Legal Pro Flashcards
1st Amend. Protection of Lawyer Advertising: Central Hudson Test
protects commercial speech that concerns lawful activity.
regulation upheld only if:
1. asserted gov interest is substantial
2. regulation directly advances that interest
3. regulation is no more extensive than necessary to serve that interest
Ad: A communication is false or misleading if
it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading
Common Interest Privilege (A-C)
If you have multiple parties in a lawsuit with different attorneys, the disclosure of communication between them is privileged, it’s not a waiver of attorney-client privilege or work product
Lawyer shall not seek to avoid appt by a tribunal to represent a person except for
good cause such as:
client or cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or lawyer’s ability to rep a client
Advisor (2.1)
In representing a client, a lawyer shall exercise independent professional judgment & render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social & political factors, that may be relevant to the client’s situation. (ex: informing client of forms of dispute resolution that = reasonable alt to litigation)
Requirements for Admission to Practice
- Completion of ABA approved law school
- Pass the bar
- “Good Character”
“Collaborative law practice”
parties & their lawyers commit, via a “4-way” agreement, to work cooperatively to reach a settlement outside of court. Lawyers agree to withdraw & not represent their clients in litigation if negotiations break down.
This is consistent w/ limiting scope of rep & doesn’t pose a conflict of interest
Lawyer may limit scope of rep if
it’s reasonable under the circumstances & client gives informed consent
Nonlawyers practicing law
practice of law usually restricted to lawyers.
Exception: natural persons directly affected may handle their own legal probs by representing themselves (pro se).
Lawyers may counsel those who wish to process pro se.
But lawyers are prohibited from providing legal services in combination with nonlawyers.
Lawyer may advertise services through written, recorded or electronic communication, incl. public media.
Subject to these requirements:
- lawyer shall not make a false or misleading communication about the lawyer or his services.
- must incl. name & office address of at least 1 lawyer or law firm responsible for its content
Lawyer’s generally may not pay other lawyer’s to refer cases to them, but…
they may enter into a reciprocal referral agreement and pay to participate in certain “qualified” lawyer referral services (lawyer can’t own/direct org, can use in-person or phone to solicit people who aren’t known to need legal services in a particular matter)
Lawyer shall not by in person, phone, real-time electronic contact solicit professional employment when a significant motive in doing so is pecuniary gain, unless the person contacted:
- is a lawyer
2. has a family, close personal, or prior professional relationship w/ the lawyer
lawyer shall not solicit professional employment by written, recorded or electronic communication or in person, phone or real time electronic contact even when not otherwise prohibited, if:
- target of solicitation has made known to lawyer a desire not to be solicited by lawyer; or
- solicitation involves coercion, duress, or harassment.
lawyer shall not provide fin assistance to a client in connection w/ pending or contemplated litigation, except that:
- can advance ct expenses of litigation, repayment may be contingent on outcome
- lawyer rep poor client may pay ct costs on behalf of client
Protects against conflicts of interest. Also supports against champerty, maintenance & barratry
Market/K Model
mutually beneficial exchange with relatively equal bargaining power
Fiduciary Model
Client dependent upon lawyer’s skill/knowledge. Bc client cannot evaluate or monitor quality of legal services, client must trust lawyer.
Participatory Model
variation on fiduciary
Lawyer power/control/paternalism/ elitism & manipulation imposed on a passive deferential/obedient client. Lawyer deprives client of effective choice by controlling flow of info
Regulatory/Public Utility Model
lawyer as quasi-public official performing important public functions which greatly affect parties outside lawyer-client relationship.
favors regulating relationship to protect professional/public values. lawyer trying to guide client along morally/legally acceptable path.
Fee Arrangements
- Flat - one price
- Hourly
- Proportional - get a part/% of purchase/sell price
- Contingent - fee paid if particular result obtained
Lawyer shall not make agreement for/charge/collect an unreasonable fee. Factors to consider when determining a reasonable fee:
- time/labor required, novelty/difficulty of Qs, skill needed to perform service properly
- the likelihood, if apparent to client, that acceptance of the particular employment will preclude other employment by the lawyer
- fee customarily charge in area for similar service
- amount involved & result obtained
- time limitations imposed by client or other circumstances
- nature & length of professional relationship w/ client
- experience/reputation/ability of lawyer
- whether fee is fixed or contigent
Special Retainer
- advance payment for performance of specific work to be charged against it. considered prop of client until earned.
- lawyer shall deposit advance fees into client trust acct, withdrawn by lawyer only as fees are earned/expenses incurred
- lawyer must return any unearned portion
General Retainer
- advance payment deemed earned when received (doesn’t matter if client calls on lawyer to work)
- gen enforceable if it’s reasonably comparable to income lawyer sacrifices/expense incurred by accepting it
Contingent fee agreement needs to be:
- in writing
- signed by client
- states method that’ll determine fee
Contingent fee agreement must incl:
- % lawyer gets in event of settlement, trial, or appeal
- litigation & other expenses to be deducted from recovery
- whether such expenses will be deducted before or after contingent fee is calculated
- expenses for which client will be liable
Contingent fee agreement not allowed in these cases:
- domestic relations like divorce & custody. (but once it’s over you can use contingent fee for recovery of post-judgement balances due under support, alimony, etc.)
- rep a ∆ in crim case (rest. extends to prosecution of crim cases too)
Quantum meruit
If a lawyer gets fired before he finishes the job, the modern approach is that the lawyer still gets paid for the reasonable amount of work that they have completed regardless of the reason why they got fired
flat fees paid to insurance lawyers
lawyer’s can’t contract w/ insurance co to rep all of company’s insured for flat fee bc
- it materially limits rep w/o client’s informed consent &
- allows one paying for another’s legal services to interfere w/ lawyer’s independent judgement
Stranger Rule (business transaction)
lawyer who enters into business transaction w/ a client must give client same legal advice/guidance as would be give by lawyer who is a stranger to the transaction
lawyer shall not enter into a business transaction w/ a client unless:
- transaction & terms = fair & reasonable to client & are fully disclosed & in writing in a way the client can reasonably understand
- client is advised in writing of the desirability of seeking & is given reasonable opportunity to seek advice of independent legal counsel on transaction; AND
- client gives informed consent, in writing signed by client, to the essential terms of transaction & lawyer’s role in it
Contracting with a Client for Right to a Client’s Story
lawyer may not enter into an agreement, prior to end of rep, that gives lawyer the literary or movie right to client’s story if the rights are based on a substantial part on info relating to the rep. Prohibition ends with rep. Lawyer must get client’s informed consent to waive confidentiality & comply w/ ordinary conflict rule
Lawyer Withdrawal (Mandatory)
- rep will result in violation of rule or other law
- lawyer’s phys or mental condition materially impairs his ability to rep client
- lawyer is discharged (client can do this anytime w or w/o good cause)
Lawyer Withdrawal (Permissive)
- w/drawal can be accomplished w/o material adverse effect on interests of client
- client persists in a course of action involving lawyer’s services that lawyer reasonably believes is crim or fraudulent
- client has used lawyer’s services to perpetrate a crime or fraud
- client insists upon taking action lawyer considers repugnant or which lawyer has fundamental disagreement
- client fails to substnatially fulfill an obligation to lawyer re: services & has been given reasonable warning the lawyer will w/draw unless obligation is fulfilled
- rep will result in unreasonable fin burden on lawyer or has been rendered unreasonably difficult by client
- other good cause exists
discharge in litigated proceedings
approval of tribunal required (criminals may use this as a tactic to delay proceedings). when ordered by tribunal, lawyer has to keep representing notwithstanding good cause for termination.
Upon termination of rep, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as
- giving reasonable notice
- allowing client time to hire another lawyer
- surrendering papers & prop the client is entitled to
- refunding any advance payment that hasn’t been earned
- lawyer may retain papers relating to client to extent permitted by other law
Actual Authority
actual - can be express, implied, or inherent. exists when client through words (express) or deeds (implied) causes agent to reasonably believe she has authority to act.
Inherent Authority
flows from legal rules delegating authority on some matter to the lawyer independently of client consent
Gifts from Clients
[diff from business transaction bc it’s transfer of a thing of value w/o consideration]
Lawyer shall not solicit any substantial gift from a client (incl a testementary gift) or prepare on behalf of client an instrument giving lawyer or a person related to lawyer any substantial gift unless lawyer or recipient is related to the client. client consent doesn’t overcome this.
lawyer may accept gift if transaction meets gen standards of fairness but doctrine of undue influence may make gift voidable.
Handling Prop of Clients & Others - “Segregation Requirement”
lawyer must hold client’s prop separate from his own. violation even lawyer mixes negligently.
funds must be in separate acct in state where lawyer’s office is or elsewhere w/ consent.
lawyer keeps complete record of acct funds/other prop & preserves for 5 yrs after termination of rep.
maintenance of books needs to comply w/ gen accepted accounting practice & rules est by law or court order.
When in course of rep lawyer is in possession of prop in which 2 or more persons (1 of whom may be lawyer) claim interests
prop shall be kept separate by lawyer until dispute is resolved. shall promptly distribute all portions of prop that aren’t in dispute.
Advocate-Witness Rule
lawyer shall not act as advocate at a trial where lawyer is likely to be a necessary witness unless:
- testimony relates to an uncontested issue;
- testimony relates to nature/value of legal services
- disqualification of lawyer would be substantial hardship on client
Competent rep requires
legal knowledge, skill, thoroughness and prep reasonably necessary for the rep.
Usually required proficiency = gen practitioner. Expertise in particular field required in some circumstances.
Novice can provide adequate rep if she engages in necessary study or associates w/ someone of est. competence in the field
Responsibility to Acquire Adverse Evidence (FRCP 35)
a) Upon showing of good cause court may order a party to submit to phys or mental exam
b) Medical report from such exam (or any exam agreed to by parties) shall be supplied to the party examined upon that parties request
when a lawyer solicits employment from anyone known to be in need of legal services in a particular matter
every written, recorded, or electronic communication shall incl. words “advertising material” on outside of envelope and at beginning & end of recorded or electronic comm, unless recipient is lawyer or close/family/prior prof relationship
Lawyer shall act w/ reasonable diligence & promptness in representing a client
means pursuing a matter on behalf of client despite opposition, obstruction or personal inconvenience to lawyer; & taking whatever lawful/ethical measures are required to vindicate client’s cause/endeavor
Lawyer’s duty to communicate
lawyer shall:
- promptly inform client about decisions requiring informed consent
- consult about means to accomplish client’s objectives
- keep client reasonably informed on status of matter
- promptly comply w/ reasonable requests for info
- consult w/ client about limitations on lawyer’s conduct when lawyer knows client expects assistance not allowed by rules
Elements of a legal malpractice claim for negligence
- Duty
- Breach
- Causation
- Harm
In an ex parte proceeding, a lawyer shall
inform tribunal of all material facts known to lawyer that’ll enable tribunal to make an informed decision, whether or not facts are adverse.
definition of “frivolous”
position that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it
Harassment
in representing a client, lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a 3rd party, or use methods of obtaining evidence that violate legal rights of such a person
Test for resolving the tension between client interests & expeditious litigation
whether a lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. realizing fin or other benefit from otherwise improper delay isn’t a legit interest of client
dilatory tactics
lawyer shall make reasonable efforts to expedite litigation consistent w/ the interests of the client
Rule 11 - Safe Harbor Provision
serving the opposing side a sanctions motion 21 days before filing a motion for a sanction to the court in order to give the other side the opportunity to change their pleading or motion
Rule 11 Sanctions
By representing to court a pleading, written motion, or other paper (whether by signing, filing, submitting, or later advocating) an attorney certifies that to the best of their knowledge, info, & belief, formed after an inquiry reasonable under the circumstances:
- pleading/motion not presented for improper use
- claims/defenses/other legal contention aren’t frivilous
- factual contentions have evidentiary support (or will)
- denials of facts are warranted on evidence or are reasonably based on belief/lack of info
doesn’t apply to discovery or crim proceedings
Upon a finding of substantial violation in securities actions (rule 11)
sanctions are mandatory & not dependent on motion from opposing party. safe harbor provision doesn’t apply.
U.S.C. §1927
safe harbor doesn’t apply.
any attorney/person admitted to conduct cases in U.S. who multiplies proceedings unreasonably/vexatiously may be required by ct to satisfy personally excess costs/expenses & attorneys fees reasonably incurred bc of such conduct
communicating fees to client
scope of rep & basis/rate of fee & expenses that client is responsible for needs to be communicated, preferably in writing, before or w/in reasonable time after starting rep.
except when lawyer will charge a regularly represented client on same basis/rate. any changes need to be communicated.
Elements of A-C Privilege
- communication
- made between privileged persons
- in confidence
- for the purpose of obtaining or providing legal assistance for the client
definition of “communication”
A-C
any expression through which a privileged person undertakes to convey info to another privileged person & any doc/other record revealing such an expression.
can be oral, written, or non verbal (rolling up sleeve) as long as it’s relevant to subject matter on which client seeks assistance.
lawyer’s observations don’t count
“made between privileged persons” (A-C)
client (incl. prospective)
client’s lawyer
agents of either who facilitate communication between them
agents of the lawyer who facilitate the rep
“in confidence” (A-C)
if at time & in circumstances of communication, communicating person reasonably believes no one will learn contents of communication except a privileged person
“for the purpose of obtaining or providing legal assistance for the client” (A-C)
incl. any comm made to or to assist a person who:
1. is a lawyer or who client (or prospective) reasonably believed to be a lawyer; and
2. client (or prospective) consults for purpose of obtaining legal assistance
how to invoke a-c
most courts hold client must appear, testify, & invoke. burden is then on client to prove all elements present.
generally not privileged (a-c)
- client’s identity & fee arrangements
- client’s whereabouts
- phys. characteristics
- preexisting docs
exceptions to a-c
- dispute concerning decedent’s disposition of prop
- client crime or fraud
- lawyer self-protection
- disputes in which a trustee or other fiduciary is charged w/ breach of fiduciary duty by a beneficiary
- disputes between reps of an organized client & constituents of the org
biggest justification for principle of client confidentiality
encouragement of client to communicate fully w/ lawyer & seek early legal assistance even about embarrassing matters
Privileged disclosures (A-C)
- Lawyer seeks legal advice for herself on a matter arising out of representing a client
- Statements made in course of settlement negotiations or plea-bargaining are inadmissible to prove liability in subsequent litigation between the negotiating parties
Corps (A-C)
comms between any agent of the org & orgs lawyers concerning a legal matter of interest to the org is privileged if disclosed only to:
- privileged persons
- other agents of org who reasonably need to know of the comm in order to act for the org
current mgmt of corp controls priv on behalf of corp
Waiver of A-C by affirmative reliance
litigant references priv comm to support claim/defense = waiver of relied-upon comm & any priv comm on related subject matter
Waiver of A-C
- consent (disclosure in unpriv setting)
- conduct inconsistent w/ maintaining priv (failure to object to another’s attempt to obtain/provide evidence of priv comm)
Inadvertent disclosure - “claw back” procedure
adversaries agree that inadvertent disclosure will not operate as a waiver as long as the producing party requests return of the doc within a reasonable period of time
Inadvertent disclosure - FRCP 26
permits a party inadvertently producing material covered by privilege or work-product to notify recipient of the material. Receiving party then has obligation not to use/disclose it until a court has had an opportunity to resolve the dispute
Inadvertent disclosure - MR
Lawyer who receives a doc or electronically stored info relating to the rep of a lawyer’s client & know or reasonably should know that the doc was inadvertently sent shall promptly notify sender.
Up to lawyer if they return docs unread. Other law may require lawyer to take other measures
Inadvertent disclosure - FRCP 502
If you took reasonable steps to prevent/rectify disclosure in a timely manner, there’s no waiver of priv in a fed proceeding
Crime-Fraud Exception
A-C Priv doesn’t apply to a comm when a client:
- consults a lawyer for the purpose of obtaining assistance to engage in a crime/fraud or aiding a 3rd person to do so OR
- regardless of client’s purpose at time of consultation, uses lawyer’s advice/other services to engage in or assist a crime/fraud
In camera review
if ∆ accuses π of fraud, judge must conduct an in camera review (judge takes docs in question & reviews them)
crime-fraud exception applies to
ongoing & future crim activity, but not past crimes.
- consultation priv if it addresses how client can rectify illegal act
- fraud considered ongoing until rectified (consequences of fraud have stopped)
Work-Product Doctrine (A-C) - FRCP 26
a party may obtain discovery material that is:
- prepared in anticipation litigation
- only upon showing that party seeking it has substantial need of materials in prep of his case AND
- he’s unable w/o undue hardship to obtain the substantial equivalent of materials by other means
absent extreme necessity, mental impressions of lawyers aren’t discoverable
definition of “informed consent”
denotes agreement by a person to a proposed course of conduct after lawyer has communicated adequate info & explanation about material risks of & reasonable avail. alts to proposed course of conduct
duty of confidentiality: when death/bodily harm may result
lawyer may reveal info relating to rep of a client to the extent lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm
duty of confidentiality: privacy in electronic age
lawyers have obligation to act competently to safeguard confidential obligation.
nothing impermissible about “mining” doc for hidden metadata, even if lawyer knows it was inadvertently sent
Exceptions to confidentiality
- protection of lawyers threatened by claim/charge brought by client or 3rd person (self-defense)
- protection of innocent 3rd parties who are being/may be victimized by client
- prevention or rectification of fraud on the tribunal
duty of confidentiality protects
all info relating to rep whether lawyer learned info before, during or after rep. lawyer shall not reveal info relating to rep unless client gives informed consent, the disclosure is impliedly authorized in order to carry out the rep or (b)
duty of confidentiality: difference between §59 & MR 1.6
lawyer is allowed to talk about the client’s representation if it is generally known
duty of confidentiality begins when
a prospective client seeks lawyer’s advice. doesn’t end when rep ends/client dies.
a former client’s confidences must be kept unless another rules requires/permits disclosure
duty of confidentiality - revealing info to secure compliance w/ MR
lawyer may reveal info relating to rep of a client to the extent lawyer reasonably believes necessary to secure legal advice about the lawyer’s compliance w/ these rules
duty of confidentiality: using info to disadvantage of client
- can’t do it w/o informed consent, except as permitted/required by another section of rules
- lawyer who formerly/present or past firm formerly rep a client shall not thereafter use info to disadvantage of client except as rules permit or info has become generally known
duty of confidentiality: self-defense exception
lawyer may reveal info relating to rep of client to extent he reasonably belives necessary to est a claim/defense on his behalf in a controversy between him & client, or claim/defense/civil claim against lawyer based upon conduct in which client was involved, or to respond to allegation in any proceeding re: lawyer’s rep of client
can be asserted even if lawsuit hasn’t taken place but assertions have been made. where practicable, lawyer should 1st seek to persuade client to take action that wouldn’t make lawyer need to disclose
duty of confidentiality: self-defense exception usually arises when
- client charges lawyer w/ wrongdoing in course of rep
- lawyer sues client to enforce some duty owed to lawyer (payment)
- 3rd person accuses lawyer of wrongdoing in course of rep client, perhaps in complicity w/ client
duty of confidentiality: client fraud.
Lawyer may reveal info relating to rep of a client to the extent the lawyer reasonably believes necessary to:
- prevent client from committing a crime/fraud that’s reasonably certain to result in substantial injury to fin interests or prop of another & in furtherance of which client has used/is using lawyer’s services
- prevent/mitigate/rectify substantial injury to fin interests/prop of another that’s reasonably certain to/has resulted from client’s commission of crim/fraud in furtherance of which client has used lawyer’s services
duty of confidentiality: client fraud.
Organization as Client
doesn’t apply to info re lawyer’s rep to investigate an alleged violation of law/defend org/officer/employee/other constituent against claim arising from alleged violation.
If:
1. despite lawyer’s effort to get orgs higher authorities to rectify/prevent serious wrongdoing, the highest authority that can act on behalf of org insists upon/fails to address in timely manner an action/refusal to act that’s a clear violation of law, &
2. lawyer reasonably believes violation is reasonably certain to result in substantial injury to org
3. then lawyer may reveal info relating to rep, whether or not 1.6 permits such disclosure
duty of confidentiality: client fraud.
required disclosure
in the course of rep a client a lawyer shall not knowingly:
- make a false statement of material fact or law to a 3rd person OR
- fail to disclose a material facts to a 3rd person when disclosure is necessary to avoid assisting a crim/fraud act by client, unless disclosure is prohibited by 1.6
obstructing evidence
lawyers may not unlawfully obstruct another party’s access to evidence or unlawfully alter/destroy/conceal a doc/other material having potential evidentiary value. lawyers are also forbidden to counsel or assist another person to do any of these things.
disabled clients
when a client’s capacity to make adequately considered decisions in connection w/ rep is diminished, whether because of minority, mental impairment or other reason: lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship w/ client.
Client still gets to call the shots unless there’s a reason not to allow it, but a lawyer can consult w/ others to asertain client’s views
disabled clients: taking protective action
when lawyer reasonably believes client has diminished capacity, is at risk of substantial phys/fin/other harm unless action is taken & cannot adequately act in client’s own interest: lawyer may take reasonably necessary protective action, incl consulting w/ individuals/entities that have ability to take action to protect client &, in appropriate cases, seeking the appointment of a guardian ad litem/conservator/guardian
disabled clients: revealing info
when taking protective action, lawyer is impliedly authorized to reveal info about client, but only to the extent reasonably necessary to protect client’s interests
fee disputes
If a procedure has been est for resolution, such as arbitration/mediation procedure est by the bar, lawyer must comply with the procedure when it is mandatory, & when voluntary lawyer should conscientiously consider submitting to it
fee disputes: revealing info
lawyer may use/disclose confidential client info when & to extent lawyer reasonably believes necessary to permit lawyer to resolve a dispute w/ client concerning compensation or reimbursement that the lawyer reasonably claims the client owes him (R 65)
Communicating w/ Another Lawyers Client: No-Contact Rule
In rep a client, lawyer shall not communicate about subject of the rep w/ a person lawyer knows to be rep by another lawyer in the matter, unless lawyer has consent of other lawyer or is authorized to do so by law or a court order.
Applies even if lawyer knows/believes other lawyer is violating a duty owed to her client or client wants to waive protection. Lawyer may advise client to comm directly w/ opposing party, however if lawyer gets involved rule is violated.
In the case of a represented organization, lawyer is prohibited from communicating with
- constituent of the org who supervises, directs or regularly consults w/ the orgs lawyer concerning the matter; or
- has authority to obligate the org (e.g. accept a settlement offer) w/ respect to the matter; or
- whose act or omission in connection with the matter may be imputed to the org for purposes of civil or criminal liability (e.g. they were the person of the alleged wrongdoing).
- Contact with former employees is ok.
lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
- person is a relative or an employee or other agent of a client; and
- lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.
fairness to persons not represented by counsel
when dealing w/ unrep person, lawyer shall not state/imply he’s disinterested. If lawyer knows/reasonably should that unrep person misunderstands lawyer’s role in matter, lawyer shall make reasonable efforts to correct misunderstanding. lawyer shall now give legal advice to unrep person (other than to secure counsel) if lawyer knows/should that interests of such person are/have reasonable possibility of being in conflict w/ interests of the client
Evidence. Lawyer shall not…
- falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that’s prohibited by law.
- knowingly disobey an obligation under rules of tribunal except for an open refusal based on an assertion that no valid obligation exists
- fail to make reasonably diligent effort to comply w/ discovery requests
4.
In trial, a lawyer shall not
- allude to any matter that lawyer doesn’t reasonably believe is relevant or that will not be supported by admissible evidence
- assert personal knowledge of facts in issue except when testifying as a witness
- state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused
frivolity: a lawyer shall not
bring or defend a proceeding or assert/controvert an issue, unless there’s basis in law & fact for doing so that’s not frivolous, which incl good faith argument for an extension/modification/reversal of existing law.
Lawyer for ∆ in crim proceeding (or respondent in proceeding that could result in jail) may nevertheless so defend proceeding as to require that every element of case be est.
Supervising lawyer’s professional obligation
ensure subordinate lawyers comply w/ rules of prof. conduct, and that conduct of non-lawyer employees is compatible w/ prof. obligations of the lawyer
Scope of Representation (1.2)
- it’s your clients case–you have to do what they want re: objectives of rep, to settle/plea/waive jury trial/testify
- representing a client doesn’t = you endorse their moral/political/econ/social view or activities
- you can’t counsel/assist client in crim/fraud conduct but ok to discuss legal consequences of proposed conduct & counsel client to make good faith effort to determine validity, scope, meaning or application of the law
when do you need to put “Advertising Material”?
on every written, recorded, or electronic communication from lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter.
Goes on outside of envelope, beg & end of any recorded or electronic comm, unless recipient is person fall under 7.3(a)(1)-(2)
Upon receiving funds or other property in which the client or third person has an interest a lawyer shall promptly
notify client/3rd party.
except as otherwise permitted or by agreement w/ client, lawyer shall promptly deliver any funds/prop client entitled to receive & upon request, promptly render full accounting re: such prop
examples of fraudulent billing & fee padding
double billing, overstaffing a matter, charging client for firm overhead, etc.
statements made in negotiation (puffery)
some do not constitute misrepresentation of a statement of fact: estimates of price/value placed on subject of transaction, party’s intentions re: acceptable settlement of claim, existence of an undisclosed principal except where nondisclosure of principal would constitute fraud
definition of “substantially related matters”
if they involve same transaction or legal dispute or
if there’s otherwise a substantial risk that confidential factual info as would normally have been obtained in prior rep would materially advance client’s position in subsequent matter
taint shopping
potential client contracts lawyer & reveals confidential info, but then doesn’t hire, solely for purpose of ensuring lawyer will not be available to rep potential client’s adversary.
a person who communicates info unilaterally to lawyer w/o any reasonable expectation lawyer is willing to discuss possibility of forming a lawyer-client relationship is not a “prospective client”
definition of “screening”
isolation of a lawyer from any participation in a matter through timely imposition of procedures w/in a firm that are reasonably adequate under the circumstances to protect info that the isolated lawyer is obligated to protect under these rules or other law
candor toward the tribunal.
a lawyer shall not knowingly…
- make/fail to correct a false statement of fact or law
- fail to disclose legal authority in controlling jdx known by lawyer to be directly adverse to client’s position & not disclosed by opposing counsel; or
- offer false evidence. If someone does & the lawyer comes to know of it, he shall take remedial measures incl, if necessary, disclosure to tribunal. lawyer may refuse to offer evidence, other than testimony of ∆ in crim matter, that he reasonably believes is false (lawyer’s are advised to 1st try talking to client about correcting the record)
Maintaining Integrity of the Profession: Misconduct. (8.4)
It is professional misconduct for a lawyer to:
- violate or attempt to violate these rules, help/induce others to, or do so through acts of another
- commit a crim act that reflects adversely on lawyer’s honesty, trustworthiness or fitness as a lawyer
- engage in conduct involving dishonesty, fraud, deceit, or misrep
- engage in conduct that’s prejudicial to administration of justice
- state or imply an ability to influence improperly a gov agency/official or to achieve results by means that violate these rules or other law
- knowingly assist a judge or judicial officer in conduct that’s in violation of applicable rules of judicial conduct or other law
Anders Brief
counsel should w/draw rather than pursue a frivolous appeal.
for ct appointed lawyers representing crim ∆: counsel must accompany request to w/draw w/ brief setting forth anything in record that might arguably support the appeal.
not obligatory.
Remedies for Conflicts of Interest
- disqualification of a client’s lawyer (most common)
- dismissal of an action
- fee forfeiture
- malpractice action (possible punitive damages)
- discipline by bar
conflict of interest: joint rep.
aggregate settlement rule
cannot participate in making aggregate settlement of claim of or against the clients (or aggregated agreement re guilty pleas) unless each client give informed consent in writing.
Lawyer’s disclosure shall incl existence & nature of all claim/please involved & participation of each person in settlement. (interpreted to incl notification of what other clients will receive/pay)
conflicts of interest: advance waivers
ok as long as clients give informed consent. multi-factor approach:
- level of detail concerning types of future reps that might arise & possible adverse consequences
- sophistication of client & familiarity w/ type of conflict being waived
- continuity of lawyer-client relationship
- whether consent is limited to future conflict unrelated to subject of rep
- whether client is independently rep by a different lawyer when consenting
a concurrent conflict of interest exists if
- rep of 1 client will be directly adverse to another; or
- there’s a significant risk the rep of 1 or more clients will be materially limited by lawyer’s responsibility to another client, former client, or 3rd person or by a personal interest of lawyer
if no concurrent conflict of interest exists, lawyer may represent client if
- lawyer reasonably believes he can provide competent & diligent rep to each affected client
- rep not prohibited by law
- clients are suing each other; and
- each client gives informed consent in writing
concurrent representation
between 2 present or prospective clients or between 1 prospective & 1 present client
successive representation
between former & present or prospective client
lawyer who has formerly represented a client shall not thereafter
- rep another person in the same or substantially related matter
- in which that persons interests are materially adverse to interests of former client
- unless former client gives informed consent, in writing
