Professional Responsibility

DeGraw   

 

I. Introduction to Professionalism

A. “Can Ethics be Taught in Law School?” - Supplement Article

      1. Most people are moral in face-to-face activities

            a. This is not enough, however; also need to be moral in our societal relations                                           (Act morally for the common good).

            b. Acting for the common good is more difficult, however, b/c you don’t know                                             who is being affected - if you don’t know this, then you can’t be certain how                                            to act.

      2. Bottom Line = people can learn ethics whenever.

      3. Even though your duty as lawyer is to zealously represent your client, you must                               also be accountable to society by the actions you take.

B. ABA Modern Rules of Professional Responsibility

      - Latest installment of self-governing body.  Old set of rules called the “Code”.

      1. Preamble - A lawyer’s responsibilities (p.8 of codebook).

      2. ABA MR (Model Rule) 8.4 Misconduct

            - What our profession views as immoral conduct for a licensed attorney.

            - Comments following the rule make it clearer.

      3. ABA MR 8.5 - Disciplinary Authority and Choice of Law

            (A) Disciplinary Authority - Regardless of where ethical misconduct occurs,                                         lawyer is subject to the jurisdiction of where he is, but also can be                                                        sanctioned in any state (even where he isn’t licensed).

                  - 1993 - ABA thought this was too tough, so they put in ...

            (B) Choice of Law - rules applied are those where the Ct. sits if conduct involved                           in that Ct.;  if conduct didn’t occur in that Ct., then lawyer is subject to the                                             jurisdiction where :

                  (1) lawyer previously practices, or

                  (2) where the predominant effect of the actions occurred.

C. TX Disciplinary Rules of Professional Conduct (p. 23 of supp.)

      - Similar to ABA preamble, but goes beyond

      - Ex. Zealous representation ¹ scorched earth policy (can’t use any tactics to get                                your clients an advantage).

      - Remember, the ABA rules are merely a guide ® they don’t have any weight until a                state adopts them; merely advisory.

      1. TX 8.04 - Misconduct - somewhat diff. than MR

            - Picks up where ABA rule leaves off - more changes made.

            - has 6 more rules than ABA (7-12)

            - Unlike MRs, TX doesn’t have a rule against saying bad things (??).

      2. TX 8.05 - Jurisdiction

            - If admitted to practice in TX, lawyers are subject to our state discipline.

            - If there are problems in other jurisdictions, then TX Cts. can still get you:

                  (1) If there’s an 8.04 violation, or

                  (2) If another state disciplines you.

D. Defining Professionalism

      1. Pound’s defn.

                  The term refers to a group ... pursuing a learned art as a common calling in                                         the spirit of public service - no less a public service because it may                                                      incidentally be a means of livelihood.  Pursuit of the learned art in the spirit                                        of a public service is the primary purpose.

      2. Freidson’s defn. - 4 things that make a job a “Profession

            1. That its practice requires substantial intellectual training and the use of                                       complex judgments.

            2. That since clients cannot adequately evaluate the quality of the service, they                                    must trust those that they consult.  (Trust = fiduciary relationship)

            3. That the client’s trust presupposes that the practitioner’s self-interest is                                overbalanced by devotion to serving both the client’s interest and the public                                          good.

            4. That the occupation is self-regulating - organized in a way as to assure the                                      public and the courts that its members are competent, don’t violate their                                              client’s trust, and transcend their own self-interest.

 

II. The Lawyer-Client Relationship

A. What is it?

      1. The relationship must be determined beforehand - can’t be liable to a client for                                 malpractice if they aren’t really your clients.

      2. Lawyers are liable to: 

            a. Clients - If you agree to represent a client, then your liability to them is a duty                            to do something for pay.  Often, clients will want you to do something                                          borderline illegal.  Lawyers aren’t obligated to do so, despite the demands of                              clients.  If they request you to do an illegal act, then it’s easy to spot and                                refuse.  Harder to choose when they only ask you to do something immoral.

            b. Judicial system - Lawyers are obligated as officers of the Ct. to act in certain                           manner.  Ex.-Not supposed to “Rambo” someone into the ground.

            c. Society - Lawyers are the key to the system.

            d. Themselves and their family - This refers to self-interest.  This liability                                          comes last.  Although remember the old saying, “In a home w/o bread,                                                 ethics is not an appropriate dinner topic.”

B. The Practice of law regulated different by each state. 

      In most states:

                                                   Executive (none)

 


                  Legislature (inherent)                    Judicial (delegated)

 

      - Executive has no power to regulate lawyers

      - Legislature has inherent, law-making power to regulate.  In most states, however,                             Leg. delegates power to the Judiciary.

            * Leg. retains:

                  1. Taxing power on lawyers (TX)

                  2. Regulate lobbying

                  3. Determination of who practices in front of state administrative agencies

                  4. Power of restraint - keep folks from practicing law who’re not lawyers

                  5. Barratry - no ambulance chasing

                  6. Power over Ct. jurisdiction - which Cts. get which cases

                  7. Day to Day operation of legal profession t State Bar.  TX has a                                                               mandatory bar association.

      - Besides the delegating power, Judiciary also has some inherent power (licensing                             attorneys, discipline, etc.).

C. The Client

      1. The lawyer is the client’s agent - agency rules apply.

            - Agency laws differ according to state.

      2. Lawyer is also the client’s fiduciary - client’s trust rests w/them. 

            - Fiduciary role exceeds any responsibility you owe as an agent.

      3. Lawyers may also be a trustee, but this isn’t as common - most lawyers don’t                                 want to be trustees.

      4. Lawyer can also be a govt. agent.

D. When is a Client a Client?

      1. This is a question of law, not ethics.

      2. Money need not change hands to form a relation, but this is usually a good                           indication when it does.

      3. Courts are beginning to recognize that such a relation exists when the client                                    reasonably believed under the circumstances that a relation existed (especially                                    if confidential info. is exchanged).

            - If you have a client, and your actions have been muddled from original plan, or                             your actions have not been clearly defined, you’ll likely get into trouble.  This                               is b/c the lawyers actions that fall w/in the scope of the authority given by the                           client are attributed to the client.

            - Only resource for client at this point = malpractice action.  Ct. won’t rectify the                                   situation b/c of lawyer ignorance/mistake.

            - Taylor v. Illinois - Taylor, as attorney, refused to obey state discovery laws.                                     Client is screwed, b/c attorney has full authority to manage the case t                                      Client must accept the consequences of lawyer’s actions.  “Litigant chooses                                        counsel at his peril”.

            - Cotto v. US - Failure to prosecute a claim is a decision (or mistake) made by                                         the lawyer, and is attributed to the client too.  Acts or omissions are visited                                           customarily upon the client in a civil case.

            - By hiring lawyer, client necessarily delegates authority to speak/act for him.  If                                   lawyer acts foolishly, client may still be bound, but may be able to sue for                                             damages.

            - Togstad v. Vesely, et al - Client went to lawyer about med mal case.  Came                                    down to each side saying a diff. story about what happened regarding                                      whether or not lawyer accepted the case or not.  Jury said he either did or                                      gave the impression of that to his client. Why?  She trusted lawyer -                                                      someone w/superior knowledge.  The Ct. put an affirmative duty on the                                  lawyer to tell client about SOL, which had run by then and barred claim.                          May also have a duty to say whether has or hasn’t taken the claim.

                  Rule = Must be very careful w/your relationships - You may take on a                                                client w/o meaning to if it’s reasonable for the client to believe that                                                   you’re their lawyer.

            - 3 Periods of the Lawyer/Client Relationship

                  1. Pre-representation - very few duties involved.  Must be careful here                                                     though b/c this can easily turn into a client relationship.

                        - Confidentiality does arise even this early in the process

                  2. Representation - lots of duties here. 

                        - Duties arise only when there is a client.

                        - Have to make sure there is a dividing period between pre-rep and rep.                                                      periods.

                        - In Togstad, the lawyer could have done things to ensure that a                                                                 relationship didn’t arise w/o him knowing:

                              a. Tell her he’s not going to accept the case

                              b. Investigate the merits

                              c. Don’t give her opinions on the case

                              d. Advise her on the SOL

                              e. Follow-up letter saying that their business together was ended

                  3. Post-representation - Lawyer must send the follow-up letter saying that                                              this concludes their business together.

                        - People who were clients will always be former clients.  Therefore you                                                      will always have issues regarding their confidentialties, conflicts of                                                        interest, etc.

                        - If don’t send that follow-up letter, then clients may feel that they are still                                              a client, so your attorney-client duties continue to exist.

      4. Other issues of law that arise in Pro-Res.

            a. Agency law - Lawyer is a special type of agent.  Have both high duties and                                      responsibilities.  Lawyers also usually have fiduciary responsibilities as well,                                        and sometimes that of a trustee.

                  - Test for agency = What would a prudent lawyer do?  (The avg. lawyer).

                        * When a client is “bound” by his lawyers actions (e.g. in court), this is                                                       pure agency law.

                        * The authority to act ends when the client terminates the relationship.

                  - Test for fiduciary = much higher than agent.  This makes it much easier for                                             a client to prove a breach.

                  - Trustees have a high standard, but not nearly as high as that of fiduciary.

            b. Malpractice

                  - In malpractice cases, normally lawyer has obligations to client that arise                                                  from either Breach of K or Tort/Negl. 

                        * Most are brought under Breach - the SOL is longer and it’s an easier                                                       burden.

                        * Proving Negl. - In Togstad, lawyers brought in experts who testified.                                                        Once you show ordinary negl. (ordinary lawyer would have done                                                           otherwise), must also show proximate cause (in addition to the duty                                                                 that was already shown to get to this point).  PC is also proven w/                                                                      experts.

                        * If there is a breach of a fiduciary duty, then it is almost implied that PC                                                     is found.

                  - In majority of jurisdictions, lawyer must be in privity (have a duty) to a 3rd                                                 person that enables them to sue;  TX doesn’t follow the majority - there                                                      must be a separate duty to the 3rd party.

                  - Exception - breach of fiduciary duty to a 3rd party will have standing (TX                                                   and all other states follow).  Third party fiduciary cases are rare.

D. Duties within the Attorney-Client Relationship

      1. Competence (MR 1.1)

            - Very tough to prove. 

            - Always a supplementary charge to another claim by a client. 

            - Always arises during malpractice claims. 

            - Usually a fact question.

            - Competence Standard = prudent lawyer in that jurisdiction act?

                  * Exception = If lawyer holds himself out as a client, then he’ll be held to                                                     higher standard.  Specialist standard doesn’t rise to level of fiduciary.

            a. Fiduciary Duties - competence standards in this area governed by states.

                  - There is agreement/conformity about which duties are fiduciary.

                  - Unique position of trust, which means that duty applies at the time the                                                      person becomes a client until they’re no longer.

                  - If lawyer commits an act that gives the client a COA against him, lawyer                                                  has obligation to turns himself over and reveal, b/c this duty is so high.

                  - No need for client to prove what they would have received competent                                                       advice - fact that fid. duty was breached is enough.

                  - Burrow v. Arce - Fiduciary relationship exists between attorneys and                                                      clients as matter of law.  Because relationship between attorney and                                                    client is highly fiduciary in nature, dealings between client and attorney                                                         require utmost good faith, and dealings, intentions and intendments                                                            between attorney and client are subject to exacting scrutiny.

      2. Diligence (M.R. 1.3)

            - Lawyer must perform duties w/o delay.  To the extent that the delay is undue,                                    lawyer is subject to liability.

            - Diligence is not a fiduciary duty.

            - Diligence complaints aren’t usually malpractice, but occur in disciplinary                                      actions and sanctions;  Actions brought by clients, opposing parties, or                                      judges.

            - Duty arises the moment you accept a client and continues until task complete.

            - When matter concluded, send that follow-up letter to “end” relationship.  Most                                    lawyers don’t do this, b/c it’s a symbolic “severing” of ties.  Want to make it                                          seem that the clients are still current.  Much easier, however, in long run -                                           don’t have to worry so much about conflicts of interest.  Also alerts to any                                       lack of diligence issues - client will call you to tell you otherwise if                                                       necessary.

            - Loyalty - a related topic, which is a fiduciary duty.  Lawyer must be free of                                         conflicting duties ® aids in being more diligent.  This is a conflict of issue                                            matter as well.

      3. Duty to Inform and Advise (Communicate) (M.R. 1.4)

            - Applies to any area where client has final authority.

            - Lawyer must advise clients of any matter that may affect their final decision.

            - Inform/Advise/Communicate = means in a way that the client can understand.

            - Nichols v. Keller - Nichols (P) was injured on job.  Hired Keller to pursue                                          workman’s comp. claim.  D didn’t advise P that he might also have civil                                               claims against others (manufacturers of defective products).  P learned of                                                civil claims after SOL ran and sued.  Tr. Ct. gave SJ to D.  P appealed.

                  Held - liability can exist b/c attorney fails to give advice.  Attorney should                                        advise even when client doesn’t ask about such matters.  Attorney need not                                        advise client of every possibility that may arise, but only those that may                                          result in adverse consequences if not considered.

                  - D could have possibly gotten out of this mess by saying that P should go                                                see a specialist, if the matter wasn’t a matter of expertise.

                  - Requirement to clarify falls upon lawyer.

      4. Duty of Confidentiality (M.R. 1.6, TX 1.05) - significant diff. in MR & TX

            - As lawyer, have to determine what happens if info. we have is privileged under                            the rules of evidence (Evidentiary Protection), and which is privileged                                                under the rules of ethics (Ethically Protected). 

            - Ethical protection is much larger - think of it as two concentric circles, with                                        ethical circle almost completely surrounding evidentiary protection (bit of                                              evidentiary protection escapes).

            - The two bodies have different origins

                  * Evidentiary privilege - developed through Ct. and statutory material

                  * Ethical privilege - drafted mostly by attorneys and adopted by states.

            a. Evidentiary Protection (Attorney/Client Privilege) - involves person who                                    seeks legal advice from lawyer acting on behalf of client for indeterminate                                            period. 

                  - The client may, and the lawyer must evoke a privilege of confidentiality not                                               to testify regarding confidential info. to lawyer or govt.  Exception = if                                                     client expressly or impliedly waives the privilege.

                  - Policy for Privilege = want clients to tell lawyers everything, so they can act                                       in client’s best interests.

                  - Ct. and Govt. make exceptions when privilege can’t be taken:

                        1. In furtherance of a crime or fraud

                        2. Claimed through a deceased client

                        3. Defense to breach of duty suit against lawyer

                        4. Document stating/serving joint clients

                        5. Client waives (express or implied)

                  - Three specific evidentiary situations

                        1. Work Product - documents in preparation for trial may be privileged

                        2. Protective orders - appropriate to protect or divulge

                        3. Communications between lawyer and client are privileged.

                  - Consequences for failing to obey rules

                        1. Lawyer may be disciplined

                        2. Layer may be sued by injured party (e.g. aiding and abetting crime)

                        3. Improper revelation of info. can also be grounds for malpractice.

            b. M.R. 1.6 “Tree” of Protection

                  Branches” = Exceptions

                        1.6(b)(2) - may reveal info reasonably believed necessary to defend                                                            against client suit

                        1.6(b)(1) - may reveal info reasonably believed necessary to prevent                                                           crime involving death or substantial harm.

                        1.6(a) - may reveal info to carry out pleadings

                  Roots” = mandatory law

                        1.6(a) - lawyer shall not reveal info relating to representation of a client                                                      unless the client consents after consultation.

            c. TX 1.05 “Tree” of Protection

                  Root” = mandatory

                        1.05(b) - Lawyer “shall not knowingly reveal”-

                              (1) confidential info of a client or former client (nothing in MR about                                                                   former clients) to:

                                    (i) person client said not to reveal info to

                                    (ii) anyone else other than the client, clients rep, or lawyer’s firm,

                              (2) confidential info of client to clients disadvantage unless                                                                          client says OK,

                              (3) conf. info of former client w/o consent, unless it’s common                                                              knowledge,

                              (4) privileged info (evidentiary) of client for advantage of lawyer or                                                                3rd party unless client consents.

                  Branches” = exceptions [1.05(c)-(f)]

                        * 1.05(c) - Lawyer may reveal confidential info:

                              (1) when has express authorization in furtherance of representation,

                              (2) when client consents after consultation

                              (3) to client, client’s rep, or lawyer’s firm, except when told not to,

                              (4) when lawyer believes necessary to comply w/a Ct. order,

                              (5) to the extent necessary to enforce a claim or establish a defense                                                          on behalf of lawyer in case against client,

                              (6) to establish a defense to criminal charge, civil claim, or                                                                          disciplinary complaint against lawyer or associates based upon                                                                        conduct involving the client,

                              (7) when lawyer believes necessary to prevent client from committing                                                        crime or fraud.

                        * 1.05(e) - Lawyer shall reveal confidential info (includes most of                                                                privilege and ethically protected) if it’s clearly established that client                                                                   is likely to commit criminal or fraudulent act (1.6 doesn’t include                                                                 fraud) that’s likely to result in death or substantial bodily harm to a                                                          person.

                        * 1.05(f) - Lawyer shall reveal confidential info. (most of privileged and                                                              ethically protected) when required by:

                              First - 3.03(a)(2) - lawyer shall not knowingly fail to disclose fact to                                                              tribunal when necessary to avoid assisting a crime or fraud.

                              Second - 3.03(b) - necessary to reveal falsity to tribunal.

                              Third - 4.01(b) - reveal to 3rd party to prevent lawyer from being party                                                   to a crime or knowingly assist a fraudulent act being perpetrated.

            d. Consequences to lawyer who breaches or  fails to reveal/breach                                                      confidentiality when he should have:

                  - can be held an accessory to crime or fraudulent act.

                  - subject to tort liability

                  - subject to disciplinary action

                  - sanction by the court in which the failure to reveal/breach occurred.

            e. Remedy to Client when lawyer breaches?

                  - Criminal cases - breach of fiduciary duty, breach of K, or tort action.  If                                                     convicted b/c of lawyer’s actions, don’t have any freedom remedies                                                      (can’t get out).  Lawyers have lots of potential for harm in crim. cases, so                                          they are monitored closely.

                  - Civil Cases - breach of fid. duty, K, or tort.

            f. Cases

                  (1) Perez v. Kirk & Carrigan - Perez (P) drove Coke truck which struck                                                   school bus and killed kids.  While in hospital, K&C, lawyers hired by                                                     Coke visited him to take his statement.  P says they told him they were                                                   his lawyers and anything they told him was confidential.  After taking                                                             statement, D‘s found P a crim. attorney and turned P‘s statement over to                                            the DA.  P sued for breach of fid. duty of good faith and fair dealing.  D‘s                                              claim they weren’t his attorneys, and couldn’t therefore be held to fid.                           duty.  Ct. ruled for D‘s by SJ. Appeal from SJ for D.

                        Held - An agreement to form and attorney/client relationship may be                                                          imposed from the conduct of the parties. The relationship doesn’t                                                         depend on a payment of fees, but may exist as a result of rendering                                                           services gratuitously.  Relationship can arise even during preliminary                                                         consultation.  Burden on P to show he’s a client.  Policy for                                                                         confidentiality retention = want to encourage absolute candor, and                                                              absolute absence of ambiguity on part of attorneys.

            g. Problems (p.32)

                  (1) The Guy has HIV - woman you represented in past has a boyfriend in                                                    jail.  She pays you to take his case after he beat up a guy in a bar.                                                        While in jail, he tells you that he has HIV.  Can you tell her or the bar guy                                           he has HIV? 

                        A: Probably not.  Although she paid, the guy in jail is your client.                                                                   Anything he tells you will be privileged unless an exception applies. 

                        - MR allow you to disclose, but only if to prevent an imminent,  future act                                                    resulting in death of substantial bodily harm.  Nondisclosure to                                                              girlfriend may or may not be a crime (e.g., she could already be                                                                  infected). 

                        TX - 1.05(c)(7) - can reveal to prevent client from committing a crime or                                                     fraudulent act.  Probably still not enough.

                  (2) I Know there’s a Gun - You represent a guy arrested for selling drugs.                                                   After arrest, he was searched and put in a squad car.  Somehow, they                                                       missed a gun he had on them, and he managed to slip it under the seat.                                              It’s probably still there.  You ask him if you can reveal this, but it was                                                    used in another crime he committed and he won’t go for it.  Someone                                                          else was convicted for that crime he did.  Can you reveal the                                                                        whereabouts of the gun?

                        A: Probably not.

                         First, always ask the client if you can reveal the info. (Consent is                                                                always going to let you reveal privileged or confidential info.).                                                           Second, is the communication privileged?  Yes, since he’s a client, it’s                                                                         ethically protected and probably privileged, so I need an exception.                                                    All of these actions were done in the past, and the exceptions are                                                                    intended to prevent future crimes.  Confidentiality requires condor, so                                                     can’t get this, even to protect the innocent guy.

                  (3) She’s Going to Kill Herself - Client comes in for estate planning.  She                                                    needs the new will done in a week.  You get the impression that she’s                                                  competent, but that’s she’s going to kill herself.  She denies it.  Can you                                                            reveal info?

                        A:   MR = No.  Suicide isn’t a crime. 

                              TX - Our client isn’t going to be hurt.  May be that the best thing to do                                                    is to talk to her.

            h. Privilege issues with an Entity as a Client (MR 1.6, 1.13;  TX 1.05)

                  - Prior to this point, we’ve thought of representing clients as a “one-on-one”                                                basis.  Client was protected on either a privileged or ethical basis.

                  - Representing an entity ® Issue is who is protected?  A corporation is a                                                   legal fiction, therefore, Should the agents of the corporation be protected                                              (as opposed to the direct client)? 

                  - Remember - the purpose of privilege and ethical protection = get all the                                                   facts/truth to the lawyer.  Corporations don’t have the same rights as an                                                     individual has (e.g., no 5th Amendment right against self-incrimination).

                  - Most courts say that entity agents deserve some measure of                                                        confidentiality.  They differ on how much protection should be afforded.

                  (1) Three Basic Tests Determining who should be protected

                        (a) Control Group - the narrowest protection.  The entity is protected as                                                   your client.  The agents who implement your advice as counsel are                                                                  the ones protected (e.g., CEO, Pres., Exec. VP, but probably not all                                                           VP’s).  Protection usually afforded to those who speak for the corp.

                              ** This exception can be expanded to anyone in the corp. who is not                                                           already protected, but actively seeks advice from corporate                                                                         counsel.

                              - Upjohn v. US - 6th Cir. said only agents protected were those in                                                              the Control Group exception.  S.Ct. disagreed, forming the                                                                          second exception instead.

                        (b) Subject Matter - Doesn’t matter who has access to the information.                                                    As long as they have knowledge of the particular info., then they’re                                                        protected from revealing.  It’s natural that lower-level employees                                                                 have info. that’s sometimes required by corporate counsel.  To                                                                   adequately advise entity, counsel must have this info.  This test                                                                  greatly broadens the possible protection, but only if info. is given to                                                             lawyer for advice.  This test encourages corporate lawyers to ask a                                                                  lot of questions.  All that info. revealed will be privileged, regardless                                                                  of who gave it.

                                    ** Note 4, Upjohn - the communication itself is protected, not any                                                        particular facts.  Can get the info. somewhere else.

                                    - There is some concern that this gives corporations too much                                                                   protection. 

                                    - This rule only applies to federal cases, although a majority of                                                                    states and the Restatement have followed this rule.

                        (c) Functional Analysis - Came out after Upjohn, in AZ’s attempt to                                                           reign in the result in Upjohn.  Test = even if person is in a control                                                         group, there is no protection unless the person has some function                                                              within the protected area.  Also protected = employees that are in the                                                   functional line (people who have something to do with the affected                                                                   area acting in their official capacity) who’s actions are attributed to                                                                     the entity.

                              - Effect = takes people with knowledge only out of the equation.

                              - Fine line drawn by AZ Cts.  Problem = no even they follow this                                                                  anymore.

                        ** EACH STATE CAN CHOOSE TO FOLLOW WHICHEVER TEST.

                  (2) Problem - Slip and Fall (p. 47)

                        Customer slips and falls in the dept. store.  She sued, alleging the floor                                                was excessively waxed. Under store policy, whenever someone sues,                                                       General Counsel’s office oversees an investigation. 

 

 

 

 

Whose conversations will be protected?

 

 

CG

SM

FA

Head of Maintenance

Y

Y

Y

Janitor who last waxed the floor

N (unless asked advice)

Y

Y

Salesperson nearby

N

Y

N

Salesperson in that dept. where injury occurred, off work, who came in for personal shopping

N (on per.       business)

Y

N

Customer

N (employees only protected)

N

N

     

            i. Exceptions to the Privilege or the Ethical Duty

                  (1) Self-defense - MR 1/6(b)(2) - have good reason to believe that revelation                                        of information is necessary to his self-protection.

                  (2) Waiver - Client may waive the protection of either the privilege or the                                                     ethical duty of confidentiality.  Waive may be explicit or implicit.  Waiver                                                            will be implied where client puts the confidential communication at issue                                                          in a litigation.  Clients may also waive the protection of attorney/client                                                    privilege by revelation of the confidential communication.

                  (3) The Crime-Fraud Exception - Communications between attny/client aren’t                                privileged (although they may be ethically protected) when the client has                                                    consulted the lawyer to further a crime or fraud, whether or not the act is                                                    actually committed, and even though the lawyer did nothing to further the                                             act.  Fraud = actual or attempted intentional misrepresentation.  Only                                                    applies when Ct. determines that the client communication was itself a                                                          furtherance of the crime.

                  (4) Identity and Fees - Usually impossible to attempt to protect the identity of                                  clients, and the fees paid by them.  May be protected when there are                                              assumptions that can be drawn from the fees or the client’s identity.

                  (5) Public Policy - Cts. occasionally suggest that the attorney/client privilege                                              may sometimes have to give way to other values.  May be pierced upon                                                           a showing of need, relevance and materiality, and the fact that the                                                     information could not be secured from any less intrusive force.

                  (6) Is there a Professional Relationship?  There must be an attorney/client                                                 relationship for there to be a privilege.


            j. The Murderer’s Sex Tapes - Client hid tapes in his apt. showing sexual acts                                            with girls that he eventually killed.  Attny. eventually went an removed them                                            when client asked his too.  Privilege to keep them hidden?

                  * Gen. Rule  - if attny. has possession of physical ev. that was used to                                                commit a crime, he cannot keep that privileged.  Back to the Gun-in-                                                          the -car-seat hypo.

                  * This situation is a bit different - Tapes weren’t used to commit a crime.  It                                                was a communication to his attorney, so it’s usually privileged.  He                                                       shouldn’t have removed it from the crime scene, but it is privileged info.                                                         when told to him.  Even though DA reprimanded attny. for trying to use                                                             it’s presence in a plea bargain, it wasn’t necessarily improper.

            k. Model Rule 1.13 - Organization as Client

                  - What do you do when you know someone in the entity is going to                                                    commit (or has already done so) an act which has neg.                                                             consequences to client (the entity)?

                        * Under privilege ® Attny. has some privileged info/ethically protected                                                        information.  Doesn’t matter if in-house or outside counsel.

                        Step 1 - Assess the consequences.  Matter must be material for a                                                        breach of privilege/ethical protection.

                        Step 2 - Ask the person involved not to do it.  If already done, tell them to                                              turn selves in.

                        Step 3 - If unsuccessful, advise person about getting separate legal                                                            counsel outside the entity.

                        Step 4 - Go to higher authority (above the guilty party).

                        Step 5 - If nothing done, must withdraw.  If outside counsel, drop client.                                                      Special rules exist for in-house counsel.

                        * None of these steps constitute a breach of privilege as long as violator                                                     isn’t your client.

                        * Noisy Withdraw Rule - allows counsel to withdraw, but telling the next                                                      counsel the details of the problem.

 

III. Autonomy of Lawyers and Clients

A. Controlling the Representation

      1. Model Rule 1.2 - Lawyer’s Scope of Representation

            (a) Lawyer shall abide by client’s decisions concerning the objectives of                                                           representation, and shall consult w/him as to the means.

                  Civil - client decides whether to settle

                  Crim. - Client decides (after consultation) whether to take plea.

            (b) Lawyers actions don’t constitute an endorsement of client’s views.

            (c) Lawyer may limit the objectives after meeting w/client.

            (d) Lawyer can’t counsel client in engaging in action he knows is a crime/fraud,                                         but may advise of consequences of good faith legal actions.

                  * Can’t violate other rules or Const. laws to comply w/client’s wishes.

                  * Lawyer Agreement to client must be express on issues ® Client                                                              understands therefore exactly when the representation will end.

      2. The Scope of the Attorney/Client Relationship

            a. Bottom Line = Client has the ability to make decisions in regards to the                                    “ends” of the representation (objective);  Lawyers have authority to                                           determine the “means” to get there, after consulting w/clients.

 

      3. The Lawyer’s Autonomy (Defining the diff. between ends and means)

            a. Jones v. Barnes - client insists on ends and means of representation.                                            Lawyer did right thing:  Disagreed, but talked it over w/client to explain why                                           he wants to do what he does.  S.Ct. agrees w/lawyer.

                  - Dissent says that in this criminal matter, lawyer should have abided by                                                    client’s wishes where there’s a conflict b/c there was a liberty interest                                                  involved.  Ct. says that there is no taking of client’s autonomy. b/c he                                                  made his decision to appeal (ends), and Lawyer made his autonomous                                                    decision on the means to do it.

                  - Ends and means are not always easy to define.

            b. Problem - Ms. Niceperson - Deadline to file is known to you, but not to                                        opposing counsel.  Do you have a duty to inform him, or is your duty to your                                      client such that you should ignore the situation and take a default judgment                                            for your side?

                  A:  Have a duty to client, but also have a duty as an officer of court.  Clients                                                autonomy doesn’t extend to making lawyer take advantage of other                                                       party’s mistakes, b/c this extends into attorney’s right to autonomy about                                                   the means of representation (even if Client tells you to do so).

      4. The Client’s Autonomy

            a. Olfee v. Gordon - Client told lawyer to sell her real estate, but instructed him                                        not to take a 2nd mortgage.  Lawyer sold it w/a 2nd mortgage w/o telling                                              client. and when purchaser defaulted, Client lost $25K. 

                  - Client’s autonomy ® sell home by terms set.

                  - Lawyer broke this condition.  Is this a means or an end issue?  Lawyer led                                               client to believe that there was no violation of the terms.  Lawyer lost on                                                     malpractice action, b/c Client clearly defined the ends.

            b. People v. Petrovich - Petrovich, despite objections of lawyer, decided not to                                          give the jury the choice of manslaughter during his murder trial.  After                                         murder conviction, Client said the decision belonged to lawyer.  NY ct. didn’t                                       buy it, b/c client was attempting to minimize the risk of conviction, and was                                            not a matter of strategy or tactics which lawyers usually have autonomy                                   over.

            c. Matter of M.R. -Clients w/diminished capacity - when clients suffer from                                          diminished capacity (physical or mental), or b/c the client is a minor, the                                              issue of allocating decisionmaking authority is more difficult.  M.R., who has                                                Down’s Syndrome, wanted to move in w/dad.  Mom didn’t agree, and filed                                              guardianship proceeding to stop it.  Counsel appointed to investigate the                                                         matter made a decision that either would be OK. 

                  Model Rule 1.14 - Clients Under a Disability

                        (a) To the extent of the scope you represent them. if it’s an appropriate                                                       topic for them to decide (or capable of deciding), attorney must                                                             respect and advise clients of situation, i.e., maintain a normal                                                                      attorney/client relationship.

                        (b) Lawyer may seek the appointment of a guardian or take other                                                          protective action w/respect to client, only when lawyer reas. believes                                                                that the client can’t adequately act in his own self-interest.

      5. Model Rule 2.1 - Advisor

            Lawyer shall exercise indpt., professional judgment when representing a client                                          and give candid advice.  In giving advice, lawyer may refer to law, but also                                             any moral, economic, or political factors that may be relevant.

            - Lawyers may be advisors when asked by clients.  No duty until then.

            - Tells us that we don’t normally have a duty to investigate our client’s affairs,                                             only their claims.  No duty to investigate their lives.

 

      6. Model Rule 2.2 - Intermediary (rule that often gets lawyers in trouble)

            (a)Lawyer may act as intermediary between clients if:

                  (1) gets consent of both parties after explaining the advantages and risks,                                                 and remains loyal to both clients,

                  (2) lawyer believes the matter can be resolved in manner compatible w/both                                              clients’ best interests intact, little chance of prejudice involved, and each                                                    client can make a materially informed decision,

                  (3) lawyer reas. believes that common representation can be undertaken                                                   impartially w/o improper effect on other responsibilities to clients.

            (b) Lawyer shall meet w/each client while acting as intermediary, in matters                                         concerning decisions made, so each party can make informed decisions.

            (c) Lawyer shall withdraw if any conditions in (a) no longer is satisfied, or if any                                    client requests.  After withdrawal, lawyer can’t represent either client in the                                            matter was the subject of the intermediation.

      7. Problems

            a. “I’d Rather Die” (p.91) - client you represent has been on death row for                                       several years, when you finally get some info. that could get him new trial.                                                  You advise him of it, but he refuses to give you permission to get a stay of                                           execution.  He says he can’t take death row anymore, even if the time may                                          eventually get him his freedom.  What can you do?

                  - Perhaps argue he’s under a disability, and get a guardian ad litem                                                            appointed under M.R. 1.14 ® if his mind clouded his judgment, then may                                             be able to get a hearing w/o his consent.  Maybe go to his family.

                  - Usual rule = if he tells you to get lost, then you do.

            b. “Accept the Offer” (p.92) - client comes in for divorce representation.  Against                                        your advice, she advises you to accept a ridiculously low settlement offer,                                              b/c she feels guilty for breaking up the marriage.  You are certain that if you                                           go back w/a reasonable counteroffer, it will be accepted.  You’re certain that                          in 6 months she’s going to be pissed off at you for this lousy deal.  What can                                     you do?

                  - Can’t force your values on client.  Remember, it’s client’s decision to settle                                              in civil matters.  Once the decision has been made, you’re not free to do                                                    whatever. 

                  - How, then do you CYA? 

                        1) Draft a letter for her to sign stating that she is accepting this                                                                    settlement against the advice of counsel after hearing the                                                                      alternatives. 

                        2) If children are involved, lawyer has 2 options (b/c the decision doesn’t                                                          just affect her):

                              a)Tell client that this is repugnant to you, and you will not represent                                                             her if she treats her family this way, OR

                              b) Get a guardian for the children who can draft a deal together or                                                               separately that will satisfy their needs.

B. Terminating the Relationship

      1. Termination by Client

            a. Lawyer must clearly withdraw after being fired by client, who may fire for any                                   reason or none.

            b. M.R. 1.16 - can’t represent a client if you’re impaired (e.g., drugs or mental                                      disease).

            c. M.R. 8.3 - If you know that opposing counsel is impaired (defined as “not                                         being able to carry on the representation of another), you are obliged to                                                turn them into either the (1) Disciplinary committee, or (2) TLAP.

            d. Indigent crim. D‘s can’t fire lawyers appointed to represent them, but they can                           ask for new counsel.

            e. Clients w/retained lawyers may not be able to fire counsel if close to trial date,                           b/c the interests of others (opposing counsel, court) may be given weight in                                               not delaying trial.

            f. When client fires lawyer, he is still liable for the attorney fees earned for the                                      work to date.

      2. Termination by Lawyer

            a. When can lawyer withdraw?

                  1) If objectives sought are repugnant to lawyer.

                        - M.R. 1.16(b)(1) - withdrawal OK if believes client is acting out a crime or                                                  fraudulent act.

                  2) If client fails in obligations to us (e.g., paying fees).

                  3) If the matter is going to be a financial burden on attorney

                        - Must be a substantial financial burden (e.g., force you into bankruptcy).

                  4) May withdraw for any reason that can be accomplished w/o material                                                      adverse effect on the interests of the client [M.R. 1.16(b)].

                  5) Jerk Law - if lawyer withdraws from case, he is obligated to help client find                                       a new attorney, and must refund any advancements not earned to that                                                          point.

            b. Neither client nor lawyer may fire for any discriminatory reason (e.g., race.                                       religion).  This rule developed from agency law.

      3. When do you know that the relationship has ended?

            a. Letter sent by either party ending the relationship. 

                  - Lawyer must eventually sever the relationship so client is not considered a                                              “current” client.

            b. Model Rule 1.17 - Sale of Law Practice

                  OK to sell practice, but your clients don’t become their clients until you notify                                 them:

                  1) Notice of transfer, AND

                  2) Give client opportunity to transfer (pick up their files).

                  * Clients fees from your practice remain stable/same.

                  * Presumption, if client doesn’t respond, that transfer is accepted (normally                                               response from letters is quit low).

 

IV. Protecting the Relationship

A. Communication w/another Lawyer’s Client

      1. General Rule = If ind. represented by another attorney, then you can’t talk to                                  them, unless permission given by other attorney.  Bottom line = it’s pretty rare.

            a. Alternative method of “speaking” w/opposing party = through discovery                                 (depositions and interrogatories).

            b. The general rule only applies if speaking to other lawyer’s client regarding the                            legal matter in question.  Pretty hairy.

      2. Model Rule 4.2 - The No Contact Rule

            May not contact the client of another attorney w/o permission. If have consent of                other lawyer, then free to do whatever.

            - Sometimes can be authorized by law to talk to opposing counsel client.

                  E.g., Govt. as client, Rule 11 issues.

            - If you’re barred from speaking to them directly, then you can’t get a 3rd party                                           to do so for you (e.g., investigator, client) indirectly.  Rule doesn’t apply                                               retroactively (if you didn’t know they were going to do so and they did).  Just                                          can’t encourage them to do so.  Can you use the info. that you got?

            - Rule’s Purpose = prevent lawyers from getting admissions from parties before                                       they have a chance to know what it means, that end up giving you an                                         advantage before counsel has a chance to go over it w/their clients.

            - Lawyers’ objections to rule = makes getting info. expensive b/c it can’t be done                           informally.  Has to be done directly at greater costs.

            - Rule won’t apply if you don’t have a client.

            - TX version - Need opposing counsel’s permission to talk to:

                  1. Current employees in the control group (power to bind or speak for org.)

                  2. Current employees who can bind org.

                  3. Current employees who can make admissions.

                  * CAN speak to:  Regular employees.

            - Once a person protected by the entity’s umbrella gets his own attorney, the                                       org.’s protection is gone ® Don’t have to deal w/entity lawyer anymore.

      3. Model Rule 4.3 - Dealing with Unrepresented Person

            If you can get to a person before they are represented by counsel, you can talk                              to them, but you must let them know you’re representing some other party ®                                  Duty to Warn them.

            - Careful - if they ask advice and you give it to them, they become your client.

      4. Niesig v. Team I (leading case in nation in Civil Matters)

            * Rule regarding speaking to persons represented by counsel, when client is an                                  entity = Entity has a right to protect its agents from being spoken to, even                                             though the agents themselves are not being represented.

            * Looks similar to the Control Group Rule® All current employees are protected                                  (current employees, people w/interests at stake, officials who have ability to                                         speak for corp., and any persons whose actions may be imputed to entity).

            * No former employees are protected from being spoken to by opposing                                               counsel, even if they are represented by counsel.  Also, any current                                                      employees represented by counsel are not protected.

      5. Problem - Help from her Friends (p.109)

            Lisa H, in-house counsel, was denied promotion and suspects it was race-                                   related.  When she came to see you, she brought along 2 friends:  a co-worker                               who can relate incidents of racial bias by Lisa’s bosses against her and others,                                 and a VP who can relate the org.’s policies regarding minority personnel.  Can                           you speak to either?

            a. Co-worker - Must make sure she’s not represented by counsel (she’ll know if                                        she has counsel).  Protection under entity lawyer usually for mgmt. types.                                             As long as she doesn’t have counsel already, probably can talk to her.

            b. Personnel VP - as mgmt. in the area of controversy, his statements can be                                     imputed to the org.  Although we definitely want to speak w/him, he’s under                                          the umbrella of the entity lawyer.  If he gets his own attorney, then we only                                            need get permission from attorney, not from entity lawyer.

 

B. Criminal Matters

      * MR 4.2 applies equally to civil and crim. law. 

      * 6th Amend. also applies and prevents state from questioning a D against whom                               charges have been initiated outside the presence of counsel

      1. What can prosecutors do when acquiring evidence for trial?  The No Contact                                  Rule applies especially strongly in criminal matters. 

      2. When the No Contact Rule doesn’t apply in criminal matters:

            a. Pre-indictment discussions (guy’s in custody) - usually the No Contact Rule                                    doesn’t apply yet b/c D hasn’t been charged yet.  Usually doesn’t have                                           representation at this point.  If D does have counsel, then can’t contact them.

                  - Possible problem = indigent folks - we know they don’t have                                                                      representation.  Allowing prosecutors to get around rule?

            b. Where provision is otherwise authorized by law

                  1) Right to investigate by subpoena

                  2) Hammad - 4.2 will not allow prosecutors a criminal exception to be made                                             when a person acts as their “alter ego”.  Prosecutors are able to                                                                 investigate matters, that’s all. 

                        - Determination of alter ego is a question of fact.

                        - Case impt. b/c Attorney Gen. felt that fed. prosecutors shouldn’t be                                                          bound by state ethical rules (giving them carte blanche to talk to                                                            whomever/whenever).

      3. Sanction for violation of the Ethical Rule (4.2) = State sanctions you                                                       w/punishment from the state bar association. 

            a. In Hammad, they wanted the evidence suppressed, but suppression has its                                   roots in 6th Amend.

            b. There is the possibility of getting sanctioned by state bar and getting info.                                         tossed out or suppressed.

 

C. Improper Acquisition of Confidential Information

      1. The prohibition on communications w/another lawyer’s client has, as one of its                                objectives, protection of attorney-client confidences.  Courts are protective of                           gaining confidential info. from improper sources.

      2. MR 4.4 - Respect for Rights of 3rd Parties

            In representing client, lawyer shall not use means that have no substantial                                     purpose other than to embarrass, delay, or burden a 3rd party, or use methods                               of obtaining ev. that violate the legal profession.

            - Can’t get info. by abusing people’s rights or violating discovery rules.

            - The act itself is enough to get punished

                  * No requisite intent

                  * Don’t have to be acting as a person’s advocate (you’re always a lawyer,                                                  regardless if you have a particular client).

 

V. Fees and Client Property

A. Client Fees

      1. Who pays for lawyers?

            a. Lawyers themselves (pro bono, client reneges on you).

            b. Client (usually the way) - diff. types of ways client pays

                  1) Hourly fee (most common in U.S.)

                  2) Flat fee for a particular service

                  3) Contingent fee (doesn’t have to be PI case).

                  4) Performance/Value Added fees (fee determined after the service                                                            rendered by lawyer and client, and depends on the outcome).

                  5) Retainer (non-refundable, stand-by fee) - help client on a month-to-month                                  basis, but costs more for large matters.

            c. 3rd parties - relatives, friends, insurance co., employers.

            d. IOLTA (Interest out of Lawyer Trust Accounts) - interest out of attorney                                       common funds (when they hold cash for clients) is given to programs to                                            finance clinics, etc.

            e. State - indigent folk via services or Pds, or state-paid private parties (like in                                      Harris Co.).

            f. Opponent - in fee-shifting cases (DTPA or civil rights cases) where loser is                                      forced to pay.

            g. Some combo

      2. MR 1.5 - Fees

            * Lawyers fees shall be reasonable (this is the test)

            * Factors considered in reasonableness:

                  1) time/labor involved, novelty/difficulty of case, skill needed to perform

                  2) likelihood, if apparent to client, that acceptance of the particular                                                               employment precludes other work for lawyer

                  3) customary fee for that job in that area.

                  4) amount involved and the result obtained

                  5) time limitations impose by client

                  6) nature/length of the per. relationship w/the client

                  7) skill, experience, and ability of the lawyer involved

                  8) whether fee is fixed or contingent

            * Lawyer must communicate fees to client, preferably in writing, w/in a reas. time                          after commencing the representation - give them a ballpark figure.  Why?

                        (1) Eliminates part of the client’s autonomy to go somewhere else if you                                                     wait too long.

                        (2) Wait until the end to spring fee, it’s a form of coercion.

            * Fees may be contingent on the outcome of the matter, except where                                                 prohibited.  Contingent Fee Agreements (CFAs) must be in writing.  Upon                                            the conclusion, lawyer must give a statement to client showing the cost                                               breakdown and a general accounting.

            * CFAs are prohibited in 2 scenarios

                        (1) Criminal representation - against public policy to allow b/c we don’t                                                       want lawyer turning down good pleas to get a chance at the bigger                                                                   cash if he gets the D off.

                        (2) Domestic Relation situations - against policy to encourage divorce or                                                    certain outcomes in order to get paid;  likelihood of reconciliation is                                                                   less likely, and the state has an interest in keeping family harmony.

            * Division of Fees - if not in same firm, only allowed if:

                        (1) the division is in proportion to the services performed by each lawyer,                                             or by written agreement w/client, each lawyer assumes joint                                                                       responsibility for representation,

                        (2) the client is advised of and doesn’t object to the participation of the                                                        lawyers involved, AND

                        (3) the total fees are reasonable

                              - Each lawyer has a risk ® either work performed or responsibility.

      3. TX 1.04(a) - MR equivalent

            - Has an additional requirement that the fees be “unconscionable

            - Unconscionable = A reasonable lawyer couldn’t form a reasonable belief that                                          the fees were reasonable (circular).

            - TX doesn’t recognize the CFA ban on domestic relations case ® only criminal                                 (although TX Code says that CFAs in domestic situations are rarely justified).

            - TX has an additional time when fees may be divided ® Referral Fees

                  * TX is only state which allows a lawyer to take cash w/o responsibility.

                  * Problem = sometimes people charge higher CFAs to make up for the                                                      referral fees, so client ends up getting screwed.

      4. Fees can be in form other than cash

            * Problem = how do you value the services to measure if it was overreaching or                                  unreasonable?

            * Doesn’t matter ( for “unreasonable” purposes) if client was willing to pay so                                       much.

      5. Fees can be paid in advance

            * Very common for a lawyer to be hired w/a retainer agreement.

            * Retainer is usually refunded when the amount given was too much                                                    (notwithstanding Cooperman).

B. The Role of the Marketplace

      1. Brobeck v. Telex - complicated retainer agreement was complained of by Telex,               when P got them out of a serious situation, but engaged the complicated                                retainer.  Lawyer ends up suing client when refuses to pay.

            a. Shows us how complicated the retainer agreement can be

            b. Shows how much money can be made if you’re the best at what you do and                                    people are willing to pay for your services.

            c. Shows us that CFAs are not limited to PI cases.

            d. Cts Standard of Review for Unreasonable Fees = “No man in his senses and                                        not under a delusion would make on the one hand, and as no honest and                                             fair man would accept on the other”.

            e. Shows that it can sometimes be good idea to sue client

            f. Shows that the test for unconscionability of fee is determined “with reference                                          to the time when the contract was made and cannot be resolved by                                                    hindsight”.

C. Unethical Fees

      1. Bushman v. State Bar - state bar disciplinary action against lawyer who charged              a retainer fee grossly more than the work he actually performed, and then                                    refused to refund.  Ct. ordered legal fees to be paid to him, but he neglected to                                mention the retainer.  Board suspended him for 1 yr.

            * Test for Unconscionability adapted from Brobeck ® now includes not                                                refunding cash retainer that you haven’t earned.

      2. Matter of Fordham (note case p.139) - lawyer took case on subject he was                                     unfamiliar with, and charged his client the hours that he spent researching the                                    matter.  Legal fee ended up being $50K (others offered to represent from $3K-                                  10K).  Client refused to pay and complained to disciplinary board.

                  Rule = Unreasonable fees are unreasonable, no matter if you were                                        acting in good faith or not.  Determination of reasonableness can be made                          outside the context of which it was made (Look at #3 of reasonableness                                                factors in MR 1.5 - customary fees charged for services in that area).

      3. Problem - What are You Worth? (p.139)

            Porgby is worth $12B.  He’s indicted for hiring 2 men to kill his partner, who was                found dead.  He goes to see Johnny Scheck, acknowledged as being the finest                                criminal defense lawyer in the country.  JS recently retired, but Porgby persists.                 Finally JS says he’ll take the case, but for $2B, saying he doesn’t need the                cash, and that’s his final offer.  Porgby hires him and is acquitted.  Afterwards,                  Porgby refuses to pay and claims the fee is unconscionable. What result?

                  - Unless you’re delusional, can’t you K for whatever the mkt. will bear?                                                       Probably so. 

                  - Don’t we worry that doctors will do the same thing?  They have the                                                           Hippocratic Oath to worry about.

                  - Lawyers use the sliding scale approach (recovery decreases as recovery                                            increases - also a factor in contingency cases).

                  - Courts have inherent power to modify fee arrangements, but won’t often do                                       it, unless client complains to them.

      4. MR 1.15 - Safekeeping Property

            (a) Lawyer shall hold prop. of clients/3rd persons in the lawyers’ possession in                                    connection w/representation sep. from lawyers’ prop.  Sep. account in                                                 lawyers’ state, or elsewhere if client consents.

                  - Records of funds held should be kept for 5 yrs. after end of representation.

            (b) Upon receiving funds/prop. which client or 3rd party has an interest, lawyer                                    shall promptly notify them.

                  - Lawyer shall deliver funds to client/3rd party promptly, and give accounting                                 (EAOP) upon request.

            (c) If during the course of representation a lawyer is in possession of prop. in                                       which both lawyer and 3rd party claim interests, the prop. shall be kept sep.                                         until there is an accounting and severance of interests.

           

                  * Old days, this rule required 2 sep. accounts.  Today - IOLTA ® instead of                                               a trust account w/no interest, put in a trust account w/interest payable to                                                          fund that affords legal clinics.

                  * Rule is critical b/c lots of disputes arise (proper fee holding, commingling).

                  * Have to make sure that the account being held for client doesn’t slip below                                        a certain amount, or else could be trouble.

                        - Not Malpractice though - MR’s aren’t ever the basis for a civil suit (i.e.,                                                      breaking them doesn’t get you sued automatically). They can,                                                               however, be used as substance for it.

      5.Retainer Fees

            a. Usually thought of as unearned legal fees, which must be returned if not                                           earned.

            b. Matter of Cooperman (1994) - written fee agrement in criminal matter named                               $25K price, which was non-refundable.  Client signed.  One month after the                                         agreement, lawyer was discharged by client, but he refused to return                                                     retainer.  Cooperman ignored 2 previous warnings about non-refundable                                       retainers. 

                  - NY eliminated “special retainers” - which were non-refundable.  These are                                               like bonuses ® coerces the client to stay w/lawyer, which violates the                                                  rule that he can fire lawyer at any time.

                  - NY allows “general retainers” - cash that promises your availability the                                                     moment that the client has a problem, but costs you more when you start                                            working.

                  - NY may not have done the right thing - this decision is widely criticized                                                     outside of NY.  This was a bad guy, but such a broad stroke may not                                                    have been the best thing.  Many states allow such retainers if they’re                                                    reasonable (i.e., don’t prevent client from seking alternative counsel).

D. Contingent Fee Agreements (CFAs)

      1. Another controversial method of client payment.

            a. Some states regulate strictly, while others just require a written agreement.

      2. Proponents argue that this enables certain parties access to ct. that wouldn’t be                                         able to get there.

            a. Lawyers who feel the case deserves to be heard have a way to recoup their                                    costs if they win.  This requires that lawyer decide that he can win upon the                                         merits of the case.  Usually there’s a premium associated w/the risk he will                                       take (usually a high % of award).

      3. Factors that lawyer looks at in deciding to take a case on contingent basis

            a. likelihood of prevailing (unlikely to take these on contingent basis)(most impt.)

            b. length of time before resolution

            c. probable size of recovery (will spend more time on these)

            d. amount of work required (need to evaluate this carefully, b/c if you get                                        bogged down, can’t work on other cases.  If lose, you’re in trouble).

            e. amount of lawyer’s recovery

                  * First 4 require predictions, which in turn determine 5.

                  * lawyers better able to determine that client.

      4. Problems w/CFAs

            a. State may cap amount recoverable under CFAs (Statutory Fee Ceiling)

                  - may lead to fewer cases being heard in ct., b/c can’t afford risk

      5. Remember, CFAs are not allowed in:

            a. Matrimonial cases

                  1) State has an interest in seeing as much $ staying w/the families

                  2) No need - Statutes empower Ct. to order wealthier spouse to pay other’s                                               ct. costs.

                  3) CFA may give lawyer incentive to recommend course of action not in                                                     client’s best interest (e.g., see case to trial and not recommend                                                                  reconciliation).

            b. Criminal cases

                  - CFA on acquittal could prompt a lawyer to encourage a client to reject a                                                   favorable plea and fo to trial in order to try and get the acquittal.

E. Court Awarded Fees (Alternatives to CFAs)

      1. Eng. Rule - Loser Pays Winners’ costs

                  - Debatable issue where some close call cases won’t risk being heard when                                             they should be b/c of the fear that can’t afford to pay other party costs.

                  - Indigent parties under civil rights cases aren’t made to cover other party’s                                                costs.

      2. US Rule - Fee Shifting (Ct. awarded fees)

            1) Occurs in cases (usually federal Ct.) where there is a strong public policy                                                   in bringing every type of suit (e.g. DTPA, civil right violations, environ.                                                    cases).

            2) Rivera - hispanic guys sued after cops roughed them up during the break                                                    up of a party.  Lawyers sued for violation of civil rights and won.                                                                  Recovery for plaintiffs was $33K, w/$13K for civil rights violation (would                                                            be $11K under CFA).  Since this was a fee-shifting case, Ct. makes                                                    violating party pay (state).  Ct. decides what the attorney fess were, and                                                          gave them $250K using Lodestar Method.

                        - Lodestar = method for determining attorney fees

                                          = Reas. hrs. x Reas. fees

                        - Key = Not necessarily what the lawyers actually did.

                        - Fee was so out of proportion b/c we want these cases brought.  High                                                       fee is to get their attention.

                        - The larger the spread between fees and damages award reflects the                                                       work done by lawyers ($33K vs. $250K).

            3) City of Burlington v. Dague - lawyer said the Lodestar should be enhanced                                        b/c of the risk taken by accepting the case on a contingent basis (Lodestar                                          was enacted b/c this was an environmental case).

                  - S.Ct. said that there was already a Lodestar formula for fixing the                                                             contingency consideration (it was already factored in).  You already look                                                           at reas. hours and fees.  It may not be what you normally charge, but it                                                           isn’t bad.

                  - For class action suits, cts. will normally award contingent enhancements.

            4) Settlement Conditional upon fee waivers (additional prob. w/ Fee shifting stat)

                  - Evans. v. Jeff D. - Legal aid lawyer representing civil rights case brought                                                by mentally and physically handicapped kids got a favorable settlement                                                      offer which conditioned that the fee for the lawyer be waived.  LA lawyer                                                     knew that fees are used to fight other battles, but he’s there to serve                                                     clients.  He took offer, and Legal Aid sued, saying that conditioning                                                         settlements this way will eliminate the possibility of these suits in future.

                        * S.Ct. said that fee shifting is not absolute.  It’s a request that Ct. may                                                       deny if pt. of a ct. settlement.

                        * There is no conflict w/lawyer - he serves client, not self.

                        * Lawyers can cure this by having a fee agreement beforehand.

                        * Solution = Merits and fees cannot be negotiated together.

F. Mandatory Pro Bono Plans

      1. Why have them at all?  Equal justice for all (S.Ct. building)

            a. Only one pro bono system in US - El Paso requires mandatory hours.

            b. FLA has gone ther farthest - Even w/their “voiluntary program, there have                                         been legal challenges.  FLA requires a manddatory reporting of your                                                     voluntary participation.  If you don’t do it, then you have to pay the cash                                              equivalent.

      2. Why not have taxes pay the fees, rather than having lawyer eat the fees?

            Taxpayers can’t foot the bill. 

G. Division of Fees

      1. MR 5.4 - Professional Independence of a Lawyer

            (a) Lawyer/firm shall not share legal fees w/nonlawyer, except that:

                  (1) agreement w/lawyer’s firm, partner, or assoc. may provide for payment of                                money over reas. period of time after lawyer’s death, to his estate or                                                    specified person;

                  (2) Lawyer who purchases practice of a deceased/disabled/disappeared                                                   lawyer (MR 1.17) may pay the estate or other rep. of that lawyer the                                                      purchase price; and

                  (3) Lawyer or firm may include nonlawyer employees in compensation or                                                   retirement, even though plan based on a profit-sharing agreement.

            (b) Lawyer shall not form partnership w/nonlawyer if any of the activities of the                                     partnership consist of the paractice of law.

            (c) Lawyer shall not permit a person who recommends, employs, or pays the                                      lawyer to render legal services for another to direct the direction of the                                      lawyer’s recommendations.

            (d) Lawyer shall not practice with or in the form of a professional corporation                                       authorized to practice law for a profit if:

                  (1) nonlawyer owns any interest (except that a fid. rep. of the estate of                                            lawyer may hold stock of lawyer for a reas. time),

                  (2) nonlawyer is corp. director, OR

                  (3) nonlawyer has right to direct/control lawyers prof. judgment.

 

            * Rule designed to control sharing of fees w/nonlawyers, but only in specific                                        areas. Can’t share fees w/nonlawyers if practicing law.

            * Multidisciplined practices (MDPs) can’t pactice law.  Boutique firms can’t                                           compete.

 

VI. Conflicts of Interest

A. Background

      1. Basis

            a. Based on lawyer’s fiduciary duty; very serious.

            b. Also based on the danger to client confidence.

      2. Ramification of Conflict (if I don’t do something about it)

            a. Discipline

            b. Disqualification from representation

            c. Rule 11 Sanctions

            d. Delay w/respect to your client’s cause (more damages result)

            e. Malpractice suit (damages and liability  to you)

      3. Conflicts, over the course of your career, are unavoidable and inevitable.

      4. Types of Conflicts

            a. Concurrent - between 2 clients, client and 3rd party, client and lawyer.

            b. Successive - conflict between the cause and the sides representing them.

            c. Imputed - Ex. dating the mayor, your firm then can’t represent a suit against                                         him.

            d. Govt. Employment Revolving Door - hire someone if they worked in govt.                                          Can you then sue the govt. later for other stuff?

            e. Lawyer as witness - serve as W, you can’t serve as advocate.

            f. Entity problems - represent agent or entity?

            g. State Ct. rules vs. Fed. application

            h. Breadth vs. Narrowness of rules

 

      5. MR 1.7 Conflict of Interests: General Rule

            (a) Lawyer shall not represent client if the representation of that client will be                                                    directly adverse to another client, UNLESS:

                  (1) Lawyer reasonably believes representation won’t adversely affect                                                         relation w/other client, AND

                  (2) Client consents after consultation.

            (b) Lawyer shall not represent a client if the representation may be materially                                       limited by the lawyer’s responsibilities to another client or 3rd person, or by                                          the lawyers’ own interests, UNLESS:

                  (1) Lawyer reas. believes rep. won’t be adversely affected, AND

                  (2) Client consents after representation.  When representation of multiple                                                  clients in a single matter is undertaken, the consultation shall include                                                    explanation of the implications of the common representation and risks                                                             involved.

 

                  * Consultation = full disclosure after problem is disclosed.

                  * If lawyer reas. believes that conflicts won’t adversely affect his                                                                  representation, then he can represent client, even with conflict.  DO this                                                           first, then see if client will sign off on it.

      6. TX 1.06 Conflict of Interest: General Rule

            (c)(2) defines “Consultation” - full disclosure of the existence, nature,                                                   implications, and possible adverse consequences of the common                                                  representation and the advantages involved, if any.

            (d) Lawyer who represents multiple parties in matter shall not represent any of                                    such clients in a dispute among the parties arising out of the matter w/o prior                           consent from all parties.

            (e) If lawyer accepts rep. in violation of this rule, or if multiple rep. properly                                      accepted becomes in violation of this rule, then lawyer shall promptly                                                 withdraw from one or more representations to extent necessary to not be in                                              violation.

            (f) If lawyer would be prohibited by this rule from engaging in particular conduct,                                         no other lawyer while a member or associated w/that lawyer’s firm may                                              engage in that conduct.

 

B. Client/Lawyer Conflicts

      1. Matter of Neville - when you have a relationship w/another client, unless it’s                                   clearly terminated, you can’t switch over to other party’s side.  Why?                                              A: Layperson’s minds don’t draw such fine distinctions.

            - Must act w/fiduciary duty in attorney/client relation as you do w/another client.

            - Duty comes and goes depending on what or where the relationship is (more                                     formal).

      2. MR 1.8 - Conflict of Interest: Prohibited Transactions

            (a) lawyer shall not enter into bus. w/client or knowingly acquire an interest                                          (ownership, possessory, security, or other pecuniary) adverse to a client                                             UNLESS:

                  (1) The transaction and terms on which the lawyer acquires the interest are                                               fair and reas. to client and are fully disclosed and transmitted in writing to                                             client in a manner which can be reas. understood by client,

                  (2) Client is given reas. opportunity to seek advice of indpt. counsel, AND

                  (3) Client consents in writing.

            (b) lawyer shall not use info. relating to the rep. of a client to the disadvantage                                            of client unless client consents after consultation, EAOP by MR 1.6 or 3.3.

                        (e.g., can’t use info. as negotiationg ploy).

            (c) Lawyer shall not prepare an instrument giving the lawyer or a person related                                         to the lawyer as parent, child, sibling, or spouse any substantial gift, except                                        where the client is related to donee.

            (d) Prior to conclusion of rep. of client, lawyer shall not make or negotiate an                                        agreement giving the lawyer literary or media rights to a protrayal based in                                           substantial part on info. relating to the representation.

                        - TX - can’t negotiate until the entire matter is concluded, i.e., if you’re                                                         fired from project, still have to wait until the matter is resolved (could                                                                 be a long time).

            (e) Lawyer shall not provide financial assistance to client in connection                                                             w/pending litigation, except that:

                  (1) lawyer may advance ct. costs/expenses in contingent litigation,

                  (2) lawyer representing indigent client may pay.

                        * TX - includes necessary living expenses that are reasonably necessary                                             may be advanced.  MR excludes b/c fear that lawyers w/lots of $                                                                could buy clients and get bus.  Also fear that this would reduce ability                                                   of clients to change lawyers (form of coercion). 

            (i) Lawyer related to another lawyer (parent, child, sibling or spouse) shall not                                       represent client directly adverse to person lawyer knows is represented to                                           related lawyer, except upon consent by client after consultation.

                        - This is personal to lawyer; doesn’t impute to firm.

                        - Gellman v. Hillal - P was represented by lawyer whose wife had                                                             previously represented D‘s in previous malpractice action regarding                                                                 same technique.  D‘s moved to disqualify husband b/c of fear that if                                                                 wife divulges her knowledge to husband, they will be prejudiced.  Ct.                                                                  said this is a case-by-case determination; No Automatic                                                                                   Disqualification.  Each lawyer is under own ethical obligation to not                                                                 divulge info. 

 

                  * We’re very skeptical of lawyers who go into bus. w/clients. 

                        - Can get bus. prop./interests as fees (e.g., stocks).

                        - CANNOT GO INTO BUSINESS WITH THEM; requires formal realtion.

                        - Written requirements are to ensure that lawyer didn’t trick client.

 

      3. MR 1.10 Imputation of Conflict

            (a) While lawyers are associated w/a firm, none of them shall knowingly                                              represent a client when any one of them practicing alone be prohibited from                                         doing so by Mrs 1.7, 1.8, 1.9 or 2.2.

            (b) When client has terminated realtionship, firm is not prohibited from                                                 representing thereafter if not currently represented by another firm unless:

                  (1) matter is same or substantially same as firm represented previously,

                  (2) any lawyer remaining in the firm has protected info. by Mrs 1.6 or 1.9(c)                                                that is material to the matter.

            (c) A disqualification prescribed by this rule may be waived via MR 1.7.

 

            - Berkowitz - corp. client asked longtime counsel (Berk.) at large firm for help in                                   matter.  Partner in Berk.’s firm had an interest in the matter, which was in                                            direct conflict with the goals of Berkowitz’.  To escape discipline, lawyers                                                 argued unsuccessfully that Berkowitz had never actually accepted client’s                                                 request to represent him.  Ct. held that regardless if he actually accepted the                          case, his relationship with client as corp. counsel, his indication that he                                              would investigate matter, and client’s apparent reliance on Berk. were                                    sufficient to est. attny./client realtionship.

 

      4. MR 3.7 - Lawyer as Witness

            (a) Lawyer shall not act as advocate at trial in which he is likely to be a                                                             necessary witness except where:

                  (1) the testimony relates to an uncontested issue,

                  (2) the testimony relates to the nature and value of the legal services                                              rendered in the case, or

                  (3) disqualification of lawyer works substantial hardhip on client.

            (b) Lawyer may act as advocate in trial in which another lawyer in his firm is                                        likely to be called as witness unless precluded from doing so by Mrs 1.7 or                                          1.9.

 

      5. Problem - Karen Horowitz’s Dilemma (p.222)

            Woman working in a firm for 5 years has worked on a particular case for 2                                    years.  She is Jewish, and the case is going to be tried in the South.  Firm is                             worried that jury won’t take to a Jew lawyer, so they don’t allow her to litigate.                                    She’s mad, but firm says it’s not b/c she sucks, but rather to be sure that client                                   won’t lose case b/c of lawyer.  What can be done?

            - Comment in MR 8.4 - There is an exception for MR 8.4 (Lawyer Misconduct).                                    While it’s misconduct to “ . . . engage in conduct that is prejudicial to the                                        administration of justice.”, there is an exception where a lawyer, in the                                      course of representing a client, knowingly manifest by words or actions,                                             prejudice or bias upon race, sex, etc., if such actions are prejudicial to the                                      administration of justice (Exception for legitimate advocacy).

            - There remains the possibility of civil liability due to the employer/employee                                         relationship, esp. is she’s an associate.  To stem problems, make her a                                              partner;  then she’s no longer an employee, but rather an employer.

 

C. Client/Client Conflicts

      1. Criminal Cases

            a. Defining Lawyer Conflicts - most occur b/c of multiple representation; crime                                involving 1+ alleged D‘s, and they all go to same lawyer b/c he knows case                                         and to save cash.

                  (1) Is there a client/client conflict when alleged D‘s are accused of same                                                   crime?  Not on the surface, but possibly below ® interests in cases often                                            diverge (e.g., first one to testify against other gets better deal, resulting                                                        in conflict if one lawyer representing diff. interests).  Conflict will ride all                                                         the way to a possible appeal.

                  (2) Lawyers sometimes give co-D‘s to other lawyers in his firm.  This also                                                won’t work b/c of MR 1.10 - Imputation of Conflict (same firm, same                                                     conflict).  To ensure indpt. counsel, must go outside firm.

                  (3) Can client “waive” conflict?  YES, if done knowingly, after consultation                                                   regarding the conflict.

                  (4) “Whip Sawing” - issue where by using something they think is favorable,                                              lawyer or client end up getting hurt when it is used in a harmful manner.

                              Ex. 6th Amend. guarantees representation.  If go to client                                                                       w/conflicted lawyer, and he’s then convicted, client will claim that he                                                                 was denied his 6th Amend. right to effective counsel.  If ct. denies                                                                     him the lawyer of his choice (who has a conflict), then D will claim                                                                    that his 6th Amend. right to counsel of choice was violated.

            b. Cuyler v. Sullivan - 3 D‘s accused of crime.  One (Sullivan) had sep. attny.,                                        but eventually signed on w/attny. representing the other 2.  Nobody raised                                            conflict issues b/c of multiple representation.  Sullivan (P) goes to trial, but                                           doesn’t testify b/c he doesn’t want an affair he had to come out.  He’s                                         convicted.  Other 2 are acquitted.  P sued to get conviction overturned                          claiming he didn’t get 6th Amend. right to effective counsel (stating that                        multiple D‘s automatically raise conflict of interest; and since his case was                                   handled diff., he didn’t get effective counsel). 

                  - Ct. held can’t presume a conflict b/c it may be a common interest defense                                              (best defense for all 3 D‘s, and he just got screwed). 

                  - RULE = P must prove that there’s a conflict of interest that adversely                                                      affected his lawyer’s performance.

                  - 2nd Issue = Did trial judge have obligation to inquire or prevent multiple                                                    representation?  Ct. said NO; Can’t go back and look at this unless P                                                   brings up the possibility of conflict beforehand.  Otherwise, reviewing ct.                                                         not required to inquire.  Fed. cts. are required to inquire, but this was                                                          state ct.

                  - We rely upon ethical considerations of attorneys to refuse to take cases                                                  where they might have a conflict.

                  (1) Strickland v. Washington (4 yrs. after Cuyler) - S.Ct. decides that instead                                             of test being “P must prove that there’s a conflict of interest that                                                                  adversely affected his lawyer’s performance,” New Test should be                                                       whether counsel’s performance was reasonable under the                                                                 circumstances:  if it wasn’t, then party complaining must show there’s a                                                  reasonable probability that but-for counsel’s error, different result (No                                                    need to prove actual conflict, only a reasonable probability of                                                    conflict).

                  (2) Freund v. Butterworth - client (doctor charged with murder along w/co-D,                                             who was a longtime friend) argued ineffective counsel.  Attorney                                                                 concocts scheme to plead doctor not guilty by reason of insanity, which                                                     shifts entire blame to him, and implied that the co-D was innocent.  Didn’t                                           work, and doctor is serving jail time, while co-D is free man.  No one                                                  raised an objection under MR 8.3 (Professional Misconduct).

c. Wheat v. United States (1988) – 3 co-D’s were represented by same counsel on charges that overlapped each other.  Counsel notified ct. of multiple representation. Govt. objected to this as conflict of interest (1. govt. had not yet accepted plea between one co-D and govt., and if it was rejected, the co-D could withdraw and go to trial, 2. Counsel’s representation of one D would be at odds w/petitioner).  Petitioner came back w/6th Amend. Right to Counsel arg. 

-          Whip Saw Argument = 2 Conflicts ® right to effective counsel vs. right to counsel of your choice.  Which one trumps?

1.      Client knew counsel was still working on other stuff, but was willing to waive the problem. 

2.      If Ct. grants him this counsel, and D eventually loses, then D will claim whip saw problem of ineffective counsel (b/c of conflict).

3.      If Ct. denies, then D claims denial of counsel of choice.

-          Ct. eventually decides that D can’t waive his conflict in this case.  Why?

1.      If there’s an actual conflict (conflict which exists at the time), judge can deny the representation, i.e., conflict-free representation trumps counsel-of-choice.

2.      However, if the conflict is a possible conflict at the time representation is made, then Ct. is allowed substantial latitude.  Generally favor a presumption of counsel of choice, but Cts. Aren’t bound to it.

-          Ct. is concerned more w/the administration of justice than w/D’s rights (One of D’s rights are going to be infringed either way).

-          Dissent = Wheat didn’t want substitution of counsel; he wanted to add counsel.  Majority never considered this idea.

-          U.S. v. Stites (note case, p.244) - D wanted lawyer who had defended his co-D.  In his trial, the co-D called Stites a “cheat, wicked”, etc.  Lawyer did a good job, and co-D wanted him.  Can Ct. allow this?  No. 

1.      We can’t allow lawyers to blame one D one day, then shift his argument the next; public won’t believe the truthfulness of the judgment. 

2.      Nothing in prof. ethics permits lawyers to talk out of both sides of their mouth.  Ethics rules are a list of prohibitions, not a list of what you can do.

3.      Rule is diff. in diff. jurisdictions – CA allows a lawyer to put on diff. args. for different D’s in same case (what happened in Stites).

      d. Problem – All or Nothing (p.248)

Lawyer was hired to represent 3 criminal D’s, all charged w/1st degree murder.  Two were accused of committing the murder, while the 3rd was charged under felony-murder rule (he drove getaway car).  All could get life w/o parole.  Prosecutor said she would plead out w/murder two on all 3, but only if all 3 take deal.  Two who committed the murder want to take deal, but 3rd doesn’t.  Fact is the prosecutor has a better case against the first two.  It’s a pretty good deal for all three, but may get 3rd off b/c his case is weak.  What do I do?

-          There is an actual conflict here. 

1.      If you go to trial, you hurt the 2 who committed murder.

2.      If take the deal, then 3rd guy is hurt.

-          Talk to 3rd guy about taking the deal.  At least he has a parole chance w/murder two.  Better than no chance at parole.

-          Main point = at the beginning of the case before trial, lawyer cannot take on all 3 D’s; at most, he can only take on the 2 w/the similar interests.  If he takes on all three, then they will try to rat each other out. 

* Best scenario = get all three separate counsel.

      2. Criminal cases involving Prosecutors

a.      Prosecutor’s Role = Justice, not efficiency. They can have conflicts too.

1.      E.g., Prosecutor formerly a PD, defended someone previously that he’s no prosecuting.  He didn’t tell anyone about the conflict and ended up suspended for 90 days. 

2.      Prosecutors in small towns often take cases in addition to their duties as prosecutors.  They may have to step out of their role as prosecutor.

3.      Big Issue = When one prosecutor is conflicted, does the conflict impute the whole office (via MR 1.10 – Imputation of Conflict of one lawyer to whole firm)?  Not really; rule is applied less vigorously to govt. employees, but it can happen.

b.      Young v. United States Ex. Rel. Vuitton Et. Fils. S.A. – A prosecutor’s only duty is to justice.  This duty cannot be corrupted.  In this case, private prosecutors were used to prosecute a contempt charge in violation of an injunction that they themselves had won previously.  They had allegiances to third parties (clients).  This cannot be allowed.

c.      Problem – Conscientious Objectors (p.254)

After a prosecutor had objected to capital punishment is elected to DA office, the state leg. passes into law providing for death penalty for certain homicides.  The DA is charged w/deciding which cases to seek death.  Can she properly exercise her discretion to never use the death penalty? 

-          No.  Refusing to use discretion is breaking the law. 

-          If she exercises her discretion and then decide not to pursue the death penalty, then her decision will either be affirmed or not affirmed at the next election. 

-          If she never exercises her discretion, then no re-election will prevent this from being a violation of the law.

 

D. Civil Cases of Client/Client Concurrent Conflicts

1.      Civil concurrent conflicts can arise in litigation or outside it.

2.      Fiandaca v. Cunningham – Public interest class action suit by inmates who want a female detention center built.  Filed that the state violated their civil rights to equal protection.  State ordered a female prison be built.  Warden challenged the district ct.’s decision not to disqualify plaintiff’s class counsel (New Hampshire Legal Assistance) due to unresolvable conflict due to adverse interests.  NHLA represented both the inmate class, as well as a group that occupied the site for the proposed prison, in another matter.  When NHLA refused to put the prison on this site, which would be shared, the state moved to disqualify. 

-          State moved to disqualify pursuant to MR 1.7 – NHLA’s representation of the P class in this litigation was materially limited by its responsibilities to the other group.

-          As class counsel, NHLA owed the inmates a duty of undivided loyalty.  They knew before the trial that there may be a conflict, and they knew that they couldn’t go to the inmates w/this settlement. 

-          This is an Actual Conflict.

-          Ct. of Appeals has to decide what to do.  They decide they must all start over regarding the issue of disqualification.

-          Why doesn’t whole case start over?  By splitting the issues (unconstitutionality and disqualification), it’s good for the P’s. 

-          RULE = an attorney may not represent 2 clients when a settlement offer made to 1 is contrary to the interests of the other.

-          Why does the govt. have standing here?  Because of public good of its citizens, obligation to court/tribunal, attorneys not doing their jobs if there is a conflict.

3.      May a lawyer act adversely to a client on an unrelated matter?

a. MR 1.7 doesn’t speak on this; Comment to rule says the answer is no.

-          Duty of loyalty is the overriding concern (even if there are unrelated matters, can’t have the appearance of a breach of loyalty).

-          Policy = Client should feel there’s no chance of breach of duty possible, even in an unrelated matter.

-          Why is MR bad?

1.      Limits the free choice of lawyers as a client (too many conflicts reduces lawyer pool).

2.      Requires that lawyer find out exactly who the client is (esp. when dealing w/large conglomerates).  Lawyers won’t want a conflict w/a large group that deprives them of choice clients.  Lawyers want to be able to have client “waive” the conflict between two clients (which is OK as long as client understands).

-          If there’s a duty of confidentiality involved, waiver will not be effective.

-          Hypo#1

Jones works for V&E in Atlanta, negotiating a deal w/ABC against XYZ.

Smith works for V&E in Houston, representing XYZ in litigation.

MR 1.10 imputes a conflict to the entire firm.

This law is for the benefit of clients, not lawyers.

This is probably a conflict on an unrelated matter (litigation in only one).

Jones will be barred under MRs from taking the case against XYZ.

This is so even if XYZ is not worried about a conflict and/or waives it.

-          Hypo#2

Jones works for AB in Atlanta, suing HP.

Smith works CD in Chicago, as a tax advisor for HP.

Day 1 – HP calls Smith for tax advice.

Day 2 – Smith calls back and says he’ll have an answer on Day 4.

Day 3 – AB and CD merge.

Day 4 – Smith gives advice to HP.

Does the merged firm get disqualified?  Technically yes, but the risk is so minimal that it probably won’t be to disqualification status.  However, Smith will likely be screened from suit against former employer.

Remember ® disqualification falls under the disciplinary rules.

b. TX 1.06 – A firm/lawyer may act adversely to a client on an unrelated matter.  TX favors independence for the lawyer.  If don’t, then all the big guys will horde the best lawyers.

            c. Problem – Will you represent us both? (p.272)

Two minorities allege that a white guy w/less experience was promoted over them.  They want a single lawyer to take the case.  What can he do?

-          1st issue – are there Actual Conflicts between the 2 clients?  If not, is there a conflict between the lawyer and his clients?  If not, is there a conflict between the lawyer and the 2 clients? 

-          2nd issue – are there Potential Conflicts w/any of those combinations in the future? 

-          If there’s an actual conflict between the two clients, then we can keep one of them (they don’t both have to be turned away).  Careful – if we give advice to them, then they both become clients, and we’re screwed. 

-          Ex. of Actual Conflict = they both want the same job that white guy got. 

-          Ex. 2 = If they’re suing for cash, there may be a potential conflict (have to prove facts in one case, may hurt the other client’s chances).

-          Ex. 3 = If they both are suing only to get the white guy out of the job, then there’s probably not an actual conflict.

-          If you take them both on as clients, then you need consent from both in writing.  One exception where writing isn’t required = _____________.

-          If you represent both for a while, but it later appears that employer really only discriminated against one, you can meet w/them both and formally withdraw from the one guy’s case b/c there is no case.  Can do this, b/c other obligations to court prevent you from going forward w/bogus claims.

d.      Problem – Can we do both cases? (p.272)

Asked to represent landowners in Wis. about the constitutionality of its law in regulating the use of the land that amounts to a taking.  Meanwhile, partner in the CA office is a member of an org. that wants him to file a brief in a state court action against some developers who are arguing that the county law restricts the use of their land.  Cases are similar but not identical.  Possibly one claim is valid and the other isn’t.  It’s also possible that either claim is invalid under their respective constitutions.  Do we need consent?

-          Are these two cases substantially related?  If you argue one way in WIS, must you argue the same way in CA?  If the law is state law, as it is here, there’s less likelihood of a problem.  Could be a problem if case makes it to U.S.S.C.

-          How far must you look to foresee possible problems?  It depends on the state rules.  MR 1.7, comment 9 – Allow you to take these 2 cases provided the representation of either client won’t be affected.  ABA ruling – usually not advisable to take cases of conflicting loyalty (may breach later).

-          How do we get out of this problem? 

a.      Is the environmental group in CA a client?  If not, then there’s no conflict.

b.      Get consent from both parties.

c.      In CA law, this dual representation, making inconsistent arguments is allowable in criminal law.

            e. Problem – Can the lawyer be our client? (p.273)

I have an IP case against Rich Bellow.  My client says his client is infringing against a registered name.  Bellow is a partner at a good firm in town.  Bellow’s firm got sued for malpractice.  His managing partner came to my partner, Nell Krinsky, whose specialty is defending malpractice.  I tell her I’ve got a case against Bellow.  Nell says the cases have nothing to do w/each other.  Can Nell defend Bellow’s firm while he’s my adversary? 

-          Can I take the case to sue Bellow under MRs?  Maybe.  Doesn’t really matter that the cases are substantially different.

-          Key – Lawyer must (1) reasonably believe that no conflict will exist now or in future, and (2) if lawyer so believes, then he can get consent from all parties involved.

-          ABA opinion – Proper for my partner to represent the other firm that I’m suing, where the firms are adversaries in my case, if both sides consent.

            f. Cowboy Ethics (Supp.)

Boyce, as gen. counsel for XYZ, had used same outside counsel for some time, but decided to pursue separate counsel for separate jobs in an effort to get a crack team.  She needs guys that are loyal to her.  She has a case in TX and hires a good guy who is doing a bang-up job.  He later comes in and tells her that he’s suing a subsidiary of hers and wants her consent.  She says no way.  He says OK, I’ll do it anyway b/c TX 1.06 allows me to sue you whether you like it or not.  Her friend in TX confirms this.  She goes to ct. on the matter, along w/the leading ethics people in the country, all of whom say it’s a bad rule.  Judge says this is TX, and we don’t want all the best lawyers tied up b/c of conflicts.  If you don’t like the dual representation, judge tells Boyce to fire lawyer from defending her.  She’s pissed.  Then her fellow gen. counsel for a competitor in PA says that he hired lawyer to work for them years ago.  PA case says that confidential info. regarding previous clients, if they’re competitors, creates a conflict between the lawyer and the new firm and the competitor.  Boyce therefore cannot hire lawyer to work for her at all.  Bottom line = do your homework.

 

E. Malpractice Based on Conflicts

1.      Remember – A conflict of interest is a breach of the fiduciary duty of loyalty to client. 

-          Malpractice isn’t based on a breach of the rules – it’s a COA based on a tort (negligence) or a breach of K issue. 

-          Remember – Rules of Professional Conduct can’t be used as basis for civil liability (this is in the preamble).  This doesn’t mean that they can’t be used to form the basis of conduct.  It just means that a client can’t sue his lawyer for breach of MR __ per se.

2.      Remedies for Malpractice for Client

a.      Damages (normal remedy is money).

b.      Disqualification from the case.

c.      Discipline – if client doesn’t have or can’t prove damages, or doesn’t want an injunction for disqualification.

3.      Simpson v. James – woman sues lawyer who brokered a sale of her co. to a buyer, who then defaulted.  This malpractice action arose out of a transaction, not litigation (which is where these cases usually arise).

-          2 incidents of negligence alleged by P (seller)

a.      Initial handling of sale of stock was negl. (lawyer didn’t name seller as beneficiary of D’s insurance, where D’s co. eventually went bankrupt after fire).

b.      Restructuring of note to seller with assurances that didn’t happen.

-          Lawyer represented both sides in this matter.  Even if there was no actual conflict, there could certainly be a potential one.  He just shouldn’t have represented both sides in this transaction.

-          Lawyer must either (1) choose a client, or (2) get consent from both parties.  But remember ® he can’t get consent from parties because of conflict if it’s an actual conflict, only potential conflict.  He must reasonably believe that representing both parties can be done w/o adverse risk of conflict to either client.

-          In this case, it’s probably best for him to withdraw, but it’s not a requirement.

-          It’s unnecessary to have a conflict issue and a negligence issue in this case to allow seller to recover (like they did here).  Seller could recover solely on the negligence (malpractice) claim.  Conflict issue helped regarding proof of negligence. 

-          What if there was a conflict issue, but no negligence?  Then seller would have more a grievance, and damages would be much harder to prove.  Seller would probably get disgorgement of all fees.

-          Does the buyer have a COA?  They could sue lawyer of the conflict issue.

-          There is no implied consent to conflict on the parties’ part by continuing on with this particular lawyer.  Remember – the MRs always begin with a lawyer expressly explaining his conflicts with clients, then letting them make a decision.  There are no implied consents to conflict.

-          It’s not possible for a client to always consent to a potential conflict, because before lawyer ever brings it to client, he must (1) believe that it’s reasonable for a client to consent to conflict (he can’t always do this), and (2) client must expressly consent to it.

-          In this case, lawyer expressly told one of the parties that they weren’t his client.  Does this serve to prevent to prevent the formation of attorney-client privilege?  Can client still sue?  MR 1.16 – Lawyer can’t ever just tell a client I won’t take your case.  He has to help him get a new lawyer, by doing whatever’s necessary under the circumstances.

4.      Problem – What Kind of Consent? (p.283)

-          Lawyer sets up small businesses.  Some of them are groups of 3 or 4 people. 

-          Who do you need to get consent from?  All 3, if lawyer reasonably believes that there’s no actual conflict (Actual conflict precludes representation).

-          Big issue is usually potential conflict.  Need to set them all down individually and explain the risks to them so they can make an informed decision regarding consent.  If these guys are fighting already, then separate representation is probably best.

-          If you go forward, and then a potential conflict arises, you need to tell them you have to withdraw because (1) as intermediary, you have to withdraw, or (2) as lawyer you have to withdraw because of possession of confidential info. you possess (they all tell you their info., and it would be improper for you to have it and then use it against one of them). 

-          Have to let the clients make the decision.  If they sign off after you tell them you think it will be OK, then it’s OK.

-          Best way to proceed = get them to sign a written doc. about what steps will be taken if a squabble ever happens.

-          Remember – only when there’s an actual conflict must lawyer not take case or withdraw.

5.      The Insurance Triangle – Public Service Mut. Ins. Co. v. Goldfarb – insurance co. which D has a policy with refuses to pay the fees to defend him in a civil trial under his dental liability policy, since he acted criminally and has already been convicted.  Ins. co. arguing that ins. policy not intended to provide coverage for sexual abuse, and even if it was , public policy does not allow for contractual indemnification for civil liability arising from the commission of a crime.

-          Sometimes, during a suit against one of its insured, ins. co. is not a party to the proceeding, even when the policy will be used to pay the damages.  Ins. co. can be a 3rd party payor only, and not have a say in proceedings.  When they are a part of the proceedings, then ins. co. and the insured are under joint representation.

-          If we view the ins. co. and the insured as having the same intent or not, we say they are jointly represented.  When their interests diverge, then the ins. co. and the insured have a conflict, and ins. co. acts as a 3rd party payor.

-          The Conflict = Ins. co. won’t pay to defend insured if they don’t have control over the lawyer they are paying, who is representing the insured’s interest.  This happens when there is a dispute over whether or not the insured’s policy covers the action he’s being sued for.  If there is such a conflict, ins. co. is a 3rd party payor, and not a joint participant.

-          When such a conflict arises, ins. co. has a duty to defend the insured while the issue of coverage is being determined (in a DJ action, like this one), and ins. co. will have its own attorney separate from the insured.

-          Ethical issue = what are the duties of the insured’s lawyer?  Can ins. co. as 3rd party payor set limits on what the attorney can do since they are paying?  Under MRs, ins. co. shouldn’t have such control (lots of litigation on this topic these days).  Ins. wants to have more control, and this is a problem.

-          If jointly represented, then lawyer has same duty to insured and ins. co.

6.      Problem – The Insurer Would Want to Know (p.289).

Our client is a lawyer who was hired by an insurance co. to defend its insured, which is a law firm and one of its partners, in a malpractice action.  The partner in the action represented the plaintiff in some transactional matters, which the P says she messed up.  Turns out that the partner sabotaged the transaction b/c she had a client who’d lose business if P succeeded.  She tells our client that he can’t tell anybody.  Can he tell the firm or the insurer of her actions, and if so what?  The policy doesn’t cover intentional wrongdoings, but the firm will be vicariously liable for her actions.

-          When lawyer gets a new client, first needs to conduct a conflict check (both current and former.  If there is one, he can’t take the case for various reasons (e.g., confidentiality issues).

-          Do you need to get consent from anyone at this point?  No, b/c there is a huge actual conflict between the 3 parties (ins. co., firm & partner, and P). 

-          Whenever there’s more than one party involved, need to get a confidentiality waiver from the parties involved.  This is a problem for our client here.  If he has a confidentiality waiver, he can tell.  But, even if he doesn’t have one, he can argue that “you didn’t say I can’t tell” – he has to agree that there he can’t tell, and he didn’t agree not to tell until the partner told him that he couldn’t.

-          If our client tells of the partner’s complicity to ins. co., they will tell him to stop working.  The client’s firm will say the same thing.

 

F. The Lawyer as a Witness

1.      Problems with the lawyer in a litigation being a witness in the same trial.

a.      Jury accords lawyer’s testimony either more or less deference (depending on if they like him) b/c of his special knowledge of case.

b.      Prof. courtesy may inhibit cross-examination.

c.      Laypersons may question whether or not counsel has compromised his integrity on the stand to win.

d.      Jury may not distinguish between lawyer’s role as witness or advocate (i.e., may give testimonial weight to his closing).

2.      MR 3.7 – Lawyer cannot testify – blanket rule/mandatory.  Three exceptions

a.      Matter relates to an uncontested issue ® must be very clear that it’s uncontested.

b.      Testimony relates to fees/value of legal services.

c.      Disqualification relates extreme hardship on client (where most claims under MR 3.7 occur).

-          Must be on the level that there are no other lawyers in the jurisdiction that are w/o conflict, case is too technical, etc. 

-          All of these exceptions are very technical and tough to apply esp. #3.

-          MR 3.7 doesn’t impute to entire firm – other lawyer can testify as long as no conflict (e.g., MR 1.9, 1.7)

-          Rule applies equally strong to both civil and criminal cases.

 

G. Successive/Imputed Conflicts

1.      MR 1.9 – Conflict of Interest: Former Client

a.      A lawyer who’s formerly represented a client shall not represent another person in the same of substantially related matter, if the new client’s interests are materially adverse to former client, unless former client consents after consultation.

b.      Lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm which lawyer used to work at was associated or previously represented a client:

(1)   whose interests are materially adverse to that person, AND

(2)   about whom the lawyer had acquired info. protected by MRs 1.6 and 1.9(c) that is materially related to matter,

unless former client consents after consultation.

c.      Lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1)   use info. that is materially adverse to former client, unless MRs 1.6 and 3.3 make the revelation of such info. mandatory, or such info. becomes generally known, OR

(2)   reveal info. relating to the representation except as MRs 1.6 and 3.3 would permit or require w/respect to a client.

2.      What is “substantially related”? 

a.      Matter specific – basically the same case, but you as lawyer are now on the other side.

b.      Info. specific – possibility of usage of confidential information that was gained through representation that would be used in adverse manner to former client’s interests. 

-          MR 1.9 applies even when you fail to remember a client – doesn’t require any conscious malice or conflict, only negligence.

-          MR 1.9 applies even if you never filed an action on their behalf – the fact that they gave you confidential info. at the beginning of the matter is all that’s required.  Imputation part of rule also applies if you never filed.

-          Example of where/how the rule applies – Lawyer represented 2 P’s.  One P settled.  When he did this, that P became a former client.  He can stop you from representing the other guy now, b/c it’s probably the same matter, and it’s at least substantially related to the matter.

3.      Analytica, Inc. v. NPD Research – Malec was an employee of NPD.  When NPD wanted to give him more shares, Malec went to Schwartz firm to value the shares.  To do this, Schwartz needed confidential info. about NPD.  Eventually Malec left and formed a competitor to NPD, and brought along Schwartz as counsel (this is typical).  When Malec later sued NPD, NPD moved for disqualification of Schwartz as counsel. 

-          Firm can sue NPD, but not if they are a former client in a same or substantially related matter.

-          1st step – Is NPD a former client?  Yes, Schwartz has confidential info. that they used to value stock, even though it was for Malec’s benefit.

-          2nd step – Is this the same or substantially related matter?  It’s substantially the same, b/c this is an info. specific matter (possibility of use of confidential info. in matter adversely affecting former client).

-          What does Schwartz do?  Disqualify themselves, and they were also fined for filing a frivolous lawsuit (ct. felt they should have known there was a conflict).

-          Schwartz got a litigation firm to handle the matter for them against NPD; their knowledge is imputed to lit. firm, so they too are disqualified.  This isn’t always required, but they were tainted here b/c of the close relationship of Malec and firm.

-          Schwartz only had Malec on record as a client, and not NPD – doesn’t matter, b/c the actuality of the conflict is what’s impt. 

-          MR 1.9 is used differently here than Judge Posner would have used it.  He argued that if lawyer could have gotten confidential information, then it would be a substantial relation, and firm would be disqualified.   Result is same even though the wording is diff. 

4.      Hypo #1 – Husband (H) hires a lawyer to purchase a business.  When that was done, both H and Wife (W) become officers and jointly liable.  H later asks lawyer to draft a pair of reciprocal wills for he and W, which lawyer does.  W comes in afterwards and tells lawyer she wants her will changed w/o telling H.  Lawyer refuses b/c H is a client.  W says forget it, and hires another lawyer to change will. 

-          W is under the assumption that lawyer won’t tell H about wanting to change will.  Issue = Does she get former client status when she eventually sues for divorce, entailing lawyer to withdraw from representing H (b/c he has confidential info.)?

-          W is not a former client – although lawyer did some work that affected her (bus. & will), the work was being done for H. 

-          If during the communication, lawyer says he can’t represent W b/c he has an obligation to H, then she probably is a client.  If only way that she’s a former client b/c she’s Mrs. H, then she probably is a former client.  W is probably a former client b/c lawyer didn’t get rid of her properly.

-          Is the divorce a substantially same subject matter problem?

a.      Not matter specific – divorce is not similar to will or bus. start-up.

b.      Information specific?  Probably, esp. w/the will information.

-          In a matter to disqualify lawyer from divorce, judge could probably disqualify lawyer from case b/c of the similarities.

-          USFL v. NFL – the congruence of factual matters, rather than the law, establishes substantial relationship.

-          The duty of confidentiality is not the only basis for disqualification.  The duty of loyalty can also be used, and it’s a much broader rule (confidentiality actually falls w/in the duty of confidentiality).

-          Duty of confidentiality also applies to arbitrators, mediators, etc.  Does not have to be a lawyer/client relationship, but fear that the info. is so powerful may lead to disqualification, even if they promise to keep quiet.

5.      Hypo #2 – Picker was represented by Jones Day since 1911.  Varian’s lawyers were MH&S, but only regarding IP stuff.  Picker sues Varian on something other than IP.  Meantime, Jones day and MH&S merge.  When they do a conflict check and see that Picker is suing Varian, they see the conflict b/c they’re both current clients.  What can they do?

-          MR 1.7 – disqualification when you have actual conflict that’s directly adverse to a current client and lawyer reasonably believes that the conflict will affect the representation.  If lawyer believes that conflict won’t materially affect his performance, then client must consent. 

-          If Varian won’t consent, what can the firms do? 

a.      Don’t merge until the litigation is over.  MR 1.7 – Concurrent conflicts of      interest (Remember, TX is different).  RULE = current client, look to                   clients; former client, look to subject matter.

b.      Under MRs, screening of lawyers from matter that conflicts w/the other matters (Chinese screen) is impossible.  Can be used in some jurisdictions (7th Cir.) to screen out migratory lawyers.  In firm merger cases, cts. presume that entire firm knows all things about all cases.

c.      If MH&S decide to fire Varian so that he’s a former client, will this work?  Although in theory it would, b/c MR 1.9 looks to subject matter for former clients, courts say that you can’t fire a client to resolve a conflict – there is a duty of loyalty that is too strong.  Could argue that Picker’s duty of loyalty is even stronger, but court punished firm and Picker together by dropping Picker.

d.      What about withdrawing from Varian under MR 1.16 – possible if firm can prove that it will not be materially adverse to Varian.

e.      What if MH&S fires its IP lawyers, but merges rest w/Jones Day?  if new guys can get Varian to follow them, then this would be OK (if not harsh).

6.      Hypo #3 – Pepper Hamilton represents corporations.  It previously represented Maritram (from Cowboy Ethics supplement).  PH takes on another corp. client, and is negotiating a union agreement for them.  Maritram is mad b/c they are a former client, and PH negotiated a union deal in the past for them.  Maritram wants PH disqualified.  Can they do so?

            TEST

1.      Current or former client? Former, so use MR1.9 (rather than MR 1.7 for current conflict), and the substantially related test.

2.      Same or substantially related matter where former client will be adversely affected?  2 options:

a.      Matter specific – same matter?  No.

b.      Information specific – confidential info. that can be used against former client?  Probably reasonable to assume that some confidential information was given to PH

·         MR 1.9, comment 1 – have to determine whether matter will adversely affect former client by using MR 1.7 (even though that’s the current client rule, and this is a former client).

·         MR 1.7 – Lawyer can’t represent client on a matter that is directly adverse to another client, unless (1) lawyer reasonably believes that he can do so w/o adversely affecting the relationship w/the other client, and (2) each client consents.

·         MR 1.9, comment 2 – A lawyer who recurrently handled a problem for a former client is not precluded from later representing another client in a wholly and distinct problem of that type, even though the subsequent representation involves a position that is adverse to the prior client.  Purpose – would never be able to specialize, tough in small town law.

7.      Problem – Divorce & Default (p.315)

            Victor Henry of Henry & Lee represented Leila Roth in a divorce from her               husband Pat.  Two yrs. later, company which Pat runs ran into money                                  problems.  Bank is threatening to foreclose on a loan, which would force the                co. into bankruptcy.  Roth asked for a meeting.  Bank arrived w/its longtime                   counsel, Kevin Lee, Victor Lee’s partner.  Can Lee represent the bank?

-          If Lee represents the bank, then Roth and his co. will be badly affected.

-          H isn’t a former client of Lee, his wife Leila is, so must use “MR 1.9/Substantially the same Matter test” to see if there’s a problem. 

a.      Matter specific?  No.  Divorce vs. finance

b.      Information specific?  Maybe, b/c maybe Lee got info. from Henry about Roth’s finances in the divorce proceeding.  H may therefore be at risk, so he can probably get Lee disqualified.

-          Can’t argue there was sufficient screening – it’s a 2-man firm, and they were and still are together.

-          Can you rebut the presumption that the knowledge was shared?  Not really, b/c it’s a small firm, and not reasonable to say they were unaware of each other’s doings.

-          Answer = There’s a hidden adversity that exists.

8.      Problem – I Do Franchises (p.316)

            Lawyer represents franchises in their negotiations with franchisors.  Six months                            ago, L did franchise work for a British fast food co.  Yesterday, a new fast food                                   franchise has come to L to start up a new fast food franchise across the street                                  from the British one.  Can L represent the new one too?

-          British client = former client.

-          Issue = Will representing the new client be materially adverse to former client in the same or a substantially related manner under MR 1.9?

a.      Not the same matter – that would be representing the franchisor against the British franchisee.

b.      Substantially related matter?  Probably not.  Remember the Maritrans/Pepper Hamilton dispute (MR 1.9, comment 2) ® lawyer who handled a type of problem for a former client is not precluded from later representing a different client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. 

c.      Remember – even if the matter was the same or substantially related to a former client that materially and adversely affected the former client, the client can consent to the conflict after consultation.

9.      Problem – Do I Still Owe the Record Store?

            Lawyer helped a record storeowner open up his store.  L negotiated the lease,                        incorporated the store, etc.  Six months later, L’s work is done and a bill is sent                                   and paid. 

a.      May L represent a community group in its effort to persuade the city to redirect traffic away from the street where the record store is located, which will cause a marked reduction in pedestrian traffic into the store? 

-          Storeowner is a former client, so use MR 1.9. 

-          Same matter? No.

-          Substantially related matter in which group’s interests are materially adverse to those of the former client?  Probably not.  Setting up a store and representing a group to close down street traffic, UNLESS part of the lawyer’s duty was to make sure that the pedestrian traffic ran past the store.

b.      May L represent storeowner’s landlord in an action to evict him for breach of the lease (the lease contains the clause that owner will sell only records, tapes CDs, and “related products.”  Landlord claims that storeowner violated the clause by selling videotapes and musical instruments.) 

-          This is probably either the same or a substantially related matter. 

-          If L went after the lease, he would be going after the exact work that he had done for the storeowner, and you can’t do this.

c.      May L represent a funeral parlor adjoining storeowner’s place, in an action to close the store under a municipal nuisance ordinance that permits such actions when a commercial establishment is responsible for excessive noise?

-          MR doesn’t prevent a lawyer from ever taking an action against a former client.  Only if the matter is the same or substantially related, and if so, the former client’s consent after a consultation will enjoin the conflict.

-          Is this substantially related, so that it will be materially adverse to former client?  Probably.  This is a record store, which usually plays music.  Part of L’s job would be to check out the municipal ordinances.  If he didn’t do this, then he’s setting himself up for a malpractice action. 

-          On the other hand, a lawyer can limit the scope of his representation with an up-front agreement (e.g., saying his duties cover only the license agreement, etc., and nothing else).  Some jurisdictions allow this, so L may not have any other obligations.

10.  Problem – Opponent Becomes Advocate (p.317)

            Striker suffers side effects from a medical treatment.  He consults Remington,                              who does P malpractice work.  Together they sue Dr. Cavallo, who performed                                   the operation.  Striker loses.  Striker feels that the reason was that Remington                              was negligent, and he decides to sue Remington for malpractice.  Striker                            consults Wiggley, the lawyer who defended Dr. Cavallo in the med. mal. case,                b/c he figures that Wiggley knows the case and Remington’s mistakes better                    than anyone.  Wiggley wants to take the case.  Can Wiggley take it?

-          Who is the former client here according to MR 1.9?  Dr. Cavallo.

-          Issue = can Dr. Cavallo object to the subsequent representation even though he is not in the suit? 

a.      Same matter?  No.  This is a legal, not a medical, malpractice issue.

b.      Substantially related matter that is materially adverse to former client’s interest?  Yes.  Wiggley’s representation will be informationally specific (he will have confidential information about Dr. Cavallo).  Wiggley is going to have to argue in his representation of Striker that Striker should have won the case against Dr. Cavallo, and that Remington screwed up, b/c Dr. Cavallo really was negligent.  This is going to be materially adverse to Cavallo’s interest as a former client. 

      ** Moral of all these Problems = There are no clear boundaries regarding the                     Substantially Related Test**

 

H. Migratory Lawyers and Imputed Conflicts

·         In Analytica, the firm itself changed sides.  What happens when a conflicted lawyer who is subject to disqualification changes firms? 

·         Is the lawyer’s new firm saddled w/the lawyer’s conflict?

·         To the extent that the answer is yes, this impinges on the lawyer’s career mobility. 

·         To the extent is no, this creates risks for clients.

·         Remember – MR 1.10 – a firm of lawyers is essentially one lawyer for purposes of loyalty.

·         Maj. Rule = Migratory lawyer’s conflict is contagious.

1.      MR 1.9

            (b) Lawyer shall not knowingly represent a person in the same or substantially                                     related matter in which a firm which lawyer used to work at was                                                  associated or previously represented a client:

                  (1) Whose interests are materially adverse to that person, AND

                  (2) About whom the lawyer had acquired info. protected by MRs 1.6 and                                                     1.9(c) that is materially related to matter,

Unless former client consents after consultation.

            (c) Lawyer who has formerly represented a client in a matter or whose present                                          or former firm has formerly represented a client in a matter shall not                                                   thereafter:

(3)   Use info. that is materially adverse to former client, unless MRs 1.6 and 3.3 make the revelation of such info. mandatory, or such info. becomes generally known, OR

(4)   Reveal info. relating to the representation except as MRs 1.6 and 3.3 would permit or require w/respect to a client.

2.      Cromley v. Board of Education – teacher brought a §1983 action against school board, stating that she had been retaliated against b/c complained about the sexual misconduct of a co-worker. She said this complaint was protected by free speech.  After 2 yrs. of pretrial work, her attorney  accepted a partnership w/the firm representing the defendants.  Lawyer then withdrew from representing her.  Trial court dismissed her action to disqualify the firm. 

-          Three step analysis to determine if attorney should be disqualified:

a.      Substantial relationship adverse to former client? 

b.      Has the presumption of shared confidences regarding prior representation been rebutted?

c.      Has the presumption of shared confidences been rebutted w/respect to the current representation? 

-          When lawyer goes to new firm:

a.      If he goes to work on something other than the Cromley case, and can prove that he gave no info. to firm through a screening process ® there is a presumption that confidences will be shared.

·         If you are in a jurisdiction that allows you to rebut the presumption that no confidences were shared, you can try to do that.  Most jurisdictions have the presumption that confidences will be shared.

b.      If lawyer argues that he didn’t tell his firm about the confidential info., this court allows firm to argue that it had an institutional mechanism in place to screen him from the case (e.g., instructions to firm not to talk about case to him, prohibit him access to files, etc.).

c.      Crowley then can argue that the screening was ineffective.

-          Presumption that confidences will be shared is applied not only to lawyers ® is also applied to summer associates, paralegals, clerks and secretaries.  If there is no screening, and court wants to take the idea far enough, it can be argued that these people also corrupt the system w/a potential tainting of confidences.

-          TX Gen. Rule = Lawyers that make a move carry a taint which can’t be screened (Majority).  Summer associates can be screened w/o taint, provided that they didn’t do extensive work (keep track of what you do!).

-          There isn’t anything w/in the MRs about the fact that Crowley’s lawyer was speaking w/the firm in the first place – seems to be improper.

-          Crowley’s downfall = she argued that anytime a lawyer moves, it’s a per se violation; judges don’t like per se rules b/c it hurts opportunities for employment.

-          There is no difference that the case hadn’t actually gone to court yet.

-          Rule = When a lawyer w/a taint leaves a firm, the firm he used to work for is free of that taint the moment he leaves.

3.      Problem – You Turned on Us (p.331)

            KG&R handles product liability defense work for Admiralty Ind., a nationwide                            manufacturer of consumer products.  Admiralty has 36 suits nationwide, brought                    by consumers who allege they’ve been injured by faulty products.  KG&R                                   handles the suits for Admiral, engaging local counsel where the firm has no                           local office.  Monk works for a firm in Indiana, specializing in employment law.                     His wife moves to Arizona for job purposes, and Monk gets a job with the                     Arizona KG&R office.  Three months later, KG&R receives motions to disqualify                                  it regarding 3 Admiralty matters.  How should these be decided?

a.      Motion by Monk’s old firm alleging that it handled a claim based on an Admiral toaster while Monk was there.  It seeks to disqualify KG&R from continuing to represent Admiralty in the matter.

·         Probably not a problem b/c KG&R can say that Monk never handled the case personally.  He did employment law in Indiana.  If Arizona is like TX, however, the law imputes a conflict, and his firm will be banned.

b.      Second motion from Indiana firm, alleging that after Monk left, the firm filed a claim for a new client also based on one of Admiralty’s toasters.  It seeks to disqualify KG&R from appearing on that claim.

·         Monk didn’t work for this client b/c he was gone.  Although he didn’t have any confidential information on this firm, he may have some insider knowledge on how the firm handles its negotiations, strategies, etc.  This doesn’t go to a conflict that though, so KG&R wins.

c.      21 motions from other firms representing P’s on cases based on Admiralty toasters.  These all allege that other firms, together with Monk’s old firm, were part of an “Admiralty Toaster Committee” that pooled confidential and tactical information about their claims while Monk was at his old job.  Consequently, the other firms assert standing to disqualify KG&R.

·         Pooling of information leads to a mutuality of interests.  Therefore, they can all be clients that you weren’t even aware of. 

·         What if the old firm was in a state where screening was allowed?  Rule = where the litigation occurs is where the rule regarding screening should be applied.  If Indiana has a screening rule, then the argument can be made.

I. Government Lawyers

1.      Problem with identifying the client is especially tough w/govt. lawyers

2.      The government “revolving door” – toil in the vineyards of public service, acquire expertise and know-who in a lucrative field, then trade this knowledge in the private market.

·         The prospect of attractive postgovernment employment makes the official tour duty appealing to many. 

·         Policy = encourages govt. work. 

3.      MR 1.11 – Successive Government and Private Employment

(a)   Except as law may otherwise expressly permit, lawyers shall not represent a private client in connection w/ a matter in which the lawyer participated personally and substantially as a public officer, unless the govt. consents.  No lawyer in a firm where that lawyer is associated now may undertake representation unless:

(1)   the disqualified lawyer is screened from any participation in the matter (screening is allowed) and,

(2)   written notice is given to the appropriate govt. office.

4.      Armstrong v. McAlpin – Altman, while a member of the SEC, supervised an investigation against McAlpin.  McAlpin defaulted, and Armstrong was appointed as receiver.  Armstrong was to recover the entire misappropriated prop.  He retained his firm to help.  When a conflict arose, he got another firm (Gordon Hurwitz).  Prior to the substitution, Altman ended his time w/the SEC and joined Gordon Hurwitz.  Although he was not personally involved in this matter, as head of the SEC Enforcement Division, he had general knowledge of the status of the litigation.  Armstrong said that Altman shouldn’t participate in the representation of the receiver, and if this happened, then Gordon Hurwitz should not have to be disqualified.  The SEC consented to this.  McAlpin objected that Altman was involved.

·         The move to disqualify failed in the trial court, but 2nd Cir. reversed.

·         The move to disqualify failed. 

·         SEC was a former client of Altman.  MR 1.11 ® if former client gives consent, and proper screens are in place, his firm can represent this matter (Govt. agencies usually consent in an effort to facilitate the flow of employees; if they didn’t no one would work for them).

·         3 Points to remember about MR 1.11

1.      Makes a diff. between confidential info. and confidential government info. 

-          Even if you have confidential info. from your govt. job, you can take a job in a related field if govt. consents.

-          Confidential government info. = govt. secrets, grand jury info., etc.  This is info. that only the govt. has access to.  Probably govt. won’t consent to you working with this info.

2.      While technically MRs 1.7 (current conflicts) and 1.9 (conflicts w/former clients) come into play, MR ignores the problems if proper screening is involved, due to the policy of having good people in the govt. jobs.  Some states do say there is a conflict despite ABA opinions to the contrary.

3.      Some statutory provisions apply that keep govt. employees from taking on related matters.

 

J. Entity Representation and Employment Issues

1.      Conflicts and Confidentiality – Lawyers for organizations face thorny professional problems.  Besides the confidentiality problems discussed earlier, problems usually flow from the fact that the lawyer’s client is the org., but the L must represent it through its employees and constituents.

a.      In a partnership, it’s more likely that you’re representing the entity (Maj. rule).  In some jurisdictions, rule is that you’re representing the general partners.

b.      Big Issue = Who does the lawyer take orders from? 

-          Even though employees are telling you what to do, the client is the org.

c.      In House Counsel’s main issues:

1)      Business vs. Legal decisions (can only advise on legal issues)

2)      When does L have the right to advise decision-makers?

d.      Business decisions – Mgmt.’s job is to make these.  Lawyer’s job = advise of the risk of the consequences ® there is no “bright-line” rule about what constitutes business vs. non-business decisions.

e.      When does lawyer have the right to get involved in decisions?

1)      When a crime/fraud is going to be done , L must insist that this is inappropriate, and therefore a legal matter.

2)      If corp. constituents are self-dealing, it becomes a legal, not bus. matter.

3)      If tortious conduct which may occur will involve substantial injury to the org. (e.g., antitrust litigation).

f.        When there is an act or failure to act by the constituents, when does the lawyer have to step in? 

                  MR 1.13 – Organization as a Client

(a)   A lawyer who is employed by an org. represents the org. acting through its authorized constituents.

(b)   If a lawyer knows that an officer or constituent is engaged in action, intends to act, or refuses to act in a manner related to the org. that is a violation of a legal obligation which may be imputed to org., and is likely to lead to substantial injury to org., the lawyer shall proceed as is reasonably necessary in the best interests of the org.

-          L has to do whatever action is effective, yet causes a minimal disruption to the client.

-          Also has to minimize the risk of breaching the client’s confidentiality (which is a big problem unless there’s an exception ® MR 1.6 has a bunch).

g.      What measures may the lawyer take to stop the matter he feels is a legal wrong which may be imputed to the org.?

1)      Talk to the person who is doing wrong or refusing to act – ask the to reconsider (always do this 1st b/c it’s the least intrusive and easiest if it works).

2)      Assure them that you know what you’re talking about and/or get a 2nd opinion to reassure them.

3)      Go to a higher authority (Board of Dir.’s is the last stop).  Get the higher authority to act for the benefit of the org.  Last chance action.

4)      If no one will act, then you still have to worry about MR 1.6 breach of confidentiality if you go turn him or her in.

5)      Result = L, despite knowing the org. is doing wrong in a legal matter, will be powerless b/c the entity will usually say that it is a business decision.

·         Entity’s loyalty to L and L to entity is what’s being protected.

·         Even though usually the constituents are the ones running amok, L has to be careful before he acts b/c (1) he may be wrong and (2) L has a remedy to withdraw if he can’t get them to act in a lawful manner.

·         Remember – these rules are designed to protect outside counsel; they don’t apply well to in house counsel (L w/only 1 client).

h.      L is not precluded from representing an officer of the entity while still representing the entity.

1)      MR 1.13(e) – if the entity’s appropriate official consents to dual representation, subject to MR 1.7, then it’s OK.

2)      Comment 8, MR 1.13 – When one of the entity’s officials communicates w/it’s in house counsel, that communication is protected by MR 1.6.  This doesn’t mean that the constituents are the clients.  L must advise constituent that if any adverse interests to the org. are discovered, that the constituent must obtain separate counsel.  By bringing in outside counsel, all parties are more likely to take this as a legal matter, and not a business one.

i.         Tekni-Plex v. Meyer and Landis (Who controls info. after a corp. changes hands?).  1 Shr owned Corp.  Counsel did not represent Lang (owner) at this time as an ind., so he only had a duty of confidentiality and loyalty to the entity as a client.  When Lang decided to sell corp., L takes on the duty of helping negotiate the sale.  Tekni-Plex continues to operate at this time, so L also had duties to entity.  Lang made an agreement to indemnify the new owners for any losses from the sale from any matters not revealed.  EPA problems that were not discussed arose, and new corp. sues Tang.  Tang was still represented by the same counsel, b/c L was lawyer for the old corp.  Issue = Can the buyer get L disqualified? 

1)      Not unless new corp. (that bought the old one and is running it in same manner w/same customers) can show it’s a former client). 

2)      L said it’s a new corp. – transfer of assets to shell corp.

3)      New corp.’s arg. – Only a new owner.  Same clients and customers.

4)      Ct. said L owes a duty to new corp. as a former client, in an action in a same or substantially related matter that adversely and materially affects the former client ® L can’t participate in the suit of new corp. vs. old one.

5)      Why can’t L participate?  Has confidential info.

6)      Ct. also said that L doesn’t have to turn over info. relating to the sale of the old corp. to new corp. – at that time, L was only representing Tang, and not the corp.  Why impt.?  Usually in merger, the merger info. goes too, which can reveal info. about merger to new client.  New corp. would be able to release confidential info. in suit against Tang.

j.         Bankruptcy – when entity goes bankrupt and assets go into receivership, the receiver is given all the confidential info., who is the legal owner of it.  He can then waive the privilege of it if he wants.

k.       Jesse v. Danforth – The Entity Rule (Retroactive Non-Clients) – L has 5 clients who want to set up a corp.  At his point, the clients are the constituents.  Once the corp. is set up, however, these 5 are not former clients ® they never existed legally once the corp. is set up.  The rule applies retroactively.  On the other hand, if the same 5 came in to set up a corp., but it never was finished, then they are all former clients.

l.         Innes v. Howell Corp. – L went to court and represented both corp. as client, and also one of its constituents.   Even the fact that L represented them both at the same time in court, the court said that unless there’s a specific agreement, L must tell constituent that entity, and not he, is the client.  Tell constituent to get sep. counsel.

m.    Closely Held Entities – MR 1.13 works less well when the entity is small. 

1)      Murphy & Demory v. Admiral Daniel J. Murphy – Firm represented an entity of 2 partners.  One of them wants to take the entity over, and the firm proceeds to help him do it.  This was a national firm that should have known better.  Despite the associates saying that this wasn’t right, the partner kept on.  The partner had a lawyer-client conflict (she was representing the person and not the client). 

a)      Morals to learn = (1) Don’t ever get involved in a fight between partners over control – always ends w/one of them losing, and firm could too; (2) Heed associate advice.

2.      Employment Issues and Whistleblowing

a.      Difference in Lawyer and Non-Lawyer when conflict w/entity

1)      L’s only remedy if in house counsel = withdraw.

2)      If non-lawyer gets fired for disagreeing w/entity officers, he has 3 options:

a)      Withdraw

b)      Sue for Breach of K (if not an “at-will” employment state)

c)      Tort suit for Retaliatory Discharge (get pun. damages)

b.      Initial line of cases – law set down that in house L’s only remedy if conflict w/entity is to withdraw or do nothing ® b/c of the attny./client relationship, L can have no other recourse.

1)      Balla – constituents made business decisions that L said violated the law.  Even if they didn’t they were putting people’s lives in danger.  Rule = L can tell b/c he knows of a breach of law that has the possibility of injuring or killing a person.  He has a recourse after the entity fired him.

2)      Whistleblowing = statutory provisions that allow for recovery by people who are fired after they give outsiders information that attempts to save the client (org.) from the insiders (constituents). 

·         This is what happened in Balla. 

·         If there’s no statutory provision, then L couldn’t recover.

·         Statutory rules won’t protect you from discipline if L violates a confidentiality rule or duty ® L has to do this w/o violating such a duty, or be sure that the risk is one of death or substantial bodily injury.

·         Irony = Ct. said that Balla couldn’t recover b/c he had a duty to report the entity’s crimes as an officer of the court.  The rule is to encourage people who would normally be silent to come forward w/o worrying about being fired.  Fact that he couldn’t recover is stupid.  Ct. said that if L could recover then the attny. /client privilege wouldn’t work b/c no one would tell L anything.

·         Bottom Line = Balla encourages silence.

c.      General Dynamics – held that the rule in Balla isn’t right.  To treat a lawyer differently b/c he’s a lawyer and can withdraw, esp. if he’s an in house lawyer (L w/only 1 client) is crazy. 

                        Rules:  1) Can have a breach of implied K against employer as lawyer.

                                    2) Retaliatory discharge is available to lawyer if the charge can                                                                   be proven w/o violating the duty of confidentiality ® Ct. can                                                                               seal records or hear things in camera to prevent leakage.

·         We want people to bring serious charges against people that have such a large impact upon others.  Fact that D was an indpt. contractor for the govt. was impt.

d.      Willy v. Coastal State Mgmt. - P was in-house environmental counsel.  Claims that he was fired for speaking to EPA about some possible violations, and is suing under a retaliatory discharge tort.  D claims that he was fired for going outside the scope of his duties, for calling govt. agency, and for lying about the whole deal (this is the normal defense in retaliatory discharge). 

·         Business or legal decision?  L believed that bus. decisions would lead to legal consequences. 

·         TX Ct. – concluded that while it follows Gen. Dynamics, it wouldn’t here.  Issue = whether or not you can prove it w/o breaching confidentiality.  TX followed the Code at that time. 

·         Today – TX 1.05 – L can reveal info. to the extent needed to enforce a claim against a client.  Allows for the confidential info. to come in as proof.

e.      Kachman v. Sungard Data Systems – employment lawyer says she was fired for her disagreement w/mgmt. over equal pay for women.  Mgmt. didn’t like her campaigning so they fired her b/c she wasn’t a team player.  She sued.  D said that Balla applied (L’s only remedy if conflict w/entity is to withdraw or do nothing ® b/c of the atty./client relationship, L can have no other recourse).  Ct. disagreed¾Gen. Dynamics applied (client doesn’t have a right to cheat a lawyer by giving them confidences so they can’t sue them).

 

VII. Limits on Advocacy

A.      Duties to the Tribunal

1.      MR 3.4 – Fairness to Opposing Party and Counsel: A lawyer shall not:

(a)   Obstruct another party’s access to evidence, or destroy such evidence.

(b)   Falsify evidence, counsel or assist a witness to perjure himself, or offer an inducement to a witness that is illegal.

(c)   Knowingly disobey a court rule, except for a refusal to claim one doesn’t exist.

(d)   In pretrial, make a frivolous discovery request or fail to make a reasonably diligent effort to comply w/a proper discovery request made by opposite counsel.

(e)   In trial, allude to matter that L doesn’t reasonably believe is relevant or supported by admissible evidence, assert personal knowledge of facts except when testifying as witness, or state per. opinion as to justness of cause/witness/culpability or guilt of accused.

2.      MR 3.3 – Candor Toward the Tribunal

(a)   A lawyer shall not knowingly:

(1)   Make a false stmt. of material fact or law to a tribunal;

(2)   Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a crime/fraud by client;

(3)   Fail to disclose to tribunal legal authority in juris. known to lawyer to be directly adverse to your client, but not raised by opposing counsel; or

(4)   Offer ev. that lawyer knows to be false.  If L has offered material ev. and comes to know of falsity before trial over, L must take reasonable remedial measures.

(b)   Duties in (a) run to the end of the trial, and apply even if compliance requires disclosing stuff under MR 1.6.

(c)   L may refuse to offer ev. that L reasonably believes is false w/o offending 6th Amend. right to representation.

(d)   In an ex parte proceeding (w/o other party), a lawyer shall inform tribunal of all material facts known to L which will enable tribunal to make an informed decision, whether or not the facts are adverse.

·         Things to consider regarding MR 3.3

·         (1) Applies equally to civil and criminal cases – usually more talk about it in crim. cases b/c of Constitution.  MR 3.4(d) – civil problems usually happen in pretrial regarding discovery.

·         (2) Perjurer can be either a client or a witness

·         (3) Perjury can be anticipated or as a surprise – either at trial or when you find out later.

·         MR 3.3(a) & (c) – apply to things lawyers can’t do.  E.g., if other party hasn’t found a precedent that hurts you, then you have to reveal it.  Best to reveal it and distinguish it.

·         MR 3.3 (b) & (d) – apply to witnesses and client. 

·         MR 3.3, Comment 11 – If perjured testimony or false evidence has been offered, L’s proper course is to admonish the client confidentially.  If that fails, L should seek to withdraw if that will cure it.  If withdrawal is not possible, then L should make a disclosure to the court.  It is for the court then to determine what should be done ¾ making a stmt. about the matter to jury, ordering mistrial, or nothing.

·         MR 3.3(c) – this is the one that gets everyone into constitutional problems.

                        - Wuliger – L had surveillance tapes that his H client gave to him of W                                                        speaking to all kinds of people.  He tried to use them in divorce                                                        proceedings, saying that he didn’t know that W didn’t consent.  Ct.                                                  said no W would do this, and L did know better.

                        - What exactly does Constitution guarantee?  Right to assistance of                                                           counsel and right to testify.  If L chooses not to put on testimony that                                                          he knows is false, and the client loses, he will say that he was denied                                      his 6th Amend. rights.  In addition, client will say that anything he told                                                   L is confidential under MR 1.6. 

                        - 1st attempt to answer this question = allow client to tell his story in                                                            narrative form; L doesn’t then “introduce” info. he knows is false.                                                     Problem = whenever a client does this, everyone knows he’s lying.

                              Also, some states say narrative form is just as bad, and denied it.

                        - Modern Solution = MR 3.3 – no more use of narrative.  MR 3.3 trumps                                                    MR 1.6 ® L has to tell, and when he does, he isn’t breaching a                                                           confidence.  This is the Maj. rule (if you know client/witness is going                                                         to lie, keeping them off the stand doesn’t violate 6th Amend.

                        - Nix v. Whiteside – L refused to put D on the stand when L found out                                          he was going to lie.  D lost, and claimed denial of 6th Amend. right to                                       testify.  Ct. said that 6th Amend. right to testify doesn’t include                                         helping client to commit perjury, if L knows it’s false.

-          L is allowed to not put client on the stand, or withdraw.

-          Trial is a search for the truth.  Whatever L has to do to keep perjury out of the equation will not violate the Constitution.

-          MRs gives L the right to do this until the end of the proceeding.

                        - Strickland v. Washington – test for the denial of counsel: But for the                                                 action of L, there would have been a diff. result ® the acts of L                                                   caused a prejudice to your rights.  However, there is no                                                               prejudice ever from the truth.

-          Dissent = should be careful not to take the role of the judge/jury away and give it to the L. 

-          Is it OK to avoid knowing D’s story by not asking (Race Horse Haynes – “tell me what the other side claims happened.”)?  Not exactly ethical.

-          Tyson Rape case – Ms. Washington (victim) and her father testify in Indiana court during civil trial.  Defense lawyer questions her arrangement w/a civil attorney (Gerstein) about a possible civil trial (this would potentially bias her testimony).  She was being either evasive or stupid b/c she doesn’t say anything.  Rhode Island Sup. Ct. tells Gerstein to go and tell them that she was lying.  Does Gerstein have to go to IN and testify before the tribunal?  Probably not, b/c (1) IN rules don’t apply to him b/c he doesn’t practice law there – he can volunteer, but it’s not mandatory; (2) He wasn’t there in court in IN, so he doesn’t know that the testimony is false, and doesn’t know the testimony was corrupted; (3) By that time, the case was over – MR 3.3 only requires that he come forward if he knows testimony to be false during the trial.  If he had come forward, w/o there being a MR 3.3 violation, then he breaches MR 1.6.  Although there are exceptions to 1.6 (testimony in the continuation of a crime, possible death or bodily harm) these didn’t apply.

3.      Fostering Falsity or False Truths – there are a variety of tactics used in civil or criminal trials, often quite properly but sometimes off limits, to increase the chances of victory at the risk of misleading the judge or jury

a.      Cross-examining truthful witnesses – Is it proper to harshly cross-examine a witness that you are fairly certain is being truthful?  Even if witness is being truthful, there is no rule saying that you can’t be abusive (e.g., if a witness doesn’t speak the language, and it’s obvious that she’s been coached).  You are allowed to make the inference that the testimony is false, but have to move on then ® can’t cross the line to improper argument.

b.      Appeals to Bias – L Argues that everyone is biased. Rarely works (cts. rarely find that it’s appropriate).  Ex. L argues that people from out of state are biased against client.  This argument approaches jury nullification – L arguing that this issue is more impt. than the law.

c.      Boundaries of Proper Argument

1)      Improper argument – L making the argument that his argument is proper, and no one else’s is; L not arguing the facts of the case.  This is no good.

2)      Arguing for False Inferences – OK to do, unless you are a prosecutor.  The argument is that there is more than one way to look at a situation.  Most lawyers can do this despite knowing the truth is contrary.  Prosecutors cannot – they have a higher duty (treat each person as innocent until proven guilty); They can argue inferences, just not false ones.

d.      Literal Truth – coaching to give literally truthful but evasive answers (but not untruthful answers) is not unethical.  Problem lies with the person who asked the question, as these types of answers can be cured on effective cross-examination.

e.      Coaching – when there is witness coaching, we run into problems that cross the line between telling a lie and teaching how to answer.  The more literal and misleading, the more it looks like improper coaching, which is suborning perjury.  There is no bright-line test.

f.        Exploiting Error – nothing wrong w/using this tactic if MRs don’t require L’s to come forward to correct it.

g.      Silence – Nothing wrong w/this, so long as L doesn’t assist another in committing fraud or crime, and subject to MR 3.3(a)(4) and (b).  Sometimes requires remedial measures when L “comes to know” that he introduced false evidence.  Absent this, only MR 3.3(a)(2) requires L to speak up – “L shall not knowingly fail to disclose . . . when disclosure is necessary to avoid assisting a crime or fraud by client.”  L’s disagree on wheat “assist” means.  Language is meant to guide L’s conduct as an officer of the court as a prophylactic measure to protect against perjury.  Can sometimes go over the line and be misleading.  FRCP’s take away the danger somewhat (by requiring follow-up to discovery.

h.      Frivolous Positions – can’t do this (FRCP 11 prohibits this).  Any argument made must extend or modify the facts or issue.

i.         Dilatory Tactics – can’t do things that are meant to delay or harass.  MR 1.8(e) is on point.

j.         HardballParamount Communications v. QVC – Joe Jamail harassed other attorney while defending his client.  Delaware Ct. was not pleased, but the deposition was in TX, and he didn’t commit a crime, so there isn’t anything Del. can do.  L’s have a duty to be civil if possible.

k.       Misleading facts, precedents, or record – if you state these to a court, this is a false statement to a court.  It’s still a lie, even if it is a “mistake”.  Appellate courts will hang your ass out to dry.

l.         Obligation to reveal Adverse Legal AuthorityJorgensen – L withheld new precedent that no one else had read, and then “mislead w/his silence” by not bringing it up.  Ct. didn’t give him the TRO he was requesting.  Ct. said that a lawyer who does this will not be saved if:

1)      He doesn’t get what he was asking for (TRO),

2)      Other party brings up the matter, OR

3)      The authority is not controlling.

                  Best thing to do when you have such authority = bring it up & distinguish it.

B.     Special Issues in Criminal Advocacy

1.      US v. Kojayan – Prosecutors are held to the higher standard as mentioned above.  Here the prosecutor did several things wrong:

a.      He failed to give D info. relating to plea bargain he made w/one of the co-D’s.  When made, he had an affirmative duty to share this w/D’s lawyer if it’s exculpatory (helps a party argue it’s position).  The decision on whether or not something is exculpatory or not is not his to make; if it’s possibly exculpatory, then he has to give it over.

b.      After he withheld the info., in his summation, he argued that the jury shouldn’t be mislead by the fact that he didn’t call the co-D that he made a deal with.  In reality, he could have called him if he wanted.  Created a false inference, and can’t do this as a prosecutor.

            On appeal, prosecutor argued that there was no evidence relating to such an                                agreement (a literal truth that is false and misleading).  Ct. of Appeals said this                                     was literally true, but prosecutor knew it to be false.  Any other attorney can do                            this, except prosecutors.  Remedy = dismissal of case (b/c criminal suit).

c.      MR 5.1- obligation of supervising hierarchy of lawyers.  U.S. Attorney has a hierarchy; ct. wants to know where they were to stop the prosecutor from arguing false inferences. 

·         5.1 says that supervising attorneys are responsible for the L’s under them, and can take the blame for their ethical breaches.

·         U.S. Attorney’s office has its own ethical committees, which investigate all possible ethical breaches.

·         Supervising attorney will be responsible for lower L’s unless he discovers the breach and takes remedial measures to stop the act, and notify the court so that it hears the truth. 

·         Improper contrition – if ct. lets the U.S. Attorney off, then the acts happen again.

2.      Problem – Whose Cocaine I (p.473)

            A. Trooper stops car for speeding.  A is driving, G is passenger.  Trooper                                       suspects that the 2 are transporting drugs, but he has no probable cause.                                         He sees by the registration that A is owner of the car, so he asks A for                                             permission to search.  A agrees, and T finds large quantity of coke.  A and G                           are arrested.

            B.  A confesses to transporting the coke w/G, but the confession is suppressed                                        b/c A wasn’t given his Miranda warning.  A goes to trial.  G pleads to                                                     transporting the coke, but refuses to testify at A’s trial.  G’s plea is also                                             inadmissible at A’s Trial.  A’s L plans to argue that G placed the coke in the                                      truck, and A was unaware.  Can A’s L argue that the fact that A gave                             permission to search the car support an inference that A did not know the                   coke was there?

·         A: Any D lawyer can argue a false inference, despite knowing it’s not true.  What the D lawyer knows outside the record is not something he is prevented from arguing against – it doesn’t prevent him from arguing for the client’s benefit.  Only limit = he can’t flat-out lie or issue a false statement to ct.

3.      Problem – Whose Cocaine II (p.474)

A.      (same as above)

B.     A’s confession is not suppressed, and he pleads guilty.  G goes to trial.  A’s confession is inadmissible in A’s trial, and A refuses to testify.  G’s L plans to argue that G was unaware that the coke was in the truck.  Can the prosecutor elicit A’s permission to search the truck and argue that the consent supports an inference that A didn’t know the coke was there?

                  A: No.  A prosecutor can’t ever argue a false inference.  This puts them at a                                               definite disadvantage, but tough shit.  Prosecutor is searching for the                                       truth, not to convict.

4.      Problem – Whose Bullet? (p.474)

                  S is killed w/a single bullet in drug deal.  V and K are arrested.  Both were at                the scene, and both had the exact model gun as the bullet.  Lab can’t tell which                              gun killed him.  V allegedly makes a stmt. that could be interpreted to inculpate                                     both men and to prove that his bullet killed S.  The stmt. is inadmissible against                               K.  A, an eyewitness, will say that she saw both V and K shoot at S, but that K                  actually killed S.  The person who actually killed S will get the death penalty. 

                  Because the prosecutor plans to introduce V’s stmt. inculpating both V and                              K, K invokes his right to a sep. jury.  V stmt. will be used against him at his trial.                         A will testify against K in his trial.  Judge empanels 2 juries, 1 for each D.  Each                                jury hears the same ev., but V’s jury will not hear A’s stmt. against K, and K’s                                     jury will not hear V’s stmt.

                  In her summary, prosecutor in K’s trail asks jury to find that K’s bullet killed                              S.  In her summation in V’s trial, she asks jury to find that V’s bullet killed S.                           Each jury finds that each D killed S.  Has the prosecutor acted improperly? 

                  A: Can’t have 2 diff. juries come back w/2 diff. convictions of 2 diff. crimes                               for killing one person.  Prosecution can’t argue for 2 diff. killers w/only one                             bullet.  Remember – obligation of prosecutor is to do justice.  Prosecutor can                          only charge one of them, but doesn’t know which.  In reality, charge both                 w/attempted murders.

            What if the 2 trials were 2 mo. apart?  Doesn’t matter.  If you acquit one, then                                      can’t charge the 2nd guy w/murder b/c of what 1st jury did.

C. Destruction or Concealment of Physical Evidence

1.      Civil matters – not as complicated b/c no crime involved.

a.      If client comes to you and asks you about destroying documents, what can you tell them?

·         If there is a grand jury or subpoena requesting that document, then they can’t destroy it (affirmative duty not to tolerate or commit perjury).

·         If there’s no official request, then it’s not against the MRs to tell them to destroy it (good practice to destroy doc’s over 3+ yrs. old).  There is no duty to volunteer info., even if it’s a material fact.

·         Ethical rules rely upon jurisdiction’s substantive law to enforce.

b.      MR 3.4 – L shall not unlawfully obstruct access to evidence, destroy and potential evidence (that you know of), or assist in its destruction. 

·         Fact that it’s an unlawful test = you have to know the law.

·         If it’s not against the law (under subpoena) then it’s OK.

·         TX version – shouldn’t counsel client to destroy any protected evidence in anticipation of dispute; can’t alter, destroy, or conceal evidence that a competent L would believe has potential or actual evidentiary value.  This is much broader than the MR.

·         If you don’t want to counsel client to destroy ev., tell them the consequences if they keep it – they’ll get the hint.

·         You can tell client not to destroy evidence.

·         Can say nothing if you know client intends to destroy the evidence.  This is risky if you know a subpoena on the way.

2.      Criminal Matters – lots of cases define this area, b/c the evidence is already wanted as evidence of the crime.

a.      People v. Meredith – If you as L know about ev. and observe it, you don’t have to tell how you got it b/c of attny./client privilege.  Limitation = the privilege doesn’t extend to moving the piece of ev.  If you just observe it, you are OK.  If you move it, it’s trouble (movement disrupts the crime scene evidence).

·         Could take the ev. and test it, but then have to give it to prosecutor.  If you do, then the prosecutor is entitled to know where you got it.

·         Prosecutor at trial can’t link ev. back to lawyers b/c this would be a breach of attny./client privilege.  They may only ask where it was found.

·         What if client brings it to us?  Still must turn it over if it’s material to case, but don’t have to tell where it came from.

·         If you got evidence from a 3rd party, then turn it over.  No privilege extends to that person, so you get into trouble if you don’t.  Nothing prevents L’s from telling where it came from.

·         ABA Crim. Justice Standards put in a change – treat weapons and contraband diff. than other pieces of ev. ® L required to turn these over.  If ev. is neither gun or contraband, then he has the option to (1) keep it in his office, (2) give it back to 3rd party (never happens), or (3) give it to prosecutor. 

            b. Problem – The Kidnap Plan (p.494)

                  L represents client who is in jail.  His friend has been using his car.                                                 Yesterday, friend cleaned out the car and brought L incriminating evidence                                           about client’s crime.  What does L do?

                  Similar to removing a document, but removing it here destroys a crime                                          scene, which is bad.

            c. Problem – Moving Pictures (p.494)

                  Johnnie Cochran made OJ’s place more “black” to appeal to the female,                                        black jurors who toured his home during the trial.  Did they act ethically?

                  Diff. here than in “The Kidnap Plan” is that OJ’s home was not a crime scene                          (not the part they fucked with anyway).  It’s probably on par for Cochran, but                                    it’s not illegal.

            d. Hypo – The Stop Sign

                  A & B get in a car wreck, where B ran through a stop sign and hit A’s car.                                      Wreck happened in the spring.  During the summer, foliage covered the stop                           sign, and B’s lawyer took a picture, arguing that no one could have seen the                                sign.  Illegal?  No.  This is arguing an inference, which is OK.  Burden is on                                           A’s lawyer to object (just like it was on the prosecution in the OJ trial).

D. Reporting Cash Receipts

1.      If L gets paid more than $10,000 in cash, he is required to tell IRS.

2.      Cts. say this rule is legal, dismissing the Bar’s objection that it violates attny./client privilege.  Don’t want thugs to be able to launder their cash.  If they want to pay their lawyers more than that, write a check. 

3.      Problem = Open a bank account and deposit more than $10,000, the bank will report it.

 

VIII Negotiation and Transactional Matters

A.      MR 4.1 – L is not supposed to knowingly make a false statement of material fact or law to a 3rd party, or fail to disclose a material fact to a 3rd party, when its necessary to reveal, unless you are prohibited by MR 1.6.

1.      Under MR 4.1, when L is required to tell something to 3rd party, 1.6 trumps 4.1 (opposite of 3.3, which trumps 1.6)

2.      How do you protect yourself when 3rd party must be told the truth?  Noisy Withdrawal (comment in MR 1.6) ® have to withdraw, but contact all 3rd parties and tell them not to rely upon any of the info. you have given them.  You haven’t told on client, so 3.3 isn’t violated, but 3rd parties get the message.

3.      Problem – The Case of the Substandard Plumbing (p.565) – L works for a contractor who makes low-end homes.  L prepares the master K’s, which contain warranties of quality for consumers.  The current K’s also notify state agencies that the building is in compliance w/environmental codes.  L eventually finds out that this isn’t so.  What does he do?  Try to get client to come forward.  When he won’t, L must noisily withdraw. 

 

IX Defending the Lawyer Monopoly & Reducing Professional Failure

A.      Admission to the Bar

1.      Why have rules that restrict who may practice law?

a.      Protect the public from guys who don’t know how

b.      Maintain the quality of legal work

c.      Assure access to legal system

d.      Gives public the assurances that lawyers are interested in the public

2.      What types of regulations are out there?

a.      Admission to the Bar – if not a member, then can’t practice law (only assist).

1)      Want to ensure certain Education – ABA standards are required.

2)      Maintain certain Competency

·         We don’t admit only on your education ® you must know what you’re doing. 

·         Most states require that you must have passed the Bar Exam.  Is this enough? Probably.  There are no guarantees, and no evidence suggesting that those who take the bar ensures competency.

·         Reciprocity – 30 states have it (if you pass bar in your state, they allow you to practice law there too – they waive your being licensed in their state).  Limit – the work you did there must be the same as you do here.

·         If you were competent there, then you’ll probably be competent here too.

·         FLA rule – can be “licensed” as an advisor there, which is diff. than Pro Hac Vice (licensed in another juris. for one case/client).  Once either of these ends, the privilege ends – it’s not a prop. right.

·         Old rule of admission to the Bar – only admitted to the bar in the state where you resided. 

·         PiperGeographical Exclusions are inappropriate on nonresidents due to the Privileges and Immunities Clause of the Const.  People have a right to practice law in other states (state claimed they were afraid she wouldn’t know NH law).  She lived 400 yds. from state line.

·         VA. v. FriedmanGeographical Restrictions - P was admitted to Ill. bar, then moved to DC to work w/Navy.  She was admitted to DC bar by Reciprocity motion (1-client lawyer).  Then moved to VA to practice for Navy, as a civilian attorney.  Then went into private practice in DC, but kept primary business in VA.  She lived in VA the whole time.  She married 9 yrs. after coming to DC, and moved to MD.  She maintained office in VA, when she then applied for admission to VA bar.  VA said no b/c she was not a resident (may not keep up w/their law, have commitment to VA), despite that she had lived there for 10 yrs.  Piper was invoked (can’t keep her out b/c of her residency).  Ct. said this didn’t matter – VA’s requirement goes far to ensure that those who practice in that state have an interest in VA that is comparable to Piper.

·         Goldfarb – Goldfarb lived in VA, but practiced in DC.  The 4th Cir. said that VA’s in-state work requirement was valid as a condition of reciprocity admission when applied to VA resident (can discriminate against own citizens, just not nonresidents).

3.      Maintain certain Character – based on the theory that past events predict future behavior, we don’t want any person to practice law.  Future indicators always give courts lots of problems.

a.      Mustafa – UCLA law student who was very skilled.  He stole cash from the moot ct. fund to pay his sister’s bail.  Does this show he is of bad character? 

·         When he passes the DC bar exam, he will have to be cleared by clear and convincing evidence that he has good moral character and general fitness to practice law. 

·         He acted criminally, despite his intentions to repay.

·         If he was already a member of the bar, he would be disbarred for at least 5 yrs., when if he had maintained himself, the DC bar would reopen.  They decided this was the way to handle this.

·         Only 8 jurisdictions automatically disqualify people from gaining admission to the bar b/c of a felony on their record.

·         TX rule – if guilty of something that the TX Bar’s Character and Fitness Comm. will keep you out, you can reapply in 10 yrs.

·         Lack of honesty – if you hide something in your past, frequently it will be worse than if you had come out and told the truth.  People often think their records are expunged.  Come out and tell the truth like Mustafa.

·         Issues the Character and Fitness Committee investigates today

1)      Mental health of Applicants – not so much today w/ADA.  If you use a lack of mental health against people, then people won’t get the treatment they need ® that’s bad policy.

2)      Financial Impropriety – if you have bad credit and declare bankruptcy to avoid debts, this looks bad (Bankruptcy ct. won’t hurt you, but bar will).  Defaulting on student loans falls here too.

3)      Alcohol and Drug Dependency – discipline will be severe here. Presumption that people w/this problem will become a problem w/in the society.  If you have such a problem on your record, then you have to see the Character and Fitness Committee (20% of all lawyers have a dependency problem).

B.     Admission to the Federal Bar

1.      Gen. rule = fed. cts. admit applicants who are members of the highest court of the state in which that fed. ct. sits. 

2.      Each court requires that the applicant gain separate admission (S.D. TX requires sep. admission than the N.D. TX).

C.     MR 8.1 – Bar Admission and Disciplinary Matters

      An applicant for admission to the bar, or a lawyer in connection w/a bar admission      application or in connection w/a disciplinary matter shall not:

(a)   knowingly make a false stmt. of material fact; or

(b)   fail to disclose a material fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond in a lawful demand for information from an admissions or disciplinary authority; except when this rule violated MR 1.6.

·         If you’re applying to the bar, or helping someone do it, tell the truth.

·         Failing to disclose the truth is as big a problem as telling a lie.

 

X Unauthorized Practice of Law & Restrictions on Attorney Practice

A.      General rule

1.      Non-lawyers aren’t allowed to practice law (students aren’t lawyers).

2.      When you advise people on legal matters, they have the right to rely on the fact that you are licensed to practice law.

a.      Exception – can give advice to family members.

B.     Practicing in Another Jurisdiction

1.      If you are licensed, you may practice in another state.

2.      People at risk here

a.      Lawyers w/national reputations

b.      If you represent local clients w/national or intl. offices

c.      Work for a firm w/national offices elsewhere (can’t hide behind the firm).

3.      Why is this a problem?

a.      ABA suggesting that all states need to more rigorously enforce the rule.

b.      Local bars want to keep non-locals out.

c.      Changing nature of the law practice to a global nature creates more of these problems.

4.      Pro Hac Vice – “for this turn” – a juris. may admit an out-of-state lawyer for the purpose of participating in a particular trial w/o requiring the lawyer pass the jurisdiction’s bar or go through character review process. 

a.      Issue = must a state allow pro hac vice admissions?

b.      Leis v. Flynt – it is constitutional to deny a pro hac vice admission b/c the state doesn’t like the L’s character.  If you want to practice law here, go through the process of being admitted.

5.      Services other than Litigation

            a. There is nothing that says you have to be admitted pro hac vice to merely                                              give advice (simply a method to keep them out of court). 

·         This is not really a big problem.

·         You’re not subject to disciplinary rules there b/c you’re not a member of that bar. 

·         When they are punished by acted badly, state bar keeps the fees earned.

·         El Gemayel v. Seaman – person in NY called L in DC who was expert in Lebanese law.  Series of calls to NY by DC guy, and went to Lebanon to finish matter.  Met client in NY to exchange items.  NY didn’t allow him to be paid b/c said he practiced law in NY w/o being admitted.  NY App. Ct. said that he didn’t practice law in NY ® there was no meaningful connection to NY other than the calls and the meeting of the client to exchange luggage.  This was not enough to establish the practice of law.

·         Spivak – CA attorney who went to NY to assist client in divorce stayed for 14 days, attending meetings and giving advice.  He became substantially involved in the client’s NY affairs.  NY ct. said this plainly constituted the practice of law, and since he didn’t have a NY license, his payment was withheld.

·         Ranta – Ranta practiced in MN, but gave advice on federal tax law to ND resident.  When his client died, he was owed $22K, but estate refused to pay b/c he didn’t have a ND license (although he opened an office in ND – what a dumbass).  Ct. held that a non-resident attorney who wasn’t licensed to practice in ND can’t recover for services rendered there.

·         The major issues in these cases = What constitutes “in the jurisdiction?

·         Remember - if no license for that state, it’s not necessarily the practice of law in that state, even if you are giving advice regarding that state’s laws (you can be an advisor).

6.      Problem – “Down in Tennessee” (p.664)

            NY lawyer is called down to TN for a copyright matter.  He comes down on 2                                 sep. trips spending six days, and another week doing research in NY.  While in                                  TN, he does legal research from his laptop in the hotel.  The majority of his time                                 is spent interviewing company employees.  He later sends a bill which TN co.                                 refuses to pay – they say he couldn’t practice law in TN b/c he’s not licensed                                   here.  If L wants to sue, he will have to go to TN, b/c there is no PJ over co. in              NY.  Does TN co. have to pay?

·         Lawyers have diff. tests than nonlawyers do – everything that lawyer does in the furtherance of his work is considered the practice of law (unless he can show that it is a “law-related” matter.

·         Research by L in NY will probably have to be paid for (split the fees).

·         L can’t counter this by demanding to be paid up-front in an effort to avoid any potential problems w/unauthorized practice of law; this would be making a client pay for an illegal act.

·         Can’t get around this problem by pro hac vice – state can’t give lawyers any privilege to practice in state where not licensed other than to litigate (scope of pro hac vice order).

·         Possible solution – form a true associate relationship w/the TN co. – you give them the guidelines and they do the work.  This would be OK.

C.     Unauthorized Practice of Law

1.      Public Policy = States license lawyers to ensure a level of quality and to protect their citizens.

a.      Consequence = fewer people are able to practice law.

b.      Defining “practicing law” is tough b/c it may be defined broadly (everything related to legal services) or narrowly (only litigating).

2.      Ct. says that each state has the inherent power to define “practicing law” for itself.

3.      MR 5.5 – Unauthorized Practice of Law

            A lawyer shall not:

(a)   practice law in a jurisdiction where doing so violates the regulation of the legal profession in that juris., or

(b)   assist a person who is not a lawyer in the performance of activity that constitutes the unauthorized practice of law.

4.      Can’t license nonlawyers to do legal work b/c they have no training, and b/c they may not have legal supervision (If there is supervision, CA allows simple filings by nonlawyers).

5.      Regardless of the standard, some lawyers will be affected (somebody is going to have to make adjustments).

6.      Both the State Bar and citizens have interests in this (competence vs. “good and cheap”).

7.      Professional Adjusters Inc. v. Tandon – Insurance adjusters who worked for Ins. co., who had appraised, negotiated & settled for the co. for years went out and started own co. for insured folks.  They lobbied and got the state to license them, pending exam and regulatory body.  They were taking away clients from lawyers and dealing directly w/ins. co.’s.  Insured eventually says he won’t pay them b/c it’s the unauthorized practice of law. 

·         Ct. said that the possibility of negotiation and settlement is practice of law.

·         Power of Leg. and courts collide ® Policing the unauthorized practice of law is a matter for the courts; conflicts sometimes w/legislative acts.

·         OK for adjusters to do what they did beforehand presumably b/c they were under the supervision of co. and their in-house counsel.

8.      How do sports or real estate agents get around these laws if they aren’t lawyers (negotiating between buyer and seller?

a.      Professionals write their forms.

b.      They have to go through some type of skill training program.

c.      They don’t collect any fees for this service – they are trying to close a deal, not practice law.

d.      If a seller crosses out parts of a form letter, and agent accepts it, is this practicing law?  Probably, but no one cares.

9.      Constitutional Limitations

a.      Supremacy Clause – to the extent that the federal govt. has laws that conflict w/state laws, state laws must give way. 

·         Therefore, nonlawyers are able to represent clients in federal courts (IRS & Bankruptcy courts) w/o violating state laws against practicing law w/o a license.

b.      1st Amend. – People are able to write books on how to evade state laws, that would possibly be practicing law (e.g., how to avoid probate).

c.      Prison inmates who help other ones file suits (they get no funds for it, so we don’t care).

10.  Legal Services vs. “Law-Related” Services – only legal services are regulated by states; nonlawyers can practice law-related matters.

a.      MR 5.7 – Responsibilities Regarding Law-Related Activities

·         L’s are always subject to the MRs, but only when performing legal services.

·         If L sets up a law-related matter (e.g., a financial planning service), if it doesn’t come w/in the context of the legal services he performs, then it is not subject to the MRs (i.e., he can operate w/nonlawyers in the operation of the business).

·         Best was = set up the operation separately from the legal office (diff. building).  If it’s just the other end of the office, may come under scrutiny.

·         Law-related services = services that may reasonably be performed in conjunction w/are related to the provision of legal services, and are not prohibited as unauthorized practice of law when provided by nonlawyers.

11.  For-Profit Organizations

a.      Problem – The Bank has a Lawyer (p.842)

                  Bank wants to get more trust business.  In an effort to get some, it comes up                          w/several solutions to enable it to pay for a lawyer’s work to set up an                                                 estate.  Which of these will work?

1)      Bank offers customers the services of the lawyers it has on staff?  No.  There is an obvious conflict under MR 1.7 between the employer (bank) and the client.  Perhaps the client doesn’t really need a trust?  L will push one on them.

2)      Bank hires outside counsel to do the work at a reduced fee?  No.  A 3rd party (L) may be obligated to bank b/c of the deal he has struck w/the bank.  Still a 1.7 conflict.

3)      Bank tells client to hire outside counsel to set up will, but bank will pay for you?  Yes.  This L isn’t conflicted.  MRs 1.5 & 5.4 say that 3rd party (bank) can pay for a client’s representation, as long as they aren’t in control.  Problem = more costly, so it defeats the bank’s purpose.

b.      Problem – Legal Research: Call 1-800 (p.842)

                  LNR sets up a research co. to draft memos for L’s.  Work is done by L’s who                          are unemployed or can’t work.  Clients pay for the services, LNR pays                                      contract labor, and the rest is profit.  Is this unauthorized practice of law?

·         Probably Yes.

·         Contractors are presumably licensed in the states where they’re working, so they’re OK as long as they stay in their home state.

·         L’s employing them aren’t practicing law – they are merely purchasing work product, and are unintentionally supervising as well.

·         LNR is only liable for the malpractice of the contractors.  Problem = they can’t get malpractice insurance b/c they aren’t a law firm.  They will be prohibited, despite the fact that this is clearly a law-related matter.

 

XI Malpractice and Liability

A.      Liability to clients

1.      What plaintiff must prove to sustain a malpractice COA

a.      Duty to client – L had one; generally easy to prove.

b.      Breach of that duty – tougher to prove.  Tough to determine the proper standard of care.

1)      Proper to bring in the MRs of Prof. Conduct ® in theory they set the min. of what L’s are supposed to do.

2)      Breach of MRs don’t ever result in per se COA.

c.      Causation of injuries – L’s breach caused injury sustained (if want compensatory damages).

d.      Show damages

2.      What if there are no damages, but client still feels ripped off?

a.      Can sue for:

1)      Disgorgement – L must return fees collected.

2)      Forfeiture – L prevented from collecting fees.

b.      Causation and damages need not be proven for this COA.

3.      Tante – sex w/client is a breach of a fiduciary duty, b/c L is using his position of authority to “persuade” client, who is in a position of weakness.

·         Bring in experts to determine breach of duty (even fiduciary duty).

·         No breach if had sexual relation before suit; although this does raise other issues of possible conflicts.

·         L was suspended by state after case over.  Shows can be hit by private suit as well as state in breach of duty case ® State has an interest in L’s violating fiduciary duties.

B.     Proving Malpractice through use of Model Rules of Professional Conduct

1.      Use of Expert Testimony and Ethics Rules - P must prove that D breached duty of care or fiduciary duty.  Usual method = bring in another professional (laypersons can’t be held to know what the standard is).

2.      P may also bring in experts on MRs to show that D breached, and to ask judge to instruct jury on their requirements.

3.      Smith v. Haynsworth, Marion, McKay & Geurard – Maj. Rule = permit discussion of violation of MRs at trial as evidence of the common law duty of care in a malpractice action.  Expert must address his testimony to the breach of a legal duty of care and not simply to breach of a disciplinary rule.

a.      Jurisdictions differ – some states won’t allow them to est. a duty of care.

C.     Can Ethical Violations Result in Denial of Fees?

1.      Denial of fees is already used where there is unauthorized practice of law.

2.      May also be used when L breaches a duty of loyalty ® no need to prove causation in these cases.  Proximate cause is relaxed in breach of fid. duty.

3.      Policy = fiduciaries can’t be allowed to profit from his disloyalty (same policy from an breach of a fiduciary duty).

4.      Follow-through on the rules vary (e.g., some states say you can collect fees up to the point of breach; some say can collect nothing).

5.      Contributory negligence can be raised in certain cases

a.      L says that client breached his duty to L by not telling all the facts.

b.      Fees can be discharged in proportion to what client did wrong.

c.      Ct. may also apply some estoppel to stop client from not paying b/c of breach.

D.     Vicarious Liability

1.      Can client sue firm when firm’s L breaches duty?

a.      If L breached a duty to client in the normal practice of his job, then firm will also be liable (firm and his supervising attorney).

b.      If L breached duty to client when L was going off in some area where firm did not control him, then firm may not be held vicariously liable.  Must be some relationship between firm and client.

E.     Malpractice and Criminal Cases

1.      Can D sue when L violates a duty to client?  Yes, but it won’t often be allowed for policy reasons ® criminal conduct itself is the only cause of injury to client (only remedy is to argue ineffective counsel).

2.      To recover, criminal D must be exonerated ® the conviction must be reversed on appeal or in postconviction proceedings.

F.      Liability to Third Parties (usually occurs in probate court, but can occur elsewhere)

1.      Barcello – (TX) – 3rd party going after L who drafted bad will.  Ct. disallowed COA by 3rd party b/c had no privity w/counsel (TX follows C/L – no privity w/3rd parties).

·         Lots of other states have eliminated the privity requirements.

·         TX has eliminated the rule for doctors and accountants.

·         Arguments for keeping it in force – (1) Costs would rise b/c of added risks; (2) too much chance for litigation for honest mistakes.

2.      Petrillo v. Bachenberg - D wanted to sell land, but anyone who bought it had to put in a septic system, which required soil tests.  Land failed 30 times before it passed.  L’s client lists property w/realtor, who wanted results of test.  L sends over 7 results: 5 of the unsuccessful tests and 2 of the passing results.  P bought on the contingency of the septic system feasibility.  P found out and backed out of deal (losing cash on closing costs and tests).  She has no connection w/P or L (she went through realtor, so she’s a 3rd party).  She sues L on negligent service to client COA.

·         Normal privity rule would bar her COA.

·         Exception = express agreement related to 3rd party to entice 3rd party to believe a falsehood, w/the intention that 3rd party would rely upon it ® privity bar not imposed then.

·         Duty of L applies to anyone that L knew relied or would reasonably foresee relying upon the false representation.

·         Normally, L will have no duty to a 3rd party; but if you do owe a duty, then you must perform it correctly and accurately.

3.      MR 2.3 – Evaluation for Use by Third Persons

(a)   L may undertake an evaluation of matter affecting a client for use by 3rd party (someone other than client) if:

(1)   L reasonably believes that making the evaluation is compatible w/other aspects of L’s relationship w/client, and

(2)   client consents after consultation.

(b)   Except as disclosure is required in connection w/report of evaluation, info relating to the evaluation is otherwise protected b/ MR 1.6.

4.      3rd party privity bar doesn’t prevent other liability COA’s (DTPA, etc.)

G.    Discipline, Duty to Report, Supervision

1.      Discipline

a.      Purpose of Discipline – Remedy for professional failure.  Unlike malpractice, discipline vindicates the public’s interest in preventing unethical behavior.

b.      Methods of Discipline (from most severe to least)

1)      Disbarrment – most harsh.  TX will let you reapply after a time, but other states won’t.

2)      Resignation in lieu of Disbarrment – done “voluntarily” and does not go through the formal proceedings of disbarrment.

3)      Indefinite Disability Suspension – E.g., from drugs, booze.  When L can no longer function.  Indefiniteness relates to the amount of time it takes for you to recover.  Can go to TX Lawyer’s Assoc., or State Bar.

4)      Supervision for Certain term – when L’s usually suspended, they work as clerks or paralegals. 

5)      Partial Suspension – when suspended, it may be all or partly reduced.

6)      Interim Suspension – suspended while authorities check out claims.

7)      Public reprimand – tells who did what in public forum, but no consequences other than that.

8)      Private reprimand – situation published, but w/out names, in an effort to educate others on what not to do.

c.      Other Methods of Discipline

1)      Make L provide restitution

2)      Make L pay for cost or proceedings against themselves (fees, costs)

3)      Fines

4)      Additional CLE courses, ethics classes

d.      Purposes of Discipline Rules

1)      Protect and vindicate public’s trust in law

2)      Protect integrity of the legal system

3)      Deter unethical practices in the future

4)      Rehabilitate offenders

·         What’s not listed?  Punishing offenders; this is not a criminal matter.

·         Courts will look at mitigating factors where they exist (L had no prior bad acts, etc.) when making a particular disciplinary decision.

e.      Types of actions that will get you disciplined

1)      In re Warhaftig – L invaded his client’s trust account to collect his fees.  He would have received them anyway.  This is a huge violation of loyalty and trust, and since it was a trust, there is a fiduciary obligation, which was breached.  L got a public reprimand.

2)      In re Austern – L facilitated his client’s fraud by accepting a check that was NSF.  L does nothing, but hold the check in escrow w/agent w/o letting anyone know truth.  When client eventually paid, check cleared, and no one was hurt.  Is this a substantial violation?  Yes, b/c L was assisting fraud.  That the outcome was not harmful is irrelevant.  L got censured. 

3)      Overbilling and seeking reimbursement for expenses that never occurred (e.g., charging $1 for a 3¢ copy. 

2.      The Lawyer’s Private Life

a.      The Model Rules of Professional Conduct follow you around in daily life, not just in the office.

b.      When can L be sanctioned outside the office?

1)      Drug use

2)      Domestic violence

3)      Tax crimes

4)      Sex w/clients

c.      MR 8.4/TX 5.08 – Misconduct

                  It is professional misconduct for an L to:

(a)   knowingly violate or attempt to violate the MRs, knowingly assist another in doing so, or to do so through acts of another;

(b)   commit a criminal act  that reflects adversely on L’s honesty, trustworthiness, or fitness as a L in other respects;

(c)   engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(d)   engage in conduct that’s prejudicial in the administration of justice;

(e)   state/imply an ability to influence improperly a govt. agency/official;

(f)     knowingly assist judge/officer of ct. in conduct that’s a violation of the applicable rules of judicial conduct.

3.      Racist and Sexist Conduct

a.      Matter of Jordan Schiff – young L (3-yrs. experience) made sexist remarks to other L in deposition.  When he left, his supervising attorney came in an picked up where he left off.  Bad behavior is learned behavior.  If mentor condones actions, then he breaches MRs too.

4.      Reporting Professional Misconduct

a.      MR 8.3 – if L has knowledge of another L’s commission of violation of the MRs that raises a substantial question as to the L’s honesty, trustworthiness, or fitness as an L, then the L shall report the other L’s conduct to appropriate professional authority.

b.      Rule also applies if L has knowledge of judge doing same thing.

·         Most people will say that any knowledge of another L’s violation of MRs doesn’t rise to the level where it raises a substantial question of L’s honesty.

·         Remember – if the info. possessed is confidential, then can’t report it.

·         Trick = does the info. possessed by L raise a “substantial” question about other L’s honesty, trustworthiness, or fitness as an L.

·         Most violations of 8.3 result in suspension if the case has aggravating circumstances, but may only result in public reprimand.

5.      Problem – Better Late than Never (p.787)

            Your supervising attny. asks you for a copy of your billing hours for the last 2                                  months, b/c she has failed to fill them out.  Firm recently put out a memo to                                     clients to make sure that firm would do billing records contemporaneously.                             What should associate do?

·         This raises a fid. duty – partner wants to breach one to client.

·         Firm will likely want to know, and state grievance committee will definitely want to know as well.

·         Does this rise to the level of 8.3 (i.e., raise a substantial question about partner’s honesty, trustworthiness, and fitness as an L)?  Probably enough to make associate report.

·         May be enough to go to the managing partner; this doesn’t mean that he shouldn’t report it to the grievance committee ® that is who duty is owed.

·         There are no defenses to breaching this duty in a grievance committee; only mitigating circumstances (e.g., had a compulsion to steal).

 

XII Attorney Speech

A.      Public Comment

1.      L’s have the right to public speech/comment that regular citizens have (professor may speak out on an issue if it’s relevant to the class topic).

2.      2 times that Speech will be limited

a.      L can’t publicly comment on his own cases during the pendency of the case, except where it is allowed in MR 3.6 (situations where L can speak. i.e., what person is accused of, what next steps are & assistance you may need).

·         3.6 forbids making stmts. where there is a substantial likelihood of prejudicing the proceeding ® Public may make up their mind beforehand, or jury hears things that can’t legally be admitted into ev.

·         Sometimes may be allowed to speak out on behalf of client where someone else (other party, cop) has set up undue prejudice, and L is trying to mitigate/balance that stmt. out w/the truth.

b.      L not allowed to make false and reckless accusations about Judges.

·         Some judges are more sensitive than others.

3.      There are cases when Just Speech by L will lead to criminal convictions (e.g., contempt, hindering prosecution).

4.      Prosecutor may be making such stmts., but they also have a duty to not prejudice proceedings.

a.      MR 3.8 – special obligations on prosecutors to prevent those under him from making these kinds of stmts.

b.      Prosecutor also has a duty that D L doesn’t have – not to make stmts. that heighten public awareness that will condemn the accused.

5.      These rules haven’t stopped L’s from making speeches – judges may issue gag orders to prevent L’s from speaking, w/the threat of jail time.  May be better (L’s can say they were prevented from speaking, rather than not making voluntarily.

6.      Gentile v. State Bar - D L was making statements that he thought were OK (comments that there are 2 sides to stories, his client was innocent and the proceedings shouldn’t be happening).  NV authorities disagreed and said he was trying to influence the public by his statements, even though it was 6 mo. before trial. 

·         Rule = not supposed to make such statements that may influence the public, b/c the effects might happen, not that they didn’t or won’t happen.

·         S.Ct. got him off b/c the NV rule was vague, and his sanctions were removed, but didn’t say that his actions were OK.

7.      Outsiders who make comments (outsiders to the proceedings)

a.      There is no rule against this happening.

b.      Wm. Kennedy Smith case – he was accused of rape.  Kennedy clan alleged that the rape victim suffered from mental disorders that caused her to make up the charge, and this was printed in NY Times.  Public opinion was probably turned b/c of this.  No rule against this being done, even though there was a gag order on both parties.

B.     Public Comment about Judges and Courts

1.      When L’s make false and reckless comments about judges, they get busted for offending and disrespecting the legal system, not the specific judge.

2.      If you have to do it, do it after the legal proceeding is over with.

3.      In re Holtzman – DA gave a scathing press statement about what a particular judge said in chambers, according to info. given her by an ADA.  She refused to wait and check the court transcripts to see if it was false, and gave the stmt.  Turns out it wasn’t true, and she was censured for 6 mo.

C.     Advertising and Marketing

1.      Bates – S.Ct. said that ban on L advertising was prevented by 1st and 14th Amends. 

a.      Old rule – had to make contacts yourself.

b.      New Rule – if advertising was truthful, regarding routine legal services, then it was protected.

c.      P argued that the advertising was done to help people find legal services.  AZ Bar said that it would bring an end to the profession.

d.      S.Ct. said that the ad was commercial speech, which is protected by 1st Amend.

e.      S.Ct. also said that there are legitimate state interests in regulating the ads to maintain their truthfulness, so state can do this (e.g., claiming to be an expert in an area, then you better be one, or you’re required to say otherwise).

2.      Ohralik v. Ohio State Bar - P decided to do his advertising in person, so he solicited people directly at hospitals.

·         Ct. said this type of solicitation will lead to statements that can’t be monitored, so this type of solicitation is banned by L or his agents.

·         Exception – L can directly solicit clients to sue along w/a non-profit organization, if L belongs to the org.

·         Main fear about this type of solicitation = L’s are too damn persuasive, and they’re catching these people at their lowest/fragile state.

3.      ZaudererTargeted Advertisements – L placed an ad in 36 newspapers publicizing his willingness to represent women who had used the Dalkon Shield IUD.  The ad also gave a form of legal advice, which ct. didn’t like, b/c client’s can’t tell if it’s BS or not. 

·         No rule about putting legal advice in ads, but it better not be misleading.

·         False advertising about fee agreements will get you busted (e.g., no cost if you don’t win – was bogus, b/c still responsible for court costs).

4.      Targeted Mail – can state prevent L’s from sending solicitations by mail to persons known to need legal assistance (i.e., get lists of people in bankruptcy if you are a bankruptcy L).

a.      Shapero – State claimed that the mail harassed people.  FL (very consumer-friendly state) passed state law outlawing the practice – said that there must be a mandatory waiting-period.  Exception = criminal D’s need such info. immediately.

b.      Internet – unsettled law whether or not if you advertise in a state you are bound to follow the rules in the state where the message originated, or in the state where it was received (Gen. rule = have to follow laws in both states; can’t be a ban on such marketing in either states).  This means that there must not be a law against it anywhere, b/c internet has no boundaries.

c.