Professional Responsibility Flashcards
Definitions
Belief
“Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true.
A person’s belief may be inferred from circumstances.
Definitions
Knowing, Known, or Knows
denotes actual knowledge of the fact in question.
A person’s knowledge may be inferred from circumstances.
Definitions
Informed Consent
Agreement by client after:
* communicated adequate information
* explanation about the material risks
* reasonably available alternatives
How it typically comes In a exam
- Where the lawyer simply does not provide any kind of opportunity
I recommend this, let us take it
No comms
No weighing of costs and benefits
Be aware of inadequacy of facts as well
Definitions
Tribunal
Usually a court
* Key → binding legal judgment
* can be executive administration – look for binding
Definitions
Law Firm
Includes corporate law offices, in-house, district attorney offices, public defenders office
Facts and circumstances to look at
* Office sharing, fee sharing, etc.
* How do they present themselves to the public?
* Mutual access to information concerning the clients they serve?
Definitions
Confirmed in Writing
Denotes informed consent that is given in writing by the person or
a writing that a lawyer promptly transmits to the person confirming an oral informed consent.
if not feasible at time, a reasonable time thereafter
Example
* We talked today, and you said it is okay that i revealed to the opposing counsel this information because we think it will be strategically advantageous to do so
Email is enough
MR 8.5
Jurisdiction
An attorney is held to the standards of their Jurisdiction no matter where the lawyer’s conduct occurred. But can also be held to another Jurisdiction if they do legal services or offer them
Example
* You’re a CA lawyer doing legal work in texas, and you do something unethical
* You can be sanctioned in CA where you’re admitted, in addition to TX
Violations of ethical rules
Violations of ethical rules can result in
Administrative sanctions
* Reprimand
* Suspension
* Disbarment
Civil liability
Criminal proceedings
or all of the above
When can Lawyers be disciplined?
Breaches of attorney ethics rules
Fraud
Criminal activity
Conduct that has nothing to do with the practice of law but reflects poorly on the attorney MR 8.4(c)
* Engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . .”
* Basically says when you do anything dishonest, even if it is not related to the practice of law, you can be disciplined in your state or the states in which you are a lawyer
Ex → Fraud, lying, drunk driving, felony convictions, major drug crime, leaving the scene of a fatal car accident, assault/domestic violence
State Rules of Ethical Conduct
The Supreme Court of each state typically adopts rules of professional conduct that apply to lawyers in its state.
The ABA Model Rules have profoundly influenced state rules.
Lawyers as Fiduciaries
We need to protect the client’s interests as if they were our own interests.
Once the Attorney-Client relationship is created, a lawyer becomes a fiduciary for their client
* Imposes civil liability and gives client independent basis to sue
MR 2.1
* in rendering advice, a lawyer may not refer ONLY to the law but to other considerations such as economic, social & political factors that may be relevant to the client’s situation
Vicarious Liability of Attorneys
Responsibilities of Partners, Managers, and Supervisory Lawyers
what about competence?
Partners or other lawyers with managerial authority should make sure all employees in the firm conform to the Rules
* must have a system in place to ensure compliance
* Reasonablility standard
Supervisory attorney become liable for violations of supervised attorneys/non-professionals if they:
* Order
* Ratify
* After learning of a violation, fail to take remedial action
- An attorney should ensure that an associate is competent to conduct a trial on her own before giving them that responsibility
- Ratify = you know they will do it and you don’t do anything about it
Vicarious Liability of Attorneys
Responsibilities of a subordinate attorney
Just because your partner tells you to do something you cannot always rely on having protection!
No Nuremberg defense!
* A subordinate lawyer or staff person cannot defend by saying, “I was only following orders!”
When are you protected?
* If it is debatable, then you are protected. See R 5.2(b).
When are you not protected?
* If a reasonably prudent attorney would know what they are being asked to do is unethical or illegal, then you are responsible regardless of if you are being asked to do it
In other words, if they tell you to do something and at least there’s a reasonable argument that they’re telling you to do is ethical, then you have to follow your boss
The corollary
* if it is not reasonable and you do it anyway, your boss is liable and you’re liable
* “If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. ”
Vicarious Liability of Attorneys
Law students/non-lawyer liability under the model rules
what are they subject to and consequences
Law students are not subject to the Model Rules, generally, but breach of the Model Rules potentially subjects their supervisors to ethical and civil law violations. (See Rule 5.3)
* Except 8.1 – disclosure rules when you apply to the bar –> dont lie to bar or hold back info
* Also you cannot practice law as a law student
What are the consequences for violating the rules
* You can be questioned, and the info can be used to decide whether to admit you to the bar or not
* Also civil liability
Reporting Misconduct by Other Lawyers
and when is diclosure not required?
MUST report another lawyer who commits violation of the rules that substantially questions the lawyer’s honesty, trustworthiness or fitness as a lawyer
- You see an attorney doing dishonest bullshit, you have a duty to report it
Disclosure not required when:
* Confidential info 1.6
* approved lawyers’ assistance program (alcohol recovery program)
The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.
The Attorney-Client Relationship
Formation of the Attorney-Client Relationship
“Would a reasonable client presume you were their lawyer?”
- Formation of the Attorney-Client relationship does NOT depend on payment or retention, rather, the court looks at the conduct of the attorney.
Focus on the client and what they reasonably believe!
Courts look at what you DID, not what you said.
* Actions speak louder than words so if a lawyer says not a lawyer but does all things a lawyer would do, then likely AC relationship
Very low bar, and creates a sort of “duty” that are elements to a lot of other rules
Formation of the Attorney-Client Relationship
Case: Perez → 20 dead children bus driver accident case
Case
While Perez is in the hospital, lawyers came to get a statement
* Perez alleges this establishes A/C relationship
Perez says they elicited a statement from him about the accident and that it should have been confidential
* But lawyers ended up giving the statement to the D.A.
So was there a A/C relation? Rule?
* If your actions and your words would lead a reasonable person to believe that you were their lawyer, then you were their lawyers
Thus, since Perez believed they were his attorneys and thus trusted them, an AC relationship was established.
Does not need to be a legal advice
No fee
No legal agreement
Formation of the Attorney-Client Relationship
Case: Westinghouse → Law firm does a confidential survey case
Case
The oil companies believed they had AC relationship because of the nature of the work they did with kirkland
* Confidential interviews
* Confidential surveys
A reasonable member of the trade org would believe that they were being represented
* PROBLEM IS you can’t forget the confidential information you know!
* You can’t unring the bell.
The whole question here is whether Kirkland is an attorney
of API?
* If there is no A-C relationship, there is no fiduciary duty kicked in, so then there would be no conflict/issue.
Appellate court said a reasonable API member would believe they were a client based on facts & circumstances.
Formation of the Attorney-Client Relationship
How can a lawyer protect themselves from forming an AC relationship?
If a lawyer should know or reasonably should know that the unrepresented person might misunderstand the lawyer’s role in the matter, then the lawyer needs to make reasonable efforts to correct the misunderstanding. (Rule 4.3)
* LAWYERS DUTY TO CLEAR THINGS UP
What could the lawyers have said in Perez?
* I am not your lawyer but i am here to request a statement
Diligence
Rule
A lawyer shall act with reasonable diligence and promptness in representing a client.
- Lawyer should pursue matter despite opposition, obstruction, or personal inconvenience to him
- Yes, you have to be zealous, but at the same time, you are not obligated to press every advantage if you think it is fair, just, reasonable not to do so
Lack of Diligence example:
* requesting 19 extensions to file a brief in a capital case with no reasonable excuse for failure to comply with court deadlines.
Competence
Rule
work load?
A lawyer shall provide competent representation to a client.
* Competent representation = the legal knowledge and preparation reasonably necessary for the representation
Competence doesn’t necessarily mean you have to know it now but also that you could or are able to learn it
* reasonable preparation
A lawyer can accept legal work in areas of law that he doesnt know
* as long as the lawyer compensates for the inexperience through study or affiliation with another established lawyer
Emergency Exception
* in a emergency, you can assist if you are not competent but assistance should be limited to that reasonably necessary in the circumstances
A lawyer’s work load must be controlled so that each matter can be handled competently (comment 2)
* Inexperience
* Ignorance
* Neglect
* Lack of time
* High volume of matters
Example of emergency
* your cousin calls you, you are a civil lawyer, he says he is arrested. No one else is available, I can help even if it is a little incompetent.
Limiting the Scope of Representation
A lawyer may limit the scope of the representation if the limitation is
* reasonable under the circumstances and
* the client gives informed consent
Examples:
* Representation at a mediation
* In a negotiation of a legal matter, or
* For certain aspects of a complicated case.
time issues will make it not reasonable
* If limiting the scope of the representation means the attorney cannot be adequately prepared for trial, it is not reasonable
Follow Client Objectives v. Means
Objectives
A lawyer shall abide by a client’s decisions concerning the objectives of representation
Objectives are decisions that affect the ultimate resolution of the case.
Example
* settlement, do I want to win
The client should have sufficient information to participate intelligently in decisions concerning the objectives of representation and the means by which they are to be pursued, to the extent the client is willing and able to do so
Follow Client Objectives v. Means
Means
Means shall be consulted, but a lawyer is not required to follow client’s advice
Means refer to decisions that are procedural or tactical
Examples
* cross examination
* granting favors for the otherside for something later (continuation)
* Means is basically your lawyer playbook
* Do I want to ask these questions, or do this another way.
Predominant rule in most jurisdictions → once you consult with the client, you can do what you want
* Our obligation is to only consult the client
Follow Client Objectives v. Means
Disagreement
The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement.
* If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation.
Whether to settle or not → always an objective (say you disagree)
* You can’t go against that
* But you can slow things down – go talk to people bro – you yourself can advise more etc and try to convince more
* Last thing you can do is Memorialize what you did
* Letter to client saying I advise against this move, however you are the client and I will do what you want
Client Communication – Offers?
Civil or Criminal
When you get offers you, as a general rule, communicate it to the client
* Because of ends and means
* Client always has the authority to settle or not
unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.
Example
* Criminal case → client says if you get any offer of misdemeanor, take it but if felony do not take it!
* If the prosecutor offers misdemeanor, you don’t have to go back to the client per this rule
* Why? Because you already got the authority
* But you probably should regardless
Client Communication
Witholding Information
MR and CA
MR
* In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.
CA
* if the lawyer reasonably believes that the client would be likely cause imminent harm to the client or others.
Assisting a Client in a Criminal or Fraudulent act
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.
Example
* Client comes to you and says, I want to put this money some place where it cannot be taxed → and I think I want to do it this way
* And I think – hey if you do it this way, you may come into some problems with tax law
* But if you do it this way and do these things–like saying money is for X or Y– then you can get a tax exemption
Basically sometimes you can explain the law in some way that is a guide for them to commit the fraud or criminal act
* As opposed to explaining a way to not commit the fraud or criminal act
* Your explanation can turn into a tacit approval or tacit instruction
Sexual Relations with Clients
General Rule
MR and CA and how it works with orgs
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced
CA Nuance
* sexual relations requires the touching of an intimate part for arousal
Orgs
* constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters
Sexual Relations with Clients
Policy
Sexual Relations is not defined. Go to the comments and see the policy.
The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence.
* The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role
* ACP gets fucked too. When is it in effect and when is not? Muddies the water.
unfair exploitation of the lawyer’s fiduciary role
Example
* So if a girl does not want to fuck me, she might do it anyway because then maybe I wont represent her as well if she doesnt
What do you do in a situation where there is no physical touching?
* Can argue that all the same problems in a non-physical relationship between a lawyer and client are associated with physical sexual relationships.
Harassment and Discrimination
Elements
Applies outside the bounds of the AC relationship
- Conduct must be Knowing: “knows or reasonably should know.”
- Prohibits harassment OR Prohibits discrimination; AND
- On the basis of: Sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status; and
- Related to the practice of law
It is professional misconduct for a lawyer to engage in conduct the lawyer knows or reasonably should know is harassment or discrimination on the basis of
* Harassment includes “sexual harassment and derogatory or demeaning verbal or physical conduct of a sexual nature.”
* Discrimination includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.”
Harassment and Discrimination
Lawyer engages in “conduct related to the practice of law.”
CA?
Related to the practice of the law. Defined by Comment 4 as:
* Representing clients
* Interacting with witnesses, co workers, court personnel, lawyers and others while engaged in the practice of law
* Operating or managing a law firm or law practice
* Participating in bar association, business or social
activities in connection with the practice of law (broad)
Very broad. Including social events. – CA does not go this far.
* hiring and firing
* running a law practice
* interaction with other lawyers in the practice of law
Thoughts are NOT considered conduct
Harassment and Discrimination
Important distinction between rejection based on STATUS of client vs. TYPE OF WORK
what if you want to help a protected class?
There will always be an issue if you are refusing due to the STATUS of the client.
- More gray area if it is the type of work – morally repugnant work under Rule 1.16 permissive withdrawal exceptions (i.e. drafting prenup for homosexual couple violates personal beliefs).
A lawyer is allowed the discretion to decide which clients to represent and how to craft their practice according to interests and aspirations AS LONG AS IT IS NOT DISCRIMINATORY
Example
* denying gay couple starting a business = bad
* denying gay couple do marriage law = religious freedom, permissible
What if you wanted to help a protected class?
* Limit the scope of your representation to other variables rather than a protected class!
* geographic boundaries
Harassment and Discrimination
Things to notice
Is it particularized?
* Focused on a specific person = more likely to violate
* He made an inference based on a person’s status that is protected under the rule
These can get tricky especially with 1.16
* But 1.16 does not allow you to discriminate
* You can reject a rapist movie mogul because you just do not like him and that is ok
* But if it is a protected class, you cannot
* Becomes fact based. Comes down to your reason and the circumstances
Interaction b/w 1.16 and 8.4g
* 8.4 (g) is subordinated to Rule 1.16 that addresses a lawyer’s ability to decline representation or withdraw from representation.
* Except as stated in paragraph 1.16 (c), “a lawyer may withdraw from representing a client if: the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”
Professional Negligence
Elements
- The lawyer owed a duty to the client
- The lawyer failed to exercise “the competence and diligence normally exercised by lawyers in similar circumstances; and
- The breach of duty caused harm to the plaintiff.
Duty
* Only created if there is an AC relationship formed
Breach
* Most jurisdictions permit proof of breach of attorney ethics rules as evidence of breach of duty of care
Causation
* Lawyer’s breach caused P harm.
* But for D’s Conduct, P would have won (case within a case)
* Expert needed unless layperson can determine
Professional Negligence
Case: Togstad → wife goes and talks to a lawyer… what can go wrong!
You have to prove the case-within-a-case (CAUSATION)
* In order to prove the negligence malpractice case, you have to prove the medical malpractice case
* Because if she never would have won anyway then we have something similar to “harmless error”
* First is was the doc negligent, then was the lawyer negligent, then we win
What did miller do wrong? (BREACH)
* He rendered an opinion without doing the minimum due diligence
* He did not inform the client of the 2 year statute of limitations
What professional standard does the court hold miller to?
* Must conduct himself as “ordinarily prudent attorney”
* Lawyers owe clients “the competence and diligence normally exercised by lawyers in similar circumstances”
see facts in outline.
What should have he said to avoid this mess?
* We are not interested in this case but you should look at the statute of limitations and see another lawyer. Write this out.
* Don’t even tell her if she has a case or not
* Don’t give advice, you’re adding a little bit of risk
Termination of AC Relationship
R 1.16 = 4 subsections
Section A is when you MUST withdraw
Section B is when you MAY withdraw
Section C regardless of whether you meet A or B scenarios
* If the court says you cannot withdraw, you cannot withdraw
Section D
* You have to cooperate with a client to help them to get their file, to give them time to go get a new lawyer
* Exiting lawyer must take reasonable steps to keep client going
Termination of AC Relationship
Must withdraw
CM - DC
- The representation is certain to violate rules of professional conduct
- Lawyers physical or mental condition materially impairs the lawyers ability to represent the client;
- Lawyer is discharged (fired by client).
- the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud
Twist with discharge
* if you are in litigation conduct, each jurisdiction has a rule about when you can withdraw without court permission.
* Once the trial date has been set for litigation, even if you are fired you still have to ask the court to withdraw. Why? → the court has its own interest in its own calendar.
Termination of AC Relationship
May Withdraw
MCU - DOFO
No material adverse effect on the interest of the client
* You don’t want to do this anymore and it won’t impact the client
Client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent
* different from mandatory #2 because you suspect, you don’t know for sure
Client has used lawyer’s services to penetrate a crime or fraud
* It’s all done, you just learned the client used your services to commit a fraud
Repugnant or moral disagreement (broad)
* We don’t want lawyers and clients together if they are not on the same page
* This CANNOT be used for discrimination
Client doesn’t fulfill or substantially fulfill obligations
* Can’t do your job if the client doesn’t fulfill obligations
* meeting for information/depositions, paying bills
Unreasonable financial burden
Other good cause for withdrawal (basically, anything else; catch-all)
Moral Disagreement example
* I do not service gay couples because I don’t believe in gay union vs. gay adoption (harder)
Example (b)(1)
* You have too much work and you’re tired and if you don’t materially adverse the client, then you can
Termination of AC Relationship
Court
A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation in spite of good cause for terminating the representation.
* Litigation only
* Even with good cause, judge can still keep you on it (a or b)
Termination of AC Relationship
Episodic clients
Episodic clients → where there is a pattern of client use of the lawyer’s services which leads the client to believe that the law firm still represents it.
* If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal.
* so they will remain clients
how to cure?
* Retainer agreements can state that a client is no longer a client b/w matters.
* You can help manage expectations by how you write your retainer and termination agreements.
Termination of AC Relationship
Differences between (must/crime/a4) and (may/reasonable belief crime/b2) and (may/past crime/b3)
Compare (b)(2) to (a)(4)
* You know crime or fraud is ABOUT to happen you MUST withdraw
* In B you have REASON TO BELIEVE IT MAY HAPPEN thus you MAY withdraw
(b)(3) to (a)(4)
* Client has used your services to commit crime or fraud
* Its done, you can’t do anything about it anymore
* You can terminate your relationship because you know they did something bad last year using you but you do not have to
* This is about the past
* (a)(4) is present and future
Confidentiality
Most basic principle and form of the rule
MR 1.6
Keep client secrets, keep client confidences
Subsection (a)
* Shall not reveal unless
Subsection (b)
* may reveal to the extent the lawyer reasonably believes necessary 1-7 PPRACCC
Subsection (c)
* reasonable efforts to prevent the inadvertent or unauthorized disclosure
Policy reasons for this?
* No chilling effect b.w lawyers and clients
Confidentiality
Main Rule
A lawyer shall not reveal information relating to the representation of a client unless
* the client gives informed consent,
* the disclosure is impliedly authorized in order to carry out the representation or
* the disclosure is permitted by paragraph (b) MAY REVEAL
Confidentiality
Relating to the representation?
Very broad category; scope:
* Personal information the client would not want revealed
From any source:
* You learned from the witness, docs, video surveillance
* If you’re working on the case → in any way related to the case, and it is something the client would want to keep secret, you gotta keep it that way
Overall → Confidentiality applies to anything related to representation from any source
* Way wider scope than ACP and WPP
Confidentiality
So what can you say?
Anonymity
* If you keep names out and specific details out, as long as it cannot be traced back out, keep some level of generality in which there no way that you can identify – you will be ok
You can talk to other lawyers in your law firm about your case because you are treated as one person!
Confidentiality
Steps to determining whether client information is confidential
Step 1: Is the information protected?
* Based on whether if there is AC relationship
* Also applies to prospective clients. R 1.18
* Mrs. Togstaad going to see mr. miller, all that information she gave was confidential – even though he never took on the case
Step 2: is it RELATED to representation?
Step 3: any exceptions?
Confidentiality
Exceptions
Subsection (a) – the unless clause
Informed consent
Impliedly authorized by representation
* Social security number; address
* All the stuff you might need to know for the purposes of moving the case forward
Client’s consent to disclose confidential info
* Clients may consent for the attorney to reveal confidential info, but should obtain such consent in writing
Confidentiality
Exceptions
Subsection (b)(1)
To the extent the lawyer reasonably believes necessary. . .
To prevent reasonably certain death or substantial bodily harm
* Reasonably certain is a HIGH threshold; you need to be pretty sure it’s going to happen if you don’t act
Drug example:
can you tell the client’s father that the client is struggling with opioid addiction?
* probably not, even though opioids are very dangerous.
However, you could give the client information and recommend that she tell her parents.
* (Rule 2.1 – in rendering advice, a lawyer may not refer ONLY to the law but to other considerations such as economic, social & political factors that may be relevant to the client’s situation)
Confidentiality
Exceptions
Subsection (b)(2)
To the extent the lawyer reasonably believes necessary. . .
To prevent the client from committing crime or fraud
- Requires lawyer services being used. ATTORNEY MUST BE INVOLVED.
People forget this – client says i have this great scam going on this slot machine
* Can i reveal this, no – he did not use my services
* Even if he did, it is still permissive LMAO
Confidentiality
Exceptions
Subsection (b)(3)
To the extent the lawyer reasonably believes necessary. . .
Rectifying/mitigating/stopping committing crime or fraud
Confusing with 2 so be careful
* Two is about preventing crime that will happen
* three is about mitigating or rectifying something that HAS happened or is happening
Requires lawyer services being used.
* ATTORNEY MUST BE INVOLVED.
Ex – something had happened and there was still time to cure the loss or fraud
* there is still time and they can reveal the information if they wanted to because maybe some of the money wasn’t spent yet
Confidentiality
Exceptions
Subsection (b)(4) & (b)(5)
To the extent the lawyer reasonably believes necessary. . .
Secure legal advice regarding potential ethical violations
* This means you can call the state ethics hotlines or speak to an attorney about the ethics question
To establish a claim or defense in a matter brought between lawyer & client
* Its when the client is suing the lawyer or somehow getting the lawyer in trouble and you can only defend yourself by revealing
Confidentiality
Exceptions
Subsection b(6) & (b)(7)
To the extent the lawyer reasonably believes necessary. . .
Comply with other law or court order
* Subpoena does not really count
To detect and resolve conflicts
* To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm
* but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
* has to be done to the extent minimally necessary to uncover it
Confidentiality
reasonable efforts to prevent the inadvertent or unauthorized disclosure
Subsection (c)
General provision saying not only you can’t share info unless exceptions apply but also you have to keep it secure
Especially relevant today in the digital world.
* Gotta hire good security
* Shred paper properly
Keep in mind how:
* You communicate with clients (email, text, chat, etc)
* How you store confidential info
* How do you dispose of client docs that may contain confidential info
* Meta data –> Generally, lawyers have the duty to scrub metadata from docs
Confidentiality
CA nuances to Confidentiality Rule
Prevent a CRIMINAL ACT likely to result in death of, or substantial bodily harm to an individual exception:
even if met before revealing the confidential information you have to make reasonable efforts to
* make a good faith effort to persuade the client not to commit or
* let them know if they do it, you will tell.
If it’s dangerous, you don’t have to do it.
- It must also be a crime! Not true of Model Rules
- Imminence of the harm is not a prerequisite!
- Says nothing about crime or fraud (nothing like 2 or 3)
- No implied authorized bit
Attorney Client Privilege
General Rule
what context does ACP apply? Lawyer duty?
ACP protects confidential communications between attorney and client for the purposes of legal advice
* Confidential
* Communication
* Between lawyer and client (or reps)
* Legal services
Remember, ACP applies in a tribunal or litigation context!!!
* If not in this context, it simply won’t apply
Duty to invoke the privilege
* A lawyer’s general duty of confidentiality under 1.6 imposes a duty to invoke AC privilege when applicable
Attorney Client Privilege
Confidential?
when is a communication in confidence?
Must be in a confidential setting; confidential email or electronic transmission, or my law office.
* Cannot be sitting in a cafe chatting with people in the room
Parties reasonably believe that their communication is confidential
* On a cellphone, you can reasonably assume that is safe
Objective test
A communication is in confidence if, at the time and in the circumstances of the communication, the communicating person reasonably believes that no one except a privilege person will hear the contents of the communication
* Like if you post it on facebook, sorry
* Crowded restaurant, crowded bar
Attorney Client Privilege
Communication?
A communication is any expression through which a privileged person intends to convey information to another privileged person or any record containing such an expression
* The idea is to intend to convey information
* If you see the client doing something and the client is unaware you’re seeing them, well, that’s not a communication –> not intending to communicate
Communication can include in person, telephone calls, video conferencing, emails, memos, text messages, etc.
Attorney Client Privilege
Between attorney and client
and who else?
“Or their representatives”
* Lawyers often employee people to act on their behalf: legal administrators, paralegals, investigator, experts, law clerks, translators
If those people are communicating with clients and would meet the privilege test, the communications are privileged
* These people would still maintain the part of the test which says between attorney and the client
Generally, if a non-privileged person is present during the communication, the privilege is absent
* Courts have found exceptions to the general rule above when other persons are needed to facilitate communication, such as interpreters, parents of a minor child, and people present for legitimate psychological support
Attorney Client Privilege
Combination of non-legal services and legal service?
prospective clients?
Let’s say a client comes to your office and they communicate with you in your office (confidential) → and let’s say they talk to you about their kids soccer game
* Not privilege
But let’s say they communicate legal shit and soccer game
* That will be privilege
Attorney client privilege protects an attorney’s communication with prospective clients as well. 1.18.
Attorney Client Privilege
Attorney client privilege protects communications, not information!
The underlying facts are not protected these come out a trial
Here is the thing, what the plaintiff told the lawyer could be the exact same set of facts, but because the opposing lawyer is asking for what happened, what transpired between the attorney and client
* they are trying to get to the communications between the attorney and client
* This kind of communication is protected
Example
Smith who is under criminal investigation is asked the following questions by prosecutor concerning information he learned in a conversation with Jones:
* What did you tell your lawyer that Jones said to you?
* What did Jones say to you?
Does the attorney client privilege protect both questions?
* NO – the first one is protected not the second
Attorney Client Privilege
Case: In Re County of Erie → Discussing Strip Searches Case
Email between the attorney and county officials discussed the law on strip searches → assessed existing county policy → recommended alt policies.
* Court held that these were emails for the predominant purpose of obtaining legal advice.
* Did not matter that there were policy discussions in the email.
* Attorneys talk about all kinds of stuff with their clients
In rendering legal advice, a lawyer may address “benefits, risks or costs in terms of expense, politics, insurance, commerce, morals, and appearances.”
* This does not forfeit ACP, so long as the “predominant purpose of the communication is legal advice.”
Attorney Client Privilege
Exceptions
does ACP survive death?
Exception
* furthering ongoing crime/fraud that need not involve lawyers services
* malpractice evidence that is relevant
not the same as 1.6 confidentiality exception
Dispute with the attorney:
* Conrad is suing Larry for malpractice.
* Conrad cannot prevent the disclosure of privileged information that is relevant to the malpractice issue
In most jurisdictions, ACP survives death of client
Attorney Client Privilege
Corporations
Rule (CSC)
First → confidentiality applies
* Under MR 1.13 represented entities enjoy confidentiality
When dealing with entities the issue is:
* Under what circumstances in the course of an attorney interacting with employees does the attorney client relationship apply?
Rule
* Lower level employees can enjoy privilege if they are communicating for the purposes to secure legal advice and within the scope of their employment and the company keeps the communication reasonably confidential
* if not an employee, not covered
A corp can have thousands of employees so it can be difficult
If you want to think of upjohn in the most basic way
* People who control the litigation are covered but also anybody at any level who has information relevant to the litigation that came from the scope of their work
The idea is that the employees are being questioned based on their knowledge within the scope of their duties at the corp
* They’re getting information that they obtained through the course of the duties that they perform for the organization.
* And they know that they’re in a conversation about the litigation aspect of the case through talking to the attorneys.
* Applies paralegals or the administrators.
Work Product Doctrine
General Rule
what will a court do if meet exception?
As a DEFAULT, you don’t get anything prepared in anticipation of litigation (doesnt need to be only attorney, can be anybody party for example)
* But there are exceptions if it is otherwise discoverable AND the other side has a substantial need (magic language) and can’t obtain substantial equivalent by other means without undue hardship (magic language).
LITIGATION CONTEXT
Example of substantial need and can’t obtain substantial equivalent:
* if someone died or is not in reach
If meet exceptions, court will scrub attorney mental impressions and strategies
Work Product Doctrine
Overcoming work product
- what if simply help your case?
- what must you show?
- In meeting R26b3 standard to obtain material that meets the elements of WP, it is insufficient to show that the material simply will help your case
- Must show material is essential and that its equivalent cannot be acquired by other means
Example
* In the case of witnesses, the party must show that he is “dead, beyond the court’s reach, hostile, or memory impaired”
Work Product Doctrine
“In anticipation of litigation” standard
- primary purpose?
- what if created in the usual course of business
Primary Purpose Approach
* As long as primary purpose motivating is in anticipation of litigation, falls under work product doctrine. Important because sometimes there is a mixed motive. (Doing x primary because), has to be MORE THAN 50%.
* PURPOSE OF CREATING IT, NOT USING IT
* IF THERE’S ANOTHER PURPOSE, ASK DOES IT SUPERSEDE IT?
In deciding whether the party meets the anticipation of litigation standard, it will look to the extent the tangible items or docs were created in the usual course of business
* Wont have WPP
For example
* as a general rule, incident reports that employees are required to complete when customers are injured do not enjoy WPP because they are prepared for business purposes
Work Product Doctrine
FRCP Rule 26(b)(3)
- what if party makes it?
Products anything created by a representative of the party
* Broader than Hickman
* so even the party
Only protects documents and tangible things
* But Hickman would protects intangible things, such as attorney memories and mental impressions (narrower than Hickman)
Privilege log
* Make the claim and describe the nature and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim
Conflicts
In general
- what duty do you have?
- attorneys and firms?
- Ignorance as a defense?
You have a duty to determine whether conflict of interest exists
* adopt reasonable procedures
Attorney and firms
* If one attorney and the firm have a conflict, then all attorneys in the firm have a conflict → no matter how big or small
Ignorance is not a defense!
* Conflicts can slip by, but the court will say, what is the procedure that you have in place, and if those procedures are not reasonable, ignorance is not going to help
Consequences
* Civil Liability
* Ethical violations
* Disqualification and/or Loss of fee
* Court sanctions
* Embarrassment
* Poor client relations
Conflicts
The Four C’s
Client? → Is the AC relationship established?
* No client → no conflict
* What type of client? None? Concurrent? Former? Prospective?
Conflict? → Is there a conflict?
* Potential conflict? Successive conflict? Concurrent conflict?
Consentable? → Is the conflict consentable?
* You can asked them to waive
* Just because conflict, does not mean cant work
Consented? → Has it consented to?
* If consentable, has consent been properly obtained?
* Informed consent, confirmed in writing
* Need to have informed consent. Need to tell client costs and benefits of moving forward with the conflict.
Concurrent Conflicts
Rule
Two ways
a lawyer shall not represent a client if the representation involves a concurrent conflict of interest
concurrent conflict of interest exist if:
* The representation of one client will be directly adverse to another client; or
* There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or a personal interest of the lawyer
Concurrent Conflicts
Direct Adversity
A lawyer who represents client A in one matter and sues client A in a second matter
Litigation Context
* on both sides of the v.
Transactional
* A client undertakes an adversarial negotiation against a client
* For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.
Not Consentable
direct adversity: common situations
* a lawyer who represents client A in one matter sues client A in a second matter on behalf of client B. (Another lawyer might be representing client A in the second lawsuit)
* the lawyer acts adversely to a client in litigation. (e.g., by cross-examining him) –> a lawyer is called to cross one of their clients in a trial invovling charges against another of their clients pg. 354
* Outside of litigation, a lawyer undertakes adversarial negotiation against another client.
Concurrent Conflicts
Examples of Direct Adversity
You represent P and a Partner in your law firm can represent D → partner is other side of country
* In conflicts, every single attorney is treated as one attorney
Lawyer 1 of a firm represents the husband in a PI matter (case 1). Lawyer 2 of the SAME firm represents the wife in a divorce matter against the husband (case 2).
* It does not matter that case 1 and case 2 are different types of cases.
* The law firm that represented you now suing you is not good (disloyal act, not good for profession).
* Also → potential confidential information
Lawyer represents ballet dancer in an employment negotiation with the ballet company. Ballet company asks lawyer to represent it in a real estate negotiation with Lincoln Center. Does lawyer need ballet dancer’s consent to represent the ballet company in the real estate negotiation?
* Yes, because they are directly adverse.
* You represent the ballet dancer and ballet company
* Even though not the same litigation → they are adverse to each other you represented one of them and then you represented the other
you can never sue your own client. even if a different lawyer reps them!! page 351
Concurrent Conflict
significant risk that the representation will be materially limited
Although not a direct conflict, the lawyer’s other duties and responsibilities create a potential conflict that might undermine the lawyers ability to fully represent the client;s interest
* Loyalty to another client
* Loyalty to a former client
* Lawyer’s own financial interests
* Lawyer’s relationship with a third-party or organization
This means it is not a direct conflict, but may make representation hard.
Concurrent Conflict
Joint Ventures
Examples
a lawyer asked to represent several individuals seeking to form a joint venture – ask “if they had their own attorney, how could the attorney act differently? (Usually w/ joint ventures, atty can’t give advice that an independent lawyer can give)
* The individuals have not formed a company yet so we don’t even know what kind of business organization they will have
* Individual attorneys would argue different business structures
* However, a benefit is you can save money, so individuals may consent to it
Concurrent Conflict
Co-litigants
Examples
* SCCI
always a red flag
Usually w/ co-litigants, atty can’t give advice that an independent lawyer can give
* Issues when one party has a better settlement offer than another, one party wants to settle but one doesn’t.
* Another issue with conditional settlement offers (if you accept x for D1, I will give you y for D2)
* Also → remember comparative fault Jx’s; can’t shift blame
* Issue with insurance of defendant if it is a PI case, you maybe pinning them against each other to get biggest recovery
Concurrent Conflict
Positional Conflicts
Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients.
* A conflict of interests exists if there will be significant risk that a lawyer’s action on behalf of one client will materially limit the effectiveness of representing a different client.
how likely is it that one case influences the other
Look at whether:
* the cases are pending, the temporal relationship between the matters (how close the proximity), whether it was substantive or procedural, the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer.
Examples
* When a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.
* Look at if they are in the same jurisdiction
* Will one of the cases lead to precedent?
* Keep in mind district court, which usually do not publish opinions v. courts that do like appellate
you could get these waived
Economic Adversity
Simultaneous representation in unrelated matters of clients whose interests are only economically adverse does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.
* such as representation of competing economic enterprises in unrelated litigation
* It must not be litigation or transactional adversity
two clients can be economic competitors, but as long as the lawyer is not representing one of them against the other, it should be ok
Imputed conflicts
Rule
unless . . .
- idea of spreading to whole firm
- what about the work you do as a law clerk/law school?
While lawyers are associated in a firm, none of them shall knowingly represent a client when anyone of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9, unless
* (1) – Prohibition is based on a personal interest of the disqualified lawyer and
* does not present a significant risk of material limiting the representation of the client by the remaining lawyers in the firm; or
if the client’s interest do not conflict with the interests of another client but conflict with the personal interests of a particular lawyer in the firm, those interests are not imputed to other lawyers in the firm.
* other lawyers at the firm may represent the affected client without that client’s informed consent.
(c) a disqualfication prescribed by this rule may be waived
the work you do as a law clerk or extern during law school will not be imputed to your future employees
* if a conflict arises from work that was done by a nonlawyer, the conflicted person must be screened from personal participation in the matter
Concurrent Conflict
Lawyer’s personal interest
Examples
may materially limit a lawyer’s ability to render objective advise or zealously represent the client
* I.e. you are being ask to sue a big company you are an investor in
Personal interests can be imputed
* if it threatens client loyalty or protection of confidences
* so if it has a significant risk of materially limiting the representation
Examples of a lawyers’ personal interests
* strong political beliefs antagonistic to the goals of a client being represented by the firm
* Family relationship with a party who is in litigation against a client of the firm
Imputed conflicts
Personal Interest
The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented.
* Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified.
* On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.
Conflicts with prospective clients
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
How can prospective clients preclude you from representing a client in future cases? → if confidential information is given
* Tactic: “shopping” for attorneys that the other side might hire & give confidential info to conflict out those people
Successive Conflicts
when a conflict involves a present and a former client, which rule applies?
You can always cure a successive conflict unlike a concurrent conflict with client consent
- 1.9 articulates the standard used to assess when a lawyer needs the consent of a former client to proceed with the representation of a subsequent client
- 1.7 lays out how a lawyer should evaluate whether a conflict that may impact a present client
example of both rules situation
* new client wants lawyer lawyer’s former client, whom lawyer represented for years on a variety of matters
* this conflict can be waived by informed consent of present and former client unless too severe
How do we determine when a current client is a former client
* It is what the reasonable client would believe
* A one off representation does not lead to believe current but a series plus other facts would push that way
Successive Conflicts
1.9(a)
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 the former client gives informed consent, confirmed in writing.
Successive Conflicts
Same Matter
side switching
if you formerly represented a client in a matter, you cannot represent another person in the same matter if interests are materially adverse
* most obvious = single transaction or lawsuit.
* it is the same matter if the new representation involves a document (such as a lease or contract) that the lawyer was involved in producing –> the subject matter is the same
need informed consent
side switching
* a lawyer may not switch sides during a negotiation or litigation (same matter, materially adverse interests)
* a lawyer may not switch sides and attack an instrument that the lawyer drafted
* cannot switch sides on an appeal
Successive Conflicts
Matter?
A matter can be “anything that is the subject of representation”
* Transaction, litigation, advice, regulatory filing, a subject on which a client requests advice
A conflict may arise between a former client and a current one regarding a service to the former client that did not involve adversarial advocacy – perhaps the client just sought advice – and a subsequent, more adversarial matter
Successive Conflicts
Materially Adverse?
the degree to which the current representation may actually be harmful to the former client
* present if former client can i.d some specific material, legal, financial, or other identifiable concrete detriment that would be caused by current representation
* present when lawyer would rep a client in litigation against a former client
* typically present ^ but negotiation
* sometimes present when a lawyer attempts to attack her own work or to undermine that work or result achieved for former client
doing something against the interest of the other party
Successive Conflicts
substantially related matter
what is the test
* two types
A lawyer who has formally represented a client in a matter shall not represent another person in a substantially related matter if their interests are materially adverse
test
* Met if there is a substantial risk that the lawyer could have (NOT THAT THEY DID) obtained confidential information in the first representation that is materially adverse to the second representation
* type of matter in the second representation can be different
Examples
* Concrete facts
* Playbook information: may create substantially related (i.e. knowing the company will generally settle, as a consequence would make you more effective as a counsel)
Successive Conflicts
Case: Analytica → lawyer helps with stocks case
Facts
* Law Firm assists employee and firm in a stock transfer
* in the process, firm gives law firm confidential financial information to value the stock. firm pays law firm’s legal bills
* employee leaves firm and starts competitor company, analytica. they sue firm for antitrust
Legal standard
* substantially related = if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second.
* Here, it is easily met because of all the financial information obtained
* must be materially adverse as well
Note that the matters were substantively different legal issues
* The first was tax help, the second was antitrust.
* But that made no difference. Why?
* Because the information in one could be used on the other, THAT IS WHAT MATTERS
ask these questions:
* what types of information would a lawyer handling a matter like the first one normally have acquired?
* is there a substantial risk that that information, if revealed or used on behalf of the second client, would materially advance the client’s position in the subsequent matter?
Successive Conflicts
Examples of substantially related
what if it becomes public or obsolete?
a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s former spouse in seeking an increase in alimony and child support
* this info could be used to materially advance the wife’s position in the alimony and child support
a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent
* assuming environmental info is irrelevant to the eviction, BUT what if not paying rent is because of toxic waste, then different. SO IT IS HIGHLY FACT DEPENDANT
* so just because no absolute common facts, does not mean no substantial relation
what if the information that the lawyer learned in the previous representation has become public or is obsolete?
* the lawyer is not precluded from representing the new client
Successive Conflicts
Just because you work at a firm does not mean you meet that test
Like you have to have worked somehow in the case, and even working in the case, you have to have worked in a position in the case that gave you access to the information
* So if you just researched the law and did not have access to facts, did no applying of facts to the matter then you have a good arg
* Courts are looking for working on the case, access to the file
the nature and facts of the representation are very important
Successive Conflicts
Migration (1.9b) → about YOU as a member of a law firm
A lawyer cannot represent a person in the same or substantially related matter in which his old firm priorly represented a client if materially adverse & you obtained actual info.
* If you haven’t personally been involved but it was imputed from other people at the firm, NO conflict.
* Conflict ONLY moves if you obtained actual information → Differs from 1.9A.
You may have actual information even if you did not work on the case (i..e talking to other colleagues)
Successive Conflicts
1.9b
Migratory lawyer
the situation
Ali works for Vedder Price 2025
* other lawyers at VP defend a Boeing Case
Ali goes to Cooley 2035
* Spirit asks Ali to sue Boeing for breach of Contract
this is just like other successive conflict cases but Ali did not work on the matter personally.
* here, we use 1.9b
* Thus, we ask whether Ali ACTUALLY acquired material confidential information.
* and materially adverse
Burden of Proof
* would be on Cooley and Me to prove that the lawyer who changed firms does not possess confidential info that is material to the new matter
Look for:
* management responsibility v. junior associate stuck to his department only
* other facts
Successive Conflicts
Loyalties to former clients
we cannot undo work we’ve already did for the client
* I win an appeal, I cannot go and undo it
Even in the absence of any confidences, an attorney owes a duty of loyalty to a former client that prevents that attorney from attacking, or interpreting, work she performed, or supervised, for the former client
Imputed conflicts in successive world
Rule
page 402 has a great example
when prohibition based on 1.9
* remember most imputed conflicts can be waived by informed consent regardless of anything else
- Must be timely screened (must occur before going to the firm so they can deny you access to the files, etc.) – isolated from any involvement and cannot get paid directly from the matter
- Client needs to be notified but client doesn’t need to consent, need to give some details about procedure
- have to be updated at reasonable intervals
nonconsenual screening = dont need informed consent
can proceed with obtaining informed consent if complies with screening procedures
* cannot use if 1.7 is involved
Can a departing lawyer remove conflicts from her former firm?
1.10b
the conflict leaves the firm with the lawyer unless:
* the matter is the same or substantially related
* a remaining lawyer at the former firm of the lawyer knows material confidential info about the client
consentable conflicts?
consent to a conflict
The lawyer reasonably believes that she can provide “competent” and “diligent” service to the affected clients; (objective standard)
* Ex: Cannot provide competent & diligent service when representing both biological and adoptive parents in an adoption
Not prohibited by law
Does not involve an “assertion of a claim by one client against another client in the same litigation or other proceeding in a tribunal”; and
* Both sides of the “v” (even if its different lawyers, if they are from the same firm it still counts)
Each affected client gives informed consent, confirmed in writing
* Explain basis of consent in the writing (to protect yourself)
Even if conflict is consentable, has consent been properly obtained?
* need inforned consent. tell client costs and benefits.
Government Conflicts
Moving from Government → Private Practice
Rule
Subject to Rule 1.9(c); AND
* A lawyer shall not use a former client’s information to their disadvantage in a subsequent proceeding or reveal it.
* unless publicly known
Cannot represent a client in a matter where the lawyer participated personally and substantially as gov official
* unless gov gives informed consent, in writing
different than 1.9(a)
* if the lawyer participated personally and substantially in work on a matter while working in gov, the lawyer may not represent a client in connection with that matter unless gov gives informed consent
* Material adversity not a requirement
What is a matter in this context?
Example
* Federal government’s false claim act lawsuit against health care facility involved the same matter as the state’s criminal probe of the health care facility, and, thus, former assistant state attorney general’s participation in the state investigation prevented him from serving as defense counsel for the health care facility
any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties
(a)(2) personally and substantially
* disqualifies lawyers only from work on matters involving specific parties, rather than extending disqualification to all substantive issues on which the lawyer worked.
Matter may continue in another form
* in determining whehther two particular matters are the same, the lawyer should consider the extent to which the matters involve same basic facts, same related parties, and the time elapsed
* page 547
Government Conflicts
Personal and substantial participation?
exercised through decision, approval, disapproval, recommendation, the rendering of advice, investigation
to participate personally means directly
* even if through a subordinate when directed by former gov attorney
Government Conflicts
1.11c: knowing confidential Gov information
former gov employee, it will conflict you out
If you have confidential gov’t information you acquired as a public officer or employee, you may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person
* The government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. (Doesn’t apply if it is publicly available)
* Needs actual knowledge
gov agency cannot consent
Examples: grand jury evidence,tax returns, trade secrets, information from gov’t investigations such as SEC or EPA
Government Conflicts
Screening for former gov employees
Can still work at the firm if:
* The disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom and
* Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
Gov’t entity can sometimes consent to you working on the matter:
* Confidential gov’t information cannot be consented to.
* However, you can consent to if you participated personally & substantially but didn’t get confidential gov’t info (1.11(a)(2)) = informed consent, in writing
Government Conflicts
Can a Gov’t Employee Negotiate for Private Employment?
except?
No. Can’t negotiate for private employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially
* except law clerks.
Government Conflicts
Conflicts for “Neutrals”
Applies if you participated personally or substantially as a judge, arbitrator or law clerk or other 3rd party neutral
* There will always be a conflict unless it’s waived
Government Conflicts
Moving from Private Practice → Gov’t
does it impute?
1.7 and 1.9 still apply
* especially 1.9(a) which does not apply when gov to private
Cannot participate in a matter where the lawyer participated personally and substantially while in private practice or nongovernmental employment
* unless the appropriate government agency gives its informed consent, confirmed in writing
Also cannot negotiate for private employment with a gov’t employee
* unless they are a clerk.
does not impute the conflicts of a lawyer currently serving as an officer or employee of the government
Candor w/ the court
Claims Should Have Merit
expediting litigation
* A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
You have to have a good faith reason to file
* can include wanting to change the law
* D can just defend
* needs to have some basis in law or fact
we have a duty to investigate
How thoroughly? It depends on the case and how much time you have
* So like if you have no SoL bearing on you, you can investigate a lot
* But sometimes you are under time pressure and the court takes this into consideration
Candor w/ the court
FRCP R11
Applies only to paper and it must be signed
* The complaint, the answer, motion
* You are certifying that you have a good basis to do what you are doing, like file that allegation
Investigation requirement
* Formed after an inquiry reasonable under the circumstances
* The court will look at how much time did you have, what kind of case is it
* Did you do the kind of things that a reasonable lawyer would do to make sure the client is saying what they are saying
it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation
R11 sanctions can be imposed by motion
* First serve it on offending party. Give them 21 days to withdraw or correct. Rule 11(c)(2). (Safe Harbor Provision); then, file it with the court.
* sua sponte – Of its own motion
* Most common sanction is fee shifting
Empty head, good heart defense
* It means that if you bring an action, that you truly believe as the lawyer, has a legal basis – but it actually does not – that will not be a defense
* objective test
Parties can be sanction under R11
* For factual information they provide you that is clearly wrong and knew should be wrong – objective test
* I was fired for being black! But really they just quit
* You can be sanctioned for not checking but they can be sanctioned as well for providing something that was clearly wrong
Ex: I was fired because I was discriminated against
* Ok show me – did you actually get even fired, show me an email
* You have an obligation to check what you can check - Especially if easy without discovery
Candor w/ the court
Candor Toward the Tribunal
- Duty of truthfulness
- adverse authority
A law shall not KNOWINGLY
make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal – must remedy
* Imposes a duty of truthfulness
* Writing, oral, or witness
* Material = relevant
Must disclose adverse authority
* You can distinguish it
* Saying revealing the info “would hurt my case” doesn’t matter
Out carousing with mikey
* So the point of this particular exercise is to just appreciate that there’s a certain line you cross where you just cannot say it is reasonable belief anymore
Differences in answering questions
* He did not say everything but he answered the question – very politician like = not a lie = true and complete on its face
Candor with tribunal
Offering Evidence
even if confidential?
If you know something is false
* you must cure it or not put it in/offer it
* even if it confidential info — 3.3 trumps 1.6
A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
If you have a criminal defendant and you reasonably believe they are lying → you still must let them testify
* You do not have the same discretion in crim with D’s matters
* Your client
* You can only stop them if you KNOW
Comments
* A lawyer’s knowledge that is evidence is false, however, can be inferred from the circumstances
* (a)(3) requires that the lawyer refuse to offer evidence that the lawyer KNOWS to be false, regardless of the client’s wishes
Candor w/ the court
fairness to opposing party counsel
OFD
Can’t obstruct another lawyers access to evidence
* or destroy, conceal, falsify evidence
Don’t do frivolous discovery requests
* Don’t allude to issues not relevant in trial or will not be supported by the admissible evidence
impartiality & decorum of the tribunal
* Can’t seek to influence a judge
* Communicate ex parte with judge or jury unless allowed
Negotiation Ethics
Candor with third parties
You can lie during negotiations. But there are limits on WHAT you can lie about.
In the course of representing a client a lawyer shall not knowingly:
* make a false statement of material fact or law to a third person; or
* fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 8.4 – It is professional misconduct for a lawyer to engage in conduct involving dishonesty, deceit, fraud or misrepresentation.
* Applies in private capacity vs. 4.1 applies in the course of representing a client
Negotiation Ethics
What is difference b/w improper misrepresentation and what is considered puffing or posturing, which you are allowed to do
VVAB
- Material?
- Binding arbitration
- Valuation is an opinion. You can always get an appraiser.
- Vague statements are usually ok (i.e. “will last a lifetime.)
- Saying you have another buyer is okay or saying you will walk away
- Can lie about bottom lines (except to a judge)
- Death of the plaintiff is material
“In the course of repping a client”
* Not for yourself, it is when you are reppin client
* 8.4 applies anywhere anytime
Material?
* A statement is material for the purposes of 4.1 if it would or could have influenced the decision making process significantly
4.1 applies to third parties not tribunals
* 3.3 is tribunals
Binding arbitration v. nonbinding and mediation
* Binding - 3.3
* Nonbinding - 4.1; mediation and negotiation as well
Rule for Active Misrepresentation About Subject Matter
Active misrepresentation is actionable if material and the listener reasonably relied upon it.
* No damages requirement
* While civil fraud has damages
* The fact you knowingly lied about something material is enough to breach 4.1
Rule for Active Misrepresentation About Alternatives
Making specific claims about other offers is risky because some courts have found these tantamount fraud
* However, general claims about other potential offers have typically been found unactionable
* General claims are looked as puffery and is typically not actionable
Example – Commercial lease
* The landlord told the potential tenant that they had another buyer who was going to pay X amount of dollars for that particular space and they’re coming back tomorrow at a certain time. And if they didn’t sign the lease, then they would lose the space.
* Too specific!
The tenant signed a lease for that amount, but then later learned that that was just a lie.
* No such tenant and overpaid
* Sued and went to trial
Rule for Misrepresentation About Bottom Line
Active misreps about bottom line are generally permitted to non-judges
* The least I will take for settling for example
* The most I will pay as defendant
Caveat
* You cannot lie to the judge
Active misrepresentation about bottom line
* May present bargaining positions that do not reveal bottom line
* May overestimate strengths and underestimate weaknesses
* May express opinion of value or worth
Failure to disclose and R1.6
So, rule to prevent a fraud, R 4.1, requires disclosure because in such circumstances, R1.6 allows it
* SO if they have used your services, and you provided false banking accounts for a loan, and you believe that it is reasonably likely to lead to substantial financial injury to the bank, 4.1 REQUIRES you to let them know
* So 4.1 plus 1.6 REQUIRES you to tell when 1.6 only is a may
Is silence always safe? Rule concerning non-disclosure of information harmful to your position
ESIC
No. Non-disclosure is usually permitted, except where “when standards of fair dealing require disclosure”
* Also when there is fraud or criminal
Factors of fair dealing
* The ease with which the other party could have discovered the undisclosed fact on their own
* The extent to which the omission is akin to scrivener’s error, as opposed to poor lawyering
* Investment that party made in discovering the undisclosed fact
* Disclosure of facts central to the agreement or settlement
Lawyers, Money, and Ethics of Legal Fees
Contingency Fees
Are not permitted in
* Domestic relations matters like divorce
* Criminal matters
Shall be in writing and describe the method
* Let them know percentages
* The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.
Lawyers, Money, and Ethics of Legal Fees
Hourly billing
Hourly billing
* Must a hourly fee disclosure be in writing?
* Does the lawyer have to disclose fee and expense information before starting work?
* Does the lawyer have to estimate the amount of time they will spend on the case in advance?
* you dont, BUT YOU SHOULD
Most lawyers bill in minimum increments, often a tenth of an hour (6 mins)
* So if you make a phone call for two minutes, you can bill for six minutes. That is ethical to do, it is in the contract.
Doesn’t have to be in writing (differs from Contingency fees), but should be
* Hourly just needs to be communicated before or reasonable time
* Any changes must be communicated as well
* If you are just renewing services for an existing client, it does not necessarily apply
1.5 fees
put client’s fees into escrow not your shit
A lawyer shall not make an agreement for, charge, or collect an UNREASONABLE fee or unreasonable amount for expenses
Factors to determine reasonableness of fees
TPC-AT-NEH
Time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
* Is this a cookie cutter kind of case that i done thousands of, or a completely new area where no one has done it before and paving the way for future lawyers
Likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer
* Big criminal trials take up so much time!
The fee customarily charged in the locality for similar legal services
* SF lawyers v. Kansas city lawyers
The amount involved and the results obtained
* Being mindful that things that are going to cost a certain amount and what is going to be the payoff
* Hey its going to be expensive, give client an awareness
The time limitations imposed by the client or by the circumstances
* meaning that you can have a premium on your billing if you basically have to do things very quickly as opposed to having a normal time.
The nature and length of the professional relationship with the client
* The courts are going to be more lenient in terms of challenging a fee if you have a longer relationship with the client rather than the short.
The experience, rep, and ability of the lawyer or lawyers performing the services; and
* lawyers who are of greater stature in terms of reputation, greater length of time of service are going to charged more.
Whether the fee is fixed or contingent
fee customarily charged in the locality for similar legal services
* this might be the most important factor
Billing Do’s and Dont’s
Five of them
Do not double bill
* airplane example
Do not bill recycled work
* Unethical
Do not churn the file, meaning creating work with little benefit except that it creates costs for the client
* doing work on the file that really isn’t needed, but yet has some sort of a billable, uh, consequences.
Do not make up bills or pad bills
* unethical
Do not make money on ancillary services
* dont upcharge for services such as coffee or printing
Do keep contemporaneous track of your billable hours
Do provide client with details of how you spent your time
Division of fees among lawyers of different firms R1.5e
PAR
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
* (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
* (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
* (3) the total fee is reasonable.
Financial assistance
- a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;
- a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and
- a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization or through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses.
So if you’re a regular practicing lawyer, not involved in a public service organization or a clinic, you cannot provide these gifts to clients.
Others paying the bill
CIC
A lawyer shall not accept compensation for representing a client from one other than the client unless:
* (1) the client gives informed consent;
* (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
* (3) information relating to representation of a client is protected as required by Rule 1.6.
Business Transaction
A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
* 1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; and
* (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
* (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether theclawyer is representing the client in the transaction.
How does this come up?
* You make a business deal with the client. And the client comes to believe that the business deal is unfair.
This does not apply to contracts for your own legal servies
* However, the rule applies to contracts for legal services if the client is transferring property to the lawyer as part of payment of services.
* So if you are paid by transferring of their car
The rule does not apply to contracts for services or products that the client normally sells.
* You can go to the restaurant of your client
* You client may be your doctor.
* You client may be your insurance salesperson.
