Professional Responsibility Flashcards
ABA
Voluntary association of lawyers, does not license attorneys, has no power to discipline
State bar associations
Through their courts + legislatures, license lawyers to practice law within VA
Mandatory, has the disciplinary power to regulate lawyers
Self-governance and the duty to report misconduct
- Lawyer with knowledge of misconduct has duty to report the other lawyer
- Misconduct = misconduct regarding a lawyer’s honesty, trustworthiness or fitness to practice law
- Confidentiality limitation on duty to report—if a lawyer has learned of the misconduct through confidential communications, there is no duty to report, but exceptions to the duty of confidentiality (e.g., the future crime exception) apply
Discipline vs. Malpractice
- Discipline—imposed for the protection of the public and the benefit of the profession
- Malpractice—a tort- or contract-based civil action to compensate the victims of a lawyer’s negligence or contract breach
Malpractice - Tort Theories
- Duty—measured by the skill and knowledge of the ordinary lawyers in the community
- Breach—if a lawyer chooses a reasonable course of action and that course later produces bad results, the lawyer has not breached a duty
- Causation—generally, the client must prove she would have prevailed in the matter had the lawyer not breached a duty
-The plaintiff must prove the value of the underlying case to prevail in malpractice - Damages
Malpractice - Necessity of Expert Testimony
Usually need to establish:
(i) Nature of the professional duty AND
(ii) breach of that duty
Prospective Limitation on Malpractice Liability is allowed when…
(i) such agreements are permitted by law and
(ii) the client is represented by other counsel in making the agreement;
— VA exception when lawyer is employee of client, so long as client is independently represented in making agreement
Disqualification motions = FRCP 11 & State Law
- Provide money sanctions for frivolous claims
- Analogous to frivolous claims ethics code provisions
- Prohibit claims that lack a basis in law or fact
- Safe harbor (federal)—before a party may file a Rule 11 motion:
o Notice must be given
o The offender has 21 days in which to withdraw or
correct the offending item - VA—no safe harbor
- A court may impose sanctions on both the lawyer and the lawyer’s firm
The beginning of the lawyer-client relationship
when a client reasonably believes the lawyer has undertaken to provide legal service
Attorney’s fees: Reasonableness standard
Range of factors, including:
(i) time, labor, and skill required, novelty and difficulty;
(ii) likelihood acceptance will preclude other employment; (iii) customary fee in the locality for similar services;
(iv) amount involved and results obtained;
(v) time limitations imposed by client or circumstances;
(vi) nature and length of professional relationship;
(vii) lawyers’ experience, reputation, and ability;
(viii) whether fee is fixed or contingent
Attorney’s Fees: Writing and Timing
lawyer must adequately explain fee to client; written contract preferred, but not required; for new clients, explanation should be before or within reasonable time after commencing representation
Contingency Fees
Permitted, except for criminal and certain domestic relations cases
*Written agreement = must be signed by client and explain how the fee and expense deductions will be calculated
*Ending Statement = must be in writing, explain the outcome of the matter, and provide the calculation of fee and expenses
Fee Splitting with other attorneys is allowed when?
- If lawyers are in the same firm
—If lawyers are not in the same firm, forwarding fee is allowed – referring attorney gets a fee from attorney who ultimately handled case - Modern rule: permitted if: (i) the total fee is reasonable, (ii) the client agrees to the arrangement, and (iii) the arrangement is made before the services are rendered
- Former partners: if part of a profit sharing, separation agreement, or retirement plan
*Non-lawyers = generally not allowed
Fiduciary Duties to Client
- Client trust accounts and safety deposit boxes
o Must be in the state in which the lawyer practices
o Records must be maintained
o Must keep client property and funds separate from the lawyer’s property and funds
o Must be promptly delivered and accounted for upon request
disputed funds must be held in trust account until resolved; funds belong to lawyer must be withdrawn promptly
* Violations are among the most frequent grounds for lawyer discipline
Communication and decision-making b/w client and atty
- Communication—a lawyer must keep a client informed of the status of the matter and must respond to a client’s reasonable requests for information
- Shared decision-making
* Lawyers and clients must share decision-making responsibility:
o Scope of representation, including the duration and subject matter of representation
o Means and ends—generally, clients set the goals (ends), and lawyers determine the best means to achieve them
* Counseling crimes or frauds—a lawyer may not counsel or assist a client in the commission of crimes or frauds
* Client under a disability
o A lawyer must attempt to maintain an ordinary lawyer-client relationship to the extent possible
o A lawyer may reveal confidential information to the extent reasonably necessary to protect the client’s interests
Despite termination, many of the lawyer’s duties to clients continue, such as…
confidentiality and limited conflict avoidance
Terminating representation - Mandatory withdrawal: failure to withdraw under these circumstances subjects the lawyer to discipline…
(i) continued representation will violate the ethics rules;
(ii) continued representation will violate other law;
(iii) lawyer’s physical or mental health is impaired; or
(iv) lawyer is discharged
Terminating representation - Permissive Withdrawal
- For any reason, if no harm to the client
- Causes that will excuse some material harm to the client:
a. Client persists in a course of action the lawyer reasonably believes is illegal or unjust
b. Client has in the past used the lawyer’s services for crime or fraud
c. Client’s actions are repugnant or imprudent
d. Client fails to meet obligations to the lawyer
e. Representation will result in an unreasonable financial burden on the lawyer
f. Client is unreasonably difficult to work with
g. Other good cause
Procedural Requirements for withdrawing from representation
- Notice to client
- VA - Court approval = judge has power to order a lawyer to continue to represent a client even when grounds to withdraw exist
What are the duties upon termination of the lawyer-client relationship?
“Happy Frogs Play Chess”
1. In general, a lawyer is obliged to take reasonable measures to minimize the harm to the client (H)
2. Refund any unearned fees (F)
3. Return client’s papers and property (P)
4. Notify the client when a lawyer ceases practicing at a law firm (the lawyer and law firm must confer and attempt to agree on a joint communication to clients) (C)
What is the duty of confidentiality?
- Secrets and Confidences = duty restricted to (i) information protected by attorney-client privilege, and (ii) other information gained in the professional relationship that would be embarrassing or detrimental to client or that the client expressly requested be held in confidence
- Evidentiary Privilege (another slide)
What is the evidentiary privilege under the duty of confidentiality?
- Created when the client or prospective client communicates in confidence to a lawyer
a. Eavesdroppers—if the client exercises reasonable care to avoid being overheard, and the client intended the information to be confidential
b. Multiple clients together
(i) Each holds a privilege that can be asserted against third parties
(ii) None can prevent others of the group from testifying or otherwise waiving the privilege - Communication, not knowledge, is privileged
- Lawyer observations may be protected by privilege if the lawyer does not prevent others from making the same observations
- Physical evidence collected from a client is not privileged
- Exceptions
(i) Client waiver
(ii) Future crimes and frauds
Duty owed to current clients, former clients, and prospective clients: Organizational Clients
- Agents of the organizational client—if
(i) the information communicated is treated as confidential within the organization, and
(ii) it is communicated to the lawyer so she can represent the organization - Government agency client—in disclosure of government wrongdoing, government lawyers may strike a confidentiality balance somewhat more toward the public interest
- Client and lawyer agents
(i) Lawyer agents and members of lawyer’s firm—treated as if it were made directly to the lawyer
(ii) Client agents—treated as if they were made directly by the client to the lawyer
Duty of Confidentiality - what is the extent of the duty?
A lawyer must use reasonable efforts to prevent the inadvertent disclosure of confidential and privileged information
1. Reasonable efforts—measured by factors like the sensitivity of the information, the cost of employing additional security, and the effect of additional security measures on the lawyer’s practice; a lawyer may consult with technology professionals
2. Periodic review of security measures—a lawyer should periodically review threats and technology and revise her security measures accordingly
3. Inadvertent disclosure—a lawyer who receives an inadvertently disclosed communication is required to (i) immediately terminate review or use of the information, (ii) promptly notify the sender, and (iii) abide by the sender’s instructions regarding the return or destruction of the information
Duty of Confidentiality: Exceptions
- Consent by the client
- Implied authorization - info that must be disclosed to carry out the purposes of representation
- Self-defense disclosures by attorney
(i) fee dispute or malpractice
(ii) to establish a defense to a criminal charge or civil claim against the lawyer based upon client conduct
(iii) To respond to allegations concerning the lawyer’s representation of the client (like bar disciplinary proceedings, govt agency investigations, or claims of ineffective counsel)
Disclosure limited to facts necessary to defend, and individuals who need to know
Future Crimes, frauds, and harms to others: VA Rule 1.6(b)
Disclosure is permissible to the extent the lawyer reasonably believes necessary to…
1.Comply with a law or court order
2. To establish a claim or defense on behalf of the lawyer
3. When information gained in the course of the representation, reveals a fraud
perpetrated upon a third party related to the subject matter of the representation
4. When information is reasonably necessary to protect a client’s interests in the event of the representing lawyer’s death, disability, incapacity or incompetence
5. When information is sufficient to participate in a law office management assistance program
6. When information is provided to an outside agency necessary for statistical, bookkeeping, accounting, data processing, printing, or other similar office management purposes, provided lawyer follows certain protocol
7. To prevent reasonably certain death or substantial bodily harm
VA Rule 1.6 - A lawyer shall promptly reveal:
1. The intention of a client to commit a crime reasonably certain to result in death or substantial bodily harm to another, or injury to financial interests or property of another, the information necessary to prevent a crime, after…
a. Advising client of action’s legal (C)onsequences;
b. (U)rging the client not to commit the crime;
c. Advising the client that the attorney shall take appropriate (R)emedial measures; AND
c. Advising the client that the attorney must (R)eveal the clients (I)ntention;
CURRI
OR
2. The misconduct of another attorney to the appropriate professional authority with client consent, if necessary
Information that is so generally known that its continued protection by the lawyer serves little purpose does not…
have the duty of confidentiality
Conflict of Interest - VA Specific
Prospective Clients:
Unless the rules permit, a lawyer must not…
(1) Use information learned during consultation to the prospective client’s disadvantage, unless its publicly known;
(2) Reveal information learned during consultation
(3) A lawyer or their associate may not represent a client with interests materially adverse to the prospective client who has revealed information that could be significantly harmful to prospective client, unless certain conditions are met — aka screening
Conflict of Interest - VA Specific
Corporate Clients
Attorney must have actual knowledge of material violation by a corporate client to have duty to disclose
Conflict of Interest - Waivers: Elements
VA: The standard for a waiver is “client consent after consultation”
MRPC: “informed consent”
Conflict of Interest - Waivers are NOT allowed when…
- The conflict is sufficiently gross to make any client waiver suspect or;
- When the conflicts rule is less about the risk to client interests than it is about risks to justice system interests
Sources of Conflicts - Third Party Interference
Someone who is not a party to the lawyer-client relationship seeks to affect or is positioned to affect the independence of the lawyers judgment
MAY be waived if the client consents after consultation
Lawyer-Client Conflicts exist when…
a lawyers representation of a client will be materially limited by the lawyer’s personal interests
Lawyer-Client conflicts - waiver is allowed if…
(i) the lawyer reasonably believes she can provide competent and diligent representation, and
(ii) the client gives written consent after consultation
Lawyer-Client Conflicts - Business Transactions with clients are allowed if…
(i) the client consents in writing,
(ii) the client is given a reasonable opportunity to seek the advice of independent counsel,
(iii) the transaction is objectively reasonable, and
(iv) the transaction is in writing and in terms that can be understood by the client
*note MRPC: the client must be advised in writing of the desirability of obtaining independent counsel
Lawyer-Client Conflicts - Business Transactions with clients are ONLY restricted when…
the client expects the lawyer to exercise legal judgment regarding the transaction
A lawyer may not seek literary or media rights based on a clients’ story until…
…the conclusion of the representation; no waiver permitted
Sexual or amorous relations with clients are…
prohibited by MRPC unless the relationship began before the lawyer-client relationship; not adopted in VA
Drafting instruments that benefit the lawyer—a lawyer may not draft a document that makes a substantial gift to the lawyer or the lawyer’s close relatives unless…
…the donee is related to the donor
Agreements limiting the lawyer’s liability—a lawyer may not enter into a contract that prospectively limits his liability for malpractice, unless…
the lawyer is an employee of the client (such as an in-house lawyer) AND the client is independently represented
Lawyer-client conflicts and champerty, barratry, and maintenance—certain doctrines are concerned with the stirring up of litigation…
Define Champerty, Barratry, and Maintenance in this context.
A. Champerty—acquiring an interest in the subject matter of litigation
B. Barratry—incitement of litigation by soliciting potential legal clients
C. Maintenance—continuation of a lawsuit
Advancing funds to clients—prohibited when…
…there is pending or contemplated litigation, except that the lawyer may advance court costs
Multiple Client Conflicts… Concurrent Clients that are directly adverse…
CANNOT be waived.
Multiple Client Conflicts… Concurrent Clients that are adverse in unrelated actions….
generally may not be waived, unless the adversity is general
Multiple Client Conflicts: Concurrent Clients… SAME side multiple client representation…
may be waived.
Former and current clients—the substantial relationship test
1. Conflicts between former and current clients arise when:
- Can it be waived?
1A. Their interests are directly adverse, or
1B. There is a substantial relationship between the two
- Conflict may be waived if both clients consent after consultation
Multiple Client Conflicts: Lawyer for an organization—may represent both the organization and officers if…
their interests converge;
if officer violates obligation to organization, lawyer must act as is reasonably necessary in the best interest of the organization, including informing the entity’s highest authority
Positional conflicts of interest:
When a lawyer represents two clients in unrelated matters for whom the lawyer must argue opposite sides of the same legal issue; allowed in VA unless…
…the conflict materially limits the representation of either client
BUT, If opposite positions are argued before the same court, the lawyer may not argue for a precedent in one case that adversely affects the client in the other case
Imputed Conflicts: Imputed Disqualification Rule
confidential information possessed by one lawyer is
effectively possessed by all lawyers in the same firm
Imputed Conflicts: Motions to Disqualify
often applied to the entire law firm where the disqualified lawyer works…
BUT see Screening Defenses
Imputed Conflicts: Screening Defenses
- Prevent application of the imputed disqualification rules
a. “Chinese Wall” defense
b. The conflicted lawyer is isolated from other lawyers in the organization by various devices
** VA: no general screening procedure**
Special Role-Related Conflicts Rules: Former Judge cannot represent a party in a matter…
the judge participated in as a judge,
unless all parties to the matter consent after consultation
Special imputed disqualification rules (for law firms where a former judge works)—if the former judge is conflicted, the firm must…
provide screening procedures and notice to (i) the parties and (ii) the judge’s former court
Former government lawyer: In VA: a lawyer cannot represent a client in connection with a matter in which the lawyer participated…
…personally and substantially as a government lawyer
* Exceptions
o Specifically permitted by law
o Representation is not for a matter
o Consent from the agency and the client (consent must be after consultation)
Former Government Lawyer: Use of Confidential Information.
May not represent a private party adverse to parties about which the former government lawyer has confidential information
Lawyer as witness—a lawyer may serve as an advocate if likely to be a necessary witness when…
(i) the testimony relates to an uncontested issue,
(ii) the testimony relates to the nature and value of legal services rendered in the case, or
(iii) disqualification would work a substantial hardship on the client;
may act as an advocate in a proceeding in which another lawyer in the lawyer’s firm is likely to be called as a witness unless a conflict of interest would occur
Duties to Third Parties: Truth Telling outside the court context.
- Statements that are false and material subject a lawyer to discipline
- Statements that are fraudulent or silence when the statement or silence would amount
to fraud subject lawyer to discipline
Duties to Third Parties:Harassment and other abusive conduct
- Lawyers may not engage in unlawful acts on behalf of clients
- Lawyers may not counsel a client to engage in criminal or fraudulent conduct
- Lawyers may not use means that serve no substantial purpose but are done solely to embarrass, delay, or burden the third person
Duties to Third Parties: Jurors
Lawyers may investigate jurors’ backgrounds by means of public records such as deeds, judgments, available voting records
*Lawyers may not contact jurors either in person or through agents
* Lawyers may not engage in conduct that will cause jurors to question the justice
system’s use of their verdict
Communicating with represented persons: No-contact rule
Lawyers must not communicate about the subject of the representation with represented parties unless that party’s lawyer consents or it is otherwise authorized by law.
Initiation by represented person—communications prohibited even when…
…the represented person initiates contact with the lawyer or consents to it
Communicating with represented persons: Organizational parties – prohibited from communicating with constituents of the organization, including…
(i) Employees with managerial responsibilities for the subject of the matter;
(ii) Employees whose acts or omissions may be imputed to the organization with respect to the matter; and
(iii) Employees who have authority to obligate the organization with respect to the matter
Former employees—lawyer may communicate ex parte with a former employee or agent even if…
…she was a member of the organization’s managerial group; BUT lawyer may not use methods that would violate the organization’s legal rights
Communicating with unrepresented persons: Lawyers must avoid misleading and have an affirmative duty to…
- Refrain from implying that the lawyer is disinterested in the matter about which the lawyer is communicating
- Clarify his interest in a manner if the unrepresented person misunderstands the lawyer’s role
Communicating with unrepresented persons: Giving Advice – lawyers cannot give legal advice to unrepresented persons, except…
to advise them to obtain counsel
Communicating with unrepresented persons: Fact Gathering is…
permitted, provided the lawyer does so without giving advice to the unrepresented person.
Civil liability to third persons—lawyers do not owe a duty to third persons that supports a…
negligence action.
- Intended beneficiaries of the lawyer’s work for a client—lawyers owe a duty of care to that third person
- Invited reliance—if a lawyer’s work for a client specifically invites the reliance of a third person, the lawyer owes a duty of care to that third person
- Assisting clients with fiduciary duties—if a lawyer’s client is a fiduciary, such as a trustee, the lawyer owes a duty to the beneficiary
- Preventing client harm to a third person—if a lawyer knows her client will harm a third party and fails to take reasonable steps to prevent the harm, the lawyer may have liability to the harmed third party
Duties to the legal system and society: Truth-telling inside the court context – Statements to opposing parties
lawyers have obligations of candor to opposing parties
Fact statements to the court—applies until conclusion of proceedings
1. Lawyers must not…
2. Lawyers must not…
3. Lawyers have no general obligation to reveal unfavorable facts to the court, except…
- …knowingly making false statements of material fact to the court
- …engage in acts or omissions that amount to fraud before the court
- …when a lawyer is permitted to have ex parte communications with the court, he must disclose both favorable and unfavorable material facts
Perjury—lawyers have a general duty to refrain from knowingly offering false evidence
1. If a witness other than the client offers perjured testimony, the lawyer must ____.
2. If a client offers perjured testimony, the lawyer must promptly reveal the perjury to the court, unless ____.
a. A lawyer must first attempt to persuade the client to rectify the matter by ____.
b. The duty applies even if it ___.
3. VA: a lawyer must reveal the client’s perjury ____.
- …promptly reveal the perjury to the court
- …the lawyer does not learn of it until after the conclusion of the proceedings
a. …revealing the fraud and then testifying truthfully
b. …violates client confidentiality
3… if necessary to rectify the situation
Disclosing adverse legal authority
lawyers are obligated to disclose to the court controlling adverse legal authority
Suppressing witness availability
* Lawyers may not request or advise a witness to refrain from voluntarily cooperating with another litigant, including:
o Not appearing at a hearing
o Cooperating only if subpoenaed
Exception:
o The witness is a relative, employee, or agent of the client
o The information is relevant in a pending civil matter
o The lawyer reasonably believes that the request will not harm the witness
Witness payment rules
1. Lay witnesses
2. Expert witnesses
- lawyers may pay a non-expert witnesses only a statutory fee (VA
includes lost wages) and reasonable expenses incurred in appearing - lawyers may pay the professional fee that someone in the expert’s field charges for his time, and reasonable expenses incurred in appearing, but cannot pay a fee that is contingent on the outcome
Frivolous claims and litigation positions
* Lawyers may not bring actions or take positions in litigation that are frivolous Frivolous claims include:
- Those that lack legal or factual merit
- Those that are taken primarily to harass or maliciously injure a third party
- Frivolous discovery requests and those intended merely to delay
* FRCP 11—in addition to violating ethics codes, frivolous positions in litigation may
violate FRCP 11
Personal opinion—lawyers may not express personal opinions to jurors about
(i) the justness of the client’s cause,
(ii) the credibility of a witness, or
(iii) the culpability, guilt, or innocence of a party
Alluding to matters outside the record—lawyers must not allude to matters that are…
….either irrelevant or will not be supported by admissible evidence
* Reasonable lawyer standard
* Certainty is not required, just a reasonable belief
* If evidence will be admissible only on a condition outside the lawyer’s control, the lawyer must not allude to it
* Cannot refer to matters already ruled inadmissible
Limitations on litigation publicity—lawyers are limited in what they can say to media regarding pending litigation and criminal investigations. Restricted statements include…
- Out-of-court statements
- Likely to be disseminated by public communication
- Materially prejudice a matter
Obey court orders—even when a lawyer knows a judge mistakenly made an order or ruling, the lawyer may only…
…preserve the record for later challenge on appeal
Prosecutors’ supervision of subordinates’ statements—specially identified duty to not …
…direct or encourage investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor to make an extrajudicial statement that the prosecutor would be prohibited from making
Ex parte contact with judges
1. Judges—generally, lawyers are prohibited from communicating ex parte with a judge
- Permitted for unrelated or housekeeping matters
- No intent requirement
- Permitted if authorized by law, such as in rules governing requests for emergency restraining orders
When such communication is authorized, a lawyer is under heightened candor-to- the-court requirements
* Oral or written communications are covered
* Prohibited even if the judge initiates the communication
Ex parte contact with jurors: Lawyers are strictly prohibited from communicating with jurors…
…outside the courtroom before and during jurors’ duties
* Lawyers are prohibited from communicating with jurors after the jurors’ duty ends, except for benign purposes, such as to determine whether the lawyer’s presentation manner is effective
* Lawyers have an affirmative duty to report to the court juror misconduct or others’ misconduct with respect to jurors
Pro bono publico
* The Council for the Virginia State Bar urges but does not mandate…
…all VA lawyers to contribute a minimum of two percent of their professional time annually to pro bono services
