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PROFESSIONAL RESPONSIBILITY

Chapter 2: Lawyer Liability1. HISTORY OF LAWYER DISCIPLINE

- Most common problems were fee disputes and delays in completing work/low quality Performance- Problems in sanctions and disciplining are that they’re light and inconsistent

2. GROUNDS FOR DISCIPLINE- Can be disciplined for violating code whether or not

violation occurs in course of law practice3. REPORTING MISCONDUCT BY OTHER LAWYERSA. Duty to Report Misconduct

- Rule 8.3 – Reporting Professional Misconduct(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 that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(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) 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

- Knowledge must be more than mere suspicion that misconduct occurred. Question is if reasonable lawyer in circumstances would have firm opinion that conduct more likely occurred than not- If lawyer learns of misconduct during adversary proceeding, lawyer can wati to report it until proceeding is over if deferral is necessary to protect a client’s interests

B. Lawyers’ Responsibility for Ethical Misconduct by Colleagues and Superiors

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- Rule 5.1 – Responsibilities of Partners, Managers, Supervisory Lawyers

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses

comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.(c) A lawyer shall be responsible for another lawyer's violation of

the Rules of Professional Conduct if:(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the

other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

- Rule 5.2 – Responsibilities of a Subordinate Lawyer(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in

accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

- Problem 2-1: The Little Hearing- Under 5.2, the lawyer is bound by the rules, including 1.1 competent representation. Just because her supervisor told her to go to the hearing doesn’t mean it was a reasonable resolution of question of duty. She knows she’s ill prepared at best, and should refuse to go to the hearing

2. CIVIL LIABILITY OF LAWYERSA. Legal Malpractice

- Professional misconduct alleged to have caused harm to another person

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- Client must assert lawyer had duty to P, failed to exercise competence and diligence normally exercised by lawyers in similar circumstances, and breach caused harm- Must prove client would have prevailed in case but for lawyer’s conduct- Lawyer may have to pay damages, injunction could issue, return of property etc.

- Breach of Fiduciary Duty- P must prove but for misconduct, P would have gotten favorable judgment or settlement in case, or that P suffered another compensable harm

D. Disqualification for Conflicts of Interest- Courts influenced by ethics rules on conflicts but also follow

their own common law standards

PROFESSIONAL RESPONSIBILITYChapter 3: Client ConfidentialityA. Basic Principle of confidentiality

- Protection of Information Relating to Representing a Client- Rule 1.6 – Confidentiality of Information: (never

required to disclose, but may under b)

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a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) 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 and in furtherance of which the client has used or is using the lawyer's services;

(3) 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;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.- ** NC’s rule state’s a lawyer is allowed to disclose

confidence to prevent any crime

- Comment 4 – Prohibition also applies to disclosures that don’t reveal protected info, but could reasonably lead to discovery of such info by 3rd person. Hypotheticals allowed if listener won’t be able to ascertain identify of client or situation

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- Comment 2- A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation

- Info that must be protected as confidential: info relating to matter which lawyer is representing, except info generally known; personal info of the client that client wouldn’t want disclosed; info learned from client and interviews/docs/photos/observation; info acquired before representation begins and after it terminates; notes that the lawyer creates about the matter- Policy behind confidentiality rule –facilitates open communication between lawyers and clients; clients would be reluctant to confide in attny if they thought info would leak out

B. Exceptions to the Duty to Protect Confidences- Revelation of Past Criminal Conduct

- Lawyers should keep confidential past criminal activity, bc harm can’t be prevented

- Risk of Future Injury or Death- Rule allows lawyer to reveal confidential information

to prevent reasonably certain death or substantial bodily harm. Under this rule, it

doesn’t matter whether harm will be perpetrated by client or another person

- Reasonably certain to occur if it will be suffered imminently or if there is a

present and substantial threat that a person will suffer harm later if the lawyer

fails to act now to eliminate threat- Client Frauds and Crimes that Cause Financial Harm

- Lawyers PROHIBITED from Advising or Assisting Clients’ Crimes and Frauds

- Rule 1.2 – Lawyer SHALL NOT counsel client to engage, or assist a client in

conduct that the lawyer knows is criminal or fraudulent- Fraud – deliberate deception; conduct

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- Lawyers MAY reveal information about the client to prevent future crime or fraud over money or property or to rectify injury due to past crime or fraud over money or property only if client has used lawyer’s services in committing the act

- If criminal or fraudulent conduct is in past and client has hired the lawyer for

representation relating to that conduct, lawyer may not reveal information

under 1.6b3- Sarbanes Oxley Act was enacted after Enron to

prevent corporate fraud; requires layers who practice before the SEC to report info ab securities fraud to senior officials in a corporation and if those officials don’t act promptly, lawyer must withdraw from representation and notify SEC of its withdraw due to professional considerations

- A lawyer practicing in a state using the Model Rules and who practices before

the EC must observe all applicable rules. Federal law preempts state law, so lawyer may report fraud to SEC even if fraud was committed w/o assistance of lawyer’s services

- Revealing Confidences to obtain Advice about Ethics

– totally fine- Revealing Confidences to Comply with Other Law or

Court Order- Chart on 208 is great!- Court order or other law requiring disclosure trumps

obligation to protect confidencesC. Use or Disclosure of Confidential Information for Personal Gain or to Benefit Another Client

- Rule 1.8b: A lawyer shall not use info relating to representation of a client to the disadvantage of the client unless client gives informed consent, except as permitted or required by these rules

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- Rule doesn’t prohibit uses that don’t disadvantage the client

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PROFESSIONAL RESPONSIBILITYChapter 5: Relationship Between Clients and LawyersA. Formation of the Relationship

- Choosing Clients- Rule 1.1 requires competent representation

- A lawyer can take on a matter in an unfamiliar field if she has time and

resources to get up to speed. Can bill for the time spent doing so.- A lawyer can’t discriminate on race, religion,

nationality, sex, age, disability or another protected category in decisions about who to

represent- Offering Advice as Basis of Relationship

- Just giving advice to someone can make them a client- Togstad v. Vesely, Otto, Miller, and Keefe

(1980)- Court found a relationship existed and that there was malpractice. She went to Miller for legal advice, was told there was no case, relied on that advice in failing to pursue the claim for medical malpractice. He neither suggested she get 2nd opinion nor informed her of his lack of expertise. He failed to do the minimum research an ordinarily prudent attorney would have done before giving opinion- If a person comes to you for legal advice and you give it, there’s a lawyer-client relationship there. Miller should have known wife was acting on behalf of husband

- Avoid situation by saying “I don’t have an opinion on the issue. We’re not

taking the case”B. Lawyers Responsibilities as Agents

- Client can give attorney express authority to act on their behalf or can give general instruction that implicitly allows lawyer to do certain things

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C. Lawyer’s Duties of Competence, Honesty, Communication, and Dilligence

- Competence (Rule 1.1)- Rule 1.1 A lawyer shall provide competent

representation to a client. That requires legal knowledge, skill, thoroughness and preparation

reasonably necessary for the representation- No lawyer should approach any task without knowledge of the applicable statutes, court rules, and case law – civil cases

- Competence in Criminal Cases- 6th Amendment requires a criminal defendant be given a lawyer whose work meets minimum standard of being effective

- Unlikely a D can win an ineffective assistance appeal. Performance has to be awful and D also has to show better representation would have made a

difference- Strickland v. Washington, (1984)

- At hearing to determine either death or life sentence, attorney presented no evidence of mitigating factors, though some existed. He was given a life sentence and he appealed for ineffective counsel- Standard – P must show serious errors by counsel and that errors deprived him of a fair trial

- Scrutiny of performance must be deferential to attorney

- A decision not to investigate must be assessed for reasonableness in

all circumstances, with deference to counsel, and error had to prejudice outcome

- Attorney made strategic choice to rely on P’s acceptance of responsibility for

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his crimes. In fact, introducing some evidence may have hurt defendant (rap sheet, mental exam)

- Diligence- Rule 1.3 – lawyer shall act w/reasonable diligence

and promptness in representing a Client

- Candor and Communication- Rules don’t explicitly state a lawyer must be honest with client, but drafters intended that lawyers should generally be truthful- Rule 8.4c prohibits dishonesty, fraud, deceit, and misrepresentation- Rule 1.4 requires that lawyer provide info to client about matters that require informed consent, about which a client must make a decision, about the status of a matter, and about matters on which the client has requested info- Clients can sue for breach of fiduciary duty in tort if injured by a dishonest lawyer

- Candor in Counseling- Rule 2.1 describes role of lawyer as counselor: in

representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation

- Contractual Duties may create more obligations than rules would require

- Rule 1.2c allows lawyer to limit scope of representation if limitation is reasonable and the client gives consent

D. Who Calls the Shots?- The Competent Adult Client

- Rule 1.2 and communication requirements of Rule 1.4 allocate decision making between

lawyers and clients- Jones v. Barnes (1983), SCOTUS

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- SC says indigent D has no right to compel appointed counsel to press nonfrivolous points raised by client if counsel uses judgment and decides not to. Otherwise ability of counsel is undermined

- Multiplicity of assignments of errors dilutes and weakens a

good case- Clients with Diminished Capacity

- Rule 1.14- Comment 6 says lawyer should make some

assessment of client’s capacity- Clients who may have Mental Disabilities

- If it seems necessary to give someone else legal authority over the client, lawyer might petition court to appoint a guardian ad litem (empowered to speak for client, even contrary to client’s wishes); conservator (power to manage financial affairs of client who thereby loses power to buy, sell, hold property); guardian (broad authority over medical, financial, personal decisions)

- If lawyer determines client’s competence has failed, some intervention is appropriate

to remain loyal to client’s enduring values- Appointing guardian is drastic and deprives client

of most rights- Reliance on family members may be preferable

bc it provides better substituted judgment, lawyer still has to articulate

considerations involved in decision, less expensive, less permanent. In many

jurisdictions, though, family has no lawful authority to give consent- Lawyers should have more latitude to use

persuasive language with confused client, but not coercion

- Juveniles- Rule 1.14 applies same standards to minors that it

applies to adults with mental

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Impairments- Delinquency Cases – lawyers typically follow norms of

representation similar to those for representing adults

- Children have right to cross-examine and confront witnesses and standard is

beyond reasonable doubt- Custody, Abuse, Neglect Proceedings –there are ABA standards of practice for Abuse

and Neglect- Attorney should elicit child’s preferences, advise

child, provide guidance, represent expressed preferences and follow

child’s direction throughout course of litigation

- How do you meet obligation of communicating with those who have extremely low IQs?

- People with low IQs want to please people in authority, and say they understand things

when they really don’t. You should ask them to repeat what you’ve told them instead of asking them if they understand.

- Terminating a Lawyer-Client Relationship- Duties to the client at conclusion of relationship

- Duty to protect client confidences continues indefinitely, papers client is entitled to

must be returned- If client hasn’t paid in full, lawyer can keep

documents which haven’t been paid for unless retention would unreasonably harm the client- In NC, you HAVE to turn over file, even if not paid for yet

- Anything that would be helpful to client. Personal notes and work

product don’t have to be turned over. - Grounds for Termination before work is completed

- Client fires lawyer – lawyer must withdraw

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- When continued representation would involve unethical conduct – if representation will

require violating law.

- When client already used services to violate law but continued representation won’t

result in new or continuing crime, lawyer MAY withdraw but doesn’t have to

- When lawyer wants to terminate relationship - 1.16b1 allows exit without material

adverse effect on interests of the client- Matters in litigation – if lawyer filed suit on behalf of

client or entered appearance in matter of litigation, lawyer can’t withdraw w/o

permission from court. Rule 1.16c- When client stops paying – lawyer must first warn that

nonpayment can lead to withdrawal. Then they can withdraw

- When case imposes unreasonable financial burden on lawyer

- When client won’t cooperate – representation made ‘unreasonably difficult’

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PROFESSIONAL RESPONSIBILITYChapter 6: Conflicts of InterestA. Introduction

- Concurrent Conflict (1.7, 1.18) – between 2 present obligations of a lawyer,

- Successive Conflict (1.7, 1.9) – between obligation to a present client and an obligation to a

former client- Imputed Conflict (1.10) – between obligation of lawyer to

client and obligation of another lawyer who is affiliated with the first lawyer

B. General Principles in Evaluating Concurrent Conflicts- Rule 1.7 - Direct Adversity – lawyer’s conduct on behalf of a client requires acting against interest of

another current client- Material Limitation – if client would receive less vigorous representation bc of lawyer’s other

Responsibilities- Mere possibility of harm is insufficient to present a

conflict. To evaluate if there is conflict, ask 2 questions:

- How likely is it that a difference in interests will eventuate?

- If there likely is such a divergence, would it materially interfere with lawyer’s

advice to or representation of the client?- How to Evaluate Conflicts

- ID client/s and determine if each is present or former client- Determine if conflict of interest exists- Decide whether lawyer is permitted to represent the client

despite conflict (consentable)- If consentable, consult w/clients affected under

paragraph (a), obtain informed consent and send written confirmation to client of consent

- Nonconsentable Conflicts

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- Lawyer’s reasonable belief – can lawyer reasonably conclude that he will be able to provide

competent legislation? What would reasonable lawyer think?

- Are conflicting representations factually related?- Are interests of parties divergently different?- Is conflict between 2 present clients or 1 that is

former? - How sophisticated is the client?

- You can’t sue one client on behalf of another- Informed Consent

- If client doesn’t consent, lawyer can’t take on or continue the conflicting work

- Lawyer must communicate adequate info and explanation about material risks and alternatives

- Must be confirmed in writing- Client can revoke waiver

- Withdrawal and Disqualification- Opposing counsel can move to disqualify a lawyer for

conflict of interest- Imputation of Concurrent Conflicts

- Rule 1.10C. Conflicts between Current Clients in Civil Litigation

- Representation of Co-Plaintiffs or Co-Defendants in Civil Litigation

- Possible Problems- One client has claim against the other,

limited assets of D may make it impossible to satisfy co-plaintiff’s claims, Ps

might disagree on whether to settle, or disagree as to remedy

- Representing Economic Competitors in Unrelated Matters

- Rule 1.7 states simultaneous representation in unrelated matters of clients

whose interests are only economically adverse doesn’t ordinarily constitute

conflict of interest- Could still breach fiduciary duty though

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- Conflicts in Public Interest Litigation- Problem 6-4: Prisoners’ Dilemma

- The LAP represents both interests here. You don’t know if there is even a conflict here because both clients might want to take or not take the deal. Offer

made to prisoners, so you contact them first about deal. Ask for permission to go talk to patients about the offer. You don’t have ‘joint clients’ here, so you have to

respect confidentiality of both. Lawyers in this real case went to prison, told them about offer, but had other lawyers come in and discuss offer. Probably best

to get consent from both parties anyway bc they are going after same funds.

- Taking Inconsistent Legal Positions in Litigation (positional conflict)

- A lawyer can make inconsistent arguments on legal issue in different courts at

different times w/o violating rules.

D. Conflicts Involving Prospective Clients- Rule 1.18- Problem 6-6: The Secret Affair

- First determine if she is a ‘prospective client’. This may be unilateral communication and site disclaimers may have prevented expectation of possible representation - If she is a prospective client, though, you obviously can’t represent her due to your loyalties to Nick and the adverse effects that are unavoidable. The extramarital affair is definitely ‘disqualifying information’ under 1.18c, which would require you to withdraw representation for Nick unless both the husband and wife are informed and give informed consent (which is not realistic). Comment 5 says you can condition conversations with prospective client on person’s informed consent that no info disclosed will prohibit lawyer from representing a different client. If Maria’s consent to the terms was ‘informed consent’, Firm

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could still represent Nick and use that confidential information learned.

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PROFESSIONAL RESPONSIBILITYChapter 7: Concurrent Conflicts in Particular Practice SettingsA. Representing both parties to a transaction

- Whether consent is required is determined by 1.7. Is there direct adversity or a material limitation?- To determine if informed consent is necessary question is if potential conflict is reasonably Apparent

- Lawyer can’t just draft documents for parties who are jointly represented

- Lawyer owes both clients duty of loyalty under 1.4 – must keep client informed

- 1.7 suggests lawyer shouldn’t keep confidences from one joint client received from another

- Tell parties at outset that info will be shared and lawyer will have to withdraw if one client decides something should be kept from the other

- If 2 clients end up in litigation against the other, lawyer can’t represent both bc that would involve suing one client on behalf of another. If lawyer withdraws from one client, the other becomes a former client and he cant usually represent a client against a former client bc suit would be same or substantially related matter under Rule 1.9. Representation only allowed w/consent of former client. If waiver ab this situation was signed by parties at the beginning, may be able to represent one party

B. Representing Organizations (Rule 1.13)- Who is the Client?

- Corporation itself, not officers or shareholders- Representing the entity and employees

- Can represent employees unless interest of organization conflicts. Can’t represent customers of corporation- Don’t have to report out problems if you were hired to help with those problems

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- Duty to Protect Confidences of Employees- If employee reveals something to corp lawyer in confidence, does he have obligation to protect that confidence? If lawyer represents only organization and not any employee, there’s generally not a duty. Lawyer should decline to give advice and recommend independent counsel. If lawyer doesn’t give warning and behaves so that employee expects confidentiality, lawyer may have inadvertently created lawyer-client relationship

- Responding to Unlawful Conduct by Corporate Officers and Employees

- Lawyer’s duty to corporation, not employees, so he must report misconduct to higher authority in org. and if necessary, highest authority that can act for corporation. Model rules also allow, if necessary, reporting to public officials. If discharged for reporting or if you withdraw, you’re supposed to inform organization’s highest authority of discharge or withdrawal

- Entity Lawyers on Boards of Directors- Lawyers not forbidden to be on Boards. If conflict does come up, lawyer obligated to withdraw unless organization waives conflict

C. Representing Criminal Co-Defendants- Costs and benefits of joint representation of co-defendants

- If Ds cooperate they can avoid conviction. Neither confesses or offers information

- But sometimes if immunity is offered to one client in exchange for info, there’s conflict

- Case law and Ethics rules on joint representation of Co-Defendants

- Model rules strongly discourage jointly representing co-defendants

- 6th Amendment and Joint representation- Effective assistance of counsel required, so

representing co-defendants could lead to reversal of conviction

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- Duty to prove adverse impact on client is greater if no objection is made at trial

- Client can give waiver of conflict created by lawyer’s representing a co-

defendant in same case. A D who waives conflict is foreclosed from challenging subsequent conviction on basis of the conflict. Judge can disqualify counsel even if defendants want to waive the conflict.

D. Representing Family Members- Representing Both Spouses in Divorce

- Some states allow, some don’t. Some allow assisting both parties in preparing

settlement as long as they agree and it’s fair- Representing Family Members in Estate Planning

- Common for lawyers to draft wills for husbands and wives, and for beneficiaries to be other family members

E. Representing Insurance Companies and Insured Persons- Who is the client of the insurance defense lawyer?

- The insured, not the company. Though the company could be a client via contract.

- Even if company not client, communications between it and lawyer are privileged and immune from discovery by claimant or other party to proceeding

- Can lawyer reveal confidential info from insured to insurer?- No, even if insurer is also a client of lawyer and has

asserted reservation of rights- When is there a conflict between interests of insurer and

the insured?- Rule 1.8(f) – a lawyer shall not accept compensation from a 3rd party for

representing client unless…- If conflict of interest develops btwn insured and

insurer, what is lawyer supposed to do?

- Act in best interest of the insured, and if both are clients, act in best interest of

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both. Must withdraw from representing both if not possible- Lawyer owes competent representation to the insured, but contract between lawyer and insurer may delegate authority to make decisions about discretionary efforts or expenses in litigation- Obligations to the insured should govern conduct in event of dispute about settlement

- If there’s dispute and lawyer represents both, he must withdraw from representing both

G. Representing Parties to Aggregate Settlements of Individual Cases

- Ds usually offer Ps lawyer a single large lump sum to settle all cases bc the Ds would prefer to accept that loss than face successive jury trials. - Rule 1.8g – lawyer who represents 2 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 signed writing by client. Lawyer’s disclosure shall include existence and nature of all the claims or pleas involved and of participation of each person in the settlement.

- Lawyer must get informed consent from all clients to share confidential information among them and then should advise each client that if any client refuses the settlement, D may withdraw it.

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PROFESSIONAL RESPONSIBILITYChapter 8: Conflicts Involving Former ClientsA. Nature of Conflicts between Present and Former Clients

- Rule 1.9 protects former clientsB. Distinguishing Present and Former Clients

- Restatement explains that because contracts with a client are to be construed from client’s viewpoint, client’s reasonable understanding of scope of representation controls- Attempt to drop one client to accept another, the so called hot potato gambit, has been condemned. Not allowed- If a lawyer worked on a matter on behalf of his employer corporation, the corporation will be viewed as a former client as to that matter. If lawyer didn’t work on certain matter and received no confidences about it, corporation not viewed as former client even as to matters that took place during lawyer’s work for the corporation

C. Evaluating Successive Conflicts- Substantial Relationship?

- If they involve same transaction or legal dispute OR if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in prior representation would materially advance the client’s position in the subsequent matter – Comment 3- Relationship between 2 matters depends on whether factual information could have been learned during the first matter that could be used adversely to the first client during the second representation

- Existence of substantial relationship depends not on what the lawyer actually learned but on what kinds of confidences a lawyer ordinarily would’ve learned in the prior matter- General knowledge of the client’s policies and practices ordinarily won’t preclude a subsequent representation

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- If confidential information learned from former client has become public, lawyer not precluded from representing new client by the possession of that knowledge- If lawyer worked only in limited capacity (doing minimal research as associate), it can be reasonably inferred he gained no info of value

- Material Adversity – harming former client’s interestsE. Representing the Competitor of a Former Client

- Comment to Rule 1.7 says ordinarily representation of economic competitors of former client poses no conflict. But if firm learned a lot about operation of former client and that info could be used on behalf of a competitor to the disadvantage of that former client, firm could have conflict

F. Conflicts Between the Interests of a Present Client and a Client who was Represented by Lawyer’s Former Firm

- Rule 1.9b- Consent not needed unless lawyer had acquired info protected by Rules 1.6 and 1.9c that is material to the matter

- Analyzing Firm Conflicts- Firm whose disqualification is sought should have burden to prove lawyer who changed firms doesn’t possess confidential information material to the new matter- Comment 6 says certain presumptions can be made

- Using or Revealing a Former Client’s confidences- Duty to protect former client confidences continues

indefinitelyG. Imputation of Former Client Conflicts to Affiliated Lawyers

- Rule 1.09 applies to conflicts that develop when lawyer enters new firm

- Same/substantially related matter- 1st presumption needs rebutting (presumes lawyer

knew facts about client represented by former firm)

- Can show by capacity worked at firm etc.

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- 2nd presumption needs rebutting (presumes new firm is infected bc info will be shared)

- Screening is rebuttal

- Rule 1.10 - Imputation- Lawyer Moves from Firm A to Firm B

- To analyze conflicts brought into firm B: use 1.9b- To analyze conflicts remaining in Firm A: use 1.10b

- Problem 8-4: The Fatal Shot- Perhaps. It depends on if the lawyers are determined to be working together in a ‘firm’ relationship. If they are found to be so, then they could only represent the co-defendants if the defendants consented bc there could clearly be adverse relationship here under 1.7. If you aren’t found to be working in ‘firm’ relationship, Kaplan could represent Bellavia. - Does Collingwood standing in create a relationship between Bellavia and him? I think it might and this would violate rules bc a not guilty plea hurts your own client a bit. If Bellavia is not guilty, then Lubinkski is. He would be hurting his own client here, so you’d have to get consent from Lubinksi to do this.- If the clients gave informed consent, I think they could become partners. I don’t think it’s a good idea, but I’m not sure it’s prohibited. Counsel can represent co-defendants in trials, but it’s never recommended. Depends also on what legal strategy is. - Not unless you get consent from both. Bellavia is now a former client, so you analyze under 1.9. There is adversity here and the same legal matter is present.

PROFESSIONAL RESPONSIBILITYChapter 9: Conflicts Between Lawyers and ClientsA. Legal Fees

- Lawyer-Client Fee Contracts- Rules of contract law and state ethics code govern fee

contracts

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- Types of Agreements- Retainers – charging for a certain number of hours in advance is common when

lawyer will be paid based on time spent and there’s not already a relationship

- Reasonable Fees – lawyers have wide discretion- Rule 1.5(a)

Factors to be considered in determining the reasonableness of a fee include the following:

- Time and labor required, novelty and difficulty of questions involved, skill requisite to perform service properly- Likelihood, if apparent to client, that acceptance of employment will preclude other employment by lawyer- Fee customarily charged in the locality for similar services- Time limitations imposed by the client or by circumstances- Nature and length of relationship with client- Experience, relation, ability of lawyer performing services- Whether fee is fixed or contingent

- Forbidden and Restricted Fee and Expense Arrangements- Rule 1.8(e): A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation except that:

1. A lawyer may advance court costs and expenses of litigation, the repayment of

which may be contingent on the outcome of the matter

2. Lawyer representing indigent client may pay court costs and expenses on behalf of client

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- Rule 1.8(d): Prior to conclusion of representation, lawyer shall not make or negotiate agreement giving lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation

B. Lawyer as Custodian of Client Property and Documents- Rule 1.15- Client Trust Accounts

- Must keep separate from personal accounts!- Client Property

- Unless creditor has legitimate claim to particular funds in lawyer’s possession, lawyer’s duty is to client, not 3rd party- If there’s a dispute over amount of fee, lawyer is to distribute undisputed portions of settlement and keep disputed portion in client trust account until resolved

C. Conflicts with Lawyer’s Personal or Business Interests- Business transactions between lawyer and client

- Traditional view is to avoid doing biz with clients bc interest in making money is likely to conflict with ability to look out for client interests- Rule 1. 8(a) discourages, but doesn’t prohibit it.- Ask these questions before making a deal w/client:

- Are terms fair to client? Have you explained terms to client clearly and in writing? Have you advices the client in writing that she should get legal advice about the deal from another lawyer? Has the client had a chance to get advice from another lawyer? Has client given informed consent in writing to terms of deal and lawyer’s role in deal?

- Gifts- Rule 1.8(c)

- Intimate Family Relationships- Common “personal interest” conflict occurs when two lawyers who are members of the same family represent clients with adverse interests in a matter. Must get informed consent. Doesn’t impute, though, because personal interest

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- Financial Interest Conflicts- Rule 1.8(k) provides financial interest conflicts of lawyer in a firm are imputed to all other lawyers. Can’t enter into a biz transaction with client of another member of the firm w/o complying with paragraph (a)

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PROFESSIONAL RESPONSIBILITYChapter 11: Lawyers’ Duties to CourtsA. Investigation before Filing a Complaint

- How much fact investigation must a lawyer do before filing complaint?

- Not expected to limit themselves to filing sure winners, but they’re not allowed to file frivolous suits

- Rule 3.1 Meritorious Claims and Contentions

-A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there’s a basis in law and fact for doing so. A lawyer for the D 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

B. Truth and Falsity In Litigation- Rule 3.3*** Comment 10 to this rule is important

C. Lawyer’s Duties if a Client or Witness intends to give False Testimony

- When lawyer believes criminal defendant intends to lie on stand

- Duty to advocate D’s cause limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Counsel is precluded from taking steps or in any way assisting the client in presenting false evidence

- First duty is to try and dissuade client from unlawful course of conduct. You must reveal perjury to court if it’s committed

- A lawyer’s knowledge of a client’s intent to give false testimony

- Can present evidence about which you’re unsure, but not if you KNOW evidence is false

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- In a civil case, if lawyer reasonably believes testimony is false, lawyer may refuse to offer it- In a criminal case, you must KNOW evidence is false to not offer it

- Should resolve doubt in favor of client D. Lawyer’s duties if client intends to mislead the court without lying

- No rule deals expressly with problem of half truths- Rule 3.3 requires lawyers to correct fraudulent conduct by witnesses- Rule 8.4 bars deceit

E. False Impressions Created by Lawyers during Litigation- Problem 11-5: Body Double

F. Lawyers’ Duties of Truthfulness in Preparing Witness to Testify

- American law tolerates considerable amount of coaching bc uncoached witnesses often ramble and contradict themselves. It’s okay to help witness give clearer, coherent, pertinent testimony- Rule 3.4 Fairness to Opposing Party and Counsel

b. A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law

- Restatement more explicitly allows coaching that doesn’t induce false evidence: can discuss demeanor, witness’s recollection and probable testimony, reveal to witness other testimony or evidence that will be presented and ask witness to reconsider her recollection in that light, rehearse testimony, suggest choice of words

G. Concealment of Physical Evidence and Documents- Duties of Criminal defense Lawyers with Respect to

Evidence of Crimes- Rules restrict lawyers from hiding evidence of criminal

misconduct under Rule 3.4- Lack of clarity about meaning of ‘unlawful’

- Rule 3.4(a) Fairness to Opposing Party and Counsel

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- 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. Lawyer shall not counsel or assist another person to do any such act

- State v. Olwell – To encourage lawyer-client confidentiality, prosecutor, when attempting to introduce evidence at trial that was given to Ds attorney by D himself, should not disclose source of evidence in presence of jury- Ryder – lawyer’s intent to keep D from disposing of evidence doesn’t matter if he places it within his own control and conceals it- Guidance for lawyers

- If client tells lawyer about location of evidence, lawyer may inspect evidence but shouldn’t disturb it or move it unless doing so is necessary to examine or test it- If lawyer merely inspects evidence w/o disturbing it, lawyer’s knowledge of location remains privileged- In many states, lawyer can take temporary possession of physical evidence of client crimes for purpose of conducting limited exam that will not alter or destroy material characteristics of evidence. Applicable law may require lawyer to turn evidence over to police or other authority- If client delivers physical evidence of crime to lawyer, lawyer must turn evidence over to law enforcement within reasonable time – at least in some jurisdictions (this was state case and ABA criminal justice standards don’t require this)- Prosecutor who receives evidence of crime from lawyer for suspect should take steps to avoid revealing to jury that evidence came from Ds lawyer- Lawyer cannot make it more difficult for prosecution to find evidence

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- Problem 11-7: Child Pornography- First see if state law requires turning over of evidence- I would immediately return the computer to the rector. First of all there are no current charges and Gardner is not a client, though the Church is. It would be against interests of church to turn over the computer to the authorities and as of now there is no other party seeking the computer as evidence in any type of charge. - Could maybe delete files bc mere possession is a crime. No ongoing criminal investigation. Could be lawful- Criminal Matters

- If lawyer has no knowledge that violation of law has been committed and no investigation is foreseeable, lawyer has no duty to turn over evidence to a prosecutor- Duty not to conceal takes effect as soon as lawyer believes there will be investigation or as soon as one has started

- Concealment of Documents and Evidence in Civil Cases- Rule 3.4 applies to both criminal and civil cases, but lower requirements under state law for civil suits may allow lawyers to keep possession of evidence- Civil Matters

- Some state laws require preservation of biz records for period of time even if no dispute is on horizon. When suit is foreseeable, higher duty to protect and disclose

- Where lawyer has reason to believe wrongdoing has occurred, state law

varies as to when duty to preserve evidence arises

- Once duty to preserve documents applies, records and objects should be

retained even if they could be destroyed- Duty to respond to Discovery Requests

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- Litigants must comply with discovery requests or formally object to request

- Rule 3.4(d) Lawyer shall not in pretrial procedure make a frivolous discovery request or fail to make reasonably diligent efforts to comply with legally proper discovery request by opposing counsel

H. Duty to Disclose Adverse Legal Authority- Unless court disclosure or discovery rule applies, or lawyer is required to remedy false testimony or some other ethical breach, lawyer representing client need not inform adversay of adverse facts. But Rule 3.3(a)(2) prohibits failing to disclose legal authority in controlling jurisdiction that lawyer knows is directly adverse to client’s position, of an opponent hasn’t already informed judge of that authority.

- Even if opponent has filed last permitted brief w/o disclosing some legal authority adverse to client, lawyer still may have no duty of disclosure

- Only DIRECTLY adverse law need be disclosed, not dicta- Lawyer must KNOWINGLY fail to reveal so can’t be disciplined for overlooking case

I. Disclosures in Ex Parte Proceedings- Rule 3.3(d) requires that in one-sided proceedings, lawyer must inform tribunal of all material facts known to lawyer that will enable tribunal to make informed decision whether or not the facts are adverse

- This overrides 1.6 confidentiality but lawyer doesn’t have to reveal attorney-client and work product information- Rule 3.4(e) Fairness to Opposing party and

Counsel- A lawyer shall not, in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the

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credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused

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PROFESSIONAL RESPONSIBILITYChapter 12: Lawyers’ Duties to Adversaries and Third PersonsA. Communications with Lawyers and Third Persons

- When lawyers communicate w/others on behalf of clients outside of proceedings, rules 4.1

through 4.4 apply- Deception of 3rd Persons

- Duty to avoid Material False Statements- Rule 4.1 – Truthfulness in Statements to

OthersIn the course of representing a client a lawyer shall

not knowingly:(a) make a false statement of material fact or law

to a third person; or(b) fail to disclose a material fact 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.

- False statements by clients to 3rd parties- No rule appears to require lawyer to correct false record given to interrogating cops by client. But it could be argued lawyer’s presence during event at which client provides false info is use of services to commit a fraud, permitting disclosure under 1.6b and maybe requiring disclosure under 4.1(b)

- Rule 8.4c doesn’t apply to misrepresentation solely to identity or purpose and solely for evidence-gathering purposes. This limited use of deception to learn about ongoing acts of wrongdoing is not violation of rules- Negotiation

- Comment 2 to Rule 4.1 allows a little bit of untruthfulness in negotiation. Lawyer can say she doesn’t believe her client would accept less than 80k settlement when she knows she would walk away with 75k.

B. Restrictions on Contact with Represented Persons- Rule 4.2 Communication with Person Represented by

Counsel

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- In representing a client, a lawyer shall not communicate ab the subject of the representation w/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 so by law or court order

- Rule 4.2 applies to communications initiated by the lawyer and to those initiated by the represented person- If lawyer wants to interview employee of an organization represented by another lawyer, and doesn’t have permission, 4.2 comment 7 says lawyer can’t interview one who: supervises, directs, or regularly consults w/org’s lawyer concerning the matter; has authority to obligate the organization w/respect to the matter; act or omission in connection/matter may be imputed to the org for purposes of civil or criminal

C. Restrictions on Contact with Unrepresented Persons- Rule 4.3 – Dealing with Unrepresented Persons- Rule 4.4 Respect for rights of Third Persons

- Some courts have excluded evidence improperly or illegally obtained from the opposing party and disqualified lawyer who received. But some courts don’t disqualify.

D. Duties of Prosecutors (North Carolina has not adopted (g) and (h) of rule 3.8

- McDade Amendment puts prosecutors on same level as other attorneys and holds responsible for state laws and rules

- Depending on the state, 4.2 may be interpreted in favor of allowing prosecutors to have contact w/suspects before they’re charged or allowing them to direct investigations involving contact w/suspects. Also, rule may prohibit such contact w/o consent of D’s lawyer after charge is filed

- Required Investigation by Prosecutors before charges are Filed

- Rule 3.8(a) Special Responsibilities of Prosecutor

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- Prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by PC

- Doesn’t require seeking readily available exculpatory evidence, so decision to prosecute can be based on one-sided info.

- Rule 3.8(d) Prosecutor Shall: make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

E. Unreliable Evidence- In states adopting 2008 amendment to Rule 3.8, prosecutor who gets new credible and material evidence creating a reasonable likelihood that a convicted D didn’t commit an office of which D was convicted must disclose evidence to appropriate court. Prosecutors with clear/convincing evidence of innocence of convicted person must seek to remedy conviction

F. Conduct Prejudicial to Administration of Justice- Rule 8.4d – Professional misconduct for lawyer to engage in

conduct prejudicial to administration of justice

PROFESSIONAL RESPONSIBILITYChapter 14: Regulatory Restrictions on Law PracticeA. Advertising

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- Bates v. State Bar of Arizona – SCOTUS said lawyers could advertise their services and feesB. Solicitation

- 1978 decision, Ohralik v. Ohio State Bar Assn ruled state could ban in –person solicitation by lawyersC. Direct Mail

- Rule 7.1 – 7.3Problem 14-1: Do you Need a Lawyer?

- The Supreme Court did seem concerned in Bates about preserving the integrity of the profession and I think they would probably uphold some sort of waiting period. Supreme Court DID uphold saying it was reasonable restriction on advertising