Different Roles of Lawyer Flashcards
Giving Advice other than legal advice
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. This can include moral, economic, social, and political factors that may be relevant to the client’s situation even when client doesn’t ask
Evaluation of a matter for use by third persons (counselor)
A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.
When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.
Lawyer as Negotiator
A lawyer must not make a false statement of material fact to a non-client, and this includes statements in settlement negotiations. However, under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact such as estimates of price or value –> mere puffery is OKAY
Prosecutor disclosing evidence to the other side if it doesn’t help your case
A prosecutor must timely disclose to the defense all evidence and information known to the prosecutor that tends to negate the guilt of the accused or mitigate the degree of the offense. This is true even if the defense could have obtained such evidence themselves
Prosecutor preventing disclosure of information that would prejudice a trial, even if the info would help them
A prosecutor is subject to the general rule against making statements that are likely to prejudice a trial. Furthermore, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, a prosecutor must not make extrajudicial statements that have a “substantial likelihood of heightening public condemnation of the accused.” A prosecutor also must take reasonable care to prevent investigators, police, employees, and others assisting in a case from making statements that violate these rules.
Prosecutor’s duty to disclose evidence of wrongful conviction
When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood of wrongful conviction, the prosecutor must promptly disclose that evidence to appropriate court or authority
And if conviction was obtained in prosecutor’s jurisdiction, promptly disclose evidence to defendant AND undertake further investigation, or make reasonable efforts to cause an investigation
Lawyer appearing in behalf of client before legislative body or administrative agency
the lawyer must disclose that she is acting in a representative capacity (not on her own behalf), but she isn’t required to identify the client.
Duties as an organization’s lawyer if presented with a conflict of interest
When an organization is the lawyer’s client, the lawyer owes their duty of loyalty to the organization—not to the people who are its constituents. Can proceed representing an org and one of its managers only if conflict rules are satisfied: need informed consent + in writing.
Duties of an organization’s lawyer if they believe something the org has done will cause substantial injury
Must report up the chain of command, if they do nothing then the lawyer MAY report the relevant information to appropriate persons outside of the organization if the lawyer reasonably believes that reporting is necessary to prevent substantial injury to the organization. This is true even if the information would otherwise be protected by the duty of confidentiality.
Exception of duties of an organization’s lawyer if they believe something the org has done will cause substantial injury
the authority to report to outsiders does not apply to a lawyer who is hired by the organization to investigate an alleged violation of law or to defend the organization or its constituents against a claimed violation of law.
Securities Lawyer Reporting
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”). 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. Only after that, then the lawyer MAY go to the SEC
