From ProfessionalResponsibilityWypadki

Contents 1 Table of Contents 2 Regulation of the Legal Profession and Controls on Lawyer Conduct (Chapter 2) 2.1 Institutional Framework 2.2 Sources of Law Governing Lawyers 2.2.1 Ethics Codes 2.2.2 Case Authority and Inherent Court Powers 2.2.3 Ethics Opinions 2.2.4 Constitutional Constraints 2.2.5 Other Law (Substantive Law: Contracts, Torts, Agency, etc...) 2.3 Cases 2.3.1 Chambers v. Nasco (1991) 2.4 Admission to Practice 2.4.1 Territorial Restrictions 2.4.2 Cases 2.4.2.1 Supreme Court of New Hampshire v. Piper (1985) 2.5 Education, Knowledge, and Good Character 2.5.1 Requirements 2.5.2 Cases 2.5.2.1 In Re G.W.L (1978) 2.5.2.2 Clark v. Virginia Board of Bar Examiners (1995) 2.6 Unauthorized Practice 2.6.1 Cases 2.6.2 Ranta v. McCarney (ND, 1986) 2.7 Control Devices Introduced 2.7.1 Bar Discipline 2.7.2 Rules 2.7.2.1 Cases 2.7.2.2 Florida Bar v. Neale 2.7.2.3 Acts Indicating Moral Turpitude 2.7.2.4 Criminal Conduct 2.7.2.5 Dishonesty, Fraud, and Deceit 2.7.2.6 Conduct Prejudicial to the Administration of Justice 2.7.3 Malpractice 2.7.3.1 2 Types of Theories 2.7.3.2 1. Contract Theory Malpractice Actions 2.7.3.2.1 Elements 2.7.3.3 2. Tort Theory Malpractice Actions 2.7.3.3.1 Elements 2.7.3.4 Elements of Legal Malpractice(SLIGHTLY DIFFERENT THEN WHAT IS IN THE BOOK) 2.7.3.5 Cases 2.7.3.5.1 Togstad v. Vesely, Otto, Miller & Keefe (Minn. 1980) 2.7.3.5.2 Taylor v. Hayes (U.S. 1974) 3 Formal Aspects of the Lawyer-Client Relationship (Chp. 3) 3.1 Undertaking Representation 3.1.1 Duty To Undertake Representation 3.1.1.1 Cases 3.1.1.1.1 Brown v. Boward of County Commissioners of Washoe County (Nev. 1969) 3.1.1.1.2 Mallard v. United States District Court for the Southern District of Iowa (U.S. 1989) 3.1.2 Duty to reject Representation 3.1.3 Lawyer-Client Contracts and the Beginning of the Lawyer-Client Relationship 3.2 Terminating Representation 3.2.1 Rule 3.2.2 Mandatory Withdrawal 3.2.2.1 Rule 3.2.2.2 Maricopa County Public Defenders' Office v. Superior Court 3.2.3 Permissive Withdrawal 3.2.3.1 Rule 3.2.4 Duties Upon Termination of the Lawyer-Client Relationship 3.2.4.1 Rule 3.2.4.2 Rosenberg v. Levin (Fla. 1982) 3.3 Fees 3.4 Fiduciary Duties 3.5 Competency and Diligence 3.5.1 Rule 3.5.2 Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Nadler (Iowa 1991) 3.6 Communication of Shared Decision Making 3.6.1 Rules 4 Confidentiality (Chapter 4) 4.1 The Duty of Confidentiality and the Attorney-Client Evidentiary Privilege 4.1.1 Rule 4.1.1.1 MR 1.6 Confidentiality of Information 4.1.2 The Privilege Applies to What? 4.1.2.1 People v. Meredith (Cal. 1981) 4.1.2.2 Buntrock v. Buntrock (Fla. Dist. Ct. App. 1982) 4.2 Exceptions 4.2.1 Problem 4-4 4.2.2 United States v. Jacobs (2d Cir. 1997) 4.3 To Whom Is The Duty Owed? 4.3.1 MR 1.18: Duties to Prospective Client 4.3.2 Swidler & Berlin v. United States 4.3.3 MR 1.13: Organization as Client 4.3.4 Upjohn Co. v. United States 4.3.5 Duggin Law Review Article 4.3.6 Sarbanes-Oxley Act Section 205.3 4.3.7 In Re Grand Jury Subpoena Duces Tecum 4.4 To What Does The Duty Apply? 4.5 Exceptions To The Duty Of Confidentiality 4.5.1 Meyerhofer v. Empire Fire and Marine Insurance Co. 4.5.2 People v. Belge 5 Conflicts of Interest (Chapter 5) 5.1 Loyalty and Other General Principles 5.1.1 Model Rule 1.7 Concurrent Client Conflicts 5.1.2 MR 1.8--Conflict of Interest; Current Clients; Specific Rules 5.1.3 Screening 5.2 Waiver of Conflicts 5.2.1 Greene v. Greene 5.3 Sources of Conflicts 5.3.1 1. Third Party Interference 5.3.1.1 Parsons v. Continental National American Group 5.3.2 2. Lawyer-Client Conflicts 5.3.2.1 Business Transactions with Clients 5.3.2.1.1 Goldman v. Kane 5.3.2.2 Drafting Instrument That Benefit the Lawyer 5.3.2.3 Sexual or Amorous Relations with Client 5.3.2.3.1 Model Rule 1.8(j) Sexual Relationships with Clients 5.3.2.3.2 In Re Heard 5.3.2.3.3 In Re Hawkins 5.3.2.4 Lawyer-Client Conflicts and Champerty, Barratry, and Maintenance 5.3.2.4.1 Champerty 5.3.2.4.2 Barratry 5.3.2.4.3 Maintenance 5.3.2.4.4 Iowa State Bar Association v. Bitter 5.3.3 3. Multiple Client Conflicts 5.3.3.1 Aggregate Settlements 5.3.3.2 Former and Current Clients, the Substantial Relationship Test 5.3.3.2.1 In Re Joseph P. Danis 5.3.3.2.2 Haagen-Dazs v. Perche No! Gelato, Part 1 5.4 Imputed Disqualification 5.4.1 MR 1.10: Imputation of Conflicts of Interest: General Rule 5.4.2 Haagen-Dazs Co. v. Perche No! Gelato, Inc. Par 2 5.4.3 SWS Financial Fund v. Salmon Brother 5.5 Special Role-Related Conflicts Rules 5.5.1 Types of Conflicts 5.5.1.1 1. Former Judge 5.5.1.2 2. Former Government Lawyer 5.5.1.2.1 Special Imputed Disqualification Rules 5.5.2 Armstrong v. Mcalpin 6 Duties to Third Parties (Chapter 6) 6.1 Truth-Telling Outside the Court Context 6.2 Truth- Telling Inside the Court Context 6.2.1 Fact Statement to the Court 6.2.2 Ex Parte Proceedings 6.2.3 Dealing with Opposing Party 6.2.4 Perjury 6.2.4.1 Nix v. Whiteside 6.3 Witness Payment 6.4 Limitations on Presentation To A Court 6.4.1 Frivolous Claims and Litigation Positions 6.4.1.1 Lawyer Disciplinary Board v. Neely and Hunter 6.4.2 Personal Opinion and Alluding to Matters Outside the Record 6.4.3 Obey Court Orders 6.4.3.1 Kleiner v. First National Bank of Atlanta 6.4.4 Intemperate Remarks 6.5 Ex Parte Contact with Judges and Jurors 6.5.1 Judges 6.5.2 Jurors 6.5.3 Trial Publicity 6.6 Pro Bono Publico 7 Special Role Related Duties (Chapter 8) 7.1 Special Duties of Supervising and Subordinate Lawyers 7.1.1 Lawyers Subordinate to Other Lawyers 7.1.2 Providing Supervision 7.1.3 Responsibility for Lawyer or Non-lawyer Subordinates' Misconduct 7.2 Special Duties of Prosecutors 7.2.1 Dismissal of Charges Not Supported By Probable 7.2.2 Disclosure of Exculpatory Evidence 7.2.3 Brady v. Maryland, (U.S., 1963) 7.3 Responsibility for Lawyer or Non-Lawyer Subordinates’ Misconduct. 8 Judicial Conduct (Chapter 10) 8.1 Sources of Judicial Conduct Law 8.2 General Judicial Attributes: Independence, Integrity, and Impartiality 8.3 Personal Conduct and Activity Outside the Judicial Role 8.4 Judicial Duties 8.5 Political Activities 8.6 Judicial Immunity 9 Discovery 10 Advertising and Solicitation (Chapter 9) 10.1 Advertising 10.2 Solicitation

Table of Contents

1. Regulation of the Legal Profession and Controls on Lawyer Conduct (Chp. 2)
2. Formal Aspects of the Lawyer-Client Relationship (Chp. 3)
3. Confidentiality (Chp. 4)
4. Conflicts of Interest (Chp. 5)
5. Duties to Third Parties (Chapter 6)
6. Special Role Related Duties (Chapter 8)
7. Judicial Conduct (Chapter 10)
8. Discovery
9. Advertising and Solicitation (Chapter 9)

Regulation of the Legal Profession and Controls on Lawyer Conduct (Chapter 2)

Institutional Framework

1. The ABA
2. Alternative National Bar Associations
3. State Bar Associations
   1. Important Notes
      1. The ABA does not license lawyers to practice law…States do.
      2. The State Bar was created, not to participate in the general government of the State, but to provide specialized profession advice with those with the ultimate responsibility of governing the legal profession.
      3. States usually license lawyers through their courts and sometimes legislatures
      4. State Bars have delegated authority to recommend licensure and discipline of lawyers.
      5. State Bars assist courts in their supervision of lawyers and operate as professional organizations for the particular state lawyers
   2. Intergraded Bars
      1. In some states, membership to the State Bar is mandatory
      2. Exp. California

Sources of Law Governing Lawyers

Ethics Codes

1. The Model Code of Professional Responsibility
   1. Modern Day Rules, created in 1969
   2. All but one of the state-adopted codes are based on the ABA models
   3. Majorly revised in 2000
   4. Enforceability of ABA Model Code of Professional Conduct
      1. Current incarnation as the ABA Model Rules of Professional Conduct is not enforceable per se
      2. But the Rules form the basis of nearly every state's ethics code, which is typically adopted as statute or court rule
      3. The state code is what is enforceable
      4. But, courts will often look to the Model Rules in the development of common law.

Case Authority and Inherent Court Powers

1. Courts have inherent power to regulate lawyers
2. For Example See the case Chambers v. Nasco below

Ethics Opinions

1. Both the ABA and State Bars issue non-binding ethics opinions that are frequently relied upon by courts in law of lawyering cases
2. Not uncommon to find courts relying on them as secondary, persuasive authority.

Constitutional Constraints

• Constitutional Limitations are most prominent in areas such as lawyer’s
  • Commercial Speech (advertising and soliciting clients)
  • 1st Amendment
  • States efforts to impose residency requirements for entry to practice
  • Privilege and Immunities Clause of Art. IV(2)
  • VI Amendment, Right to Counsel

Other Law (Substantive Law: Contracts, Torts, Agency, etc...)

1. Contract: As modified by fiduciary duty, deals with Lawyer-Client contractual relationships.
2. Tort: Governs lawyer liability to clients for Malpractice; Contingent Fee Relationships; Liability to a third party for intentional wrongful acts.
3. Fiduciary: Lawyer-client or trustee-beneficiary relationship
4. Agency: Governs how a lawyer acts as a client’s agent.
5. Criminal: Criminal liability
6. Procedural: Sanctions; i.e. Rule 11
7. Criminal and Civil Procedure:
8. Antitrust Law:
9. Administrative Law:
10. Employment Law:

Cases

Chambers v. Nasco (1991)

• Facts: TV Station owner, Chambers, entered into a sale agreement with purchaser NASCO. The agreement was based on FCC approval. During the process, Chambers changed his mind. NASCO refused to end the agreement and Chambers informed NASCO that he was not going to file the necessary paperwork. NASCO brought action for specific performance.
• Proceedings: The United States District Court for the Western District of Louisiana, ordered specific performance, and seller appealed. The Court of Appeals for the Fifth Circuit affirmed and remanded with instructions to fix amount of appellate sanctions for frivolous appeal and to determine whether further sanctions were appropriate for conduct on district court level. On remand, the District Court, imposed sanctions against seller's sole shareholder, and he appealed. The Court of Appeals affirmed and remanded. Certiorari was granted.
• Issue: Does the federal court have the inherent power to sanction a litigant for bad-faith conduct?
• Holding: Yes. The Supreme Court, Justice White, held that: (1) courts' inherent power to impose sanctions for bad-faith conduct is not displaced by scheme of statute and rules; (2) there was no abuse of discretion in District Court's resort to its inherent power to impose sanctions for bad-faith conduct, even though some conduct was also sanctionable under rules; (3) federal courts sitting in diversity can use their inherent power to assess attorney fees as sanction for bad-faith conduct even if applicable state law does not recognize bad-faith exception to general rule against fee shifting; and (4) District Court acted within its discretion in assessing, as sanction, entire amount of opposing party's attorney fees. Affirmed.
• Note:
  • The Federal Court only had authority to disbar the attorneys in the federal court system, only states can disbar their own members
  • What was the Unethical Conduct
    • Attempts to defraud the court of jurisdiction
    • Lack of candor to the tribunal
    • Violating court orders
    • Violating Rule 11

Admission to Practice

Territorial Restrictions

Cases

Supreme Court of New Hampshire v. Piper (1985)

• Facts: Vermont resident brought action against New Hampshire Supreme Court, challenging the residency requirement for admission to the bar.
• Procedural: The United States District Court for the District of New Hampshire, entered summary judgment for the Vermont resident, and the New Hampshire Supreme Court appealed. The Court of Appeals for the First Circuit, reversed. On reconsideration en banc, the Court of Appeals, affirmed. The New Hampshire Supreme Court appealed. The Supreme Court, Justice Powell, held that the New Hampshire Supreme Court ruled limiting bar admission to state residents violated the privileges and immunities clause.
• Issue: Does the NH Law violate U.S. Cons. Art. IV(2)?
• Holding: Yes, Affirmed.
• Reason: Similar to the commerce clause. A State can only discriminate against nonresidents only where its reasons are “substantial” and the difference in treatment bears a close or substantial relationship to those reasons.

Education, Knowledge, and Good Character

Requirements

• All states impose educational requirements on applicants for admission to practice law.

1. Graduation from an Accredited Law School
   1. Only a few states do not require graduation from an ABA accredited school
      1. Notably, California
   2. A few allow substitution for law school; “reading the law” in the offices of a licensed lawyer on a prescribed and approved schedule.
2. Bar Exam
   1. Only a few allow for a waiver of bar examination requirements for graduates of selected, in-state law schools
3. Good Character - assessed by committee
   1. States require the completion of questionnaires from applicants, and in some states, recommendations from law school personnel, currently licensed attorneys, or others.
   2. Helps the bar figure out if the individual has good character necessary to the practice of law
   3. An applicant does not need to commit a crime for the bar to find a lack of good character.
   4. Inquiry into Political Activity has been an issue under the 1st Amendment

Model Rule 8.1: Bar Admission and Disciplinary Matters

• An 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.

Cases

In Re G.W.L (1978)

• Facts: Petitioner had recently graduated from law school and passed the bar. However, he had filed for bankruptcy to help avoid paying his student loans.
• Issue: Should the State Bar be able to reject the plaintiff's bar application (due to lack of good character) because he filled for bankruptcy to escape paying his student loans?
• Holding: Yes, but he should be able to seek a hearing with the Bar.
• Reason: On petition for admission to the State Bar, the supreme court held that applicant's admittedly legal but unjustifiably precipitous action, i. e., exercising a legal right to be freed of bankruptcy well before first installments on his debt became due, with absolutely no regard for his moral responsibility to his creditors, indicated lack of moral values insisted upon for members of the Bar, where such discharge in bankruptcy was sought before applicant had obtained results of bar examination, had exhausted job market, or had given his creditors opportunity to adjust repayment schedules, and where discharge was sought to defeat creditors who had substantially funded seven years of his educational training.

Clark v. Virginia Board of Bar Examiners (1995)

• Facts: Applicant for admission to the Virginia bar filed an action alleging that question on license application addressing applicant's history of mental or emotional disorders violated Americans with Disabilities Act (ADA).
• Issue: Does the question violated the ADA?
• Holding: Yes
• Reason: The District Court found that questions asking applicants whether they had been treated or counseled for any mental, emotional or nervous disorders within the past five years was framed too broadly and violated applicant's rights under ADA.

Unauthorized Practice

Pro Hac Vice: getting permission to practice for a certain period of time in a jurisdiction in which you are not licensed.

Model Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

• (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
• (b) A lawyer who is not admitted to practice in this jurisdiction shall not:
  • (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
  • (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
• (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
  • (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
  • (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
  • (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the serives arise out of or are reasonably related to the lawyer's practice in a jursidcitikon in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
  • (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
• (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:
  • (1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
  • (2) are services that the lawyer is authorized by federal or other law to provide in this jurisdiction.

Cases

Ranta v. McCarney (ND, 1986)

• Facts: Ranta was a MN attorney offering tax advice to McCarney in ND. Ranta filed suit against McCarney for the recovery of fees for legal services, but during trial, McCarney asserted the defense that Ranta was never licensed in ND and should be precluded from seeking compensation.
• Issue: Was Ranta allowed to practice in ND? NO
• Rule: The unlicensed practice of law in ND by non-resident attorneys is allowed only when court permission, pursuant to the applicable federal or state court rules, is granted for the limited purposes of appearing in relation to a particular matter before the court. Any other unauthorized practice of law is prohibited.
• Holding: Since Ranta's acts fell within the description of practicing law and he was an out-of-state attorney who was not licensed to practice law, he cannot recover compensation for services rendered in ND.

Control Devices Introduced

Bar Discipline

Rules

8.3: Reporting Professional Misconduct.

• (a) A lawyer who knows that another lawyer has commited a violation of the RPC that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
• (b) 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 the info otherwise protected by Rule 1.6 or info gained by a lawyer or judge while participating in an approved lawyers' assistance program.

8.4: Misconduct

• It is professional misconduct for a lawyer to:
  • (a) Violate or attempt to violate the RPC, knowingly assist or induct another to do so, or do so through the acts of another;
  • (b) Commit a criminal act that reflects adversely on lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;
  • (c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
  • (d) Engage in conduct that is prejudicial to the administration of justice;
  • (e) State or imply an ability to influence improperly a government agency or official to achieve results by means that violate the RPC or other law; or
  • (f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or the law.

8.5: Disciplinary Authority; Choice of Law.

• (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
• (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
  • (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise;
  • (2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.

Cases

Florida Bar v. Neale

• Facts: Attorney was representing a women who was bitten by a dog. Late in the proceedings, he found evidence that the dog had a history of biting people. He tried to make present evidence of the history of the dog biting other people, but the motion was denied. He took a voluntary non-suit, but by the time a new suit was filed, the statute of limitations had passed.
• Issue: Was the attorney's actions warrant a disciplinary action?
• Holding: No. The Court rejected the recommendations of both the referee and the bar, and dismissed the charges against the respondent.
• Reason: The Supreme Court held that attorney's conduct in conducting case, wherein he learned an important fact late in the proceeding and then overlooked or misconstrued statute of limitations on his statutory remedy, thus preventing a subsequent suit, after he had dismissed the original action, was insufficient to warrant disciplinary action. Charges dismissed.

Acts Indicating Moral Turpitude

• Moral Turpitude
  • Rejected by Model Rule 8.4
    • Rejects “Moral Turpitude” and sets a standard of when an act is disciplinable misconduct if it “reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

Criminal Conduct

• A lawyer is subject to discipline when he engages in criminal conduct that reflects adversely on the lawyer’s fitness as a lawyer.

Dishonesty, Fraud, and Deceit

• These acts, in or out of the lawyer’s role, even if not rising to the level of criminal conduct, can subject a lawyer to discipline.
• Model Rule 8.4(c)

Conduct Prejudicial to the Administration of Justice

• Model Rule 8.4(d)
• Used to discipline litigation that is considered tactically out-of-bounds.
• Most often invoked when a lawyer is disregarding court orders; rude conduct in open court; being intoxicated in court; and paying witnesses to engage in inappropriate conduct, and the like

Malpractice

• Is a civil claim for relief intended to remedy a wrong done by a professional (in this case a lawyer) to an individual client or group of clients.

2 Types of Theories

1. Contract Theory Malpractice Actions

Elements

1. Agreement
2. Breach
3. Damage
   1. Damage measurements are more limited then under the Tort Theory.

2. Tort Theory Malpractice Actions

• Most commonly used

Elements

1. Duty
   1. Measured by the skill and knowledge of ordinary lawyers in the community
   2. Owed even if there is no fee paid or charged (included pro bono and appointed counsel)
   3. Lawyers are expected to have general knowledge of the law and its fundamental principals
   4. A lawyer is expected to be sufficiently familiar with research techniques and to use them to discover the law that applies to a client’s matter
   5. A lawyer does not owe a duty to know every possible nuance in the law
   6. Specialist in legal fields are held to a higher standard
      1. Set by all Specialist in that particular field (tax for example)
2. Breach
3. Causation
4. Damages

Elements of Legal Malpractice(SLIGHTLY DIFFERENT THEN WHAT IS IN THE BOOK)

1. Attorney-Client Relationship
2. Attorney acted negligently or in breach of contract
3. Proximate Cause
4. But for Malpractice, plaintiff would have won underlying

Cases

Togstad v. Vesely, Otto, Miller & Keefe (Minn. 1980)

• Facts: Person sustaining injuries as result of alleged negligent medical treatment and his wife brought suit against attorney and his law firm for attorney's alleged negligence in advising wife with respect to medical malpractice claim. The District Court entered judgment upon jury finding that attorney was negligent and that as direct result of such negligence, plaintiff sustained damages in amount of $610,500 and wife in the amount of $39,000. Attorney and law firm appealed from denial of motion for judgment notwithstanding the verdict or, alternatively, for new trial.
• Issue: Did Miller establish an attorney-client relationship and was Malpractice committed by Mill?
• Holding: Yes, affirmed
• Reason: The Supreme Court held that: (1) record contained evidence reasonably supporting jury's verdict that all elements required as prerequisite to bringing of legal malpractice action were present; (2) evidence of husband's impotence due to allegedly negligent medical treatment was sufficient to support payment by attorney of $39,000 damages to wife for loss of consortium; (3) plaintiffs' damages would not be reduced by hypothetical contingency fee that would have been paid had medical malpractice claim been successfully prosecuted; and (4) trial court did not abuse its discretion in concluding that purported improper comments of plaintiffs' counsel referring to impact jury's apportionment of negligence would have on case and referring to causation did not require new trial.

Taylor v. Hayes (U.S. 1974)

• Facts: Counsel was found guilty by the Circuit Court, Criminal Branch, Kentucky, of eight charges of criminal contempt allegedly committed during criminal trial and he appealed. The Court of Appeals of Kentucky, affirmed and certiorari was granted.
• Issue: Should the Petitioner’s case been heard by a jury? Should the Petitioner have been entitled to more of a hearing and notice than he received prior to final conviction and sentence?
• Holding: No and Yes. Reversed and remanded
• Reason: The Supreme Court, held that counsel was not entitled to jury trial on the contempt charges where no more than a six months' sentence had actually been imposed; that trial judge's conduct in proceeding summarily after trial to punish counsel for alleged contempt committed during trial without giving counsel opportunity to be heard in defense or mitigation denied due process; and that another judge should have been substituted for trial judge for purpose of finally disposing of the contempt charges.

Formal Aspects of the Lawyer-Client Relationship (Chp. 3)

Undertaking Representation

Duty To Undertake Representation

• In general, Lawyers have not duty to undertake a particular representation.

Model Rule 6.2: Accepting Appointments

• A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
  • (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
  • (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
  • (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
• A lawyer has a duty to accept court appointments to represent clients except when good cause exists to decline.

Cases

Brown v. Boward of County Commissioners of Washoe County (Nev. 1969)

• Facts: Original proceeding for writ of mandate by appointed counsel of indigent defendant to recover more than amount allowed by statute as compensation for his services. The attorney, appointed to represent indigent defendant in noncapital criminal case, was by reason of complexity and length of indigent's trial forced to associate counsel in other matters, was not able to see other clients for over two months, lost several regular clients, and was compelled to return retainers in excess of $1,000, attorney was not entitled to recover more than statutory limit of $300 as compensation.
• Issue: Is the statute limitation of compensation to $300 for a court appointed attorney in a non-capital criminal case unconstitutional if applied to the circumstances before the court?
• Holding: No
• Reason: The petitioner’s case is not extraordinary in circumstances (like the Illinois case) and he was therefore not entitled to greater compensation

Mallard v. United States District Court for the Southern District of Iowa (U.S. 1989)

• Facts: After District Court required attorney to represent indigent inmates in their suit in court against prison officials under § 1983, attorney sought to withdraw. After motion to withdraw was denied, attorney sought writ of mandamus. The Court of Appeals denied writ, and attorney appealed.
• Issue: Does 28 U.S.C. § 1915(d) authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case?
• Holding: No. Reversed and remanded.
• Reason: Federal courts cannot make coercive appointments o counsel. The Supreme Court held that: (1) statute which permits district courts to request attorneys to represent indigent litigants in civil cases does not permit courts to require such representation, and (2) attorney was entitled to writ of mandamus.
• Law:
  • 28 U.S.C. § 1915(d)

Duty to reject Representation

• Model Rule 1.16(a)
  • When accepting representation will violate an ethics rule, the lawyer has a duty to reject the representation.

Lawyer-Client Contracts and the Beginning of the Lawyer-Client Relationship

• Governed in the first instance by the particular contract entered into by the lawyer and client and by general contract principles.
• Formally begins when a client reasonably believes that the lawyer has undertaken to provide the client with legal service. The relationship does not depend for its onset on the existence of a written contract nor a fee payment.

Terminating Representation

• Clients Have an Absolute Right to Discharge Counsel.
• The attorney-client relationship is governed in the firsthand by the contract between the parties which should address the fee and the end goal of the representation.
• Many cases have a natural end, i.e. the resolution of the case and payment by the client.

Rule

MR 1.16--Declining 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 lawyer's physical or mental condition materially impairs the lawyer's 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 interst of the client;
  • (2)The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
  • (3)The client has used the lawyer's 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 lawyer's 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 client's 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.

Mandatory Withdrawal

Rule

• Model Rule. 1.16(a)
  • Under some circumstances, lawyers are required to withdraw from representation, thereby terminating the lawyer-client relationship. Failure to withdraw under these circumstances subjects the lawyer to discipline.

Maricopa County Public Defenders' Office v. Superior Court

• Facts: An ethical conflict arose between a public defender a defendant and an adverse witness. Defense counsel appointed by public defender's office in two unrelated cases, asserting conflicts of interest involving former clients as witnesses. The State Bar advised the Public Defender that there would be an ethical violation. Public Defender filed petitions for special action after the trial court denied their motions to withdraw.
• Issue: Should the Defense Counsel be required by the trial court to disclose confidential information when the Defense Counsel believes there is an ethical conflict?
• Holding: No.
• Reason: Court of Appeals held that: (1) jurisdiction over the special actions would be accepted, and (2) counsel's showings were sufficient to entitle counsel to withdraw, without disclosure of confidential information to trial court.
• Issue Given In Class: How much information must you reveal to get out of the case and do you violate this rule by giving the information?
• Holding Given In Class: Take the Lawyers word for it (depending on the case) that it would be a violation.
• Rule: MR 1.16(a)(1)

Permissive Withdrawal

• In some instances, lawyers are permitted but not required to withdraw. The enumerated circumstances are listed in MR 1.16(b).

Rule

• Model Rule 1.16(b)
  • Allows lawyers to withdraw from representation in the enumerated circumstances without breaching a duty of continued representation to the client.
  • Without regard to any cause for withdrawal, a lawyer may withdraw if it can be done without material adverse effect to the client
• Model Rule 1.16(a)(1)
  • A lawyer is required to withdraw when the lawyer knows that the client is using the lawyer’s services to perpetrate crimes or frauds.
• Model Rule 1.16(b)(1)
  • If a lawyer even reasonably believes that the client is engaging in conduct that is criminal or fraudulent, the lawyer may withdraw.

Duties Upon Termination of the Lawyer-Client Relationship

Rule

• Model Rule 1.16(c)
  • Even when a lawyer has good cause to withdraw, a court may order the lawyer to continue the representation.

Rosenberg v. Levin (Fla. 1982)

• FACTS: Attorneys, who had entered into contract providing that they were to receive no more than $10,000 in attorney fees if client received less than $600,000, brought suit to recover fees on quantum meruit basis after client discharged attorneys without cause and settled matter for $500,000. The Circuit Court awarded attorneys a total recovery of $55,000, and client appealed. The District Court of Appeal reversed and remanded, and attorneys appealed.
• ISSUE: What is the proper basis for compensating an attorney discharged without cause by his client after he has performed substantial legal services under a valid contract of employment?
• HOLDING:
• Reason:The Supreme Court, held that: (1) attorney employed under valid contract who is discharged without cause before contingency has occurred or before client's matters have concluded can recover only reasonable value of his services rendered prior to discharge on basis of quantum meruit, limited to maximum fee set in contract entered into for those services, and (2) in contingency fee cases, cause of action for quantum meruit on part of attorney, who is discharged without cause, arises only upon success.

Fees

Model Rule 1.5: Fees

• (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 serivces; and
  • (8) whether the fee is fixed or contingent.
• (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 charges in the basis or rate of the fee or expenses shall also be communicated to the client.
• (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 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.
• (e) A division of fees 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 each lawyer assumes joint responsibility for the representation;
  • (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
  • (3) the total fee is reasonable.

In Re Kutner

• FACTS: Kutner agreed to represent Fisher in a battery case & told him the charge would be $5000 with $250 as an initial consultation fee. Fisher agreed to this amount. One day before trial, Kutner informed Fisher that he would be unable to meet Fisher in court, but was sending Gorman in his place. Kutner instructed Fisher not to disclose the amount Kutner was charging. In court, the charges against Fisher were dropped. Fisher later consulted with two attorneys, who told him that Kutner's fee was excessive. Fisher tried to recover $4000. Kutner refused, so Fisher referred him to the Chicago Bar Association. The Hearing Board determined Kutner had violated the rule by charging an excessive fee.
• HOLDING: Kutner's fee was excessive. Although Kutner had 49 years of legal experience & had performed a lot of pro bono work, the Court found that a $5000 fee for a routine battery case which never went to trial was not only excessive, but was unconscionable.

Contingency Fees

• Permitted by the Model Rules - regulated by MR 1.5(c)

Fee Splitting

• See MR 1.5(e) above
• Model Rule 5.4: Professional Independence of a Lawyer
  • (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
    • (1) an agreement by a lawyer with the lawyer's firm partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
    • (2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon price;
    • (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing agreement; and
    • (4) a lawyer may share court-awarded legal fees with a nonprofit organziation that employed, retained, or recommended employment of the lawyer in the matter.

Moran v. Harris

• FACTS: Muriel Joseph contacted her lawyer, Moran, about a potential medical malpractice case for her grandaughter, Tashia. Moran recommended they consult a lawyer with expertise in medical malpractice, & arranged a meeting between the Josephs and Von Kalinowski. Von Kalinowski was to represent the Josephs, and he agreed orally to split his fee with Moran. Moran was to maintain communication between the Josephs and to perform services that Von Kalinowski might request. Von Kalinowski fell ill, so Wesley Harris offered to assume the case - Harris argeed to be bound by the fee agreement with Moran. Harris effected settlements, which resulted in attorney's fees of $226K. Harris refused to honor the agreement with Moran. Trial court held the contract was unenforceable.
• HOLDING: the court found the referral fee contract enforceable. It noted that Moran did not violate any state bar rules at the inception of the agreement, and no rule would be violated if it was enforced now. It found that justice would be better served by having Harris bound by his word than by depriving Moran the benefit of his contract.

Fiduciary Duties

• Lawyers owe their clients fiduciary duties.
• A fiduciary is one in whom a special trust is placed.
• A lawyer must keep client property separate from the lawyer’s property

Model Rule 1.15: Safekeeping Property

• (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate form the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's 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 account funds and other property shall be kept by the lawyer and shall be preseved for a period of [five years] after termination of the representation.
• (b) A lawyer may deposit the lawyer's 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 the client or third person has an interest, a lawyer shall promptly notify the client or 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 persons 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) claim 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.

In Re Rosellini (Wash. 1982)

• Facts: This case involves an attorney who was disciplined and disbarred for misuse of trust funds. The attorney was a candidate for State Attorney General. The incident happened when Rosellini was employed to probate an estate. He received and placed in his trust account $10,000, which was to be paid to the 2 children of the estate. The money was not paid until 16 months after being placed in the trust account. Over the 16 months, Rosellini drew $10,640.11 from the same account for personal and business use. After the children complained, he finally paid the $10,000 and waived his fees. However, this money was only paid because 3 days before he received $22,063.94 from the estate of an Italian national and were delivered to Rosellini due to his capacity as Honorary Vice Consul for Italy. He later signed an affidavit swearing that he did not violate the Code of Professional Conduct by commingling his personal assets with trust assets. Rosellini admits that what he did was wrong and that he knew he was lying.
• Issue: Should the attorney have been disbarred or suspended for a 1-year period? (in other words, is there a danger of future misconduct and will suspension alone preserve public confidence in the legal system?)
• Holding: He should be disbarred to preserve the public confidence in the legal system.
• Reason: There are no mitigating circumstances that justify not applying the usual sanction of disbarment for intentional use of client’s funds.

Competency and Diligence

Rule

• Model Rule 1.1
  • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
• Model Rule 1.3
  • A lawyer shall act with reasonable diligence and promptness in representing a client.

Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Nadler (Iowa 1991)

• Facts: Nadler, an attorney, was found to have failed to act competently in his handling in a personal injury suit. Nadler had failed to discover that the statute of limitations had run out on the personal injury claim he was handling.
• Issue: Was the suspension appropriate?
• Holding: Yes, suspension was appropriate
• Reason: Failure to bring personal injury suit within statute of limitations, attempting to limit liability to clients by offering money, failure to avoid appearance of impropriety while acting as real estate agent and failure to cooperate with disciplinary investigation warrant indefinite suspension of license, with no possibility of reinstatement for three years from filing of order.

Communication of Shared Decision Making

Rules

Model Rule 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer

• (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation, and as required by 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 client's decision whether to settle a matter. In a criminal case, a lawyer shall abide by the client's 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 lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's 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 assit 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.

Model Rule 1.4: Communication

• (a) A lawyer shall:
  • (1) promptly inform the client of any decision or circumstance with respect to which the client's 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 client's objectives are to be accomplished;
  • (3) keep the client reasonably informed about the status of the matter;
  • (4) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows the client expects assistance not permitted by the Rules of Professional Conduct or other law.
• (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Confidentiality (Chapter 4)

The Duty of Confidentiality and the Attorney-Client Evidentiary Privilege

1. Problem 4-1
2. Problem 4-2

Rule

MR 1.6 Confidentiality 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 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.

Evidentiary Privilege v. Ethical Duty of Confidentiality

• Evidentiary Privilege
  • Protects only communications confidentially made between the attorney and the client for the purpose of rendering legal advice
  • Applies only in judicial proceedings
• Duty of Confidentiality
  • Protects all information relating to representation
  • Applies in all settings
  • Exists after a matter or proceeding has ended

The Privilege Applies to What?

1. Problem 4-3: The coin itself is not considered a communication and is therefore not protected. However, the location does fall into the category of communication and is initially protected. The analysis must then move to whether the nondisclosure affects the prosecution's ability to adequately prepare the case. Here, the prosecution would not be affected with the removal of the coin from its location because there were still four other coins that could have been discovered.

People v. Meredith (Cal. 1981)

• Facts: Defendants were convicted of first-degree murder and first-degree robbery, and they appealed.
• Issue: Whether under the circumstances of this case Frick's observation of the location of the wallet, the product of privileged communications, finds protection under the attorney-client privilege.
• Holding: The trial court did not err in admitting the investigator's testimony concerning the location of the wallet.
• Reason: The Supreme Court held that: (1) an observation by defense counsel or his investigator, which is the product of a privileged communication, may not be admitted unless the defense, by altering or removing physical evidence, has precluded the prosecution from making that same observation; (2) when the defense investigator removed a partially burned wallet belonging to the victim from trash can, the conduct of the defense precluded the prosecution from ascertaining the crucial fact of the location of the wallet and, therefore, the prosecution was entitled to present evidence to show location of the wallet and trash can; (3) the evidence established a single course of conduct with one objective, even though it involved both murder and robbery, and thus the defendants could be punished only for the most serious offense, first-degree murder; and (4) an allegation and a finding that defendant was armed with deadly weapon would not support a finding that the defendant used a firearm so as to uphold the conviction for first-degree robbery.

Buntrock v. Buntrock (Fla. Dist. Ct. App. 1982)

• Facts: In a divorce case, husband motioned to have 3 Illinois attorneys admitted to practice as co-counsel in marital dissolution proceeding. The firm had worked with husband for many years. Wife objected because one of the attorneys, Pearson, had represented her during the marriage, which could raise a conflict of interest. Wife showed that Pearson had prepared a will for her and that law firm engaged in tax planning for the couple, and that Pearson is a partner in business with the husband dealing with possible marital property. The Circuit Court entered order denying husband's motion.
• Issue: Was there an attorney-client relationship between the wife and Pearson?
• Holding: Yes.
• Reason: Held that wife made prima facie showing of attorney-client relationship with partner in Illinois firm her husband sought to have represent him in Florida divorce proceeding, and it was not abuse of discretion to refuse to admit to practice as husband's co-counsel the Illinois attorneys, whose partner was also member of board of directors of business of wife's family.

Exceptions

Problem 4-4

• The attorney can divulge the information regarding the faulty dialysis machines because she is protected under MR 1.6, which allows attorneys to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.

United States v. Jacobs (2d Cir. 1997)

• Facts: Defendant was convicted in the United States District Court of conspiracy, bank fraud and mail fraud, relating to his participation in fraudulent debt-elimination scheme, and he appealed. Affirmed.
• Issue: Were the letters admitted into evidence in violation of his attorney-client privilege?
• Holding: No
• Reason: The Court of Appeals held that: (1) communications from attorney relating to scheme came within crime-fraud exception to attorney-client privilege; (2) inaccurate “summary” of letters from attorney waived attorney-client privilege; (3) there was sufficient evidence of risk of loss to banks to support bank fraud convictions; (4) risk of loss was properly determined under Sentencing Guidelines; and (5) conscious avoidance charge was warranted.

To Whom Is The Duty Owed?

MR 1.18: Duties 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), 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 reasonably 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.

Swidler & Berlin v. United States

• Facts:In July, 1993, An attorney (James Hamilton of firm Swidler & Berlin) took 3 pages of hand written notes of an initial interview with a client (Vince Foster-Deputy White House Counsel) shortly before the client’s death-9 days later he committed suicide. One of the first entries in the notes is the word “privileged”. The Gov’t, represented by the Office of Independent Counsel, wants those notes to use in a criminal investigation into whether various individuals made false statements, obstructed justice, or committed other crimes during the 1993 dismissal of employees from the White House Travel Office (Travel- Gate).

• Issue: Does the scope of attorney client privilege survive the death of the client?

• Holding: Yes

• Reason: The Court reversed finding that the general rule with respect to confidential communications was that such communications were privileged during a testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation between the testator's heirs. The court held that the attorney-client privilege survived the death of the client in this case.

• RULE: Attorney-Client-Privilege survives, with some exceptions, the death of the client.

MR 1.13: Organization as Client

• (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
• (b) If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.
• (c) Except as provided in paragraph (d), if
  • (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
  • (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
• (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee, or other constituent associated with the organization against a claim arising out of an alleged violation of law.
• (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.
• (f) In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.
• (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Upjohn Co. v. United States

• Facts: Upjohn Corp. discovered one of its subsidiaries was paying possible illegal monies to get business in another country. Upjohn’s general counsel, Gerard Thomas, also company’s secretary and Vice President, ordered a company- wide investigation, and sent out a corporate memo asking for all information relating to any such payments. On March 26, 1976, Upjohn voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K, disclosing questionable payments. Then IRS got involved concerning the tax consequences of such payments and demanded production of the memo’s and interviews relating to the payments that were conducted during Upjohn’s internal investigation Upjohn claims these are privileged on the grounds of ACP.

• Issue:  : Does the attorney-client privilege protect the communications involved between corporate attorneys and non-management employees? Does the work-product doctrine apply in tax summons enforcement proceedings?

• Holding: Yes and Yes.

• Reason: (1) District Court's test, of availability of attorney-client privilege, was objectionable as it restricted availability of privilege to those corporate officers who played “substantial role” in deciding and directing corporation's legal response; (2) where communications at issue were made by corporate employees to counsel for corporation acting as such, at direction of corporate superiors in order to secure legal advice from counsel, and employees were aware that they were being questioned so that corporation could obtain advice, such communications were protected; and (3) where notes and memoranda sought by government were work products based on oral statements of witnesses, they were, if they revealed communications, protected by privilege, and to extent they did not reveal communications, they revealed attorney's mental processes in evaluating the communications and disclosure would not be required simply on showing of substantial need and inability to obtain equivalent without undue hardship.

• RULE: Attorney Client Privilege

Duggin Law Review Article

• Government wanted corporations to:
  • waive the attorney-client privilege
  • terminate employees who possibly engaged in wrongdoing
  • terminate employees who would not assist in the investigation
  • disallow the use of corporate funds to assist in employee litigation
• Representing an Organization:
  • Lawyer must balance:
    • MR 1.3 (representing client with diligence)
    • MR 1.13 (representing organization, not individual)
    • MR 1.13(f) (identify client when lawyer determines adversity of interests)
    • MR 4.1 (not knowingly make false statements to third party)
    • MR 4.2 (not communicate with represented third party)
    • MR 4.3 (correct misunderstanding of third person regarding lawyer's role)
  • Pre-interview Statement?
    • Identify client
    • Identify lawyer's role
    • Request employee's confidentiality
    • Explain that corporation may waive privilege without his consent
    • Counsel may advise employee to get counsel
    • Counsel may advise employee of corporation's policy regarding refusal to cooperate

Sarbanes-Oxley Act Section 205.3

• Corporate Ladder (bottom --> top)
  • Representing Attorney --> Chief Legal Officer --> Compliance Committee --> Board of Directors

• Section 205.3(d)--Issue Confidence. Any report may be used by an attorney in connection with any investigation in which the attorney's compliance with this part is in issue.
  • Section 205.3(d)(2): An attorney may reveal to the SEC without the issuer's consent any confidential information related to the representation to the extent the attorney reasonably believes necessary:
    • to prevent material violation by issuer likely to cause substantial injury to financial interests or property of issuer or investors;
    • to prevent issuer from committing perjury; or
    • to rectify consequences of material violation by issuer that caused or may cause substantial injury to the financial or property interests of issuer or investors in which attorney's services were used.

In Re Grand Jury Subpoena Duces Tecum

• Facts: Took place during the Whitewater investigative proceedings. Federal grand jury subpoena information into the relationship of United States President Clinton and his wife Hilary with savings and loan association and land development corporation. Office of Independent Counsel moved, through subpoenaed by grand jury, to compel production of “all documents created during meetings attended by any attorney from the Office of Counsel to the President and Hillary Clinton (regardless whether any other person was present)” petering to several Whitewater-related subjects. The White House argued that there is a attorney-client privilege between the federal government and its attorneys, the White House must be permitted to invoke the attorney-client privilege for the benefit of the Republic, and Mrs. Clinton reasonably believed the conversation with the White House lawyers were privileged
• Issue: Can a federal governmental entity assert the attorney-client privilege or the work product doctrine in response to a subpoena by a federal grand jury?
• Holding: No
• Reason: Public interest would prevent the finding of a federal government attorney-client privilege in a criminal proceedings inquiring in to the actions of public officials. An official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a government attorney.

To What Does The Duty Apply?

• The duty of confidentiality applies to "information relating to representation of a client." MR 1.6(a).
• The duty of confidentiality applies to all information relating to representation, not merely communications from client to lawyer.

Exceptions To The Duty Of Confidentiality

1. Consent
   1. The client is the holder of the evidentiary privilege and the party whose communication is being protected.
   2. After consultation, a client may consent to disclosure of information that would otherwise be protected by the duty of confidentiality.
   3. MR 1.6(a).
2. Self-Defense and Fees
   1. MR 1.6(b)(2)
3. Future Crimes, Frauds, and Harms
   1. In certain circumstances, lawyers may reveal confidential information to prevent future crimes or frauds by clients.
   2. MR 1.6(b)(1)

Meyerhofer v. Empire Fire and Marine Insurance Co.

• Facts:
• Issue:
• Holding:
• Reason: Lawyer charged as a defendant with securities law violations may disclose client confidences and secrets necessary to defend himself against accusation of wrongful conduct

People v. Belge

• Facts: A lawyer was told by his client that he killed a person and he told the attorney the location of the body. The lawyer went to the location and saw body and did not notify anyone.
• Issue: Did the lawyer violate any laws by not notifying authorities about the body?
• Holding:
• Reason: The court said that lawyer violated 2 public health laws—decent burial and notification of death. This was dismissed but it did not mean that the attorney’s behavior was proper. In the end the court found that the attorney-client privilege protected Belge from responsibility under the public health law.

Conflicts of Interest (Chapter 5)

Loyalty and Other General Principles

Model Rule 1.7 Concurrent Client Conflicts

• (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 lawyer's 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.

MR 1.8--Conflict 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 lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
• (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
• (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
• (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.
• (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; and
  • (2) a lawyer representing an indigent may pay court costs and expenses of litigation on behalf of the client.
• (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 lawyer's independence of professional judgment or with the client-lawyer relationship; and
  • (3) information relating to representation of a client is protected as required by Rule 1.6.
• (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all claims or pleas involved and of the participation of each person in the settlement.
• (h) A lawyer shall not:
  • (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or
  • (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
• (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
  • (1)acquire a lien authorized by law to secure the lawyer's fee or expenses; and
  • (2)contract with a client for a reasonable contingent fee in a civil case.
• (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.
• (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any of them shall apply to all of them.

Screening

• Model Rule 1.0(k)
  • "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.
    • Chinese Wall Concept
      • Preclude firm lawyers from talking to conflicted lawyer about the matter - don't talk
      • Deny conflicted lawyer remuneration directly attributable to the matter - don't pay
      • Lock files up out of conflicted lawyer's access - lock it up
      • Move conflicted lawyer's office location, if representation is protracted - move him out

Waiver of Conflicts

Greene v. Greene

• Facts: Plaintiff’s counsel, which contained two former partners of the law firm she was now suing, brought an action against the firm claiming that it breached its fiduciary duties, committed fraud, and committed other wrongs related to the creation and management of an inter vivos trust on her behalf. The law firm claimed that the appellate division erred when it denied their motion to disqualify claimant’s counsel due to conflict of interest. The court agreed, and modified the order of the appellate division. The court
• Issue: Should the Plaintiff’s law firm be disqualified because two of the members of the firm were formerly partners in the Defendant’s law firm?
• Holding: Yes.
• Reason: Held that Plaintiff’s counsel should be disqualified because two of the members of her counsel were formerly partners in the law firm. The court held that a conflict of interest existed and noted that the two former partners were named third-party defendants in the present action. The Plaintiff could not waive this conflict of interest and retain her counsel because they were forbidden from placing themselves in a position where they must advance, or even appear to advance, conflicting interests in the litigation.

Sources of Conflicts

• Three Primary Sources of Conflicts of Interest:
  • Third Party Interference
  • Lawyer Interest
  • Multiple Client Interests

1. Third Party Interference

Parsons v. Continental National American Group

• Facts: Ruth, Dawn, and Gail Parsons, Appellants were assaulted by Michael Smithey, age 14. Smith’s insurance company's attorney investigated the incident and developed a confidential file pursuant to his investigations. In the personal injury action, appellants and the Smithey settled. Appellants then filed a garnishment action. Smithey utilized the services of the same attorney and used the confidential information he had obtained in his previous investigations. The trial court found in favor of Smithey and the appellate court reversed.
• Issue: Was there a third Party Interference?
• Holding: Yes.
• Reason: Vacated the appellate court's decision and reversed the trial court decision. The court concluded that when the attorney used the confidential relationship to gather information so as to deny the insured coverage under the policy in the garnishment proceeding, such conduct constituted a waiver of any policy defense and was so contrary to public policy that the insurance company was estopped from disclaiming liability under an exclusionary clause.

2. Lawyer-Client Conflicts

• MR 1.7(a)(2)
  • As a general matter, a conflict of interest exists when a lawyer's "representation of [a client] will be materially limited...by a personal interest of the lawyer."

Business Transactions with Clients

Goldman v. Kane

• Facts: Deceased client's estate brought suit against attorney for breach of fiduciary duty in connection with a loan from attorney's corporation to the client, resulting in financial gain to the attorney at the client's expense. Barry Kane and Higley Hill, Inc., Defendants, were ordered to pay Goldman, Plaintiff, as the executor of the estate of Lawrence Hill; former client of Kane.
• Issue: Is an attorney’s fiduciary duty breached when he lends money to a client, which then leads to a financial gain for the attorney at the clients expense?
• Holding: Yes.
• Reason: The court held that the attorney was under a duty not to proceed with the loan until he was satisfied that the client had obtained independent advice. The attorney's full disclosure and advice were not sufficient to immunize him from liability and that the fundamental unfairness of the transaction and overreaching by the attorney in his dealings with the client were self-evident because the attorney and his corporation received title to all of the client's property and the client was still required to repay the loan, with no entitlement to the property upon repayment.

Drafting Instrument That Benefit the Lawyer

• A lawyer is prohibited from drafting a document that makes a substantial gift to the lawyer or the lawyer's close relatives.
• MR 1.8(c): Applies only to donor-clients and only after the prohibition extends beyond preparing instruments to the act of soliciting the gift by the lawyer.

Sexual or Amorous Relations with Client

Model Rule 1.8(j) Sexual Relationships with Clients

• Prohibits most sexual relationships between lawyers and clients. The rule does not prohibit sexual relationships that predated the beginning of the lawyer-client relationship.

In Re Heard

• Facts: Attorney, James Heard, appealed from the decision of the Washington State Bar Association Disciplinary Board, which recommended a two-year suspension of the attorney's license to practice law and that the attorney pay restitution. Heard had retained as his fee the only cash in a settlement involving property of dubious value, and had sexual relations with an abnormally vulnerable client.
• Issue: Does an attorney engage in an act of moral turpitude when he/she has sex with his/her current client?
• Holding: Yes.
• Reason: Heard's use of his position to exploit his client sexually constituted sanctionable moral turpitude. The board's suspension recommendation was more than reasonable in light of the fact the attorney's conduct could have resulted in disbarment.

In Re Hawkins

• Facts: Hawkins, an attorney, was suspended for 90 days for having sex with his client. His client was charged with a DUI. During a session, Hawkins and his client both consumed alcohol and had consensual sex on a couch in his office.
• Issue: Does a lawyer violate the rules of conduct by having sexual relations with a client?
• Holding: Yes.
• Reason: Held that attorney's participation in sexual relations with his client during period of his representation of her warranted 90-day suspension from practice of law. By having sexual relations with his client, Hawkins promoted and served his own interests and thereby threatened material limitation of his representation of her. Lawyers who choose to engage in sex with their clients threaten damage to their ability to represent the client. Objective detachment, essential for clear and reasoned analysis of issues and independent legal judgment, may be lost.

Lawyer-Client Conflicts and Champerty, Barratry, and Maintenance

• Various restrictions on lawyer conduct are based on the doctrines of Champerty, Barratry, and Maintenance.
  • Note: No client waiver of these conflicts is permitted.

Champerty

• Is malicious purchase or investment in litigation

Barratry

• Is the malicious encouragement of claim-bringing.
• MR 7.3
• Example: Persuading your neighbor to sue another because of your ill-will towards your neighbor.

Maintenance

• Is the malicious supporting of one in litigation because of your ill-will toward their opponent in litigation.
• MR 1.8(e): Prohibits lawyers from providing financial assistance to client when litigation is pending or contemplated.

Iowa State Bar Association v. Bitter

• Facts:  : Bitter, attorney, had his licensed suspended. He was charged with, among other things, for giving advanced or guaranteed financial assistance (other than the expense of litigation). Bitter advance money to three clients during pending litigation, for purposes other than for the cost of litigation. Bitter argued that he was unaware of the impropriety of the acts, that he did not advance the money to acquire legal business or collect interest, and that the loans were made solely for humanitarian reasons.
• Issue: Does an attorney violate the rules of conduct when he/she lends money to a client for purposes other than the cost of litigation?
• Holding: Yes.
• Reason: The rule makes no exceptions for the reasons Bitter argued these factors. The rule is intended to prevent an attorney’s procuring an interest in a legal matter by advancements of money or the like. The rule does not require proof of such intent or effect, only that the conditions exist where such results might reasonably be expected to occur,

3. Multiple Client Conflicts

Aggregate Settlements

MR 1.8(g). In both civil and criminal matters, a lawyer is prohibited from engaging in aggregate settlements of multiple clients' claims or charges unless all clients consult after consultation.

Quintero v. Jim Walters Homes, Inc.

• FACTS: Quinteros had a contract with JW Homes to build them a home, but the quality of the home was sub par, so they sought Gonzalez's assistance with the suit because he was handling other claims of this nature. Attorney Gandy tried the case and successfully recovered a judgment for the Quinteros, but he never informed anyone else. Gonzales later met with the Quinteros, and they agreed to settle with JW Homes. Gandy eventually informed them of the judgment and they sought to revoke the disproved settlement.
• ISSUE: Whether Gonzales committed violations when settling for the Quinteros. YES
• RULE: MR 1.8(g) -- each client must consent and be advised of existence and nature of all the claims in the proposed settlement.
• HOLDING: The contract for release and settlement of the Quinteros' cause of action is void and unenforceable.

In re Mal De Mer Fisheries, Inc.

• FACTS: Costa and DeJesus' husbands were killed on a vessel and brought suit against the owner of the ship. Costa and DeJesus were represented by White. A settlement offer of $485,000 was made, and thereafter, White met with Costa and informed her that the company offered to settle for $115,000, but never mentioned the entire offer which include DeJesus' portion. Costa agreed to the settlement. Later, White sought to have Costa sign releases but to no avail, and she subsequently discharged him and hired new counsel.
• ISSUE: Whether White had authority to bind Costa. YES.
• RULE: An attorney may only bind his client to a compromise where the client has authorized him to do so.
• HOLDING: Costa cannot be allowed to nullify the agreement to the prejudice of the Petitioners who at all times acted in good faith. Costa must seek ramifications against White in a malpractice setting.

Former and Current Clients, the Substantial Relationship Test

MR 1.9: Duties 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 person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed 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 had previously represented a client
  • (1) whose interests are materially adverse to that person; and
  • (2) about whom the lawyer acquired information protected by Rule 1.6 and 1.9(c) that is material to the matter;
• unless the former client gives informed consent, confirmed in writing.
• (c) A lawyer who has formerly represented a client in a matter 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 is generally known; or
  • (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

In Re Joseph P. Danis

• Facts: The supreme court found that the attorneys had defendant product liability class action lawsuits on behalf of an Chrysler automobile manufacturer. The attorneys subsequently represented another client in prosecuting a product liability class action lawsuit against the auto manufacturer.
• Issue: Did the attorneys represent another client in a substantially related matter that was materially adverse to their former client?
• Holding: Yes.
• Reason: The court held that the attorneys did represent another person in a substantially related matter that was materially adverse to their former client, in violation of Mo. Sup. Ct. R. 4-1.9.B, and, thus, they engaged in professional misconduct. The court found that the attorneys violated the trust of their former client when they prosecuted a subsequent class action lawsuit that was substantially related to their prior representation. Further, in a suit brought by the former client against the attorneys, the attorneys knowingly and intentionally withheld certain documents and information from discovery, hoping to prevent any possible inference that they were involved in the class action lawsuits.
  • The court found that, while disbarment would ordinarily be expected in a case such as this, the mitigating factors warranted some degree of leniency, and the supreme court indefinitely suspended the attorneys.
• Six Factor Test:
  • the case involved the same client and the matters or transactions in question are relatively interconnected or reveal the client's pattern of conduct;
  • the lawyer had interviewed a witness who was key in both cases;
  • the lawyer's knowledge of a former client's negotiation strategies was relevant;
  • the commonality of witnesses, legal theories, business practices of the client, and location of the client were significant;
  • a common subject matter, issues, and causes of action existed; and
  • information existed on the former client's ability to satisfy debts and its possible defense and negotiation strategies.

Haagen-Dazs v. Perche No! Gelato, Part 1

Imputed Disqualification

MR 1.10: Imputation of Conflicts 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 the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
• (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 Rule 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.

Haagen-Dazs Co. v. Perche No! Gelato, Inc. Par 2

• Facts: Haagen-Dazs, Plaintiffs filed a motion to disqualify Perche No! Gelato’s, Defendant, counsel because the attorney was formerly employed as in-house counsel for Haagen-Dazs’ legal department and was currently associated with defendant. Haagen-Dazs contended that the attorney's former employment with them required disqualification.
• Issue: Does the attorney’s former employment with the Plaintiff disqualify him from being Defendant’s counsel?
• Holding: Yes
• Reason: The court held that while working for plaintiffs, defendant's attorney handled matters substantially related to the current litigation and there was a reasonable basis for concluding that he received confidential information relevant to the litigation. Therefore, the attorney was disqualified from further representation.

SWS Financial Fund v. Salmon Brother

• Facts: Hickey, Plaintiff, filed a complaint against Salomon Brothers, Defendant. The law firm had done work for Hickey and had notified them of a potential conflict of interest that would prohibit future legal advice.
• Issue: Should Hickey’s attorneys and the representing law firm be disqualified under Rule 1.7?
• Holding: No.
• Reason: The court found that Hickey had been a current client of the law firm when the law firm undertook adverse representation of Hickey in violation of Rule 1.7. The court indicated that the law firm served as counsel for Hickey over a 13 month period, answered legal questions as they arose, and had the duty to clear up any doubt as to whether a client-lawyer relationship persisted. The court concluded that a termination of that relationship did not occur because there was no express termination, the parties' behavior was consistent with a continuing relationship, and there was no lengthy lapse in the relationship.
  • However, the court concluded that disqualification was not the appropriate sanction because there was not a substantial relationship between the law firm and Hickey and the expectations of loyalty were not so cavalierly trampled that disqualification was warranted.

Special Role-Related Conflicts Rules

Types of Conflicts

1. Former Judge

• MR 1.12: Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral
  • (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
  • (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally or substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.
  • (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless;
    • (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
    • (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.
  • (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibted from subsequently representing that party.

2. Former Government Lawyer

MR 1.11: Special Conflict of Interest for Former and Current Government Officers and Employees

• (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
  • (1) is subject to Rule 1.9(c); and
  • (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
• (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which the lawyer is associated may knowingly undertake or continue representation in such a matter unless:
  • (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
  • (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
• (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which the lawyer is associated may undertake or continue representation in the matter only if the disqualified laywer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
• (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
  • (1) is subject to Rules 1.7 and 1.9; and
  • (2) shall not:
    • (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
    • (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
• (e) As used in this Rule, the term "matter" includes:
  • (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
  • (2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Notes

• 2 facts distinguish former government lawyers who move into private practice from private practice lawyer who have moved from employment in one law firm to employment in another law firm.
  • First, government lawyers represent the government.
  • Second, as a government lawyer, the stakes of impropriety are raised.
• 2 exceptions allow the former government lawyer to engage in the later private representation even when his participation was personal and substantially as a government lawyer.

Special Imputed Disqualification Rules

• Special, more relaxed imputed disqualification rules apply when former government lawyers are the law firm lawyers who have a conflict. The reason this is relaxed is that it would be too broad of rule and prevent lawyers from ever switching from working for the government to the private field.

Armstrong v. Mcalpin

• Facts:
• Issue:
• Holding:
• Reason:

Duties to Third Parties (Chapter 6)

Truth-Telling Outside the Court Context

MR 4.1--Truthfulness in Statements to Others.

• In 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 when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6
• Comment 1: A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.

Model Rule 4.2: Communication with Person Represented by Counsel

• In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Model Rule 4.3:Dealing with Unrepresented Person

• In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Model Rule 4.4: Respect 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 to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

Truth- Telling Inside the Court Context

Fact Statement to the Court

Model Rule 3.3: Candor 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 lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know 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 the defendant in a criminal matter, that the lawyer reasonably believes is 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, disclosure 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.

Ex Parte Proceedings

• MR 3.3(d)
  • On those occasions when a lawyer is permitted by law to engage in ex parte communications with the court, the lawyer must disclose to the court both favorable and unfavorable material facts

Dealing with Opposing Party

Model Rule 3.4: Fairness to Opposing Party and Counsel

• A lawyer shall not:
  • (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act
    • spoilation:destroying documents in anticipation of litigation
  • (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 that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a wintess, the culpability of a civil litigant or the guilt or innocence 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 person's interests will not be adversely affected by refraining from giving such information.

Perjury

• MR 3.3
  • Comment [6]
    • "If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false."

Nix v. Whiteside

• Facts: Defendant was charged with murder of an acquaintance in a botched drug deal. Defendant initially told his attorney that he stabbed the victim in self-defense because he saw a gun in the victim's hand. Defendant later admitted that he did not see a gun, but would testify that he did to bolster his defense. Counsel advised defendant that he could not suborn perjury, and would advise the court of defendant's plan and seek to withdraw, if he insisted on presenting perjured testimony. Defendant followed counsel's advice and testified at trial that he did not see a gun. Defendant was convicted of second-degree murder. Defendant claimed that his counsel's failure to allow him to present perjured testimony at trial constituted ineffective assistance of counsel.
• Issue: Is a defendant’s right to assistance of counsel violated when his attorney refuses to assist in presenting perjured testimony?
• Holding: No
• Reason: The court reversed because the right to assistance of counsel was not violated when the attorney refused to assist in presenting perjured testimony.

Witness Payment

• MR 3.4 [Cmt. 3]
  • Lawyers may only pay non-expert witnesses that statutory fee and reasonable expenses incurred by the witness in attending the trial or hearing
  • Expert Witnesses may be paid the professional fee that someone in the expert’s field charges for his or her time and reasonable expenses incurred by the witness in attending the trial or hearing.
    • However, the expert may not be paid a fee that is contingent on the outcome of the matter.

Limitations on Presentation To A Court

Frivolous Claims and Litigation Positions

• MR 3.1: Meritorious Claims and Contentions
  • A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
• MR 4.4
  • Standard: A claim is frivolous when it is brought merely to harass or injure.
• Criminal
  • Different then civil standard
  • MR 3.4(d)
    • Frivolous discovery requests and those intended merely to delay are prohibited.
• MR 3.2: Expediting Litigation
  • A lawyer shall make reasonalbe efforts to expedite litigation consistent with the interests of the client.

Lawyer Disciplinary Board v. Neely and Hunter

• Facts: Neely and Hunter were approached by Mrs. Stephens to bring suit against the child development center that watched her autistic son. Neely and Hunter brought multiple claims in their suit, but the only one that survived summary judgment was IIED against the son. The defendants filed a Rule 11 motion against the attorneys, and the parties agreed to drop all charges. An investigative panel was then formed to look into the behavior of Neely and Hunter, and they found a violation of MR 3.1.
• Issue: Whether Neely and Hunter violated MR 3.1. NO
• Holding: Given the circumstance, we find that Mr. Hunter and Mr. Neely did not violated MR 3.1.
• Reason: Neely and Hunter performed a reasonable investigation of the case before going forward, and this was not a frivolous suit based on the information that we obtained.

Personal Opinion and Alluding to Matters Outside the Record

• MR 3.4(e)
  • Lawyers are prohibited from expressing their personal opinion to jurors about the justness of the client’s cause, the credibility of a witness, or the culpability, guilt, or innocence of a party.
    • Only applies to personal opinion statements.

Obey Court Orders

• Lawyers must obey court orders. Even when a lawyer knows that a judge is mistaken in making an order or ruling, the lawyer must obey the order, but may make reasonable efforts to preserve the record for later challenges on appeal.

Kleiner v. First National Bank of Atlanta

• Facts: Kleiner was bringing a class action against the bank, and the court made a pretrial determination that the bank could only speak with five members of the class action and broader unsupervised contacts would be under advisement. Thereafter, the bank immediately started a calling scheme to contact the potential class action plaintiffs and talk them into opting-out of the class action, and it was highly successful. Upon hearing about the scheme, the court cited the bank's attorney for contempt and restricted communication to class action members by all parties, and imposed additional fines and disqualification against the bank's attorneys.
• Issue: Whether the first amendment rationale of a previous case bars sanctions against bank and its counsel for secretly soliciting exclusion requests from potential class action members. NO
• Holding: Court upheld the district court's imposition of monetary sanctions and disqualification of counsel.
• Reason: The bank and its counsel violated the court order.
• Rule: A lawyer Must Obey a court order, no matter how incorrect that order is, until the order is lifted on appeal unless following the order would result in the irreversible and permanent surrender of a constitutional right.

Intemperate Remarks

• Although the 1st Amendment protects most lawyer expression, lawyers are subject to discipline for intemperate remarks that serve no useful purpose.

Ex Parte Contact with Judges and Jurors

• Ex Parte: Means without the other party
• Seriously undermines the prospect of a fair process in the justice systmes.

Model Rule 3.5: Impartiality and Decorum of the Tribunal

• A 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;
    • (2) the juror has made known to the lawyer a desire not to communicate; or
    • (3) the communication involves misrepresentation, coercion, duress, or harrassment; or
  • (d) engage in conduct intended to disrupt a tribunal.

Judges

• MR 3.5(b)
  • Except in very limited circumstances lawyers are prohibited from communicating ex parte with a judge.

Jurors

• MR 3.5
  • Lawyers are prohibited from harassing jurors at any time
• Lawyers are strictly prohibited from communicating with jurors outside the courtroom before and during jurors’ duties.
• With some exceptions, lawyers are prohibited from communicating with jurors after the jurors’ duty ends.

Trial Publicity

MR 3.6: Trial 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 involved 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 addition 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 lawyer's 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).

Pro Bono Publico

MR 6.1: Voluntary Pro Bono Publico Service.

• Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono public legal services per year. In fulfilling this responsibility, the lawyer should:
  • (a) Provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
    • (1) persons of limited means or
    • (2) charitable, religious, civic, community, governmental, and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
  • (b) Provide any additional services through:
    • (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;
    • (2) delivery of legal services at a substantially reduced fee to persons of limited means; or
    • (3) participation in activities for improving the law, the legal system or the legal profession.
    • In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

Roger C. Cramton, Crisis in Legal Services for the Poor.

• Four eras: (1) legal aid left to the unorganized and voluntary activities of individual lawyers; (2) voluntary organizations; (3) Office of Economic Opportunity; and (4) Legal Services Corporation Act
• Criticisms: (1) program is a political instrument of activist lawyers; (2) it is not a poor people's program but a lawyers' program; and (3) it is inefficient both in assisting poor people and in the costs it places on others.

Amendments to Rules Regulating the Florida Bar.

• HOLDING: We hold that every lawyer of this state who is a member of the FL Bar has an obligation to represent the poor when called upon by the courts and that each lawyer has agreed to that commitment when admitted to practice law in this state.

Special Role Related Duties (Chapter 8)

Special Duties of Supervising and Subordinate Lawyers

Lawyers Subordinate to Other Lawyers

MR 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.

In re Knight

• FACTS: Employee of attorney is charged with participating in the planning and execution of entrapping a libelee in a proposed divorce action in a compromising situation with a young woman hired for the purpose of such entrapment.
• ISSUE: Whether, although he was a subordinate, the lawyer should have known to not participate in this conduct. YES
• RULE: Participation in any scheme is unprofessional conduct warranting and justifying disciplinary action.
• HOLDING: Subordinate attorney was suspended.

Providing Supervision

MR 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers.

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

In re Yacavino

• FACTS: Yacavino started his law career working at a firm with essentially no supervision and was assigned some adoption cases. He essentially did nothing on one of the cases and took efforts to cover up his neglect, as he sent the wife a fictitious order claiming the adoption was finalized.
• ISSUE: Whether the supervision of the attorney was appropriate. NO
• RULE: It is the supervising attorney's responsibility to assure that each lawyer in the organization diligently carries out the firm's contracts of employment with clients.
• HOLDING: The appropriate discipline is to suspend him and upon reentry, he must serve under a proctor.

Responsibility for Lawyer or Non-lawyer Subordinates' Misconduct

MR 5.3: Responsibilities Regarding Non-lawyer Assistants.

• With respect to a non-lawyer employed or retained by or associated with a lawyer:
  • (a) a partner, 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 the person's conduct is compatible with the professional obligations of the lawyer;
  • (b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
  • (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
    • (1) the lawyer orders or, with the 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 person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

• Model Rule 5.4: Professional Independence of a Lawyer
  • (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
    • (1) an agreement by a lawyer with the lawyer's firm partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
    • (2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon price;
    • (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing agreement; and
    • (4) a lawyer may share court-awarded legal fees with a nonprofit organziation that employed, retained, or recommended employment of the lawyer in the matter.
  • (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
  • (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal serivces for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
  • (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
    • (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
    • (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
    • (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Special Duties of Prosecutors

Model Rule 3.8: Special Responsibilities of a Prosecutor

• The prosecutor in a criminal case shall:
  • (a) refrain from prosecuting a charge that the prosecutor 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 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 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 reasonably 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 investiation or prosecution; and
    • (3) there is no other feasible alternative to obtain the information;
  • (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's 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 from 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 prosecutor's jurisdiction,
      • (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
      • (ii) 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 prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Dismissal of Charges Not Supported By Probable

• MR 3.8(a)
  • Prosecutors are prohibited from prosecuting charges that the prosecutor knows are not supported by probable cause, the usual standard below which judges will not issue warrants and will dismiss charges at preliminary hearings.

Disclosure of Exculpatory Evidence

• MR 3.8(d)
  • Prosecutors must timely disclose exculpatory evidence and mitigating circumstances regarding sentencing.

Brady v. Maryland, (U.S., 1963)

• FACTS: Was a United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Maryland prosecuted Brady and a companion, Boblit, for murder. Brady admitted being involved in the murder, but claimed Boblit had done the actual killing. The prosecution had withheld a written statement by Boblit confessing that he had performed the act of killing by himself. The Maryland Court of Appeals had affirmed the conviction and remanded the case for a retrial only of the question of punishment.
• ISSUE: Does the withholding of evidence by the prosecution violate a defendant’s constitutional due process rights?
• HOLDING: Yes.
• REASON: Withholding of evidence violates due process "where the evidence is material either to guilt or to punishment."

Responsibility for Lawyer or Non-Lawyer Subordinates’ Misconduct.

• Supervising lawyers are subject to discipline for the conduct of lawyer subordinates that violates the rules of lawyer conduct when
• MR 5.3(c)(1)
  • The lawyer orders the subordinate to engage in the misconduct
• MR 5.3(c)(1)
  • The lawyer ratifies the misconduct
• MR 5.3(c)(2)
  • A lawyer who is either a partner or the subordinate’s direct supervisor learns of the misconduct at a time when its effect could be avoided or mitigated and yet fails to take reasonable remedial action.

Judicial Conduct (Chapter 10)

Sources of Judicial Conduct Law

• The Model Code of Judicial Conduct (CJC)
  • Created in 1972, amended in 1990
  • Adopted by 47 states, D.C., and the U.S. Judicial Conference
• MR 1.12
  • Governs Lawyers conflicts of interest that arise when a judge leaves the bench and moves into private practice

General Judicial Attributes: Independence, Integrity, and Impartiality

• Judges and the Judiciary must be independent of outside influences, including those of the legislative and executive branches.
• Judges must have Integrity
• The judicial system hinges on the impartiality of judges.

Personal Conduct and Activity Outside the Judicial Role

• Judges play the central role in our system of justice and they, even more than lawyers, must maintain high standards of personal, out-of-court conduct.
• The notion of avoiding even the appearance of impropriety has greater force in judicial conduct law than it does in lawyer conduct law.

Judicial Duties

• Perhaps the most central attribute of the judge's role in our justice system is impartiality.
• Judges are required to be diligent in the discharge of their duties.
• Judges must process and resolve cases and motions filed in their court without unnecessary delay.
• Judges are authorized and required to maintain courtroom decorum.
• Aside from expressing appreciation of jurors' service, judges may neither compliment nor criticize jurors' decision.
• The basic standard for judicial disqualification is an objective one: "A judge shall disqualify himself when the judge's impartiality might reasonably be questioned."

Political Activities

• Judges must maintain a separation from the give and take of politics. As a result, a variety of restrictions on the political activities of judges and judicial candidates exist.
• A judge is required to resign from judicial office when the judge becomes a candidate for a non-judicial office.

Judicial Immunity

• Judges are absolutely immune from civil damage suits.

Discovery

MR 3.4--Fairness to Opposing Party and Counsel.

• 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. A lawyer shall not counsel or assist another person to do any such act;
  • falsify evidence, counsel, or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
  • knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;
  • in a 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;
  • in trial, allude to any matter than 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 credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; or
  • request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
    • the person is a relative or an employee or other agent of a client; and
    • the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

Washington State v. Fisons Corporation

• FACTS: A doctor was being sued by a child that was injured after taking a medicine the doctor had prescribed. The manufacturer, which had the knowledge, did not inform the doctor of the adverse effects of the medicine.
• ISSUE: Whether Fisons violated discovery rules. YES
• HOLDING: Trial court erred in failing to find the sanctions for discovery abuse were warranted in this case, as the corporation gave evasive and misleading responses.
• REASON: In determining whether attorney has complied with discovery rule requiring reasonable inquiry, courts should consider all surrounding circumstances, importance of evidence to its proponent, and ability of opposing party to formulate response or to comply with request.

Key FRCP

• FRCP 11: Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanction
• FRCP 26: General Provisions Governing Discovery; Duty of Disclosure
• FRCP 37: Failure to Make Disclosure or Cooperate in Discovery

Advertising and Solicitation (Chapter 9)

Advertising

MR 7.1--Communications Concerning a Lawyer's Services.

• A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

MR 7.2--Advertising.

• (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded, or electronic communications, including public media.
• (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may
  • (1) pay the reasonable costs of advertisements or communications permitted by this Rule;
  • (2) pay the usual charge of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;
  • (3) pay for a law practice in accordance with Rule 1.17; and
  • (4) refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
    • (i) the reciprocal referral agreement is not exclusive, and
    • (ii) the client is informed of the existence and nature of the agreement.
• (c) Any communication made pursuant to this rule shall include the name and office address of at lease one lawyer or law firm responsible for its content.

M.R. 7.4: Communication of Fields of Practice and Specialization

• (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.
• (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.
• (c) A lawyer engaged in Admiralty may use the designation "Admiralty," or "Proctor in Admiralty" or a substantially similar designation.
• (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
  • (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and
  • (2) the name of the certifying organization is clearly identified in the communication.

MR 7.5--Firm Names and Letterheads.

• (a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
• (b) A law firm with offices in more than one jurisdiction may use the same names or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
• (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
• (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

Barton v. State Bar of California

• Facts:
• Issue: Is the prohibition against advertising by lawyers an unreasonable regulation?
• Holding: No.
• Reason: The court believed that law is not a highly competitive business, and because it is not, and because the it is necessary that the public should not be given the idea that it is so considered by the members of the profession, the rule against the solicitation of business by advertisement is a reasonable regulation.
• Note: This type of blanket ban on advertisement is really no longer in effect.

Bates v. State Bar of Arizona

• RULE: A blanket ban on advertising is unconstitutional, as it violates the First Amendment. That being said, advertising cannot be false, misleading, or deceptive.

Solicitation

MR 7.3--Direct Contact with Prospective Clients.

• (a) A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:
  • (1) is a lawyer; or
  • (2) has a family, close personal, or prior professional relationship with the lawyer.
• (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded, or electronic communication or by in-person, telephone, or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:
  • (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
  • (2) the solicitation involves coercion, duress, or harassment.
• (c) Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) and (a)(2).
• (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

In re Primus

• FACTS:
• ISSUE:
• HOLDING:
• Reason:

Shapero v. Kentucky Bar Association

• FACTS:
• ISSUE: May a State, consistent with the 1st and 14th Amendment, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and non-deceptive letters to potential clients known to face particular legal problems?
• HOLDING: No.
• Reason: A truthful and non-deceptive letter, no matter how big its type and how much it speculates “can never shout at the recipient or grasp him by the lapels, as can a lawyer engaging in face-to-face solicitation.” The letter simply presents no comparable risk of overreaching. Kentucky could not constitutionally prohibit a lawyer from sending at large an

Florida Bar v. Went for It, Inc.

• FACTS:
• ISSUE: Does the prohibition of direct solicitation of an client by an attorney within 30 days of an accident or disaster violate the First Amendment?
• HOLDING: No.
• Reason: The First Amendment allows states to prohibit lawyers from directly soliciting potential clients within 30 days of an accident or a disaster.