Duties to Third Parties Flashcards
Truth-Telling Outside the Court Context
Lawyers have a duty to refrain from making a statement that is…
False AND Material
In a negotiation setting, some statements might be considered misleading or even false, but
they are part of negotiation tactics. But they may not be false AND material
Respect for the Rights of Third Persons
- Under the Model Rules, a lawyer is prohibited from using means that have no purpose other than to embarrass, delay, or burden a third person.
In Virginia,…
a lawyer is prohibited from using means that have no substantial purpose other than to embarrass, delay, or burden a third person
Respect for the Rights of Third Persons
What type of means may a lawyer obtain evidence from a witness?
lawful means
Respect for the Rights of Third Persons
Lawyers are prohibited from engaging in live contact investigations with…
Prospective jurors
Inadvertant Disclosure
In Virginia, a lawyer receiving an inadvertent disclosure is required to…(3)
- Notify the sender;
- send it back; and
- abide by the instructions of the sender
Communicating with Represented Parties
No-Contact Rule—
Prohibits a lawyer from having contact with a represented opposing party without first getting permission from the party’s lawyer
Communicating with Represented Parties
No-contact rule and witnesses?
Witnesses are not included in this rule, even if their testimony is helpful to one side or the other.
Except when the represented party is an organization and one of the following is a witness:
1. Employees with managerial responsibilities for the subject of the matter;
2. Employees whose acts or omissions may be imputed to the organization; and
3. Employees whose statements may constitute an admission attributable to the organization
But the no-contact rule does not apply to former employees or agents of the organization; an attorney may communicate ex parte with a former employee or agent.
Communicating with Unrepresented Parties
When communicating with unrepresented parties, a lawyer is under an what to what? Effect? Other prohibition?
affirmative obligation to refrain from stating or implying that the lawyer is disinterested in the matter. Any effort to mislead an unrepresented person about the lawyer’s interest subjects the lawyer to discipline.
Lawyers are prohibited from giving legal advice to the unrepresented persons, except to advice them that they should get a lawyer
Lawyer Leaving Firm
Rules for what lawyer and firm must do when lawyer departs?
In Virginia, the departing lawyer and the firm must negotiate a joint communication to the client asking whether the client wishes to go with the departing lawyer, stay with the firm, or seek new representation.
If firm and lawyer fail to agree on a statement, the lawyer and firm may each separately communicate with the client
If client does not respond, the default is that the client stays with the firm
Civil Liability to Third Parties
when does it arise? duties owed?
Happens when a lawyer’s work for a client is intended to benefit a third person or the lawyer’s work specifically invites reliance of a third person.
Lawyer owes a duty of care to that third person and breach of the duty may result in liability
The lawyer is setting up a trust on behalf of a client for the benefit of a third party. The lawyer botches the transaction and the beneficiary loses the money that was intended by the client. The client AND the third party may have malpractice claims against the lawyer.
