3.10 Communications with Others Flashcards
TRUTHFULNESS TO THRID-PARTIES
There are legal and ethical limits to what you can say in representing a client.Intentional Misstatement of Material Fact = Fraud | Illegal for EVERYONE
AUTHORITY TO NEGOTIATION = Agency
Reasonably Consult with the Client about the Means
SHALL Explain to the Extent Reasonably Necessary to Permit Informed Decision
MUST PROMPTLY Inform Settlement Offers UNLESS Expressly Given Authority to Withhold or Act on Certain Information
SHALL NOT KNOWINGLY MAKE FALSE STATEMENTS OF MATERIAL FACT
There is some room for puffery, but
- Depends on the circumstances AND
- CANNOT Misrepresent Material Facts = Fraud / CANNOT Violate the Law / CANNOT Lie
Lawyers are not held to a higher standard, but everyone is held to this standard.
NOTE: Misrepresentations are made sometimes (i.e. undercover investigations, both government criminal investigations and private civil rights investigations), Ethically Questionable but Legally Allowed
NOTE: Legal exceptions do not apply to illegal actions (i.e. private investigations committing criminal trespass)
SHALL NOT FAIL (Shifts Language to Requirement) TO DISCLOSE MATERIAL FACT
Necessary to Avoid Assisting in Criminal or Fraudulent Act
NOTE: Question surrounding to what extent lawyer is involved, 1.6 language refers to clients use of lawyers services to commit
UNLESS Disclosure Prohibited by 1.6
MAY Disclose
- To prevent crime or fraud, Reasonably Certain, Substantial Injury
- To prevent mitigate or rectify substantial injury
RESPECT FOR RIGHTS OF THIRD PERSONS
SHALL NOT USE MEANS
- No Substantial Purpose But to Embarrass, delay, or burden
- Obtain Evidence in Violation of Legal Rights of Others
SHALL: Promptly NOTIFY (It Does Not Say Return, They have to go to Court and Get an Order for Return based on Ruling on Waiver of Privilege) Documents Knows / Reasonably Should Know Inadvertently Sent (Including Metadata)
NOTE: This is about privileged information a lawyer should automatically recognize as privileged, it is different for information that is covered by a confidentiality agreement between two other parties.
COMMUNICATION WITH THIRD-PARTIES (REPRESENTED PERSONS)
SHALL NOT Communicate about the subject of representation with a person lawyer KNOWS to be represented by another lawyer in the matter
UNLESS Other Lawyer Consents, or Authorized by Law or Court Order
- Applies Even If Represented Person Initiates Communication
- Must Terminate Immediately, but
- May Tell Third-Party to Contact Client Directly
However, Parties May Speak Directly AND You May Advise Your Client as to that Conversation”
COMMUNICATION WITH THIRD-PARTIES (REPRESENTED) ORGANIZATIONS
“Prohibits Communications With Constituents Who-Supervise or Directs or Regularly Consults With Organizations Lawyers,
OR-Those who can obligate the organization (authority to settle the matter),
OR-People Whose Act or Omission May Be Imputed to Organization for Purposes of Liability
Does NOT Prohibit Communication Without Consent
- Former Constituent of the Organization
- However, cannot ask them about privileged communications
- However, must consider whether that constituent is independently represented by a lawyer in the matter.”
COMMUNICATION WITH THIRD-PARTIES (REPRESENTED) GOVERNMENT
RULES = Complex and Slippery Cannot infringe on the constitutional right (federal or state) to communicate with government
May seek court order to authorize communication (i.e. for government to talk to a potential states witness represented by criminal organizations counsel)
Otherwise Communication is Subject to Same Protections
COMMUNICATION WITH THIRD-PARTIES (UNREPRESENTED)
“SHALL NOT
- State or Imply Lawyer is Disinterested
- Give Legal Advice EXCEPT To Seek Counsel IF Know or Should Know Interests are Adverse
SHALL When Knows or Reasonably Should Know Role Misunderstood
- Make Reasonable Efforts to Correct Misunderstanding
- Typically, need to explain who the client is and when necessary that the client has adverse interests”
EVALUATION IS FOR USE BY THIRD PARTY
“Allowed IF Reasonably Believes
- Making Evaluation is Compatible with Lawyer-Client Relationship
- Legal Duty May Or May Not Arise
Remember Professional Discipline Different Than Liability
-This is classic conflict of interest situation because you are inviting the third-party to rely on your advice.
Matter of Professional Judgment to Ensure Evaluation Compatible with Representation”
SHALL NOT Disclose Materially Adverse Information WITHOUT Informed Consent
- Get Consent of the Client as to the Process (Must Do Own Investigation) = Consent to Investigation AND
- Get Consent of the Client as to the Fact that You Must be Truthful in Your Disclosure = Consent to the Disclosure of the Investigations Results | REMEMBER Disclosures and Waiver of Privileges
Disclosure of Information to Third-Party May Have Waived Privilege, BUT It Is LIMITED
Confidentiality Outside of Limited Authorization RemainsIf you do not actually disclose, Privilege Remains As Well
CONSIDERATIONS
Scope of Representation, Communication, Disclosure of Confidential Information (Requires Express Authorization), Conflicts of Interest
