Duties to Non-Clients Flashcards
Puffery vs. false statements of material fact
A lawyer must not make false statements of material fact to a third person.
However, “puffery” is allowed; it includes: (i) estimates of price or value; and (ii) statements of a party’s intentions as to settlement.
Communicating with a person who is represented by counsel
In the course of representing a client, a lawyer must not communicate about the subject of the representation with a person they know to be represented by counsel in the matter unless:
1. the person’s counsel has granted permission
2. the lawyer is authorized by law or court order to make direct communication
In CA: rule doesn‘t prohibit lawyer from speaking w pub. official
The rule does not prohibit;
1. conversations on topics unrelated to the matter
2. communications bw parties (lawyer serves as advisor)
Communicating with represented organizations
California exception applies
A lawyer must get the consent of the org.’s counsel before communicating with a current employee or other constituent of the organization who falls within:
1. a person who supervises, directs, or regularly consults with org. lawyer
2. person has authority to obligate the org. with respect to the matter
3. the person’s act or omission in connection with the matter may be imputed to the org.
In CA: the first category is substituted with a rule that applies to any current officer, director, partner, or managing agent of the org.
Does a lawyer need consent before speaking with former constituents of organization?
Consent is not needed before talking with a former employee.
Communicating with unrepresented person
California exception applies
When communicating with an unrepresented person, a lawyer is subject to the following restrictions:
1. must not state or imply they are disinterested
2. must make reasonable efforts to correct misunderstanding re: lawyer’s role
3. must not give legal advice of person’s interests conflict with client’s interests
In CA: a lawyer cannot seek to obtain privileged or otherwise confidential information that the lawyer knows the unrepresented person cannot reveal w/out violating a duty
Lawyer acting as advocate in a legislative and administrative proceeding
If a lawyer is representing a client in connection with an official hearing or meeting of a government agency or legislative body at which the client is presenting evidence or argument, the lawyer must disclose that the appearance is in a representative capacity.
Does not need to disclose client’s identity.
What must a lawyer do when she receives documents sent by mistake?
When the lawyer knows or reasonably should know that a document was sent by mistake, they must promptly notify the sender so that the sender can take protective measures.
In CA: rule only applies when the receiving lawyer knows or reasonably should know that the writing is privileged or subject to work product protection. The receiving lawyer can only review the document to the extent necessary to determine whether it is privileged.
