offenses/patterns of misconduct, lack of cooperation,
false evidence/statements during disciplinary process, refusal to
acknowledge wrongdoing, failure to make restitution, harm to
victims of misconduct, expertise in the field
2. Mitigating factors: lack of prior disciplinary record, absence of a
dishonest or selfish motive, timely & good faith effort to rectify
situation, full disclosure, cooperation during process, good
character, medical disorder, remorse, etc.
c. A lawyer is not obligated to report every rule violation, only violat ions
that raise a substantial question about the lawyer’s honesty and
character fitness to practice law
i.
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Rule 8.3 also constitutes a separate violation of a lawyer’s
duty not to violate, attempt to violate or assist another in
violating the Rules, if they do not report misconduct of
another
ii.
2 exceptions to reporting: if the information is confidential
under Rule 1.6 (usually when a lawyer retains a lawyer to
represent them in a disciplinary action, that is a client attorney relationship or if the lawyer lea rns from a client of
the misconduct of a third party lawyer during a confidential
communication) and when the lawyer learns of misconduct
in an approved lawyer assistance program
G. Chapter 3
i.
Implied Attorney-Client Relationships
1. Implied clients are owed all the duties of an actual client
a. Can be formed if:
i.
Client acts in a way that a reasonable attorney in their
position would consider to have provided legal services; or
ii.
Lawyer acts in a way that a reasonable person in the client’s
position would believe that they were being offered legal
services
1. Both are objective tests
b. 3 ways to establish an implied attorney-client relationship
i.
Torts Theory
1. Whenever an individual seeks and receives legal advice from an
attorney and a reasonable person would rely on that advice
ii.
Contract Theory
1. Promissory estoppel: client relies on advice then attorney-client
relationship is made
iii.
Restatement Theory
1. Did the client behave in a way that an attorney would assume
they are seeking legal services?
2. Would a reasonable person in the client’s position rely on the
lawyer’s advice?
2. Can be sued for malpractice by an implied client
3. Courts have found an implied attorney client relationship where
attorney’s received confidential information from a person an d then
provided legal advice
a. Does not matter that the lawyer was not aware that the relationship
had formed
ii.
Prospective Client
1. Rule 1.18
2. Can be express or implied
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a. Even if an attorney is absolutely clear that he is not taking on a
representation, the attorney will still owe the prospective client the
duties set out in the rule
b. The consulting attorney is prohibited firm representing a client in the
same or a substantially related matter adversely to the prospective
client, and the disqualification is imputed to the entire firm. However,
the lawyer and law firm can avoid imputation through screening and
notice procedure in section (d) of 1.18
c. Where a person communicates information unilaterally to a lawyer,
without any reasonable expectation that the la wyer is willing to
discuss the possibility of forming a client lawyer relationship the
person is not a prospective client and Rule 1.18 does not apply
3. In Re Marriage
iii.
Counseling or Assisting the Client with Fraud or Crime
1. Rule 1.2(d) refers to conduct that the lawyer knows is criminal or
fraudulent, and the rules in turn define knowledge to require actual
knowledge but such knowledge may be inferred from the circumstances
2. Rule 1.2 allows an attorney to discuss with the client the legal
consequences of any proposed course of conduct the client makes in a
good faith effort to determine the validity, scope, meaning or application
of the law
a.
iv.
can not suggest fraudulent conduct but if the client asks you can
inform them of the legal consequences of such actions
Organizational Client
1. When representing an organization, the client is the organization not the
individual constituents
2. Entity Theory of Organizational Representation
a. The organization is a distinct legal entity
b. A lawyer as agent of the entity principle, owes her duties to the
principal and not its other agents
3. Rule 1.13(g) – A lawyer representing an organization may also represent
any of its directors, employees, members, shareholders, or other
constituents subject to Rule 1.7
4. Under Rule 1.7, a lawyer representing a entity may also represent any of
its directors, officers, employees, members, shareholders or other
constituents where the attorney reasonably believes she can provide
competent and diligent representation to each client with their written
consent
a. Only allows joint representation where the attorney reasonably
believes that she can provide competent and diligent representation
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to each affected client and each affected client gives written informed
consent
5. Rule 1.13(b) imposes a duty on the attorney to report up to the highest
authority that can act on behalf o f the entity
a. Mandatory if you reasonably believe it is reasonably going to result in
injury to the entity – disclose up
b. Permissive section – disclose out those injuries without worry of Rule
1.6 (still need to limit it as much as possible though)
6. Rule 1.13(f) requires the organization’s attorney to clarify her role and
explain the identity of the client to an organization’s constituents when
the lawyer knows or reasonably should know that the organization’s
interests are adverse to those of the constituents with whom the lawyer is
dealing – called an entity warning
a. Need to tell a constituent that our conversations are not privileged
and anything you tell me I could use against you and also must warn
them they should probably seek individual legal counsel that will
actually represent them. You represent that entity and must disclose
that you do not represent the constituent when their interests ar e
adverse.
i.
ii.
No privilege
Lawyer for entity not constituent
iii.
Seek individual counsel for adverse interest
iv.
Could be used against them
7. Comment 10 of Rule 1.13 states 4 basic points that a lawyer must explain
to a constituent
a. That the lawyer represents the organization
b. That the lawyer cannot represent such constituent
c. That such person may wish to obtain independent representation
d. That discussions between the lawyer for the organization and the
individual may not be privileged
i.
ii.
Rule 1.6 will apply to communications between the lawyer
and the constituent, but the protection accorded is for the
benefit of the client corporation, not the interviewee
Some recent cases have indicated that if no entity warning is
given and the constituent reasonably believes tha t the entity
attorney is acting on behalf of the constituent, then an
implied attorney –client relationship may exist between the
entity attorney and the individual constituent
1. But where there is adversity it would create a conflict of interest
which would require the attorney withdraw or disqualify
themselves from representing the entity or constituent
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8.
Congress enacted the Sarbanes Oxley Act, which required the SEC to
create minimum standards of professional conduct for attorneys
appearing before the SEC, and mandated that such standards include a
requirement that attorneys report up to the chief legal officer any
evidence the attorney received regarding a material violation of
securities law or breach of fiduciary duty by the company or any
constituent thereof
9. Can not report out if the attorney was hired to investigate or defend the
organization as to the allegation or claims
10. Model Rule 1.13(e) additionally requires the attorney who is fired as a
consequence of reporting information – or who withdraws under
circumstances where the rule would require or permit reporting – to
proceed as the lawyer reasonably believes necessary to assure that the
organization’s highest authority is informed of the lawyer’s discharge or
withdrawal
a. must report to highest authority that you are withdrawing
11. Rule 1.13(c) Permissive disclosure If an attorney has completed the
mandatory report up to the highest authority that can act on behalf of the
organization, and the highest authority has failed to fix or timely address
the law violation, then the lawyer is permitted to report outside the
organization – regardless of whether an exception to confidentiality
under Rule 1.6 would allow the disclosure
a. Only allowed if and to the extent a lawyer reasonably believes
necessary to prevent substantial injury to the organization
b. Does not apply to attorneys hired by an organization to investigate or
defend the organization as to allegation or claims of law viol ation
v.
Diminished Capacity Clients
1. Rule 1.14
a. Treat them as normal clients as much as possible
b. If not possible to do so, lawyers can take on a more paternal role with
client – when (1) reasonably necessary to prevent substantial harm to
the client and (2) the client can not act in the client’s own interest
i.
Even if action is appropriate, attorneys still need to be sure
they are taking the least restrictive protective actions that
they can given the circumstances
c. Lawyer may need to appoint a guardian
vi.
Attorney as Fiduciary
1. Lawyers owe clients a fiduciary duty – must safeguard client’s interests in
charging a fee, handling client’s funds and property, and withdrawing
from a case
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2. Must communicate to client the basis or rate of both the fee and expenses
that the client will be responsible for paying
a. Must also communicate the scope of representation to the client =
what legal actions the lawyer is undertaking and any limitations on
the scope of the lawyer’s services (Model Rule 1.2)
i.
Can limit scope so long as the limitations are reasonable
under the circumstances and the client gives informed
consent
b. 5 Basic Duties relating to handling client funds and property
1. Segregation
a. You can never take or borrow a client’s money ever, for any
reason
i.
Can not comingle attorney and client funds
ii.
Must keep attorney funds separate from client’s funds
iii.
Can comingle client’s funds together – may want a
separate account if a client has given a substantial
amount for a long period of time
iv.
Safeguard client’s property separate place than
attorney’s home
2. Record Keeping
a. Attorneys must keep complete records that are current and in
accordance with generally accepted accounting practices
(GAAP) in addition to any recordkeeping rules in that
jurisdiction
3. Notification
a. If the lawyer receives funds or other property as to which the
client or another person has an interest, the lawyer must
promptly notify the client or third person
4. Delivery
a. After prompt notification, lawyer must promptly deliver the
funds or property to the client or third person with ownership
interest
b. If the property or funds are in dispute then can be held by
attorney in client trust fund until resolved
c. If a client or third person claiming an interest in property or
funds held by attorney makes a request for an accounting, the
lawyer is required to promptly render a full accounting
regarding such property
5. Accounting
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3. When a fee must be collected, the lawyer and client enter into an adverse
relationship as creditor and debtor
a. Lawyer sill is fiduciary of client
4. Rule 1.5 – what you need to communicate to the client when charging a
fee
a. The rate/amount charged (if by hour especially)
b. Extra costs/charges/expenses the client will be responsible for paying
c. Scope of representation
i.
Must communicate this information before or within a
reasonable time after starting representation
5. Can not charge contingent fees in criminal cases, nor can lawyers charge
contingent fees for domestic relations when it is contingent upon the
securing of a divorce alimony, support or property settlement
6. Contingent fees require written agreements
a. The contingent fee agreement must be made in writing and signed by
the client
i.
It must contain:
1. The method by which the fee is to be determined – must include
the percentage that shall accrue to the lawyer in the event of
settlement, trial, or appeal
2. Litigation and other expenses to be deducted from recovery
3. Whether such expenses are to be deducted before or after the
contingent fee is calculated
4. A statement of any expenses that the client must pay whether or
not the client prevails
ii.
Once the litigation ends, the lawyer must provide the client a
written statement that informs the client both of the final
disposition of the action and of the remittance to the client
and the method of its determination as to any recovery
7. Model Rule 1.5(a) expressly prohibits a lawyers from agreeing to,
charging, or collecting an unreasonable fee or an unreasonable amount
for expenses – sanction tends to be disbarment
a. Unreasonable fees:
i.
ii.
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When an attorney consistently fails to perform basic skills in
a competent manner, and the client is harmed as a result, we
will not allow that attorney to collect what has become
patently unreasonable fees
Fraudulent Fees is per se unreasonable under Rule 1.5 and
can lead to criminal/civil liability for fraudulent billing
(theft)
1. Only charge for work you actually did
a. Can not increase time
i.
Can not bill an impossible number of hours
ii.
Double billing: when a lawyer charges multiple clients
each for the same block of time spent
iii.
Billing recycled work product means billing a subsequent
client for the time spent for (and already billed to) a prior
client for recusing the work product
iv.
Churning: unnecessarily overstaffing a case or
performing duplicative or unnecessary work to drive up
a bill
2. All fees are subject to refund – no fee can be non-refundable
essentially
iii.
Terminating representation
1. An attorney should undertake a representation if and only if it
appears that he can carry it through to completion (when the
attorney has performed the assistance for which the client hired
him)
2. Client can discharge a lawyer at any time with or without cause
3. An attorney lacks the right to withdraw for any reason
a. Model Rule 1.6 states mandatory and permissive reasons a
lawyer can withdraw from representation
b. 1.16(a) mandatory
i.
when the representation will result in a violation of the
law or rules of professional conduct
ii.
when the lawyer is too mentally or physically sick to
handle the case competently
iii.
client fires lawyer
c. 1.16(b) permissive
i.
allowed when (1) there would not be substantial harm to
the client’s case, (2) client had bad intentions, (3) or
client failed to pay or fulfill an obligation to the lawyer
that renders service unreasonably difficult or other good
reason
d. 1.16(c) requires in certain cases a lawyer, whether or not their
reason falls under mandatory or permissive, to request
permission from the tribunal first. If the tribunal denies the
request the attorney must stay on the case regardless of their
reason for wishing to withdrawal
e. Still owe client duties after the termination of the relationship
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i.
Need to provide client with reasonable notive of
withdrawal
ii.
Allow them time to find a new attorney to represent
them
iii.
Return all papers and files the client needs
iv.
Refund any advance fees or expenses unearned or
unreasonable
H. Competence
i.
Need to have requisite skills, legal knowledge, undertaken preparation and
perform necessary, factual knowledge about the case, procedural knowledge, act
with diligence, communicate with client and counsel
1. Without competence, you can not protect a client’s interests
2. Courts will bind clients to attorney’s incompetence sometimes – will not
reverse judgment for client who choose a lawyer that happens to be
incompetent
3. Model Rule 1.1 has four basic components for competent representation
a. Legal knowledge
i.
ii.
Analysis of precedent, evaluation of evidence, legal drafting,
and issue spotting
Knowledge of substantive law and procedural rules
b. Skill
i.
Look at section iii (inexperienced lawyers)
c. Thoroughness
i.
Undertake reasonable preparation measures – obtaining
requisite factual information
d. Preparation
ii.
Core duties essential to protecting a client’s rights (and avoid liability):
1. Competence
2. Diligence
a. Rule 1.3 requires lawyers to act with reasonable diligence and
promptness in representing a client
b. Pursue a claim despite opposition, obstruction, or personal
inconvenience to the lawyer, and take whatever lawful and ethical
measures are required to vindicate a client’s cause
c. Can not procrastinate
d. Case on page 195.
3. Communication
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a. Model Rule 1.4 – need to promptly inform client of circumstances that
require the client’s informed consent (civil –settlements, criminal –
jury, plea, testifying)
b. Attorney – client relationship is an agency relationship – lawyers
(agent) serves the interests of the client (principal)
c. Communication allows a client to control the agency relationship,
inform the attorney about goals and objectives, and provide the
attorney with the necessary and relevant information about
representation
i.
iii.
Client needs sufficient information to participate
intelligently in making decisions regarding the
representation
Inexperienced Lawyers
1. Can still be competent in practice without much experience in two ways:
a. Through necessary study and preparation
b. Through association with an attorney of established competence
2. Factors to consider when deciding whether an attorney can competently
take on representation
a. Complexity of the matter
b. Lawyer’s general experience
c. Lawyer’s training, experience in this field of question
d. Lawyers ability to prepare and study the matter
I.
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Whether it is feasible to refer the matter to a more experienced lawyer or consult
with them