Professional Responsibility

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Where do “Ethics” rules come from?[edit | edit source]

    1. Different Perspectives
      1. Client
        1. The client is the center of the universe, if not the whole universe
      2. Lawyer
        1. Lawyers and the legal profession also deserve autonomy
        2. Goal: protect the rights and to honor the autonomy of clients in a complex legal world
      3. The bad client problem
        1. Rules must permit lawyers to protect the victims of a client’s ongoing illegal conduct, even if that harms the client
      4. The tempted lawyer problem
        1. Rules should forbid lawyers ever to occupy positions in which the risk of betrayal is too high
      5. The poor lawyer problem
      6. The justice and fairness model
        1. Justice and fairness are goals of law
        2. Must ensure that the content of those rules respects the law’s concern for justice and fairness
      7. The professional conspiracy theory
        1. Ask two questions
          1. Whether the rule serves a useful purpose
          2. Whether that purpose is mostly or only useful to the bar
      8. The “in service of other theories” theory
        1. Content of ethical rules should further other areas of legal and jurisprudential study
    2. Who makes the rules?
      1. First Amendment
        1. Lawyer advertising and solicitation, lay participation in law offices, especially public interest offices, the right of lawyers to criticize judges, etc.
      2. Sixth Amendment
        1. Guarantee of effective assistance of counsel in criminal cases
      3. Fifth Amendment
        1. Takings clause – requires lawyers to put certain escrow funds into interest-bearing accounts, with the interest going to the state to fund legal services for populations in need
      4. Due Process Clause


Defining the Attorney-Client Relationship[edit | edit source]

    1. Who is a client?
      1. Formation of attorney-client relationship
        1. When a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person and the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services
        2. Payment is generally a good evidence
        3. Can arise via website
    2. What do lawyers owe clients?
      1. Competence
        1. Rule 1.1 – a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
        2. Distinct from malpractice
          1. Malpractice is meant to compensate those who have been harmed by the lawyer’s breach of duty
          2. Competence standard is meant to ensure an acceptable level or performance by lawyers generally for the public’s protection.
          3. A single act that constitute malpractice will not ordinarily make the lawyer subject to discipline on the grounds of competence.
        3. Does not require possession of expertise at the beginning of representation
          1. Lawyer not required to know everything about client’s claim before undertaking representation
          2. It is not a breach of competence for lawyer to undertake representation without necessary knowledge if it can acquired through reasonable diligence.
        4. Basic skills and knowledge are always required.
          1. This includes an understanding of the use of precedent, legal research skills, an ability identify and evaluate a client’s problem, and writing o drafting skills.
        5. Emergency
          1. In an emergency situation, a lawyer may provide limited assistance to a client in a matter on which the lawyer would ordinarily require further study or research before service was rendered. However, the lawyer must limit this service to that which is necessary under the circumstances
        6. Continuing competence
          1. Must maintain competence throughout careers
          2. This includes competence in technology
      2. Confidentiality
        1. Rule 1.6 – cannot reveal confidences
        2. Confidence – information relating to the representation of a client
        3. The Duty and Privilege
          1. ''''Scope of the attorney-client privilege
            1. When information is within the ethical duty of confidentiality but outside the protection of evidentiary privilege, a judge may order the lawyer to speak in the form of testimony or otherwise.
          2. Parameters of the evidentiary privilege
            1. Clients or prospective clients
              1. Privilege applies to communication from a client or prospective client
            2. Desire for confidentiality required
              1. Setting - Privilege is not created when the communication is made in circumstances that do not indicate a desire for confidentiality by the client
              2. Eavesdropper - Testimony of eavesdropper is inadmissible upon assertion of privilege
              3. Multiple Clients – Each client holds a separate right. Client A cannot stop Client B from waiving privilege.
            3. Communication, not knowledge
              1. Knowledge is not protected, even when questions under oath reveal what the client has communicated in confidence.
            4. Lawyer observations
              1. These are protected as long as the lawyer doesn’t prevent third parties from making the same observation.
            5. Physical evidence
              1. Items collected by the lawyer are not privileged
            6. Exceptions
              1. Client holds privilege – Client waiver to a third party eviscerates privilege.
              2. Future Crimes & Frauds – Communication that further future crimes or frauds are exempted from protection.
        4. To Whom is the Duty Owed?
          1. Generally
            1. Current Clients
            2. Former Clients
              1. It would foster little communication if privilege ran out when representation ended.
            3. Prospective Clients
              1. Imposed as soon as lawyer and client start communications.
            4. No Fee Necessary
              1. It is not necessary for a fee to be charged for the duty and privilege to kick in
              2. Perez below
          2. Organizational Clients
            1. Agents of the organizational client
              1. Protected if 2 conditions are met:
                1. The information communicated is treated as confidential within the organization, and
                2. It is communicated to the lawyer so that the lawyer can give advice or counsel to the organization
            2. Government agency client
              1. Res. § 74 – unless applicable law otherwise provides, the AC privilege extends to a communication of a government organization
          3. Clients and Lawyer Agents
            1. Lawyer Agents
              1. Communication to lawyer agents is treated as if it were made directly to the lawyer
            2. Client Agents
              1. Communications from clients through agents are treated as if they were made directly from the client
        5. To What Does the Duty Apply?
          1. Duty of confidentiality or evidentiary privilege
            1. To be protected by evidentiary privilege, the information must come from the client or the client’s agent.
            2. Information the lawyer learns from third parties is protected by the duty of confidentiality but not from privilege.
          2. Duty of confidentiality is broader than evidentiary privilege
            1. Lawyer observations
              1. Protected by duty of confidentiality
            2. Communications from third parties
              1. Protected by duty of confidentiality.
            3. Work Product
              1. Thoughts and strategies about representation protected by duty of confidentiality.
              2. Also protected by work-product doctrine
          3. Duty to Protect Information
            1. Lawyer must take reasonable steps to prevent inadvertent disclosure.
        6. Exceptions to the Duty of Confidentiality
          1. May/Must Distinction
            1. If an attorney’s situation meets an exception then they MAY disclose the information
            2. If court orders lawyer to reveal confidence then he MUST
          2. Consent
          3. Implied Authorization
            1. To carry out the purposes of the representation, some information that would be subject to the duty of confidentiality must be disclosed.
          4. Self-defense and Fees – MR 1.6(b)(3)
            1. The three categories of self-defense permitted disclosure
              1. To establish a claim or defense on behalf of the lawyer in controversy between the lawyer and the client.
              2. To establish a defense to a criminal charge or a civil claim against the lawyer based upon conduct in which the client was involved.
              3. To respond to allegations in any proceeding concerning the lawyer’s representation
              4. To inquire to another attorney as to whether a given action would violate the MR.
            2. Limited disclosure of facts
              1. Obligated to only disclose necessary information necessary to defend oneself
            3. Limit disclosure to individuals
              1. Obligates to only disclose information who need to know
          5. Future Crimes, Frauds, and Harms
            1. Distinct from past crimes or frauds
            2. Policy rationale
              1. Lawyer would have moral responsibility for future actions that he would not have for past actions.
            3. Noisy Withdrawal
              1. The Model Rules permit a form of withdrawal that will often implicitly reveal protected client information.
              2. Lawyer may inform interested parties of the withdrawal but not details
              3. Lawyer may disaffirm opinions, documentation, etc.
            4. Disclosure Qualification
              1. May reveal “To the extent the lawyer reasonably believes necessary”
        7. Perez v. Kirk & Carrigan
          1. Crashes Coke truck into school bus, kills 21 kids
          2. Kirk & Carrigan told Perez that they were his lawyers and anything he told them would be confidential
          3. They told DA’s office
            1. Argued they had no duty
            2. Had to disclose to comply with DA’s request under threat of subpoena
          4. Holding: confidentiality duty may be implied w/o payment
            1. Breach of fiduciary duty
            2. Perez suffered emotional damage
          5. Applies to preliminary discussions
        8. What Information is Privileged?
          1. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client
            1. Between himself or his agent and his lawyer or his lawyer’s agent
            2. Between his lawyer and the lawyer’s agent
            3. By him or his lawyer to a lawyer representing another in a matter of common interest
            4. Between agents of the client
            5. Between the client and an agent of the client
            6. Between lawyers representing the client
        9. Ethically protected information distinction
          1. Information within the scope of Rule 1.6(a)
          2. Ethically Protected –Forbids revelation and use of a client’s information absent an exception
          3. Privileged – entitles a lawyer and client to refuse to reveal communications between them
        10. Policy reasons for confidentiality
          1. Encourages client to trust lawyer and provide information
          2. It is just right to do so. A lawyer should respect a client’s autonomy and privacy
        11. Upjohn Co. v. United States
          1. Corporation told about possible transactions to foreign nations that were illegal
            1. Sent out questionnaires
            2. Subpoenaed by the IRS
          2. Issue: were the questionnaires privileged?
            1. Control group test applied by Appeals court
            2. Supreme Court rejects control-group test because it doesn’t serve purposes of attorney-client privilege
              1. Sometimes lower-level employees have more pertinent information
              2. Communication was by employees to counsel acting as counsel; therefore, it is privileged
          3. Rule: The attorney-client privilege between a corporation and its counsel extends to communications between counsel and noncontrol-level employees
        12. Restatement § 73
          1. Privileged if communication is
            1. Between an agent of organization and a privileged person
            2. Concerns legal matter
            3. Is disclosed only to:
              1. Privileged persons and
              2. Other agents of organization who need to know
        13. Samaritan Foundation v. Goldfarb
          1. Child’s heart stopped
          2. Paralegal interviewed employees present
          3. Each signed a form agreeing to accept legal representation
          4. Issue: does the corporate attorney-client privilege apply to all corporate employee communications made to counsel?
          5. Rule/Holding: An employee’s communications to corporate counsel are within the corporation’s privilege if they concern the employee’s own conduct within the scope of her employment and are made to assist the lawyer in assessing the legal consequences of that conduct for the corporation
        14. Tests for describing the attorney-client privilege for orgs.

States are free to define their own standards under state law

  1. Control group test – officers and agents responsible for directing the company’s actions in response to legal advice. Rejected by Supreme Court.
  2. Upjohn broad subject matter test – includes within the privilege communications by all employees who speak at the direction of their corporate superiors to the corporation’s lawyer regarding matters within the scope of their corporate duties in order to facilitate the formulation of legal advice for the corporation
  3. Upjohn narrow functional test – focuses on the relationship between the communicator and the need for legal services – uses Samaritan holding
  4. ''''Res. § 73 – uses the term “organizational client” and includes within that category corporations, unincorporated associations, partnerships, trusts, estates, sole proprietorships, and other for-profit or not-for-profit orgs.
  1. Agency
    1. Generally
      1. An authority to act and speak for the client on the subject of the retainer
      2. Acting for client means that lawyer’s conduct may be attributable to client even if lawyer makes negligent mistake or willfully misbehaves
      3. “litigant chooses counsel at his peril”
      1. Rules
        1. Rule 1.2 – Scope of representation and allocation of authority between client and lawyer
        2. Rule 1.3 – Diligence
        3. Rule 1.4 - Communication
        1. Taylor v. Illinois
          1. Taylor convicted after court refused to allow him to call a “surprise” witness because his defense lawyer had failed to provide the prosecutor with the name of the witness
          2. Taylor clamed that it violated his Sixth Amend. Rights under Compulsory Process Clause
          3. Rule: the client must accept the consequences of the lawyer’s decision to forgo cross-examination, to not put certain witnesses on the stand, or to not disclose the identity of certain witnesses in advance of trial
          4. Decisions attorney cannot make without client waiving
            1. Jury trial
            2. Settlement
            3. Testifying
          5. Brennan’s dissent: views this as misconduct—client can’t be punished for lawyer misconduct
        2. Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc.
          1. BMF filed suit in contract suit
          2. For nine months, the attorney tells them that everything is fine—attorney Hinterlong didn’t respond to pleadings or discovery rules
          3. Statute: district court may reopen a judgment for any other reason justifying relief from the operation of the judgment—extraordinary and exceptional circumstances
          4. Rule: all of attorney’s misconduct becomes the problem of the client. Client can recover through malpractice suit.
        3. Vicarious admissions
          1. Lawyers statements may be vicarious admissions
          2. ''''Vicarious admissions may be used against the client at trial, but they do not bind the client—the client may disown them or introduce contrary proof
          3. Judicial admissions bind clients—statements made in a case then on trial
        4. Fiduciary duties
          1. Three reasons for fiduciary obligations
            1. The client expects it
            2. The lawyer may have acquired information about the client that gives him an unfair advantage in dealings with the client
            3. Many clients will not be in a position to change attorneys, but rather will be financially or psychologically dependent on the attorney’s continued representation
        5. Loyalty and Diligence
          1. The duty of loyalty requires the lawyer to pursue, and to be free to pursue, the client’s objectives unfettered by conflicting responsibilities or interests
          2. The Rules say that a lawyer shall act with reasonable diligence and promptness in representing a client
        6. Nichols v. Keller
          1. Nichols injured on job
          2. Lawyer files workers’ comp claim—didn’t tell him about possible tort claims, SOL runs
          3. Rule: an attorney may be obligated to alert a client to legal remedies outside the direct scope of that attorney’s representation of the client
        7. The Client’s Right to Know
          1. Three consequences of lawyer failing to inform client
            1. Exposure to malpractice liability
            2. Finding of ineffective assistance of counsel
              1. Missouri v. Frye – lawyer can be found constitutionally ineffective for failure to inform client of plea bargain
              2. Lafler v. Cooper – seriously deficient advice to reject a plea offer
            3. May result in discipline
    1. Autonomy of Attorneys and Clients
      1. The Lawyer’s Autonomy
        1. The right to live one’s life as one chooses even if others find the choices imprudent, repugnant, or morally unprincipled
        2. Jones v. Barnes
          1. Barnes claimed to have constitutional right to have public defender raise every non-frivolous issue
          2. ''''Rule: Role of advocate requires that he support his client’s appeal to the best of his ability
            1. An indigent defendant has no constitutional right to compel appointed counsel to press non-frivolous points requested by the client if counsel decides not to present those points
          3. Brennan dissent: right to counsel includes right to decide which non-frivolous issues should be raised on appeal against the advice of counsel if he chooses
        3. Scope of lawyer’s autonomy
          1. Rule 3.3(a)(3) permits a lawyer to decline to offer evidence that the lawyer reasonably believes is false
          2. Lawyer’s have ethical discretion to refuse to assist in the pursuit of legally permissible courses of action and in the assertion of potentially enforceable legal claims
      2. The Client’s Autonomy
        1. Rule 1.14 – client with diminished capacity
        2. Rule 1.16 – declining or terminating capacity
        3. Olfe v. Gordon
          1. First mortgage case – lawyers intentionally misled client to believe that she was taking first mortgage when it was a second mortgage
          2. Rule: an attorney may be liable for all losses caused by his failure to follow with reasonable promptness and care the explicit instructions of his client
        4. Petrovich
          1. Wanted no lesser-included offenses
          2. Convicted of murder
          3. Client’s poor wisdom cannot relieve him of the consequences of his request
        5. Doctrine of judgmental immunity
          1. When they err, the doctrine of judgmental immunity may protect them from liability
          2. The doctrine holds that a lawyer’s judgment or recommendation on an unsettled point of law is immune from suit even if it turns out wrong, so long as it is reasonable
        6. Clients with Diminished capacity
          1. Counsel shall be responsible to meet with the alleged incompetent; to make inquiry of persons having knowledge of the alleged incompetent’s circumstances, his physical and mental state and his or her estate; and to file, in lieu of an Answer, a written report of findings and recommendations to the court at least three days prior to the hearing
          2. Guidelines
            1. A declaration of incompetency does not deprive the person of the right to make all decisions
            2. The primary duty of the attorney for such a person is to protect that person’s rights
            3. The attorney should advocate any decision made by the person
            4. The attorney may inform the court of the possible need for a guardian ad litem, on perceiving a conflict between that person’s preferences and best interests
      3. Terminating the Relationship
        1. Termination by the client
          1. Rejection of Representation
            1. Clients may fire their lawyers for any reason or no reason Rule 1.16(a)(3)
            2. When a professional relationship ends, whether terminated by the lawyer or the client or simply at the end of the matter, the client is presumptively entitled to the lawyer’s entire file on the represented matter
            3. Narrow exceptions will entitle the lawyer to keep firm documents intended for internal law office review and use
        2. Termination by the lawyer
          1. Rule 1.16
            1. Lawyer who abandons a client loses all right to compensation
            2. Courts will allow lawyers to withdraw if a client is seriously delinquent in paying fees
          2. Mandatory Withdrawal
            1. Continued representation will violate the ethics, rules. Rule 1.16(a)(1)
            2. Continued Representation will violate other law, Rule 1.16(a)(1)
            3. Lawyer’s physical or mental health Rule 1.16(a)(2)
            4. Lawyer is discharged, Rule 1.16(a)(3)
          3. Permissive Withdrawal
            1. No material harm to client, Rule 1.16(b)(1)
            2. Causes that will excuse material harm to the client.
              1. Lawyers reasonable belief that client is acting criminally or fraudulently,

Rule 1.16(b)(2)

  1. Past use of service for crime or fraud,

Rule 1.16(b)(3)

  1. Client’s actions that are repugnant or imprudent, Rule 1.16(b)(4)
  2. Client failure to meet obligations,

Rule 1.16(b)(5)

  1. Unreasonable financial burden,

Rule 1.16(b)(6)

  1. Client unreasonably difficult to work with,

Rule 1.16(b)(6)

  1. Other good cause, Rule 1.16(b)(7)
  1. Court Order to Continue
    1. Even with good cause the court may order the lawyer to continue the representation, Rule 1.16(c)
    1. Procedural Requirements for Withdrawal
      1. Notice – Client must be given reasonable notice before the withdrawal is affected. Clients need a reasonable opportunity to obtain new counsel when their lawyers are about to withdraw. Rule 1.16(d)
      2. Court Approval – Rule 1.16(c)
      1. Duties Upon Termination
        1. Minimize Harm – Rule 1.16(d)
        2. Fee Refund – Fees paid that have not yet been earned must be refunded upon withdrawal
        3. Client’s Papers and Property – Papers and property in the lawyers possession which belong to the client even if the client has not paid.
        1. Fee Liability Upon Termination – Rule 1.16(d)
          1. Fixed or Hourly Fees – Fee is calculated upon discharge as the value of the services rendered.
          2. Contingent Fees – Some courts hold that an attorney is entitled to no fee. Others hold that the lawyer is entitled to the whole fee if the client eventually recovers.
        1. Termination by Drift
          1. Courts recognize what we might call an episodic client – a firm may have done work for a client two or three times a year for the past five years, creating a reasonable client expectation that the professional relationship continues during the intervals


Protecting the Attorney-Client Relationship[edit | edit source]

    1. Rules
      1. Rule 4.2 – communication with person represented by counsel
        1. Must be representing opponent
        2. Knowledge of representation is requisite
        3. Can contact uncertified classes without representation
        4. Only forbidden to communicate about subject of representation
        5. Other person may give consent
        6. Cannot use proxy to communicate
        7. Videotaping employees is allowed, testers are allowed
      2. Rule 4.3 – dealing with an unrepresented person
      3. Rule 4.4 – respect for rights of third persons
    2. Communicating with Another Lawyer’s Clients
      1. The Rules Prevent Lawyers From
        1. Getting damaging admission from the opposing client
        2. Learning a fact or getting a documents the would not learn or get if counsel were preset
        3. Settling or winning a concession or learning the client’s true position in negotiation
        4. Learning the client’s strategy or gaining information protected by the attorney-client privilege or the work-product doctrine
        5. Weakening the opposing client’s resolve by casting doubt on the strength of his position; and
        6. Disparaging the opposing lawyer to the client
      2. Niesig v. Team I – Civil Matters
        1. Niesig’s attorney wanted to conduct interviews with a corporate adversary’s employees without presence of the corporation’s counsel
        2. Rule: an attorney may conduct ex parte interviews with a corporate adversary’s current employees if the employees do not have the power to bind the corporation
        3. Rejects control group test and blanket test
        4. Uses balancing test – party includes corporate employees whose acts or omissions in the matter under inquire are binding on the corporation – in effect, alter egos of the corporation; all other employees may be interviewed informally
      3. When the Government is the Adversary
        1. Except in a negotiation or litigation of a specific claim against a governmental agency or against a governmental officer in the officer’s official capacity, the prohibition does not apply
      4. Testers
        1. Testers pretend to be someone they are not for a specific purpose
          1. Some pretend they want to rent an apartment
        2. Testers are ordinarily allowed if they do more than pretend to be a member of the buying public seeking only information that the seller freely offers to anyone
      5. United States v. Carona – Criminal Matters
        1. Federal prosecutors were found to have violated rules by communicating with Carona through Haidl (a witness) whom they had given fake documents to
        2. Rule: prosecutors do not violate their ethical obligations by communicating pre-indictment with an attorney-represented defendant through a cooperating witness who uses falsified documents provided by the prosecution to obtain evidence from the defendant
    3. Improper or accidental acquisition of confidential information
      1. Inadvertent disclosure
        1. Lawyer receiving such materials should refrain from examining them any more than is essential to ascertain if the materials are privileged and should notify sender immediately
        2. Rule 4.4(b) – requires prompt notice to the opposing lawyer when a recipient knows or reasonably should know that a document was inadvertently sent
        3. Three approaches
          1. Inadvertent disclosure never forfeits privilege
          2. Always forfeits
          3. Sometimes forfeits
            1. Allows courts to consider the reasonableness of precautions taken to prevent disclosure
            2. The amount of time it took to the party to recognize its error
            3. The scope of the production
            4. The extent of the disclosure
            5. The overriding interest of fairness and justice


Lawyers, Money, and the Ethics of Legal Fees[edit | edit source]

    1. Types of fees
      1. Flat rate
      2. Contingent
      3. Minimum
      4. Retainer
      5. Court-awarded
    2. Reasonableness Standard
      1. Generally
        1. Fee’s must be reasonable, governed by Rule 1.5
      2. Factors – Rule 1.5(a)
        1. Time – The time and labor involved in the representation
        2. Novelty – The commonness or novelty of the issues.
        3. Skill – The skill required to successfully represent client.
        4. Preclusion of other employment – Some representation may preclude other employment either because of time and energy or potential conflicts.
        5. “Going rate” – The fee charged by others locally.
        6. The Amount Involved and the Results Obtained – The magnitude of the client’s economic or other interests that are involved in the representation and the results obtained
        7. Time Exigencies – Time restrictions that are imposed
        8. 'The Professional Relationship With the Client – The way in which the particular lawyer-client relationship developed.
        9. Lawyer Quality – The experience, ability, and reputation of the particular lawyer.
        10. The Nature of the Fee Arrangement – Whether the fee is fixed, hourly, contingent, retainer, etc.
          1. Post-retainer fee agreements - When the fee agreement is reached or modified after the attorney-client relationship is formed, courts are especially strict in reviewing it
        11. In re Laurence S. Fordham – Unethical Fees
          1. Fordham represented Clark in a DUI case and used a novel idea to get Breathalyzer results suppressed
          2. He charged $50,000—was it unconscionable?
          3. Rule: in determining whether fees are clearly excessive, a court may examine the difficulty of the issues presented, the time and skill required to perform the legal service properly, and the fee customarily charged in the locality for comparable services
          4. Held unconscionable despite “safe harbor” rule-agreement made prior to the fee accruing and they knew of the time necessary
    3. Writing and Timing
      1. Written contract setting he fee is preferred but not required. The terms of the agreement including the fee should be made known to the client before or soon after representation begins.
    4. Contingent Fees
      1. Generally
        1. Lawyer’s fee depends on the occurrence or non-occurrence of an event-usually recovery of a sum of money, and the fee is a percentage of it
        2. Rule 1.8(i) makes the contingent fee an exception to a general prohibition against a lawyer acquiring an interest in the client’s claim
      2. Weighing favorability of contingent vs. hourly fee
        1. The likelihood of the occurrence of the contingency
        2. When it is likely to occur
        3. The probable size of the recovery
        4. The amount of work required
        5. The size of the lawyer’s percentage
      3. Prohibited Use Case Types – 1.5(d)
        1. Domestic Relations – Intrusion of a lawyer whose fee depends on such matters into sensitive domestic-relations matters is thought to be too risky to the sensitive and important relationships between spouses and between parent and child, MR 1.5(d)(1)
        2. Criminal Matters – Restricted because of the special public interest involved in criminal matters, MR 1.5(d)(2)
      4. Other Restrictions – MR 1.5(c)
        1. Writing and Terms – A contingent fee must be in writing and signed by the client. The written agreement must explain the way in which the fee will be calculated and, in particular, the way in which deduction for expenses will be calculated.
        2. Ending Statement – The lawyer must provide and ending statement in writing to the client explaining the outcome of the matter and providing the calculation of the fee and expenses.
      5. Brobeck, Phleger & Harrison v. Telex Corp. – Contingency Fee
        1. Telex hired Brobeck on a contingency fee of $1 million
        2. Brobeck won and then Telex claimed it was an unconscionable amount
        3. Rule: a contingency fee of $1 million for handling a writ of certiorari to the SCOTUS is not unconscionable – Telex is a sophisticated party and the case dealt with its very being as a company
    5. Fee Splitting
      1. Generally
        1. Routine practice among lawyers in the same firm.
        2. Forwarding fee not allowed. - a fee charged by a lawyer who does no more than send a prospective client to another lawyer who actually provides the legal service.
      2. The Modern Requirements – MR 1.5(e)
        1. Proportion to services or joint responsibility – The fee splitting lawyers must either share the fee in proportion to the services rendered by each lawyer or the lawyers must assume joint responsibility for the representation. MR 1.5(e)(1)
        2. Client agreement – The client must agree to the fee splitting arrangement by all lawyers involved and the agreement must be confirmed in writing. MR 1.5(e)(2)
        3. Total fee must be reasonable – The total fee charged must continue to comply with the general standard of fee reasonableness. MR 1.5(e)(3)
      3. With former partners
        1. If the agreement provides for it, fees may be shared with former partners and associates of the primary lawyer
      4. With nonlawyers – Limited circumstances
        1. Lawyer’s estate – Fees may be paid into a lawyer’s estate or as death benefit pursuant to an agreement governing a firm’s operation and organization
        2. Retirement plan – Fees may be shared with nonlawyer firm personnel through a retirement or compensation plan for those employees.
    6. Court Awarded Fees
      1. Allowed - pursuant to both court appointment to representation and various statutes that allow for collection of attorney’s fees.
      2. 'Evans v. Jeff D.
        1. A consent decree ending a civil rights action contained a waiver of statutory attorney fees, a provision invalidated on appeal
        2. Rule: a consent decree ending a civil rights action may contain a fee waiver—statute made it discretionary
    7. Minimum Fee Schedules
      1. Price floor for certain services are prohibited.
      2. Goldfarb v. Virginia State Bar
        1. The Goldfarbs (P) contended that a minimum-fee schedule published by the Virginia State Bar (D) constituted price fixing in violation of the Sherman Act.
        2. Rule: Minimum fees mandated by a state bar may constitute price fixing in violation of the Sherman Act.
    8. Fee Forfeiture
      1. Fees paid by clients from crime proceeds may be forfeited to the government

Concurrent Conflicts of Interest[edit | edit source]

    1. Rules
      1. Rule 1.7 – Conflict of Interest: Current Clients – cannot represent client if it will be directly adverse to another client’s interests
        1. A current client conflict exists if 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
      2. Rule 1.8 – Conflict of Interest: Current Clients: Specific Rules
      3. Rule 5.4(c) – Professional Independence of a Lawyer – a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services
      4. Rule 5.6 – Restrictions on right to practice – lawyer shall not enter into arrangement that will restrict his right to practice
      5. Rule 8.3 – Reporting Professional Misconduct – lawyer shall inform appropriate authority if another lawyer or judge commits violation of RPC unless protected by Rule 1.6
      6. Rule 1.10 – Imputation of Conflicts of Interest
      7. Consequences—discipline, disqualification, delay of a client’s cause, fee forfeiture, negative publicity
      8. Notes
        1. These are strict liability rules
        2. Doubts are resolved in favor of disqualification
    2. Types of conflicts
      1. Current client – Lawyer’s loyalties divided between two or more current clients that he is currently representing
      2. Former client
      3. Imputed Conflicts – Lawyer is prevented from representing a client because of the relationship between a partner in his firm and her concurrent or a former clients.
      4. Government-lawyer – Special rules exist to encourage lawyers to go to work for government without the fear they will find it hard to find a job when they leave due to imputed conflicts
      5. Lawyer-witness – A lawyer cannot be both advocate and witness
      6. Organizational lawyer – Conflicts that arise through representation of an entity in dealing with its officers and employees.
      7. Conflicts in conflict rules – When a dispute touches more than one jurisdiction and their conflicts rules differ, the court decides which one to give deference to.
      8. Conflict rules as default rules – Clients can demand more or less than the rules require by default.
    3. Client-Lawyer Conflicts
      1. In re Neville
        1. Neville entered into real estate transaction with his client Bly and a third party in which Bly claimed the terms of the contract were adverse to his interest
        2. Rule: whenever lawyers knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, the client must be given a reasonable opportunity to seek the advice of independent counsel
        3. Neville’s interest was adverse to his client’s
      2. Media Rights
        1. Rule 1.8(d) forbids lawyers to acquire publicity rights to a story based on the subject of the representation before its conclusion
      3. Financial Assistance and Proprietary Interests
        1. Rule 1.8(e) permits the lawyer to make repayment contingent on the outcome of the matter and does away with repayment entirely if the client is indigent. But the Model Rules forbid a lawyer to advance more than court costs and the expenses of litigation
      4. Fee-Payer Interests
        1. Rule 1.8(f) and 5.4(c) permit payments by a relative under certain circumstances. The client must consent to the arrangement; the payer must not interfere with the lawyer’s independence of professional judgment or with the client-lawyer relationship and the lawyer must protect the client’s confidences
      5. Gellman v. Hilal
        1. Because Hilal had previously been represented by the wife of Gellman’s present attorney, Bogaty, Hilal sought to disqualify Bogaty as a conflicted lawyer
        2. Rule: Lawyers who are related as parent, child, sibling, or spouse may represent direct adversaries only if the clients consent after consultation
        3. No per se rule of disqualification based on marital status
    4. ''''Client-Client Conflicts
      1. Criminal Cases Defense Lawyers
        1. Generally - Issues of concurrent conflicts between clients in criminal representation arise when a single lawyer represents two or more defendants or persons under investigation
        2. Cuyler v. Sullivan
          1. Sullivan, convicted of murder along with two accomplices, was granted habeas corpus because the court found the possibility of conflict in his representation after his attorneys rested without presenting evidence because of apparently weak case by state
          2. Rule: the mere potential of a conflict of interest in representation is not sufficient to invalidate a conviction
          3. Retrospective test: did defense counsel labor under a conflict that affected her performance? Prospectively: Will the defense lawyer’s alleged conflict lead to ineffectiveness?
        3. Turning Conflicts into Sixth Amendment Claims After Cuyler v. Sullivan
        4. Holloway Error
        5. Disqualifications of Defense Counsel
        6. Strickland v. Washington
          1. Rule: Must be able to show that a different result would have been had with a different attorney
        7. Wheat v. United States
          1. District Court ruled that a conflict existed then refused to allow Wheat to retain the same counsel who was representing Wheat’s codefendants in a drug conspiracy trial
          2. Rule: if a trial court believes that representation of a defendant by an attorney presents a serious potential for conflict, the court may refuse to permit that representation, even in the face of a waiver
      2. Criminal Cases - Prosecutors
        1. Young v. United States ex rel. Vuitton et Fils S.A.
          1. In a criminal contempt proceeding ancillary to a trademark infringement suit, counsel for Vuitton was appointed as prosecutor against Young
          2. Rule: counsel for a party that is a beneficiary of a court order may not be appointed as a prosecutor in a contempt action alleging a violation of order
        2. Prosecutors Avec Deux Chapeaux
      3. Civil Cases
        1. Fiandaca v. Cunningham
          1. A settlement offer made by the State of New Hampshire to a class of plaintiffs (female inmates who believed male inmates had better facilities) was contrary to the interest of another client of the offeree’s attorney (students at a school that was considered as a site for a new penitentiary
          2. Rule: an attorney may not represent two clients when a settlement offer made to one is contrary to the interests of the other
        2. Standing to Object
        3. May a Lawyer Act Adversely to a Client on an Unrelated Matter?
        4. Confidentiality and Privilege in Multiple Client Representation
          1. Joint Representation
          2. Eureka Exception
          3. Common Interest Rule
          4. Other Issues
            1. Class Conflicts
            2. Appealability of Civil Disqualification Orders
            3. Malpractice Based on Conflicts
        5. Simpson v. James
          1. Simpson, who retained Oliver to represent her legally during the sale of her business, alleged that Oliver committed malpractice by representing the buyers of her business as well
          2. Rule: an attorney may commit malpractice by representing both sides in a transaction
          3. Representing both sides is not inherently impermissible though
        6. Consent and Waiver
        7. Public Service Mutual Insurance Co. v. Goldfarb
          1. PSMIC contended that Goldfarb’s acts of sexual assault on a dental patient did not trigger a duty to defend and indemnify him in a civil suit
          2. Rule: sexual assault by a doctor against a patient may trigger a professional liability carrier’s duty to defend and indemnify in a subsequent civil suit
          3. Since this determination cannot be made prior to trial, Public Service must defend Goldfarb for as long as the potential of a duty to indemnify exists, the duty to defend also exists
        8. Client Identity and Obligation to Defend
    5. The Advocate-Witness Rule
      1. Rule 3.7 does not distinguish between testimony for or against a client. Unless one of the narrow exceptions applies, it simply prohibits lawyers from acting as advocate at a trial if the lawyer is likely to be a necessary witness
      2. Four risks that Rule 3.7 is designed to alleviate
        1. The lawyer might appear to vouch for his own credibility
        2. The lawyer’s testimony might place opposing counsel in a difficult position when she has to cross-examine her lawyer adversary and attempt to impeach his credibility
        3. Some may fear that the testifying attorney is distorting the truth as a result of bias in favor of his client
        4. When an individual assumes the role of advocate and witness both, the line between argument and evidence may be blurred, and the jury confused
      3. A law firm may be disqualified by imputation only if the movant proves by clear and convincing evidence that the witness will provide testimony prejudicial to the client and the integrity of the judicial system will suffer as a result

Successive Conflicts of Interest[edit | edit source]

    1. Rules
      1. Rule 1.9 – Duties to Former Clients
        1. Cannot 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 consent has been given
        2. Loyalty to a former client survives the termination of the relationship is carried over in MR 1.9 and its comments
    2. Private Practice
      1. Analytica, Inc. v. NPD Research, Inc.
        1. The same law firm that once represented NPD Research represented a former principal of NPD in a subsequent suit against it
        2. Rule: a law firm may not represent a principal of a former client in a lawsuit against the former client
        3. Substantially Related” Test
          1. a lawyer may not represent an adversary of his former client if the subject matter of the two representations is substantially related
          2. if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second
        4. Here: S&F were believed by NPD to be counsel and NPD provided him with information expected to be confidential
        5. It doesn’t matter if firm uses information or not, only possibility of receiving information matters
      2. Playbook knowledge
        1. A substantial relationship may be created through significant familiarity with the operations and strategies of a former client in an area of practice, even when the subsequent adverse matter involves different facts than those in the matters the lawyer had handled for the former client
      3. Hot potato
        1. A firm may not drop a client like a hot potato, especially if it is in order to keep happy a far more lucrative client
      4. The appearance of Impropriety
        1. The direction to avoid even the appearance of professional impropriety
        2. Has been criticized for unpredictability
    3. Imputed Disqualification and Migratory Lawyers
      1. MR 1.10(a) operates from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated
      2. Cromley v. Board of Education
        1. During Cromley’s suit against the Board of Education, her attorney, Weiner, withdrew from the case after accepting a partnership in the law firm representing the Board, but the district court denied Cromley’s motion to disqualify the Board’s attorneys
        2. Rule: when a lawyer in a case moves to the other party’s law firm, the attorneys for the other party must be disqualified where the representations are substantially related, unless the presumption of shared confidences can be rebutted
        3. Here, the presumption was rebutted successfully by the screening process used by the firm
        4. Institutional Mechanisms to protect the confidentiality of the attorney client relationship:
          1. Instructions given to all members of the new firm, of the attorney’s recusal and the ban on exchange of information
          2. Prohibited access to the files and other information on the case
          3. Locked case files with keys distributed to a select few
          4. Secret codes necessary to access pertinent information on electronic hardware; and
          5. Prohibited sharing in the fees derived from such ligation
        5. Other Helpful factors in determining adequate protection
          1. Thw size of the law firm
          2. Its structural divisions
          3. The “screened” attorney’s position in the firm
          4. The likelihood of contact between the “screened” attorney and one representing another party, and
          5. The fact that law firm’s and lawyer’s most valuable asset is “their reputations for honesty and integrity, along with competence.
      3. Removing conflicts from a former firm
        1. Just as a disqualified lawyer who come to a firm with certain confidential information may infect every lawyer there if screening is not allowed or implemented, when a disqualified lawyer departs, the entire firm may be cured of the imputed disqualification
      4. Rebutting the second presumption
        1. Rule 1.10(k) denotes “screened” as the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law
    4. Government Service
      1. Rules
        1. MR 1.11 - Focuses on conflicts and screening when the lawyer’s former employer was a government entity
      2. Revolving door
        1. Leads in and out of government service
      3. Armstrong v. McAlpin
        1. Altman, an attorney who had been involved in an SEC investigation against McAlpin, later joined the firm representing the receiver appointed to recover allegedly stolen funds, which McAlpin contended constituted a conflict
        2. Rule: it is not a per se ground for disqualification when an attorney involved in a government investigation joins a private firm involved in litigation concerning the same matter
        3. If the imputation of private practice was applied, the government would have a difficult time attracting attorneys
        4. You can avoid this conflict by appropriately screening lawyers.

Lawyers for Companies and Other Organizations[edit | edit source]

    1. Rules
      1. Rule 1.13 – Organization as Client
      2. MR 1.18 - Conflict Of Interest: Current Clients: Specific Rules
    2. Who’s the client?
      1. While the lawyer’s client is the organization, the lawyer must represent it through its officers and agents
      2. Rules 1.13(a) attempts to define the relationships—“a lawyer, whether employed or retained, represents the organization acting through its duly authorized constituents
    3. Conflicts and Confidentiality In Entity Representation
      1. Tekni-Plex, Inc. v. Meyner & Landis
        1. Tang wanted to retain the same counsel his old corporation used after he had sold the corporation to another company. The new owners sought to disqualify this counsel
        2. Issue: was Old Tekni-Plex the same client as New Tekni-Plex?
        3. Holding: Yes, the business of Old Tekni-Plex remained unchanged
        4. ''''Rule: Counsel cannot represent a present client against a former client involving matters that are substantially related to the prior representation and where the interests of the prior client are materially adverse to the interests of the former client.
        5. Three-pronged test for disqualification by establishing that
          1. It assumed the role of M&L’s former client
          2. The matters involved both representations are substantially related
          3. And the interests of M&L’s present client Tang are materially adverse to the interests of the former client
      2. In re Grand Jury Subpoena
        1. Former employees of AOL contended that grand jury subpoenas for documents related to an internal investigation conducted by AOL’s attorneys should be quashed because the requested documents were protected by the attorney-client privilege and the joint defense privilege
        2. Rule 1: Forming Relationship conversations between a corporate employee and a corporation’s attorneys during an internal investigation are not protected by the attorney-client privilege where the employee cannot show that an attorney-client relationship was formed during the investigation
        3. Rule 2: Common Interest Agreement - conversations between a corporate employee and a corporation’s attorneys during an internal investigation are not protected by the joint defense privilege where the employee has entered into a common interest agreement with the company following the investigation
      3. Rule 1.13(f)
        1. Directs a lawyer to explain the identity of the client 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
      4. Rule 1.13(g)
        1. Permits joint representation of an organization and its constituents subject to the concurrent conflict provisions of Rule 1.7
      5. Corporate Family Conflicts
        1. ABA Opinion 95-390 concluded that the representation of one company will forbid the law firm from acting adversely to an affiliate only under limited circumstances
        2. Must be considerable overlap
        3. Teleglobe
          1. The court held that if indeed a parent’s counsel represented both the parent and the subsidiary, then the joint client exception to the privilege would apply and the subsidiary would be entitled to use the privileged information against the parent if the two became adverse
          2. A parent has a strong and legitimate interest in having its lawyers jointly represent its subsidiaries where their interests are aligned
          3. The fact that the work of the parent’s counsel concerns the subsidiary or requires dealing with or getting information from it does not mean that the subsidiary is necessarily a client as well
          4. Eureka principle – invoked to avoid loss of privilege based on the allegation that its in-house counsel engaged in joint representation
      6. Murphy & Demory, Ltd., et al. v. Admiral Daniel J. Murphy, et al.
        1. After Pillsbury, the law firm representing Murphy & Demory, assisted co-owner Murphy in his efforts to take control of Murphy & Demory, Murphy & Demory sued Pillsbury for legal malpractice
        2. Rule: Where dual representation of both a corporation and its individual owners presents a conflict of interest, the attorneys must obtain the corporation’s consent for such representation after full disclosure of all material facts

Ethics in Advocacy[edit | edit source]

    1. Rules
      1. Rule 3.1 – Meritorious claims and contentions
      2. Rule 3.2 – Expediting Litigation
      3. Rule 3.3 – Candor Toward the Tribunal
      4. Rule 3.4 – Fairness to Opposing Party and Counsel
      5. Rule 3.7 – Lawyer as Witness
    2. Truth and Confidences
      1. Nix v. Whiteside
        1. Whiteside contended that his counsel’s refusal to allow him to commit perjury denied him his right to counsel
        2. Rule: A criminal defendant is not denied his right to counsel if his counsel refuses to allow him to commit perjury
        3. The Sixth Amendment’s right to counsel clause is not abridged unless counsel is so ineffective as to not have been functioning as counsel
        4. Counsel has no right to violate the law or assist others in violating the law
        5. Two Prong Test
          1. Serious Attorney Error – Not function as council under 6th amendment; and
          2. Prejudice – Council undermined the outcome of the trial
      2. Narrative Approach – Best option
        1. Allow client to perjure himself by telling story
        2. Lawyer is not actively involved and signals to the judge that he has doubts about truthfulness of the testimony
    3. Fostering Falsity or Advancing Truth?
      1. The Law of Perjury
        1. Perjury - a willfully false statement, under oath, regarding facts material to the hearing
        2. Bronston v. United States
          1. Answered questions truthfully but in a misleading manner about Swiss bank accounts
          2. Holding: protection against misleading answers lay in effective cross-examination
        3. United States v. DeZarn
          1. Preakness Party case
          2. Sixth Circuit distinguished Bronston on the ground that Bronston gave literally true answers that were “non-responsive,” thereby alerting the questioner and permitting him to pursue the line of inquire further
          3. Here, DeZarn gave responsive, categorical answers to questions in order to mislead
      2. Subin-Mitchell Debate
        1. Subin – proposes system in which the defense attorney would operate not with the right to assert defenses known to be untrue, but under the following rule:
          1. it shall be improper for an attorney who knows beyond a reasonable doubt the truth of a fact established in the state’s case to attempt to refute that fact through the introduction of evidence, impeachment of evidence, or argument
        2. Mitchell – defense is not that the defendant accidentally walked out, but rather that the prosecution cannot prove the element of intent to permanently deprive beyond a reasonable doubt
          1. In a trial, there are no such things as facts. There’s only information, lack of information, and chains of inferences therefrom
    4. Frivolous Positions and Abusive Tactics
      1. Rule 11 of FRCP
    5. Hardball and Incivility
      1. Mullaney v. Aude - Babe
        1. Mullaney’s lawyer, Mr. Harris insulted both Ms. Aude and Ms. Green, her attorney, by making gender-biased remarks and insinuations during a deposition in front of other attorneys
        2. Rule: A lawyer may not use gender-biased tactics to gain advantage during the course of the litigation process
    6. The Obligation to reveal adverse legal authority
      1. In re Thonert – Ignorant of adverse legal authority
        1. A lawyer failed to reveal to the court legal authority that was directly adverse to his client’s position
        2. ''''Rule: an attorney has an affirmative duty to disclose adverse legal authority within the controlling jurisdiction to the court when the opposing party fails to do so and the attorney is aware of the law

Special Issues in Criminal Prosecutions[edit | edit source]

    1. Rules
      1. Rule 3.8
    2. Real Evidence
      1. Definition: a document or object that may have relevance to a pending or foreseeable case
      2. 3 real evidence questions
        1. what are the ethical obligations?
        2. What are the obligations under criminal law, especially obstruction of justice statutes?
        3. Interplay between real evidence and the attorney-client privilege
      3. In re Ryder – Real Evidence and Legal Ethics
        1. Ryder, an attorney, hid stolen money and a sawed-off shotgun belonging to his client in a safe-deposit box at his bank, intending to keep it there until after his client’s trial for armed robbery
        2. Rule: a defense attorney’s withholding of incriminating evidence during a criminal proceeding for the purpose of hindering the preparation of the prosecution’s case constitutes unethical deception and misconduct
        3. Rule 3.4(a) simply forbids a lawyer “unlawfully to alter, destroy or conceal a document or other material having potential evidentiary value
      4. People v. Meredith – Real Evidence and Criminal Law
        1. An investigator working for criminal defendant Scott’s attorney observed and took possession of a wallet that had been taken from the victim and disposed of by Scott
        2. Rule: the attorney-client privilege does not protect from disclosure testimony regarding observations made by counsel or his agent concerning evidence which has been removed by counsel or the agent
      5. The Turnover Duty
      6. Does The Source Matter?
    3. Prosecutors
      1. Constitutional and Ethical Disclosure Obligations
        1. Brady v. Maryland
          1. Held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution
          2. 3 components of Brady violation:
            1. evidence at issue must be favorable to the accused
            2. it must have been suppressed by the state
            3. and prejudice must have ensued
      2. Ethical Issues in Making the Charging Decision
        1. AMA Criminal Justice Standard
          1. Prosecutor not obliged to pursue all charges
          2. Prosecutor should not seek charges greater in number or degree than can be reasonably supported by the evidence
        2. Factors for the prosecutor to consider when exercising discretion:
          1. The prosecutor’s reasonable doubt that the accused is in fact guilty
          2. The extent of the harm caused by the offense
          3. The disproportion of the authorized punishment in relation to the particular offense or the offender
          4. Possible improper motives of a complaint
          5. Reluctance of the victim to testify
          6. Cooperation of the accused in the apprehension or conviction of others;
          7. Availability and likelihood of prosecution by another jurisdiction
      3. The Victim’s Interest in How a Prosecutor Decides

Negotiation and Transactional Matters[edit | edit source]

    1. Rules
      1. MR 2.1 - Advisor
      2. MR 4.1 - Truthfulness in Statements to Others
      3. MR 4.2 - Communication with Person Represented by Counsel
      4. MR 4.3 - Dealing With Unrepresented Person
      5. MR 4.4 - Respect For Rights Of Third Persons
    2. Lawyers as Negotiators: an Introduction
      1. Not all negotiators are lawyers
      2. All lawyers are negotiators
      3. Reynolds v. Schrock
        1. Rejected liability for a lawyer who helped a client breach fiduciary duty to a joint venture
        2. Advice from lawyer did not include negotiation with the alleged victim
    3. Negotiation: The Risks to Lawyers
      1. Rule 4.1 – Truthfulness in Statements to Others
        1. In the course of representing a client, a lawyer shall not knowingly:
          1. Make a false statement of material fact or law to a third person; or
          2. Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6
        2. Comment 2
          1. Rule refers to statements of fact
      2. 3 derivations of negotiation issues
        1. bad client problem
          1. weighs loyalty and confidentiality against the interest in avoiding or minimizing harm to innocent victims of a client’s illegal conduct
          2. Rule 1.6(b) contains six exceptions that permit disclosure of confidences
          3. Noisy withdrawal
            1. Halfway between quietly slinking away and invoking the authority of confidentiality exception to warn the victim by revealing confidential information
        2. Lawyer’s Own Statements
          1. Risk of liability for the lawyer’s own statements to the opposing lawyer where the client has done no wrong
          2. lawyers cannot speak materially falsely to a third person
            1. estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable statement of a claim are not regarded as statements of fact
            2. Puffery is permitted
          3. Fire Insurance Exchange v. Bell – Reliance on Statments
            1. Bell, a claimant against the insurance company, was an infant severely burned in a fire who argued that his attorney had the right to rely on the insurance company attorney’s intentional misrepresentations as to the company’s policy limits when they stated the limit was $100,000 instead of $300,000
            2. Issue: does the attorney have the right to rely upon representations made by opposing counsel?
            3. Holding: Yes, an attorney has the right to rely upon representations made by opposing counsel—a lawyer’s representations have long been accorded a particular expectation of honesty and trustworthiness
          4. Hoyt Properties, Inc. v. Production Resources Group, LLC.
            1. PRG contended that a statement made by its attorney to Hoyt that there was not basis for piercing the corporate veil of its subsidiary, Entolo, was not fraudulent misrepresentation of fact by a legal opinion; therefore, the release agreement should not be rescindedb
            2. Rules:
              1. A statement made by an attorney is actionable as a fraudulent misrepresentation where it is a statement implying the existence of facts that support a legal opinion
              2. A statement by an attorney is actionable as a fraudulent misrepresentation where it constitutes a direct factual assertion
              3. A genuine issue of material fact is created by an attorney’s statements that are actionable as fraudulent misrepresentations where there is a genuine issue of material fact as to whether the attorney either knew his statements were false when made or did not know whether they were true or false
        3. Exploiting an Opponent’s Mistake of Fact
          1. An opponent may be laboring under a false assumption that you did nothing to create and which influences his negotiating position
          2. Virzi v. Grand Trunk Warehouse and Cold Storage Co.
            1. Counsel for Virzi obtained a settlement in his behalf, soon thereafter learned of his death, and failed to reveal same to opposing counsel and the court at a confirmation hearing
            2. Rule: counsel for a deceased party must inform counsel and the court of his client’s demise if such death is relevant to the litigation
          3. Special Situations
            1. Transactions with Unrepresented Persons – A lawyer may have to clarify their role in the matter if they know or should know that the opponent misunderstands it MR 4.3
            2. Negotiating with an Unrepresented and Dangerous Fugitive – Rule 8.4(c)
            3. Threatening Criminal Prosecution or Discipline – Model rules contain no such prohibition although some states have this on the books, some sates allow it to a related nexus in good faith

Reducing the Likelihood of Professional Failure[edit | edit source]

    1. Rules
      1. MR 1.1 – Competence
      2. MR 5.1 – Responsibilities of a Partner or Supervisory Lawyer
      3. MR 5.3 – Responsibilities Regarding Nonlawyer Assistance
      4. MR 5.5 – Unauthorized Practice of Law
    2. ''''Admission to the Bar
      1. If a lawyer does legal work where he is not admitted, he risks violating rules against the unauthorized practice of law (UPL), which can be a crime in some places
      2. Geographical Exclusion
        1. Supreme Court of New Hampshire v. Piper
          1. NHSC’s rule limiting attorney admissions to state residents was attacked as unconstitutional
          2. Rule: a state may not limit attorney admissions to its residents
          3. Privileges and immunities clause guarantees that each state will grant citizens of other states the same rights as enjoyed by its citizens
          4. Lawyer is not a state officer
        2. The New Jersey Problem
          1. Most states waive the bar exam for experience out-of state lawyers
          2. Allowing lawyers to be too transient could leave some areas with a hole in the legal market
      3. Geographical Restriction
        1. Supreme Court of Virginia v. Friedman
          1. Friedman lived in Maryland and worked full-time in VA
          2. Wanted motion admission – denied
          3. She won because her full-time job in VA entitled her to the same reciprocity rights as resident VA lawyers with full-time VA jobs
      4. Education and Examination
        1. No one believes the bar is the perfect test
        2. No one has advanced a persuasive substitute
      5. Character Inquiries
        1. Shattered Glass
          1. Georgetown student article source fabrication
          2. Dicked him out of bar admission
        2. In re Mustafa
          1. Although Mustafa embezzled moot court funds while in law school, the Committee on Admissions recommended that he be admitted to the D.C. Bar
          2. Rule: in order to gain admission to the Bar, an applicant must demonstrate by clear and convincing evidence that he possesses good moral character and general fitness to practice law at the time of admission
        3. 4 aspects of life looked at by character committees
          1. applicant’s mental health
          2. honesty and integrity
          3. personal life, financial probity in particular
          4. support for the Constitution
        4. 'Common grounds for delaying or denying bar admission
          1. Criminal conduct
            1. Whether or not it has led to a conviction
          2. Lack of candor in the application process
            1. Failure to disclose
            2. Omission of material fact
          3. Dishonesty or lack of integrity in legal academic settings
            1. Cheating
          4. Mental health
            1. Decisions made are supposed to be made based upon a prediction of future actions based on applicants mental health history
          5. Financial probity
            1. Financial irregularities suggest that this isn’t someone you want handling money
          6. Applicant’s private life
            1. Was traditionally based on
          7. Inability to speak/understand English
        5. Procedures Regarding Character Inquiry
          1. Applicants denied admission based on character are entitled to a hearing, at which they can present evidence and confront the evidence against them.
          2. Applicant bears the burden of proof.
        6. Admission in a federal system
          1. Generally, federal trial courts admit applicants who are members of the bar of the highest court of the state in which that federal court sits.
          2. They also have their own pro hac vice admission procedure
    3. Transient lawyers and multijurisdictional firms
      1. Rules
        1. MR 1.1 – Competence
        2. MR 5.1 – Responsibilities of a Partner or Supervisory Lawyer
        3. MR 5.3 – Responsibilities Regarding Nonlawyer Assistance
        4. MR 5.5 – Unauthorized Practice of Law
      2. Generally
        1. If a lawyer stays in his home jurisdiction, he can advise on the law of any jurisdiction in the world, so long as he is competent to do so
      3. Admissions Pro Hac Vice (For this turn only)

1. Requirements

  1. Reciprocity – States typically require that the state from which the lawyer is applying has a policy of reciprocation.
  2. Local Counsel – Many states require that the applying lawyer associate with local legal counsel.
  3. Broad Discretion - Judge has broad discretion to permit or deny the lawyer’s admission
  4. No due process right to be granted pro hac vice admission – Leis v. Flynt holding
  1. Leis v. Flynt
    1. Out-of-state counsel for Flynt contended that a state court’s summary denial of their request to appear pro hac vice was unconstitutional
    2. Rule: absent a governing rule or statute, a summary denial of a request to appear pro hac vice is not unconstitutional
    3. Pro hac vice is not found in the Constitution so it must be found in the statutes of the state where the representation is requested – it wasn’t found in Ohio statutes so no guaranteed right
    1. Client’s Interests
      1. Third Circuit held that there is a Sixth Amendment right to out-of-state counsel that cannot be arbitrarily denied.
      1. Services other than litigation
        1. Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court
          1. Birbrower, a NY law firm unlicensed to practice in CA, performed legal services for ESQ, a CA-based corporation, without a license. ESQ refused to pay, alleging malpractice and claiming that the firm could not collect its fee because of its unauthorized practice of law. Birbrower counterclaimed for its fee
          2. Rule: advising a client and negotiating a settlement agreement in CA without a license constitutes the unauthorized practice of law, and no fee may be collected to the extent that the fee was for those services

Remedies for Professional Failure[edit | edit source]

    1. Malpractice and Breach of Fiduciary Duty
      1. Togstad v. Vesely, Otto, Miller & Keefe
        1. Ms. Togstad successfully sued Miller for legal malpractice even though she had not formally retained him
        2. Rule: a retainer is not required for an attorney-client relationship that may give rise to a malpractice claim to exist
        3. Here, lawyer said he didn’t think she had a case and never got back to her so the SOL ran
      2. Elements of Legal Malpractice
        1. The existence of an attorney client relationship
        2. Negligent actions or breach of contract by the defendant
        3. Those actions were the proximate cause of plaintiff’s damages
        4. But for the defendant’s conduct, the plaintiff’s original claim would have been successful
      3. What is the required standard of care?
        1. That degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in this jurisdiction
        2. Overtime the scope of care has expanded
      4. Settlement Duties
        1. The required duty of care includes a duty to attempt to effectuate a reasonable settlement where standards of professional care in the jurisdiction should lead the lawyer to concluding that settlement will be the most reasonable way to achieve the client’s goals.
      5. Fiduciary Duties for Handling Money
        1. Serious and Easy to Charge – Among most frequent grounds for discipline.
          1. Easy Verification – Violations easy to verify
          2. Significant Opportunity for Continuing Abuse – Lawyer is in a position to do so for future clients.
          3. Per Se Rules – The rules have no intent requirement
          4. Little or No Countervailing Interest
        2. Client Trust Accounts
          1. Must be maintained in State
          2. Record Keeping
          3. Separate Keeping of Property
          4. Interest
        3. Commingling Funds
          1. More than one person can claim an interest
        4. Prompt Delivery and Accounting – Required
        5. Conversion – Improper, even if temporary use of client funds constitutes conversion and subjects lawyer to discipline.
      6. Sex with Clients - Breach of Fiduciary Duty?
        1. Tante v. Herring
          1. Tante represented Herring. Herrings sued Tante for using her fragile state to have sex with her
          2. Rule: it is an actionable breach of fiduciary duty for an attorney to use info – available to him because of the attorney-client relationship – to his advantage and to the client’s disadvantage
          3. Can only have sex with client if the sexual relationship existed before the attorney-client relationship
      7. Vicarious Liability – If you are a partner, your persona assets are subject to collection to satisfy judgments against the firm, unless you are involved in an LLB
    2. Proving Malpractice
      1. Contract Theory of Malpractice
        1. Agreement
        2. Breach
        3. Damages - Damage measurement under contract theories is more limited than that under tort theories.
      2. Tort Theories of Malpractice
        1. Duty
          1. No Fee Required – A lawyer owes a duty irrespective of whether a fee is being paid for the service.
          2. General Knowledge and Research – Lawyers are expected to be sufficiently familiar with genera knowledge and research techniques and to use them to discover the law
          3. Specialists – Specialists in a given field are held to a higher standard than general practitioners
          4. Onset of the Duty – The duty beings when a client beings to talk with a lawyer as a lawyer.
        2. Breach
          1. No liability for Reasonable Choices that go Wrong – Lawyers are not guarantors of particular result
          2. Falling Below the Standard of Care – Actions by a lawyer that are below the applicable standard of care breach the duty to the client
        3. Causation
          1. Case Within a Case (Viner v. Sweet) – Often to prove the causation of damages, the client will have to prove that “but-for” the breach, the client would have won
          2. Necessity of Expert Testimony - Expert testimony is usually needed to establish the nature of the professional duty and the existence of a breach of that duty.
        4. Damages
      3. Liability
        1. Prospective Limitation on Malpractice Liability – Cannot contract around malpractice liability
        2. Third Party Liability – Under limited circumstances, a lawyer may be liable for malpractice to a non-client
        3. Liability for Client Conduct – Lawyers may not counsel a client to engage or assist in conduct that the lawyer knows or should know is criminal or fraudulent. MR 1.2(d)
      4. Smith v. Haynsworth, Marion, McKay & Geraud
        1. Malpractice action against the firm
        2. Sought to bring Rules of Professional Conduct as evidence
        3. Rule: RPC may be relevant in establishing legal malpractice
        4. Violation of RPC may be evidence of breach of duty
      5. Ethical Violations as a Basis for Reduction or Denial of Fees
        1. Hendry v. Pelland
          1. Pelland represented Hendrys in real estate transaction
          2. It failed and Hendrys wanted fees back
          3. Rule: clients seeking disgorgement of legal fees as their sole remedy for a lawyer’s breach of the duty of loyalty need prove only that their attorney breached that duty, not that the breach caused them injury
      6. Causation and Defenses
        1. Viner v. Sweet – Established but-for test
          1. Viners brought malpractice suit against Sweet for failure to properly prepare legal documents that would have protected the Winers
          2. Rule: the plaintiff in a transactional legal malpractice action must prove that a more favorable result would have been obtained but for the alleged negligence
          3. Basically the “but for” test
      7. Causation in criminal cases
        1. Peeler v. Hughes & Luce – Malpractice in Criminal Representation
          1. Peeler, who had accepted a plea bargain in a prosecution in which she had been defended by Hughes and Luce, sued the firm for malpractice when she learned that a prosecutorial offer of immunity had not been communicated to her
          2. Rule: To bring a legal malpractice claim for criminal representation, the plaintiff must prove actual innocence or have his conviction overturned
        2. Assigned Counsel – Counsel assigned by the US to indignant defendants are treated as the US and free from tort liability
    3. Other grounds for attorney liability to clients and third parties
      1. Petrillo v. Bachenberg
        1. Petrillo sued attorney Herrigel for preparation of a misleading composite report even though Herrigel had never represented her
        2. Rule: attorneys may owe a duty of care to nonclients when the attorneys know, or should know, that non-clients will rely on the attorneys’ representations and the nonclients are not too remote from the attorneys to be entitled to protection
      2. Supreme Court Balancing Test for Liablity
        1. The foreseeability of harm to the plaintiff
        2. The degree of certainty ta the plaintiff suffered injury
        3. The closeness of the connection between the defendant’s conduct and the injury; and
        4. The extent to which the profession would be unduly burdened by a finding of liability
      3. Expanding Professional Liability
        1. Consumer Protection Laws
        2. Criminal Law
        3. Fraud, Negligent Misrepresentation, Etc.
        4. Abuse of Process
        5. Malicious Prosecution
        6. Helping Fiduciaries Breach Their Duties
        7. Inducing Breach of Contract
        8. Invasion of Privacy
        9. Violation of Escrow Agreement
    4. ''''Discipline
      1. Rules
        1. MR 1.15 – Safekeeping Property
        2. MR 8.4 - Misconduct
        3. MR 8.5 – Disciplinary Authority; Choice of Law
      2. Purposes of Discipline
        1. Discipline is not to punish lawyer but to provide protection to the public
      3. Sanctions
        1. Disbarment – indefinite or permanent exclusion from the bar
        2. Suspension – less harsh sanction of allowing a lawyer to continue as a member of the bar while her right to practice is suspended for a period of time
        3. Censure (public reprimand) – near universal punishment
        4. Some jurisdictions permit a lawyer to resign in advance of court-imposed discipline
      4. Disciplinary systems
        1. Investigators, lawyers, and judges needed in addition to support personnel
      5. Disciplinary Procedure
        1. Complaint
        2. Investigation by Committee
          1. Local in Nature
          2. No Appeal from Dismissal
        3. Hearing Committee
          1. Discovery
          2. Jury
          3. Bar Bears Burden of Proof
          4. Right to be Heard
          5. Dismiss or Impose Sanctions
        4. Review by Appeal Board
        5. State Court of Last Resort
      6. Acts justifying discipline
        1. Dishonest and unlawful conduct
          1. Dishonesty in its many forms and criminal conduct that may, but need not, involve dishonesty are among the two most frequent reasons for discipline
          2. In re Warhaftig – Fee Advances
            1. Warhaftig appropriated client funds, although he did so with the intention of repaying the funds
            2. Rule: an attorney may be disbarred for taking fee advances out of client funds, even if he did so with the intention of returning the funds
            3. He was disbarred
          3. In re Austern – Facilitating Fraudulent Transaction
            1. Austern was recommended for censure for facilitating a real estate transaction despite knowledge that his client’s deposit into an escrow account was a check drawn from nonexistent funds
            2. Rule: an attorney may be censured for facilitating a real estate transaction despite knowledge that a client’s deposit to third parties consisted of a check drawn on nonexistent funds
            3. He was censured
        2. Neglect and lack of candor
          1. Neglect of client matters is a recurrent basis for discipline regardless of the lawyer’s motives
          2. Neglect, lack of candor, or outright sloppiness in a submission to a court can result in a sanction directly by the court, bypassing the disciplinary committee
        3. Sexual relations with a client
          1. General Rule: Can’t do it unless it existed before the attorney-client relationship
          2. In re Tsourtsouris
            1. An attorney was suspended from the practice of law for thirty days for having a sexual relationship with a client while representing her
            2. Rule: it is professional misconduct for a lawyer to engage in sexual relations with a current client, unless the relationship commenced before representation
        4. Racist and Sexist Conduct
          1. In re Jordan Schiff
            1. Disciplinary hearing held after Schiff allegedly violated the code of ethics by using obscene, explicit, gender-specific vulgarities to harass opposing female counsel during a deposition
            2. Rule: attorneys who direct dirty, discriminatory, gutter language at opposing counsel to harass counsel on the basis of gender will be subject to sanction for violation of the rules of professional ethics
            3. He was censured
        5. Failure To Report Another’s Misconduct – MR 8.3(a)
        6. Criminal Conduct
          1. Not all criminal conduct is included
          2. Not necessarily in role of lawyer
      7. Defenses
        1. Lawyers commonly cite stress, depression, substance abuse, obsessive-compulsive disorders, or other psychological issues
          1. used as mitigating factors along with “unblemished record” and pro bono history
      8. Disciplinary Procedures
      9. Discipline in a Federal System
    5. Constitutional Protection in Criminal Cases
      1. Strickland v. Washington
        1. Strickland challenged his death sentence on the ground that the lawyer who represented him at the hearing was constitutionally ineffective
        2. Rule: a court deciding on ineffectiveness of counsel claim at a death sentence hearing must judge whether counsel’s conduct was reasonable under the facts as viewed at the time of the alleged ineffectiveness
      2. Frye and Lafler
        1. Rule: Ineffective assistance claim allowed if client enters a less favorable plea because of lawyer’s failure to advise
        2. Test : Duty, breach, causation, damages
          1. Convicted defendant must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment
          2. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment
          3. Prejudice presumed if the defendant demonstrates that an actual conflict of interest adversely affected his lawyer’s performance
          4. When prejudice is not presumed, defendant must show that there is a reasonable probability ta but for counsel’s unprofessional errors, the result of the proceeding would have been different.
          5. A reasonable probability sufficient to undermine confidence in the outcome