8. Different Roles of the Lawyer Flashcards
duties for lawyer as advisor
1) be CANDID.
2) you can give advice on ANY topic related to your client’s needs (regardless of whether client asks)
duties for lawyer’s review of client assets for 3P
1) be HONEST.
2) you can evaluate affairs so long as there’s no significant risk to 3P—impliedly authorized.
3) BUT if it’s harmful, you have to get client’s informed consent before disclosure.
duties for lawyer as negotiator
1) don’t lie about material facts, but you don’t need to volunteer harmful facts (you can “puff”—can exaggerate client’s minimum amount)
duties for lawyer as 3P neutral
1) subject to usual rules of legal ethics, PLUS state-specific rules re: arbitrators, etc.
2) if party is unfamiliar, you HAVE to make clear you’re not REPRESENTING them. Explain further if you think it’s needed (no att’y/client privilege, etc.)
duties for lawyer as prosecutor DURING/BEFORE trial
1) don’t prosecute WITHOUT probable cause
2) must ensure accused is advised of RIGHT TO COUNSEL, PLUS how to get that counsel if desired
3) don’t ATTEMPT to get the accused to waive pretrial rights
4) must DISCLOSE evidence favorable to defendant
5) cannot make public statements that HEIGHTEN public condemnation (UNLESS legit law enforcement purpose, plus anything under general publicity rule)—THIS ALSO MEANS THAT prosecutors have to try to keep sheriffs, etc., from doing the same
6) don’t subpoena other lawyers UNLESS it’s not obtainable any other way
duties for lawyer as prosecutor AFTER trial
1) promptly disclose new, CREDIBLE evidence that casts doubt on conviction (even if it’s re: a case outside of your own state)
2) if clear and convincing evidence of wrongful conviction, MUST TRY TO REMEDY
duties for lawyer in non-adjudicative capacity
i.e. congressional hearing
1) must disclose if appearing on behalf of client/on own behalf
2) NO NEED to ID client, though
duties as in-house counsel
1) duty of loyalty to ORG, not people (unless you’re also PERSON’s lawyer)
2) communications to employees are NOT privileged (again, unless etc.)
3) IF counsel learns that someone in organization violated duty or law that may cause ORGANIZATION substantial harm…DUTY to report inside organization, and then you MAY report out (ONLY IF necessary to prevent damage)
4) HOWEVER, if you were hired to investigate an INTERNAL violation, you CANNOT report out (same when defending country)
SOX summary
If a securities lawyer becomes aware of credible evidence that her client is materially violating a federal or state securities law, she must report the evidence to her client’s chief legal officer (“CLO”). The same reporting duty applies to credible evidence that one of her client’s personnel has breached a fiduciary duty under federal or state law, or has committed a “similar material violation” of federal or state law. If the securities lawyer believes that the CLO didn’t achieve an appropriate response from the client, the securities lawyer must report the evidence to either the client’s board of directors, the audit committee of the board, or a committee made up of outside directors. Note that the Sarbanes-Oxley inside reporting rule is specific, unlike the ethical rule, which requires the lawyer to act to protect the organization but gives the lawyer some discretion on how to proceed and who to report to.
When an appropriate response is not taken, the securities lawyer may reveal to the SEC any confidential information that’s reasonably necessary to: (i) stop the client from committing a violation that will cause substantial financial injury to the client or its investors; (ii) rectify such a financial injury if the lawyer’s services were used to further the violation; or (iii) prevent the client from committing or suborning perjury in an SEC matter or lying in any matter within the jurisdiction of any branch of the federal government. As with the disciplinary rule for organizational lawyers, outside reporting is permitted but not required.
