Professional ResponsibilityFoundations of Professional ResponsibilityMalpractice v. DisciplineMalpracticeattorneys actions were below the standard of care exercised by people in his field.Purposecompensate plaintiffAction in a civil courtDisciplineexpert testimony to prove attorney deviated from the Model RulesNot automatically malpractice but can help prove.Purposepunish lawyerDisciplinary actions are published in NY Law journalAction in a tribunal

Resolving Tensions in the Lawyers RoleZealous Advocate lawyers are ethically and professional responsible for acting loyally and advocating zealously on clients behalf.Officer of the Court lawyers are human beings with strongly held personal beliefs regarding morality.Ethical Systems Influencing a Lawyer:Personal ethicsOrganization culture and ethics of the firmCulture and ethics of the profession itself (Model Rules)Ethics of the justice systemEthics of adversariesEthics of the person or entity to be served (client)

ProfessionalismDefinitions:Certain behaviors that are, at a minimum, to be expected of people of the occupation.Special skills are required because clients have no idea what they are doing.Special expertise and ethical responsibilities. ABA Commission on ProfessionalismAn occupation whose members have special privileges, such as exclusive licensing [monopoly] justified by these assumptions, that:Practice requires substantial intellectual training and use of complex judgments;Client trust based on inability to evaluate adequately the quality of service;Clients trust presupposes that the practitioners self-interest is overbalanced by devotion to serving both clients interest and public good; andThat the occupation if self-regulating.NY CPLR 214(6)3 year statute of limitations for malpractice case against professionals, but in medical malpractice limit is 2 years. Breach of contract is 6 years.Insurance agents and brokers dont count.

In re Paulter (2002)Facts: Neal refused to turn himself in for murder unless provided a public defender. Deputy District Attorney Paulter pretended to be a public defender. He advised Neal to turn himself in. Neal listened because he believed he was being represented by an attorney. The Court finally appointed Neal a real public defender but Neal fired him and got the death penalty.Paulter tried to argue that there was an imminent public harm. He believed his actions were justified to apprehend a manic serial killer. He also argued that he never provided legal advice to Neal.Colorado Supreme Court held that his actions are not justified because there was not an imminent public harm.They said even a noble motive does not warrant a departure from the Rules.Paulter was suspended for 3 months and received 12 months probation.Takeaway=follow the rules of professional conduct.

Regulating Attorney ConductHistory of Model Rules1908 ABA Canons of Ethicsfirst comprehensive attempt by the legal profession to regulate itselfDeliberately vague because drafters were worried that no code could particularize all the situations lawyers would face.Enforcement was intermittent, haphazard, and often biased against solo and small firm practitioners.1969 Model Code of Professional ResponsibilityThree Sections:Canonsdescribed general professional conductEthical considerationsaspirationalDisciplinary rulesset a floor for professional conductWeaknesses:Too concerned with trial lawyers and not transactional/negotiatorsDidnt take into account large firm, multijurisdictional practiceNo provision regarding subsequent representation adverse to interests of former client1983 ABA Model Rules of Professional ConductBlack letter rules with no explanatory comments.Mandatorymust do; require disciplinary action when violatedPermissiveallowed to do; no disciplinary action when violated (just a guide)Aspirationalspeak to level of conduct lawyer should strive to achieveCommentsdo not add obligationsModel Rules have been adopted by 49 states.NY became the 48th state to adopt the Model Rules (April 1, 2009).California is the only state not to adopt the Model Rules.Model Rules designed to be client oriented.

Philosophy of LawyeringLawyer as AgentExpress and implied authority to use skill on behalf of client.Express by an actual agreementImplied result of attorney client relationship.Acting for client means lawyers conduct will be attributable to the client; both good and bad.Binding the clientsigning contracts on behalf of a client.SEC v. McNultyin litigation, attorneys default, mistake or omission can be attributed to client and client may not be relieved.A litigant chooses counsel at his peril.Lawyer as FiduciaryMust place clients interests above their own.Unique position of trust and confidence.Reasons for highest level of fiduciary duty:Client depends on lawyers superior knowledge/judgment, integrity and fairness and put aside caution that is customary when dealing with others on important matters.Lawyers get information about client that gives an unfair advantage in dealings between them.Client may be financially or psychologically dependent on attorneys continued representationnot so easy to change attorneys mid-way.Benson v. State Barattorney borrowed money from client in return for IOUsCourt disbarred attorneyabused clients trustIn re Lerner (NY)lawyer recommends firm because hed get a cut of the moneyA fiduciary may be required to disgorge any ill-gotten gain even where the plaintiff has sustained no direct economic loss.Loyalty and DiligenceLawyer must pursue clients objectives without being conflicted by other responsibilities or interests.Survives termination of attorney-client relationshiplawyer cannot act adversely to a former client in a substantially related matter.DutiesPursue clients interests without undue delay.Undivided loyaltiesundermine ability to be diligent and threatens fiduciary position.Entire devotion to clients interest, zeal, exertion of utmost learning and ability.

Admission to PracticeAuthority to control AdmissionStateSupreme Court governs rules and procedures to be admitted to practiceLicensing of attorneys in a state is in exclusive control of the highest court in the state.ExceptionNY the appellate departments govern bar admissionSource of powerThis is in the definition of what it means to be a courtpower vests upon creation of court; inherent power.NJ and PA are two states with explicit grants of power.FederalAdmission to state court DOES NOT automatically entitle practice in federal court.Must also be admitted to the federal bar.Qualifications:Must be a lawyer in the state where the district court sits.Supreme Court and other jurisdictions allow admission based on prior admission to another federal court.Need to be introduced to court by a current member of the federal bar.Pro hac viceFor this turn only you can be admitted to practice before a court that you are not a member of.Must submit a motion to the courtThe court will likely require some kind of association with a local firm because an attorney needs to be subject to discipline of the court.This is at the courts discretion.Criminal defendants cannot claim right to counsel if their attorney of choice is not admitted pro hac vice.There is a limit to the number of times you can be admitted pro hac vice.Not an explicit number but it will be denied if you are trying to circumvent state admission procedures.Good Moral CharacterApplicant has burden of proving good moral character, it is not assumed.A lawyer representing a client/applicant for bar admission is governed by rule applicable to client/lawyer relationship (MR 1.6).Duty to client superseded by reporting requirements of MR 8.1Duty to disclose:Must disclose convictions.Must disclose arrest IF askedcannot refuse to answer on 1st Amendment grounds.Failure to disclose an arrest, even as a juvenile, can be an independent basis for denying admission, even if arrest itself is not a basis for denial.Do not need to disclose parking tickets unless application asks elsewhere.Failure to pay parking tickets is evidence of fiscal irresponsibility/disrespect for the law.MoralityCourts can deny admission if they view applicants activities, even if legal, as engaging in unauthorized practice of law or having disrespect for the legal system.Financial habitsPoor financial patterns can be a basis for denial until steps/efforts are made to repay debts.Wieder v. Skala (NY Court of Appeals)Is it a public policy violation when a law firm fires a lawyer for reporting disciplinary violation by another attorney?Yesthis case create a new cause of action available only to lawyers.Wrongful termination based on a law firm requiring an employee to violate professional ethics rule.Applied very narrowlyonly when lawyer would be required to report another lawyer and firm threatens to fire such lawyer.

Model Rule 8.1Bar Admission and Disciplinary MattersAn applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:(a) knowingly make a false statement of material fact; or(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Model Rule 5.2Responsibilities 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 lawyers reasonable resolution of an arguable question of professional duty.

Model Rule 8.3Reporting 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 lawyers 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 judges 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.Model Rule 1.0Terminology(f) Knowingly, known, or knows denotes actual knowledge of the fact in question. A persons knowledge may be inferred from circumstances.

Criminal CasesClient-Lawyer RelationshipCompetencyDetermining skill required:Complexity and specialized nature of matterGeneral experienceTraining and experience in the field in questionSpecialists are held to a higher standard if they advertise such specialtyPreparation and study lawyer is able to give to the matterWhether it is feasible to refer the matter to, or consult with, a lawyer of established competence in the fieldEnforcing duty of competenceDisciplinary actionRare unless egregious conductSpecial circumstances are irrelevant (e.g., personal crises)Can be a mitigating factor but still subject to sanctionsMalpractice actionIntentional tort, break of fiduciary duty, breach of KNegligenceDuty of care to clientsBreach of duty of carecompetence normally exercised by attorneys in similar circumstances is the standardCustom is dispositiveExpert testimony required to define the standardBut for cause of actionprove that you would have won the caseDamagesvalue of underlying actionViolation of a disciplinary action is evidence of negligence that the trier of fact can consider.Ineffective assistance of counsel (6th Amendment)Only criminal casesLawyer is not a party to the actionMust be a causal relationship between professional failure and injury to clientStrickland v. WADefendant must show:Lawyers conduct fell below range of professional acceptance; ANDCourts give great deference to tactical decisions of attorneys in these cases.Client suffered prejudice in the sense that verdict was probably affected by lawyers incompetence.Court presumes prejudice in certain situations:Conflict of interestDefense counsel fails to follow up on Ds instruction to appealProceedings could not reasonably be considered adversarialRemedynew trialSanctions (least to most severe)WarningPrivate reprimand/censureRequirement of CLE classesCommunity servicePublic reprimand/censure (published in law journal)Monetary finesInterim suspensionlawyer suspended immediately because of danger posed to client (e.g., alcohol abuse)Full suspensioncan reapplyDisbarmenthave to be readmitted to the bar

Model Rule 1.1CompetenceA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill thoroughness and preparation reasonably necessary for the representation.

FeesDetermining the Fee:When you take on a client, you agree not to take on any other business that will take away from duty to diligently represent that client.You give up the right to take on excessive business and the right to take on business that might conflict with your clients business.

Model Rule 1.5Fees(a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

Model Rule 1.5Fees(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.(e) A division of a fee between lawyers who are not in the same firm may be made only if:(1) the division is in proportion to the services performed by each lawyer or lawyer assumes joint responsibility for the representation;(2) the client agrees to the arrangement, including the share each lawyer will receiver, and the agreement is confirmed in writing; and (3) the total fee is reasonable.

Types of Fees:Flat Fee lawyer charges to complete a given service, regardless of the time it takes; must be reasonable and partially refundable; creates incentive to be efficientSaves the lawyer time by not calculating hours.Low flat fees attract clients and your volume of clients will increase.If client terminates before job is complete the lawyer must refund part of the fee and charge a percentage based on the work done or an hourly fee.Retainer should state an hourly price in case of cancellation.

Hourly Fee charge for each hour you work, attorney gets paid win or loseProduces inefficient work and encourages unnecessary projects.Decreased associate satisfaction.Lack of mentoringif youre mentoring youre not billing.Decreased Pro Bono work.

Contingency Fee no fee unless client obtains a monetary recoveryEncourages nuisance lawsuits that clog the court.Unjustly enrich lawyers who charge substantial contingent fees.Encourages settlement when there shouldnt be.Prohibits in matrimonial and criminal cases because. . . A plea may not be in the best interest of the client, andWe do not want to encourage divorce.Must be in writing and signed by the client.Reverse contingencytake part of what lawyer saved the client

Value Billing charge based on value of work for clientLawyer and client negotiate value of work at the beginning (similar to flat fee).Lawyer and client negotiate at the end; if the negotiation fails then a formula is used (similar to contingent fee).Lawyer unilaterally determines the value at the end of the matter.Used by courts when awarding fees under fee-shifting statutes.Usually used in civil rights and environmental cases (value of the win is high but the lawyer invests endless hours); its a win for a society.

Hybrid Fee combines two typesE.g., contingent hourly ratehourly rate only paid if client wins

RetainersGeneral retainerfee to make legal services available when needed during specified timeFee is earned when paid because attorney is entitled to the money regardless of whether he actually performs any services.

Special retainer payments of funds for a specific service, fees not earned until actual work performed; money paid into trust fundFee must be refundable.Non-refundable special retainers are void as unethical.Must be placed in a trust if advanced paymentThere is a presumption that a special retainer exists, an attorney must show by a convincing preponderance of the evidence that it is something else.Iowa Supreme Court v. Aplandflat fee paid in cash, deposited into portfolio, attorney agreed to pay all expenses out of $5K paid; no written agreement but oral agreement said it would include appeals; 6 months after case ended, client demanded a portion of money back but lawyer said he paid for depositions out of money. Attorney returned $2,000 but clients filed grievance.Court drew distinction between general retainers, special retainers and flat fees.There were six ethical violations by Aplandunrefundable retainer, didnt deposit into trust, failed to respond to disciplinary charges, didnt give an accounting of time spent, and tried to pay them to withdraw the complaint.

Model Rule 1.5Fees(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.(d) A lawyer shall not enter into an arrangement for, charge, or collect:(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or(2) a contingent fee for representing a defendant in a criminal case.

Model Rule 1.8Conflict of Interest: Current Clients: Specific Rules(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

Model Rule 1.15Safekeeping Property(a) A lawyer shall hold property of clients or third persons that is in a lawyers possession in connection with a representation separate from the lawyers own property. Funds shall be kept in a separate account maintained in the state where the lawyers office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such accounts funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.(b) A lawyer may deposit the lawyers own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client of third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claims interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

Criminal CasesConfidentialitySecrecy/ConfidentialityWhat is Secrecy?Lawyers ethical obligation not to use or reveal information relating to representation of a client.Information may come from a client, documents, third parties or attorneys own observations.Rules of Ethics=Duty of ConfidentialityRules of Evidence=Attorney Client PrivilegeRules of Civil Procedure=Work Product Doctrine

Who is a client?Does this person believe she is your client?If so, is that reasonable in light of all the circumstances?Factors considered:Expectation of confidentialitySpeaking to you in your capacity as a lawyerSeeking legal adviceWhat is unreasonable?Someone just looking at your website without any direct communication.Everything is look at from the clients perspective.You must be clear and explicit about when representation begins and ends.Must keep confidential information received from prospective client confidential and must decline representation of someone else if that confidential information would materially limit your ability to represent new person.If there is proof that prospective client was not seeking legal representation but just trying to create future conflicts of interest, then no fiduciary relationship arises and no duty of confidentiality.

Three categories of information:Duty of confidentiality prohibits lawyer from voluntarily using or revealing information that they know about a client or clients matter, regardless of source (relating to representation)Under MR 1.6 you have a professional duty not to reveal to others any information relating to the representation.Scope of rule is enormousprohibited from disclosing anything at all relating to representation.

Model Rule 1.6(a)Confidentiality of InformationA 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).

Attorney-Client Privilege prevents anyone from compelling disclosure of communications between an attorney and client when the client is seeking legal advice; anything protected by this is protected by MR 1.6; stronger but narrower scope than duty of confidentialityApplies only when the five Cs are present:ClientIf you agree to accept someones civil case but not criminal, everything you talked about is protected because they were a prospective client.CommunicateOral, written and email (even if not marked confidential).Hand gestures count too.Confidentially withOnly in presence of client and lawyer unless someone is there to assist in representation OR family member.Counsel (lawyer acting as lawyer)Includes conversation/phone message with secretary (agent).To obtain Counsel (Legal advice)

Facts v. CommunicationsFacts are not protected.E.g., what color the light was?Communications are protected.

It can be waived but it is all or nothing, cannot waive part of the privilege.Intentionally waiving the privilege.Turning over confidential documents.Client reveals something during deposition.Waiver can be accidental.Implied authority that attorney can reveal confidential information that will advance a settlement.

Exceptions: (JACSS)Joint clientstwo clients represented by a single attorneyIf dispute arises, attorney-client privilege is broken between all parties.Whatever conversation you had between each client is no longer privileged and anyone can inquire into communication.Advice of Counsel DefenseIf client says they did something not knowing it was illegal because attorney said it was ok the privileged is waived.Crime-frauddepends on clients intent, not attorneys knowledge

Self defenseIf client sues lawyer.SubpoenaObject to subpoena until the court orders you to produce it.If judge orders you to produce it, you can produce without violating ethical duties because there is a court order.

Entity ClientsAttorney who represents corporation can claim attorney-client privilege for communications with some officers, directors and employees (always President and CEO).Control Group TestWestinghousecorporations are protected only if person communicating with lawyer is a member of a control groupelite group of corporate officers and employees who actually control corporation and make its policies.This test is abandoned in most jurisdictions because it is too narrow.Subject Matter TestUpjohnconversations between corporate attorney and employee, even if initiated by attorney, are privileged as long as conversations are for the purpose of gathering information necessary to give or implement legal advice to corporation.Focuses on nature of communication, not status of communicator.Criticized for being too broad.

Work Product Doctrine protects information created by lawyer for purposes of litigation (FRCP 26)Prevents discovery of materials prepared in anticipation of litigation.Must be tangible (not communications).Includes phone messages taken by secretary.Lawyer cannot be compelled to reveal written material prepared in anticipation of litigation.Includes letters written from client to lawyer.Lawyer runs risks of waving by showing certain documents to a witness while on the stand (memos etc.)

Hickman v. TaylorOrdinary Work Productinformation recorded by the attorney because of litigation.FRE 26(b)(3)two part test of discovery of work product:Substantial need of materials; ANDUnable to obtain without undue hardship the materials or substantial equivalent by other means.Opinion work productwritten impressions, conclusions, opinion or legal theories of an attorney concerning litigationVirtually immune from discovery, but subject to waiver.

Inadvertent disclosureAttorney-client privilege is not waived if attorney takes reasonable steps to make sure this doesnt happen.If no reasonable steps, court can conclude ACP is waived.

Model Rule 4.4Repsect for Rights of Third Persons(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.(b) A lawyer who receives a document relating to the representation of the lawyers client and knows or reasonable should know that the document was inadvertently sent shall promptly notify the sender.

Exceptions to the Duty of ConfidentialityThirteen exceptions (#1-9 are derived from MR 1.6) (#10-13 are found in MR 1.9, 1.13, 3.3(a) and 3.3(b)).Informed ConsentMR 1.6(a)Must tell what you are going to disclose, facts giving rise to situation, material advantages and disadvantages, and alternatives.

MR 1.0Terminology(e) Informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Implied AuthorityMR 1.6(a)The disclosures are required by the rules of procedures; orThe disclosures will help the client, not hurt the client.Never implied authority to hurt client.Never implied authority to override clients instructions not to disclose.To prevent reasonably certain death or substantial bodily harmMR 1.6(b)(1)Does not have to be the act of the clientE.g., could be a witness plotting to blow up school and has done so in past. Can reveal a future plan, but not past because harm already happened.Does not have to be a criminal actDoes not have to be imminentDisclosure can be no broader than necessary to prevent future harmDisclosure is not mandatoryTo prevent the client from committing a crime or fraud that is reasonable 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 lawyers servicesMR 1.6(b)(2)Applies only when the client is using (or has used) the lawyers services to commit a future crime or fraud that will almost certainly harm someone elses property substantially.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 clients commission of a crime or fraud in furtherance of which the client has used the lawyers servicesMR 1.6(b)(3)Applies after crime has been committed to prevent future damage.Prior acts from which there will be subsequent damage.To secure legal advice about the lawyers compliance with these rulesMR 1.6(b)(4)Seek guidance about whether something you are doing is compliant with rules.Disclosing information to secure such advice is usually impliedly authorized for a lawyer to carry out representation.Lawyers claim or self-defenseMR 1.6(b)(5)Permits disclosure to the extent the lawyer reasonably believes necessary in order to:Establish a claim or defense on behalf of the lawyer and the client (e.g., free dispute or legal malpractice claim)Establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involvedRespond to allegations in any proceeding concerning the lawyers representation of the client.To comply with some other lawMR 1.6(b)(6)Attorney must confer with client and tell about disclosure and the effects.Court orderMR 1.6(b)(6)Discretionary but can be subjection to contempt of court.Information that became generally known after a representation endedMR 1.9(c)False evidence offered to a tribunalMR 3.3(a)(3)Attorney is required to:Notify court that perjury has taken place and remedy the situation.Criminal or fraudulent conduct related to proceedings before a tribunalMR 3.3(b)Required disclosureE.g., witness tamperingWhen the client is an organization, a clear violation of law may be revealed to prevent substantial injury to the organizationMR 1.13Required to report internally within the organization.If this does not rectify situation, lawyer may report out of organization.Willful blindness applies, once the attorney realizes there is wrongdoing, duty to report up the chain of command.

MR 1.6Confidentiality of Information(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 reasonable 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 lawyers 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 clients commission of a crime or fraud in furtherance of which the client has used the lawyers services;(4) to secure legal advice about the lawyers 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 allegation in any proceeding concerning the lawyers representation of the client; or(6) to comply with other law or a court order.

Attorney Client Privilege and Physical EvidenceTypes of Physical Evidence:Given to you by a clientGiven to you by a third partyYou find on your ownEvidence that you only see, but do not touchE.g., client gives you tour of crime sceneYou only hear about, but do not see or touchE.g., someone tells you there is evidence but you dont go find it

Handling Physical EvidenceIn re RyderRyders client told him there was evidence (shotgun and money) in a safe deposit box and Ryder took the evidence and moved it into his own box so he can make an argument to suppress on grounds of attorney-client privilege.Court held that Ryders conduct was not encompassed by attorney-client privilege and that Ryder was an active participant in the crime.What is covered by attorney-client privilege?Anything defendant told Ryder.What is not covered?Ryder collecting and hiding the evidence.Once he touches the evidence it is no longer covered by the privilege.People v. MeredithAn observation by defense counsel or his investigator, which is the product of privileged communication (e.g., D tells you where the wallet is hidden) cannot be admitted as evidence at trial UNLESS defense, by altering or removing physical evidence, has precluded the prosecution from making the same observation.If you pick it up, you have to disclose because your fingerprints are on it so you altered the evidence.Once you get your hands on it, you are liable!

Delivering Evidence to the ProsecutionDefense lawyers in a criminal case are prohibited from hiding physical evidence in their offices.If a defense lawyer actually takes possession of physical evidence, they must turn it over to the prosecution.Criminal defense lawyer must give authorities physical evidence that lawyer receivers from client if evidence is material to the case.Courts have difficulty in determining exactly what the prosecution can say to the jury about the source of the evidence.

Destruction of EvidenceIn most states, destroying physical evidence is a crime even before subpoena is issued.Under federal law, intentional destruction after subpoena is an obstruction of justice.Destruction of evidence before a subpoena is issued is a federal crime only if:Evidence is relevant to a pending grand jury or criminal investigation; andDestruction was done with corrupt or evil intent.The least detrimental way to turn over evidence is:Send it in anonymous; orHire attorney to represent lawyer and have them bring it to authorities and have them invoke attorney-client privilege about who your client is.Intentional destruction of a document to prevent its use at trial, even when not illegal, creates an adverse inference that the partys entire case is weak.A good lawyer can almost always explain a damaging document to the jury but a missing one creates problems because a jury will make adverse inferences.

MR 3.4Fairness to Opposing Party and CounselA lawyer shall not:(a) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.

ABA Standard for Criminal justiceStandard 4-4.6(a) Defense counsel who receives physical item under circumstances implicating a client in criminal conduct should disclose location or deliver to law enforcement only:(i) Required by law or court order; or(ii) As provided in (d)(b) Unless required to disclose, defense counsel shall return item to source from whom it was received, except (c) and (d). In returning the item to the source, defense counsel should advise the source of the legal consequences pertaining to possession or destruction of the item. Defense counsel should also prepare a written record of these events for his or her file, but should not give the source a copy of such record.(c) Defense counsel may receive the item for a reasonable period of time during which defense counsel:(i) Intends to return it to the owner;(ii) Reasonably fears that return of the item to the source will result in destruction of the item;(iii) Reasonable fears return will result in physical harm;(iv) Intends to test, examine, inspect, or use the item in any way as part of defense counsels representation of the client; or(v) Cannot return it to the source.(d) If the item receive is contraband, defense may suggest client destroy it if no pending case or investigation and not clearly in violation of criminal statute. If such destruction is not permitted by law and defense counsel does not think he can reasonable retain the item, whether or not contraband, in a way that does not pose unreasonable risk to anyone, defense counsel should disclose location or deliver item to law enforcement.(e) If defense counsel disclosed the location of or delivers the item to law enforcement authorities, he should do so in a way best designed to protect the clients interests.

Problem of perjury (What if your client liesor plans to lieat trial?)Nix v. WhitesideDefendant stabbed a drug dealer, claiming self defense. Defendant told his lawyer that he never actually saw a gun but thought the dealer was reaching for one.A week before trial, the defendant said If I dont say I saw a gun, Im dead.His attorney would not let him testify and threatened to withdraw or tell the court if he testified falsely.Defendant ended up testifying that he knew the drug dealer owned a gun and thought he was reaching for one but not that he actually saw one.Defendant convicted and claimed ineffective assistance of counsel.Supreme Court held that attorneys conduct did not amount to ineffective assistance of counsel.The right to testify does not include the right to testify falsely.The used the Strickland test: (1) serious attorney error below the range of acceptable conduct; and (2) prejudice.

Prospective v. Retrospective PerjuryProspectiveIf a lawyer knows that a criminal defendant will testify falsely, the lawyer must not put that into evidence.If a lawyer reasonably believes that a criminal defendant will testify falsely (but the lawyer does not know), then the lawyer must put client on the stand if the client decides to testify.In a civil case, if a lawyer reasonably believes that a client or any other witness will testify falsely, then the lawyer has discretion whether or not to call the person to the stand.Strategic lawyeringnever tell client that they have to comply with the law, try to figure out a way to deal with a situation and expose your client to the least amount of negative effects.MR 3.3 is the only rule that expressly overrides the duty of confidentiality under MR 1.6

RetrospectiveIf a lawyer knows of falsity, must take reasonable remedial measures, such as:Keep client off the standAsk only questions that will not elicit false testimonynarrative.Move to withdraw.Four Rs (1) Recess proceeding; (2) Remonstrate with the client; (3)Resign (withdraw); and (4) Reveal if only effective option.Must balance the trilemma of the duty of confidentiality, duty of competence and duty of candor with the tribunal.All three will not mesh when you know a client will lie on the stand.

MR 2.1AdvisorIn 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 clients situation.

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

Criminal CasesConflicts of Interest*Enforcement mechanism is a motion to disqualify.Costscan cost lawyers a lot of moneyErroneously accepting a matter can cost money.Erroneously rejecting a matter costs money.Erroneously continuing a matter costs money.

FoundationSecrecyLoyaltytotal devotion to the interests of a client [do nothing to harm or distract your pursuing such]Duty of loyalty is compromised if a significant risk that lawyers ability to consider, recommend, or carry out an appropriate course of action for client will be materially limited.E.g., lawyer is tempted to give up an option (defense, cause of action, investigations) because interests are directed elsewhere.Most courts refuse to allow hot potato scenariowithdraw from representation of current client to represent another, better client to avoid conflict of interest.

Concurrent ConflictsDirect Adversity Conflictswhenever a lawyer directly opposes a current clientsLoyalty to a current client prohibits undertaking representation directly adverse to that client without that clients informed consent. (under very limited circumstances)

Materially Limiting Conflictswhenever a lawyers loyalty to a current client is or may be materially compromised by a competing loyalty to any other person (whether a current client, former client, or some other third person), or by the lawyers own personal interestsConflict exists if there is a significant risk that a lawyers ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyers other responsibilities or interests.Arise far more often than direct adversity conflicts.

Competing InterestsAnother client (meaning another current client)A former clientSome other third person (such as a friend, relative, or spouse) who is neither a client nor former clientThe lawyers own persona, financial, political, or social interests

Who is a client? Someone who reasonably believes he is a current client.Current ClientsAnyone who reasonably believes you are their lawyer and is reasonably relying on you to perform legal services. May consider themselves such at any of 4 stages:EvaluationUntil formally rejected, prospective client is treated as current and the same duties are owed regarding conflict, confidence, and competence.If you reject, they become a former prospective client.Do not have to accept a case in order to create a duty.If you tell prospective client you are going to do something, you will be liable for not doing what you said.Be clear and say in unambiguous terms that you are NOT taking the case.

WorkSpecify the scope of representation.Client is your client untilYou complete the services you promised.You withdraw as specified under MR 1.16You are fired by the client.

Follow-upExpectation of follow-up services is viewed from clients perspective.Such expectation maintains clients status as current client, even if communication is not expressed to you.E.g., reasonable to expect that you monitor other party adhering to compliance with settlement terms.

Pattern of workArises when client has retained you to do legal work often enough to establish a pattern of relationship (client can say thats my lawyer), even if not doing work for client at that moment.FormerAnyone who was ever your client in the past, including both individuals, and entities, whether you served them at your current law firm or at some other former legal job.The rules governing successive conflicts are far more lenient than the rules governing concurrent conflicts, so former clients have less protection than current clients.

NeverEveryone who is neither current nor former.Organizationsdont automatically represent officers, directors, employeesParents and childrenif you represent a child, you dont automatically represent the parentsThird person paying a feeif someone is paying a fee for your client, you dont automatically represent that person

Direct Conflictsbetween two current clientsCan arise in five ways:Representing opposing sides in the same litigationUniversally forbidden, regardless of client consentRepresentation opposing sides in a transactionNot prohibited by MR 1.7 but riskyOpposing a current client in unrelated litigationConsentable but absolute right to refuse to consent to being opposed in any litigation matter, and if current client consents, lawyer must refuse to accept new case.Need informed consent.Opposing a client in an unrelated transactionConsentableE.g., if a lawyer in a asked to represent the seller of a business in negotiations with a buyer who is currently represented by the lawyer, not in same transaction, but in an unrelated matter, lawyer needs informed consent.Comment 6 to MR 1.7:Simultaneous representation in unrelated matters of clients whose interests are only economically adverse . . . does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.Multiple Representation of allied partiesIt is always consentable.In civil, there is a limited scope under MR 1.2(c) so if clients interests diverge during settlement, attorney can withdraw.To get consent, lawyer must explain:Implications of common representation in writingIncluding the effects on loyalty, confidentiality, attorney-client, privilege and advantages and risks involved.Attorney client privilege does not attach to commonly represented clients, and neither can claim if representation fails.If one client decides that some material matter be kept from the other, lawyer will have to withdraw because there is a duty of lyallty to each client, and each client has the right to know about anything that might affect clients interests.If representation fails due to irreconcilable conflict between parties, lawyer will be forced to withdraw and there may be additional costs, embarrassment and recrimination.Advantages:Save legal feesReduces delayed because of schedulingIf dispute does arise, common lawyer may help parties work out differences before problem erupts into litigation or ruins a deal.Disadvantages:If conflict develops, common lawyer may ignore conflict or deliberately conceal it so lawyer can continue multiple representation.If serious, insoluble conflict arises, all parties may have to get new lawyers, resulting in additional time and expense.If common clients get into dispute, they will not be able to claim attorney-client privilege for communications with lawyer during common representation.Attorney must advise clients of this waiver.Criminal Defense WorkABA Model Rules 1.7:The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.It is a good idea to disclose everything to the judge to make sure he is okay with multiple representation.Prosecution will be hesitant because it could result in ineffective assistance of counsel.

Indirect ConflictsLawyer represents different clients in different matters and one matter may adversely affect the other.Although clients are not directly attacking or opposing each other, one client either:Wants something that would or could harm the other client; orOpposes something that would or could help the other client.Materially limiting conflict; not directly adverse.

Position ConflictsIt may be a conflict to represent different parties in completely different matters if their legal positions are incompatible.A lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients.Merely, advocating a legal position for one client that might create a precedent harmful to another client in an unrelated matter does not create a conflict.A conflict does exist if there is a significant risk that a lawyers action on behalf of one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.Factors to be considered:Where are the cases pending?Substantive or procedural?Temporal relationship?Significant of the issues?Clients expectations?If significant risk of material limitation, informed consent is needed.

Conflicts Between Client and 3rd Party:Directly Opposing 3rd PartyA lawyer may be unwilling to oppose the person even though that person should be a defendant in the litigation.A lawyer may be willing to oppose the third person, but may be unable or unwilling to press the clients cause with maximum vigor against that person.Adversely Affecting a 3rd PartyA lawyer may believe that adding a particular bank as a defendant in a loan fraud case may anger or implicate his sister if she is an office of the bank.A personal injury lawyer defending a client in an accident case may believe that the best defense is to blame one of the lawyers good friends for causing the accident.

Conflicts with Lawyers Own InterestsLawyers interests should not be permitted to have an adverse effect on representation.E.g., if lawyer knows handling a matter would require traveling and he wants to stay home for a weddingdo not accept.Business Transactions with Client:MR 1.7(b) and 1.8(a) prohibit lawyer from a lawyer from entering into business deal with a client unless lawyer satisfies the following 3 conditions:Transaction and terms are fair and reasonable to client and are fully disclosed, and transmitted in writing in a manner that can be reasonably understood by client.Client is advised in writing of desirability of seeking advice of independent counsel on transaction.Client gives informed consent, in writing signed by the client, to the essential terms of the transaction and lawyers role in the transaction, including whether lawyer is representing the client in the transaction.Highly risk for lawyers because failure to follow MR 1.8(a) can result in suit by client against lawyer for fraud, misrepresentation, and breach of fiduciary duty.Disbarment and length suspensions are common penalties.In many jurisdictions, business transactions between lawyer and client are presumptively fraudulent or improper.

MR 1.8Conflict of Interest: Current Clients: Specific Rules(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyers role in the transaction, including whether the lawyer is representing the client in the transaction.MR 1.7Conflict of Interest: Current Clients(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.Burden of lawyer is on lawyer to show that transaction is fair and client was fully informed of all terms in writing before entering the deal.

Criminal CasesLimits on Zealous RepresentationLitigation TacticsTrial PublicityMedia coverage can influence jurors, witnesses and judges.Press has virtually unlimited right to publish what it believes is important about legal proceedings.Courts have broad powers to regulate conduct of anyone who appears before the court; including the press.Sheppard v. Maxwellcourt focused on trial judges failure to control the mediaAttorney Dilemma:Office of the courtprotecting the integrity of the proceedingsClient representationprimary obligation is to clientsMR 3.6(c)=right of replyStatements made by prosecutors pose a greater risk than statements made by defender counsel.Tactical decisions are left to discretion of attorneyeven if client doesnt want you to.

MR 3.6Trial Publicity(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.(b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involves and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in additional to subparagraphs (1) through (6);(i) the identity, residence, occupation and family status of the accused;(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;(iii) the fact, time and place of arrest; and(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyers client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Improper ContactsEx parte contactslawyers prohibited from speaking to jurors/witnesses/judges without other attorney present (including emails).Conversations with jurors about facts of a case are improper.Saying hi to jurors in the hallways is improper.If juror says hi to youtell the judge to cover your ass.

MR 3.5Impartiality and Decorum of the TribunalA lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if:(1) the communication is prohibited by law or court order; or(2) the juror has made known to the lawyer a desire not to communicate; or(3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribunal.

Duty to disclose Adverse Facts and LawLawyer does not have duty to help adversary from making mistakes.However, if opponent is presenting legal argument and facts and fails to cite controlling authority in that jurisdiction for position that would be directly adverse to your side, you must bring it before the court.The more unhappy you are with that case, the clearer your obligation to reveal it.Controlling=same state or district/circuit

Fairness to Opposing Party and Counsel

MR 3.4Fairness to Opposing Party and CounselA lawyer shall not:(a) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel ro assist another person to do such act;(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or what will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocent of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:(1) the person is a relative or an employee or other agent of a client; and(2) the lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information.

Respect for Rights of Third Parties

MR 4.4Respect for Rights of Third Persons(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.(b) A lawyer who receives a document relating to the representation of the lawyers client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

Special Duties of ProsecutorsObligation to do JusticeProsecutors are subject to state ethics rules.Federal prosecutors are subject to ethics rules of the state in which the district court sits.Disclosure of Exculpatory EvidenceDisclosing exculpatory evidence to grand jury is discretionary.Department of Justice policy says it must disclose or it violates the rules of professional responsibility.Exculpatory tends to negate guilt or prove innocenceMaterial evidence reasonable probability of affecting outcomeBradysuppression by prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of good or bad faith of the prosecutionApplies even if prosecution has not suppressed evidence and defense did not file Brady motionmust turn over if you knowCommunication with person Represented by CounselUnited States v. Talaoprosecutor talking with someone representedWhat factors are relevant in determining whether communications pre-indictment are authorized by law (post indictment communications are not authorized):Has there been development of an adversarial relationship?Did the informant or government initiate communication?Does the communication involved demonstrate evidence of subordination of perjury or obstruction of justice?Does defense counsel have a conflict of interest because informant offered evidence of criminal activity adverse to interests of other clients represented by counsel?Has the government given appropriate warnings of the persons right to retain substitute counsel?Has the government engaged in misconduct in connection with the communication, such as misrepresentation, coercion, or attempts to obtain attorney-client communications?

MR 3.8Special Responsibilities of a ProsecutionThe prosecutor in a criminal case shall...(a) refrain from prosecuting a charge that the prosecutors knows is not supported by probable cause;(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;(d) 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 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) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonable believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information;(f) except for statement that are necessary to inform the public of the nature and extent of the prosecutors action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case form making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.(g) when a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutors jurisdiction,(A) promptly disclose that evidence to the defendant unless a court authorizes delay, and(B) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutors jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Civil CasesClient-Lawyer Relationship: Fees (MR 1.5)Two of the most frequent fees:Contingent (Plaintiff)usually a percentage of what they obtainLawyer collects only if matter is resolved in Ps favor.Not allowed in criminal and domestic relations cases.Not allowed in large settlement cases resulting in billion dollar verdicts.Also not allowed in cases where it is certain the client will win.Requirements:Must be in writing and signed by the clientStating how fee is calculatedExplaining other expenses (depositions, travel etc.)When expenses are calculated (before or after the fee is taken)After contingency fee is charged lawyer must give written completion to the clientTime and labor requiredFee customarily charged in that areaAmount involved and results obtainedThe total fee charges must be reasonable.Some states have statutory requirements for contingency fees.Standard is 33% before expenses.Expert witnesses cannot be paid on contingent basis.

Hourly (Defendant)Insurance defenseCannot double bill airplane example

Fee splitting:MR 1.5 says lawyers cannot be compensated for assuming an entirely passive role.Total fee must be reasonable.Client must agree to fee splitting in writingJoint responsibility or proportion to services renderedfully liable in malpractice action

Comingling FundsLawyers cannot comingle with personal funds; must maintain separate trust account and keep it up to date.Settlement goes into trust account then lawyer writes check to personal account; any other way is dangerous.Trust account Pay proceeds client Pay lawyer into business accountCannot write check from trust account to cover business expenses (e.g., yearly bar fee).Comingling of funds is the single most popular reason for disbarment.Per Se offense intention doesnt matter; some states it is automatic disbarment

TelexT hires Lasky a prominent antitrust attorney to petition Supreme CourtHired on contingency fee basis--$25K retainer, if writ is denied then no settlement beyondIf petition is filed and T settles, L gets 5% of net recovery but not less than $1million.There was a settlement but no one paid anything, all T did was file to Supreme Court.Was the contact between client and lawyer unconscionable?No!lawyer got $1 million

Matter of Laurence FordhamFordham was very experienced and hired to handle a case he had no dealt with before.He told client that he had never done it before and he works on hourly fee basis.He was able to win and get an acquittal for his client.Lawyer charged $40,022.25 for 227 hours of court.Court finds the fee to be excessiveUnder MR 1.5(a)Time requiredlawyer spent more than what a prudent experience lawyer would have hadCustomary feeother lawyers charged 1/3 as muchClient cannot be held to have understood such an unreasonable feenever given estimate like in Telex.

Clients Role in Adversarial SystemQuestions:Who decides what measures a lawyer takes?How do we allocate power between lawyer and client?Who controls the way a case is handled?

Allocation Power Between Attorney and ClientModel Rules explain (MR 1.2):Objective=controlled by clientMeans=controlled by lawyer (after consulting with the client, MR 1.4)Lawyer may limit scope of representation if limitation is reasonable and there is informed consent.It is unreasonable if the time allotted was not sufficient to yield independent advice of other counsel.

Decisions reserved to clientIn civil matters, a lawyer must abide by a clients decision whether to accept (or reject) an offer of settlement.In criminal matters, a lawyer must abide by a clients decision as to:Entering a plea, waiving a jury trial or testifying.

Jones v. BarnesBarnes convicted of several felonies, appealed conviction and was assigned attorney.He told attorney to raise some non-frivolous arguments but attorney only raised three of them.Barnes raised all of them in a pro se brief.Appellate court rejected all argument and confirmed conviction.Barnes claimed ineffective assistance of counsel.Court held that: Constitution grants accused the authority to make fundamental decisions on pleading guilty, waiving a jury trial, testifying, and whether or not to appeal.But, the attorney has the power to decide what issues to raise on appeal.Dissent argued that client has right to be unwise and dictate which non-frivolous arguments to raise.

MR 1.4Communication(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which the clients informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the clients objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyers conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.(b) A lawyer shall not explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

MR 1.2Scope of Representation and Allocation of Authority Between Client and Lawyer(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a clients decisions concerning the objectives of representation and, as required Rule 1.4, shall consult with the client as to the means by which they are pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a clients decision whether to settle a matter. In a criminal case, the lawyer shall abide by the clients decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.(b) A lawyers representation of a client, including representation by appointment, does not constitute an endorsement of the clients political, economic, social or moral views or activities.(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Terminating Attorney-Client RelationshipMandatory Withdrawal (MR 1.16(a))Ethical rule or law would be violated.Physical or mental condition materially impairs lawyers ability to represent client.Client discharges attorney.

Permissive Withdrawal (MR 1.16(b))Can be accomplished without materially adverse effect.Client pursues illegal course or used services to perpetrate crime or fraud.Client pursues an objective the lawyer finds repugnant or with which the lawyer has a fundamental disagreement.Client fails to pay fees.Attorney would suffer unreasonable financial burden.Other good cause.

Attorneys Duty Upon TerminationIf the matter is pending before a tribunal, the attorney must have permission of the tribunal.Attorney must take steps to ensure no prejudice to client.

Non-Engagement LetterTogstad v. Vesley/MillerAttorney-client relationship taken from perspective of client.Lawyer has burden of clarifying whether representation has been taken.Lawyer should try to record any legal advice given to a client.Non-engagement letter should be clear:Unambiguously say you are not taking the representation.Notify non-client (prospective client) that they should seek advice of other counsel.Caution client if there is a statute of limitations.Give vague reason why you arent taking it.Do not say too much (e.g., likelihood of recovery is not sufficient.)

MR 1.16Declining or Terminating Representation(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyers physical or mental condition materially impairs the lawyers ability to represent the client; or (3) the lawyer is discharged.(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests if the client; (2) the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyers services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Civil Cases: ConfidentialityProtection Arises From A lawyer cannot..

Duty of Confidentiality Rules of Legal Ethics voluntarily tell other people anything about a client without the clients consent, or some other exception

Attorney-Client Privilege Rules of Evidence be compelled to reveal communications with a client

Work Product Doctrine Rules of Procedure be compelled to reveal written material prepared in anticipation of litigation.

Duty of ConfidentialitySecretaries are agents of lawyers and thus communications with them have protection as confidentiality information.Never disclose confidential information without express authority of client.During negotiations you can disclose confidential information if it will advance your clients position.Attorney-Client PrivilegeFive Cs: Client Communicates Confidentially with Counsel to obtain CounselIf covered by ACP then covered by duty of confidentiality.Work Product Doctrine

Internal InvestigationsAttorney-Client Privilege for OrganizationsControl group test (City of Philadelphia v. Westinghouse)Control group elite group of corporate officers who control corporation and make decisionsProblemslimits privilege to those who have control power over entityToo narrow because it fails to extend privilege to some people who are speaking for the corporation (under inclusive).Subject matter test (Upjohn v. United States)Upjohn accused of bribing foreign officials.Upjohns general counsel conducted internal investigation.Government sought to subpoena attorneys notes.Supreme Court found that conversations between a corporate attorney and any corporate employeeeven if the conversations are initiated by the attorneyare privileged as long as the conversations are for the purpose of gathering information necessary to give or implement legal advice to the corporation.Test focuses on the nature of the communication, not the status of the communicator.Criticized for being too broad because it extends the privilege to people who are merely witnesses and are not speaking for the corporation.Entity ClientSamaritan Foundation v. GoodfarbIf employee initiates conversation that is always privileged.If someone else initiates then privilege sometimes applies.Court will distinguish between employees who are mere witnesses and those who are clients.True clients are those employees whose actions could result in corporate liability.

Civil CasesConflicts of InterestConcurrent and Successive ConflictsConcurrent ConflictUnder MR 1.7(a) a lawyer may not oppose a current client without that clients consent even in a matter wholly unrelated to the lawyers other work for that client.Under MR 1.7, you must always obtain consent to oppose a current client.Substantial relationshipinvolve the same transaction or legal dispute; or substantial risk that confidential information would materially advance clients position.Successive ConflictUnder MR 1.9 you are not barred from opposing a former client unless the matter is substantially related to your earlier work (or your firms earlier work) for the former client.You do not need the former clients consent unless the matter is substantially related.Courts will presume you received confidential information when you represented a former client.This is a rebuttable presumption.E.g.m if you were an associate at a large firm who never worked on the clients matters, never met with the former client, and has access only to files you actually worked on (as opposed to all the firms files), then you can probably rebut the presumption.

Grounds for Personal DisqualificationMay be personally disqualified if:You personally represented the former client at your current law firm or in any previous legal job, (MR1.9(a)); orYou did not personally represent the former client, but, while at a previous legal job, you acquired protected information about the former client in the same or substantially related matter (MR 1.9(b)).A former client is always free to consent to a conflict whether it arises under MR1.9(a) or MR 1.9(b).Burden is NOT on the former client to object.

Conflict CheckingUnder MR 1.9(a)New firms will likely make a condition offer:Show you currently active matters.Your former and current clients must be included in conflict check (including your work as a paralegal/legal assistant).Client check encompasses all types of matters (litigation etc.)New firms will ask if your matters are adverse to their clients.New firm will ask old firm to seek consent from clients (cannot contact them directly).If client of old firm refuses consent:Firm can hire you and withdraw from matterMake non-frivolous argument they may hire and run the risk.Firm cannot hire you at all.Firm can screen/firewall you from certain matters.Under MR 1.9(b) Even thought you never did any legal work for a particular client at your old firm, did you nevertheless obtain confidential information about the client?This conflict check is a delicate/difficult task.

Firewall metaphorical wall of separation between lawyer with conflict and rest of the firm.Disqualified lawyer must be personally and completely isolated.Other lawyers must not discuss case with lawyer who is disqualified and eb careful where they discuss cases.Firm should circulate a memo.Firm should make file inaccessible to disqualified attorney.Firewalls are only used with former clients NOT currant clients.Positivesgive attorney freedom/mobility/flexibility.Negativesbreaches can occur inadvertently or maliciously.

MR 1.9Duties to Former Clients(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed consent in writing.(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated has previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;Unless the former given gives informed consent, confirmed in writing.(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or(2) reveal information relating to the representation except as these Rules would permit tor require with respect to a client.

Imputation Principle

MR 1.10Imputation of Conflict of Interest: General Rule(a) while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless(1) the prohibition is based upon a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or(2) the prohibition is based upon Rule 1.9(a) or (b), and arises out of the disqualified lawyers association with a prior firm, and(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the free therefrom;(ii) written notice is promptly given to any affected former clients to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firms and of the screened lawyers compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former clients written request and upon termination of the screening procedures.(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Advocate Witness RuleApplies any time attorney will be called as a party.Rationale:A jury may accord lawyers testimony too much weight because of their special knowledge of the case.Professional courtesy may handicap the opposing lawyer on cross examination.The bar is ill served when attorneys veracity becomes an issue in the case.Jury might not distinguish lawyers role as advocate and witnesstestimony may be given weight as a closing argument.

MR 3.7Lawyer as Witness(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyers firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9

Multiple PartiesAs long as co-plaintiffs arent suing each other then representation is allowed.Conflict can arise if specific discrepancy between co-parties testimony.Attorney should interview each party separately first.MR doesnt state who to interview first but it is logical to interview the one with a great chance at more money first.Attorney must describe advantages and disadvantages to co-parties.

MR 1.18Duties to Prospective Client(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).(d) When the lawyer has received disqualifying information as defined in paragraph (c), the representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonable necessary to determine whether to represent the prospective client; and(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and(ii) written notice is promptly given to the prospective client.

Insured and InsurerDuties:Insurer has an obligation to pay lawyer for certain types of lawsuits.Insurer has obligation to pay settlement/judgment within policy limits.Insured has obligation to pay premium policyDuty to notify insurer of an accident/claim that could lead to lawsuit.Duty to cooperate with counsel.Defense counsel has attorney-client relationship with two parties.Dual client doctrine counsel represents both company and person as long as the interests coincide

Who is the obligation to?Every jurisdiction says that lawyer has a primary obligation to the insured.Lawyer has to represent insure but keep insurance company happy because that is who pays them.Insurance companies do not provide counsel for cross or counter-claims.In joint representation there is no attorney-client privilege.

Reservation of rights letterInsurance company sends letter to insured, whereby insurer says, we will provide defense for you, BUT if you lose and there are damages, we will have another case to determine if you are covered.What if counsel learns about possible lack of coverage?Withdraw if it is irreconcilable.Inform both insurer and insured that this information exists, relying on multiple-representation situation and claim that ACP doesnt exist.Keep mouth shut and not disclose to insurer because lawyer is representing the insured as his client, not the company.

MR 1.8Conflict of Interest: Current Clients: Specific Rules(f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyers independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protecte