Different Roles of the Lawyer Flashcards
Can an attorney evaluate a client’s affairs for a third party?
Is the info confidential?
Yes as long as doing so is compatible with other responsibilities to the client. (duties would not be compatible if client requests a candid evaluation of their business and the lawyer is also defending them in a bet the company lawsuit)
Yes, info is confidential
The client hires attorney to evaluate client’s affairs for the benefit of a third party. Can the attorney send the report to the third party?
If there is no significant risk to the client, then yes, disclosure is impliedly authorized.
If the contents of the report could materially harm the client, the client’s informed consent is required before disclosure (duty of confidentiality at play)
^Of course this does not apply if a client hires attorney to investigate a third party and then report back to client
What is the relevant question in determining how far an attorney can “puff” in negotiation?
Could the other party reasonably rely on the puff?
Lawyer acts as a third party neutral and then leaves the matter and wants to come back as a lawyer for a partisan. Allowed?
Only if all parties consent
What are some responsibilities of prosecutors?
1) Have probable cause
2) ensure the accused is advised of right to counsel and how to get counsel
3) ensure the accused is given opportunity to get counsel
4) Don’t attempt to get them to waive pretrial rights
5) Disclose evidence favorable to defendant (“Brady Rule”) or information that may mitigate punishment
6) Not subpoena other lawyers to give evidence about clients unless evidence is essential, not privileged and cannot be obtained any other way
Prosecutor hears of evidence tending towards innocence, what is the ethical responsibility?
New evidence of innocence that creates a reasonable likelihood of wrong conviction, then MUST disclose, even if in other jurisdiction.
If clear and convincing evidence of innocence, then MUST try to remedy if conviction is in own jurisdiction.
Under what two circumstances can a prosecutor make public statements that would heighten the public condemnation of the accused?
1) There is a legitimate law enforcement purpose
2) to inform the public of the nature and extent of the prosecutor’s actions
I’m about to go testify in a non-adjudicative proceeding. What are my ethical responsibilities?
Disclose if you are appearing on behalf of a client (but don’t need to identify the client)
(Rules about not lying, disrupting, false evidence, still apply even if non-lawyer’s doing the same work do those things)
What are the RPC rules for course who learns that someone in the organization has violated a duty or law that may cause substantial harm to the organization?
- MUST report inside the organization (if necessary MUST escalate internally up to the audit committee of the board)
- if no action internally in response, MAY report outside of the organization if reasonably believe reporting is necessary to prevent substantial injury to the organization
Go GC->CEO->Directors->Govt
(No authority to report wrongdoing even if internally non-responsive if hired to investigate internal wrongdoing)
What are the SOX rules for duty to report?
- Only apply to securities lawyers (represent an issuer of securities and practice before the SEC or advise on SEC documents)
- MUST report credible evidence of material violations of federal or state securities laws or fiduciary duties internally to the Chief Legal Officer (or CEO)
- CLO must investigate and if violation found then “appropriate response” is required
- If securities lawyers believe the response is not appropriate, lawyer MUST go to audit committee, outside directors, or entire board and MAY go external to SEC to stop a violation, remedy an injury, or prevent perjury
If a counterpart in a negotiation is lacks knowledge of key facts that are really important and, is there a duty to correct the misapprehension even if the lawyer did not cause it?
Yes - e.g. key witness died in the middle of settlement negotiations; prosecutors office accidentally destroyed key evidence of defendant’s innocence
Is there a conflict when a partisan arbitrator later becomes a lawyer for the party they were a partisan for?
No
What is a key constrain on prosecutors when making public statements about pending matters?
Don’t make extrajudicial statements that have a “substantial likelihood of heightening public condemnation of the accused” unless…
1) necessary to inform public of nature and extent of prosecutors action + serve legit law enforcement purpose
^Prosecutors must also take reasonable care to prevent investigators, police, employees from making such statements also
I’m about to testify in a non adjudicative proceeding. I know the two normal duties are to disclose if there on behalf of a client and the duty of candor/respect.
When do those duties not apply?
1) When a lawyer represents a client in bilateral negotiations with the government
2) In an application for a license or other privilege
3) When the government is investigating the client’s affairs
4) when the government is examining the client’s compliance with a regular reporting requirement (such as filing of tax returns)
I have an organization as my client, and the org’s interests have just started to conflict with the interests of one of the VPs in the org. What should I do?
- Warn the person that the communications between you and them may not be privileged and advise them to get their own lawyer
