Ethics Flashcards
Conflict of interest with former clients rule?
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation.
Rule on counseling a client regarding crime or fraud?
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law
When a lawyer knows that a client expects assistance that is impermissible, what shall the lawyer do?
the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.
Can a lawyer engage in crime or fraud on behalf of a client?
No, Virginia Rule 8.4(c) provides, “It is professional misconduct for a lawyer to: … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law….
What is the duty of confidentiality?
Virginia Rule of Professional Conduct 1.6 provides, “A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c)
What shall a lawyer promptly reveal, in exemption of the duty of confidentiality?
A lawyer shall promptly reveal:
the intention of a client, as stated by the client, to commit a crime reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client’s criminal intention unless thereupon abandoned. However, if the crime involves perjury by the client, the attorney shall take appropriate remedial measures as required by Rule 3.3; or
information concerning the misconduct of another attorney to the appropriate professional authority under Rule 8.3. When the information necessary to report the misconduct is protected under this Rule, the attorney, after consultation, must obtain client consent. Consultation should include full disclosure of all reasonably foreseeable consequences of both disclosure and non-disclosure to the client.
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this Rule.
When is a lawyer generally barred from speaking with a represented person?
When the lawyer knows that that person is represented in a matter that the lawyer is involved in.
With respect to organizations and their constituents (employees etc.), who can a lawyer not talk without the organization’s lawyer’s consent?
Comment [7] to Rule 4.2 of the Virginia Rules of Professional Conduct prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
Do you need the organization’s consent to interview a former constituent?
No. “Consent of the organization’s lawyer is not required for communication with a former constituent.”
Are there other limitations that may limit a lawyer’s ability to interview an organizations’ former constituent?
in communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. Comment [7] cross-references Rule 4.4 , which outlines other responsibilities of a lawyer who receives material that is privileged and was inadvertently sent.
How can a lawyer interview a organization’s former constituent who is personally represented in a closely related matter but not this matter and is adverse to the organization (e.g., whistleblower)?
The lawyer must obtain the consent of the former constituent’s personal lawyer in order to talk about the matter even though the constituent is not a party to the formal proceeding.
Rule 4.2 covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question. Neither the need to protect uncounselled persons against being taken advantage of by opposing counsel nor the importance of preserving the client-attorney relationship is limited to those circumstances where the represented person is a party to an adjudicative or other formal proceeding. The interests sought to be protected by the Rule may equally well be involved when litigation is merely under consideration, even though it has not actually been instituted, and the persons who are potentially parties to the litigation have retained counsel with respect to the matter in dispute.
Can a lawyer talk to a represented person without the person’s attorney consenting about matters unrelated to the matter?
Yes “This Rule does not prohibit communication with a represented person, or an employee or agent of a represented person, concerning matters outside the representation.”
If a person represented in the matter in which you are representing someone volunteers to communicate with you, what must you do?
A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule. A lawyer is permitted to communicate with a person represented by counsel without obtaining the consent of the lawyer currently representing that person, if that person is seeking a “second opinion” or replacement counsel.
Whose consent must a lawyer receive in order to talk to a party to the matter who is a current constituent of a represented organizational party and who has their own personal attorney representing them in the matter?
The organization’s counsel and the person’s personal attorney.
If a represented person volunteers privileged information, what then?
Your duty to communicate with your client regarding that information is subdued to the respect for the other party’s rights. You may have to disclose this to the other person’s lawyer and comply with Rule 4.4.
comment 3 to Rule 4.4: “Preservation of lawyer-client confidences is such a vital aspect of the legal system that it is appropriate to require that lawyers not take advantage of a mistake or inadvertent disclosure by opposing counsel to gain an undue advantage.
See LEO 1702. This means that the lawyer is prohibited from informing the
lawyer’s client of relevant, though inadvertently disclosed, information, and that
the lawyer is prevented from using information that is of great significance to the client’s case. In such cases, paragraph (b) overrides the lawyer’s communication duty under Rule 1.4. As stated in Comment [1], diligent representation of the client’s interests does not authorize or warrant intrusions into privileged communications.”
I would argue against it because the a-c privilege is waivable by the client
