Other Duties to NON-CLIENTS Flashcards
TRUTHFULNESS IN STATEMENTS TO OTHERS
**No False Statements of Material Fact: **
A lawyer must not make a false statement of material fact to a third person in the course of representing a client. However, “puffery” is allowed and is not considered a statement of material fact. Puffery includes (1) estimates of price or value and (2) statements of a party’s intentions as to settlement.
Failure to Disclose Material Facts—Client’s Crime or Fraud:
A lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud—unless the lawyer is forbidden to do so by the ethical duty of confidentiality (which will often be the case). Where the duty of confidentiality prevents the lawyer from disclosing material facts, and where continued representation would require the lawyer to assist in the client’s crime or fraud, the lawyer must withdraw.
TRUTHFULNESS IN STATEMENTS TO OTHERS
Failure to Disclose Material Facts—Client’s Crime or Fraud:
A lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud—unless the lawyer is forbidden to do so by the ethical duty of confidentiality (which will often be the case). Where the duty of confidentiality prevents the lawyer from disclosing material facts, and where continued representation would require the lawyer to assist in the client’s crime or fraud, the lawyer must withdraw.
TRUTHFULNESS IN STATEMENTS TO OTHERS
**No False Statements of Material Fact: **
A lawyer must not make a false statement of material fact to a third person in the course of representing a client.
However, “puffery” is allowed and is not considered a statement of material fact.
Puffery includes
(1) estimates of price or value and (2) statements of a party’s intentions as to settlement.
COMMUNICATING WITH A PERSON WHO IS REPRESENTED BY COUNSEL
ABA:
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 (whether or not they are a party to the matter) unless
(1) the person’s counsel has granted permission or
(2) the lawyer is otherwise authorized by law or court order to make such direct communication.
This rule does not prohibit conversations on topics unrelated to the representation; nor does it prohibit true party-to-party communications.
CA:
The California rule does not prohibit a lawyer from communicating with a public official or public entity.
COMMUNICATING WITH AN ORGANIZATION THAT IS REPRESENTED BY COUNSEL
ABA:
The rule above also applies to represented organizations.
A lawyer must get the consent of the organization’s counsel before communicating with:
(1) A current employee or constituent who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter.
(2) A current employee or constituent with authority to obligate the organization with respect to the matter.
(3) Any current employee or other constituent whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
FORMER employee: Note that consent is not needed before talking with a former employee.
However, when talking with either a present or former constituent, a lawyer must take care not to violate the organization’s legal rights, such as the attorneyclient privilege.
CA:
The California rule does not refer to categories (1) and (2) but similarly provides that the rule applies to any current officer, director, partner, or managing agent of the organization.
It also applies to the category of constituents in (3).
Note: Despite this difference, the end result is generally the same under both sets of rules; the prohibition will apply to high-level employees and employees who committed the acts at issue in the matter.
COMMUNICATING WITH AN UNREPRESENTED PERSON
When a person does not have counsel of their own (or if the person is represented but the lawyer has no reason to know that), a lawyer representing a client may communicate with such person directly about the matter.
However, such communications are subject to the following restrictions:
* The lawyer must not state or imply that they are disinterested.
* If the unrepresented person misunderstands the lawyer’s role, the lawyer must make reasonable efforts to correct the misunderstanding.
* If the person’s interests conflict with the client’s interests, the lawyer must not give any legal advice (except that the lawyer may advise the person to obtain counsel).
CA:
The California rule is generally the same, but additionally provides that when communicating with an unrepresented person on behalf of a client, a lawyer must not seek to obtain privileged or otherwise confidential information that the lawyer knows or reasonably should know the unrepresented person may not reveal without violating a duty to another, or which the lawyer is not otherwise entitled to receive.
LAWYER AS THIRDPARTY NEUTRAL
A lawyer who serves as a third-party neutral must inform unrepresented parties that the lawyer is not representing them. Where the lawyer reasonably should know that a party does not understand the lawyer’s role, they must explain the difference between a lawyer’s role as third-party neutral and a lawyer’s role as one who represents a client (for example, lack of attorney-client privilege).
ACTING AS ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS
If a lawyer is representing a client in connection with an official hearing or meeting of a governmental agency or legislative body at which the lawyer or client is presenting evidence or argument, the lawyer must disclose that the appearance is in a representative capacity (but need not disclose the client’s identity).
RECEIPT OF DOCUMENTS OR ELECTRONICALLY STORED INFORMATION SENT BY MISTAKE
ABA: When a lawyer obtains such a document or electronically stored information relating to the representation of the lawyer’s client, and when they know or reasonably should know that it was sent by mistake, they must promptly notify the sender so that the sender can take protective measures.
CA:
The California rule is different in two ways:
* It applies only when the receiving lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine.
* In addition to notifying the sender, the receiving lawyer must refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine.
RECEIPT OF DOCUMENTS OR ELECTRONICALLY STORED INFORMATION SENT BY MISTAKE
ABA: When a lawyer obtains such a document or electronically stored information relating to the representation of the lawyer’s client, and when they know or reasonably should know that it was sent by mistake, they must promptly notify the sender so that the sender can take protective measures.
CA:
The California rule is different in two ways:
* It applies only when the receiving lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine.
* In addition to notifying the sender, the receiving lawyer must refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine.
COMMUNICATING WITH AN ORGANIZATION THAT IS REPRESENTED BY COUNSEL
ABA:
The rule above also applies to represented organizations.
A lawyer must get the consent of the organization’s counsel before communicating with:
(1) A current employee or constituent who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter.
(2) A current employee or constituent with authority to obligate the organization with respect to the matter.
(3) Any current employee or other constituent whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Note that consent is not needed before talking with a former employee. However, when talking with either a present or former constituent, a lawyer must take care not to violate the organization’s legal rights, such as the attorneyclient privilege.
CA:
The California rule does not refer to categories (1) and (2) but similarly provides that the rule applies to any current officer, director, partner, or managing agent of the organization.
It also applies to the category of constituents in (3).
Note: Despite this difference, the end result is generally the same under both sets of rules; the prohibition will apply to high-level employees and employees who committed the acts at issue in the matter.
COMMUNICATING WITH AN UNREPRESENTED PERSON
When a person does not have counsel of their own (or if the person is represented but the lawyer has no reason to know that), a lawyer representing a client may communicate with such person directly about the matter.
However, such communications are subject to the following restrictions:
* The lawyer must not state or imply that they are disinterested.
* If the unrepresented person misunderstands the lawyer’s role, the lawyer must make reasonable efforts to correct the misunderstanding.
* If the person’s interests conflict with the client’s interests, the lawyer must not give any legal advice (except that the lawyer may advise the person to obtain counsel).
CA:
The California rule is generally the same, but additionally provides that when communicating with an unrepresented person on behalf of a client, a lawyer must not seek to obtain privileged or otherwise confidential information that the lawyer knows or reasonably should know the unrepresented person may not reveal without violating a duty to another, or which the lawyer is not otherwise entitled to receive.
HEAVY-HANDED TACTICS (ABA ONLY)
The ABA Rules provide that in representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. California does not have a counterpart to this rule
