2. Special Duties

Question 1

Duty of advocacy?

Answer 1

Lawyers must zealously represent their client’s interests, but must not breach their rules of professional conduct, particularly by virtue of (1) threats; (2) unreasonable delay; (3) non-courteous behavior toward a judge or opposing counsel; and (4) frivolous claims (no legal basis or good faith argument for change to law) vs. CA: no action/defense/position/appeal without probable cause to harass or maliciously injure another

Question 2

Duty to organizations? Include reporting up…

Answer 2

Applies to outside and in-house.

You’re client is the corporate entity - not it’s employees or officers or shareholders - so if any situation might arise where a constituent is discussing an individual interest, adverse to the client, you must inform them you do not represent them.

Wrongdoing: Misconduct discovered i/c/w representation? Report up if likely substantial injury to client and in best interests. Look for violation of agent duty or that could be imputed to the client. ACTUAL KNOWLEDGE (fed) vs. KNOWS/REASONABLY SHOULD KNOW (CA).

E.g. here in CA, even if no one tells me, but something doesn’t feel right…

If fails - report out you become aware of conduct etc. that might make the company susceptible to injury (financial or otherwise) you have a duty to report up.

Question 3

Supervisors and junior lawyers - what are the rules?

Answer 3

The firm itself needs to develop policies and procedures that protect against junior lawyers breaching professional duties, and around conflicts, confidentiality and matters of diligence - i.e., deadlines etc.

A junior lawyer, complying with a supervisor’s instructions that might trigger consideration of a professional responsibility, but seems borderline okay, will only expose the supervisor to discipline - whereas if actual knowledge of the breach, junior is subject to discipline too.

A senior lawyer, who becomes aware of a junior’s conduct that may breach a rule, must take action to prevent it, or if it’s occurred, they have to reasonably try to mitigate.

Question 4

Essential duties as a counselor to your client?

Answer 4

Your duties are to be candid and use professional judgment to protect their interests. Being candid means explaining fully the law, negative precedent, impact on proposed arguments and risks associated with certain tactics/positions. But you also need to use your professional judgment to guide them in their conduct (conforming with the law) and you must have a good faith belief that the advice is in their best interest.

This relates to legal matters and precedent, but also matters of financial/other significance that are related.

Question 5

Duies as a third party neurtal?

Answer 5

You must clarify that you don’t represent any unrepresented person.

Prohibited - after acting as 3rd party neutral - to later represent any party in connection with the matter, without informed written consent of all parties.

Question 6

How/when do you report out?

Answer 6

CA: never (but if fed law requires, you comply, you’re protected by “federal preemption”

Fed: if reporting up fails this is permitted/not required
- failure to prevent clear law violation
- reasonable belief
- reasonably certain
- substantial injury client will occur (only disclose to the extent to prevent injury)

Question 7

Supervisor duties - what must the firm do?

Answer 7

Reasonable policies and procedures
- Detect/resolve conflicts
- Track dates for action in pending matters
- Account for client funds
- Ensure inexperienced lawyers are supervised