Professional Responsibility Flashcards
Sources of Law
• Business and Professions Code 6067 and 6068
• CRPC
• Evidence code
• Case law
• COPRAC opinions
• ABA rules and opinions
Questions to analyse an ethical dilemma
- Does the conduct violate a formal ethical rule? Which rule?
- Does the conduct violate some other lawyer obligation?
- Is the lawyer or firm subject to civil liability?
- Are there conflicts between different ethical rules?
- How would you resolve the ethical issue?
Rule on Competence
• A lawyer shall provide competent representation. Requires knowledge, skill, thoroughness and preparation.
• In California, a lawyer shall not intentionally, recklessly or with gross negligence be incompetent
What do you do if you don’t have competence?
- Acquire it - educate yourself
- Consult with others
- Refer to someone else
- Decline representation
When a lawyer receives a referral fee from another lawyer?
- Called fee sharing
- Both must be written.
- ABA is more strict. Lawyers can split fee anyhow under a joint representation. If not using joint rep, fees must be proportional to work lawyers did. Both lawyers must do work. Unconscionable or unreasonable fees are banned.
- Cali is less strict. No joint representation required. Fee does not have to be fair to lawyers and lawyer can do referral service. Only unconscionable fees banned.
- Lawyer cannot raise price to factor in referral fee.
What happens if a lawyer makes a referral to a negligent lawyer?
- ABA Model Rules do not explicitly state a “negligent referral” rule, but concept is covered under competence rules.
- If they inform the client that the person is negligent and the client consents to the incompetent representation, the lawyer will not be off the hook.
- Law protects clients from themselves so it would look at WHO IS IN A BETTER POSITION BETWEEN THE LAWYER AND CLIENT!!
- As lawyers have knowledge about the risk, they cannot allow a client to consent to incompetent representation.
- Rationale is to protect the client. We are not worried about protecting the lawyer. The ABA rules do not want to encourage a business model where lawyers just refer each other. They might not do legal work and simply just refer. California feels lawyers should have this freedom.
What happens if a lawyer falls asleep during a trial?
- If a lawyer fell asleep during trial, they can fail to be mentally competent or diligent. They will not be liable for malpractice if there are no damages to the client. The defendant must show that that conduct prejudiced them - that the trial’s outcome would have bee
- Fiduciary duty generally begins after attorney-client relationship has been established, not before.
- Malpractice claims generally come from unmet expectations or lack of communication.
What does civil liability look like for a lawyer?
- Elements of a negligence claim are Duty of an attorney-client relationship, breach of standard of care, causation, damages.
- For a motion for summary judgment, you have to show that there was no possible way to show attorney-client relationship so the case goes away. If you lose the motion, it goes to trial and you consider settling or going to trial.
What duties are owed to prospective clients?
- Prospective clients are entitled to confidentiality.
- When the lawyer affirmatively states in advance that he is not willing to represent the prospective client, the client can no longer expect confidentiality
- A non-client client spoke to a lawyer about suing his own former lawyer, which was their current client. They had to keep that info confidential
Does talking to an audience about the law form a lawyer-client relationship?
Talking to a panel does not form an attorney-client relationship with everyone since it is general advice. Legal advice is when you apply it to a person’s situation
Test for Attorney-Client Relationship
- Did the client seek advice from the lawyer?
- Was it within the lawyer’s area of competence?
- Did the lawyer, either directly or implicitly, agree to give the requested advice?
Ways to form accidental attorney-client relationship?
- Accommodation clients - lawyer represents an added person along with regular client
- Self-help websites going too far
- Ghostwriting complaint without putting name on it as lawyer must first investigate facts to ensure it is not frivolous
Can a lawyer accept payment from a third party?
- Yes. but the lawyer must still exercise independent professional judgement and the person is not part of the privilege
- Attorneys’ fees agreements are confidential in California
Lawyer vs client’s role
- Clients decides on the objectives of representation.
- Lawyer consults with client on to the means by which they are to be pursued.
- Client decides on goals, outcome, appeal, settlement, plea, jury or bench trial, whether to testify
What kind of fees are banned?
Unreasonable fees for clients
- Excessive fees are to be determined on a case-by-case basis, taking into account the circumstances of both parties.
- Courts look at if one took advantage, bargaining power and unfair terms
- In one case, lawyer could not charge client on time to acquire competence and education
- A fee agreement can be reevaluated if circumstances significantly change
- Lawyers can obtain an ownership interest instead of cash but it cannot be significant like 10%
Are contingency fees allowed?
Yes but not in criminal cases or divorce/alimony/property settlement unless there is a child support in place already and person wants to go to trial.
- A contingency fee with no risk is not allowed.
- In medical cases, contingency percentages must decrease as the award increases.
- To be enforceable against a client, Contingency fees must be in WRITING in order to be paid
- Lawyers cannot acquire a proprietary interest in the cause of action. Contingency fee is exempt.
Are written fee agreements confidential?
Written fee agreements are confidential if you are not operating in a public sphere but if you are working in public sphere or with public entity, FOIA applies and no confidentiality
Types of Fee Arrangements
- Hourly fee - most common
- Flat fee - fixed amount for specific services
- For FLAT fees and HOURLY fees, Client gives a deposit against future billings. Lawyer receives money and puts in a client trust account. Each month or whenever, the lawyer will send the client a bill and if the client agrees, the lawyer will take money from account and put it in their account. - Contingency fee - based on an uncertain event
- Retainer Fee - Payment for access to the lawyer. Like reservation at a restaurant. Payment for the lawyer to agree to take the client’s case
- In California, if a client pays a retainer fee and does not use lawyer’s services, they must be refunded unless they specify to the client that it is a true retainer fee that goes into their account not the client trust account and it is earned on receipt.
What are the rules on hiding evidence?
- Lawyer cannot 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.
- Lawyer can obstruct access to evidence or hide, change or destroy evidence. They can take temporary possession to do a limited exam.
- If lawyer offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take REASONABLE REMEDIAL MEASURES, including, if necessary, disclosure to the tribunal. Same for California
- Evidence belongs to both parties and you have to inform your client of your decision to turn the gun in. If they wanted to dispose of the evidence, you have to counsel them not to do it.
- If they walk away with the evidence, everything is confidential. Optional in California to disclose if they say they are going to harm someone else.
- If the client tells lawyer where they hid evidence, lawyer can keep that information confidential as long as they DID NOT TOUCH it. No longer privileged when lawyer removes or alters evidence.
What are the ABA exceptions to confidentiality?
LAWYER MAY –> OPTIONAL
1. Prevent reasonably certain death or SBI
2. Prevent client from committing crime/fraud that will likely harm someone’s financial interests or property
3. Seeking advice on complying with ethics rules
4. Defend themselves from controversy between the lawyer and the client in a civil or criminal charge
5. Law or court order
6. Detect and resolve employment conflicts of interest that does not compromise attorney-client privilege
7. Report up the ladder
8. Diminished capacity
What are California’s exceptions to confidentiality?
- Prevent CRIMINAL act reasonably certain death or SBI for both confidentiality and privilege.
• Lawyer must make good faith effort to DISSUADE client AND INFORM client of lawyer’s decision to disclose. Disclosure should not be more than necessary. - The self-defence and crime/fraud exception only applies to privilege.
- Crime/fraud exception does not apply to cannabis.
Where does confidentiality come from?
- It comes from con law, contract law and fiduciary duty.
- It is formed by common law
- It covers information relating to the representation.
- It does not matter how and what form. It includes your observations about your client
- Lawyers are also obliged to label written communications with an appropriate description.
- Lawyers should argue that their refusal to speak is consistent with the privilege and, if the lawyer is subject to an adverse
decision on the issue, to seek if at all possible appellate review, including suffering a possible contempt citation
What does attorney-client privilege cover?
- Confidential communications between attorney and client for purposes of legal advice.
- It also applies to adminsitrative settings
- If a client gave lawyer auto maintenance record, it would not be privileged as it was prepared for the purpose of securing legal advice. It was only presented to secure legal advice.
- An email can be privileged regardless of whether it is marked as a confidential communication since it was not shared with others.
- Your own observation of client’s driving can be privileged
- If the client’s whole family is there while the clients is telling secrets, the lawyer must still keep it confidential but it is not privileged so they may be called to testify about it.
How does the duty to communicate look like?
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
When does confidentiality for a former client end?
- Never
- Lawyers can also get the client’s or their personal representative’s permission to snitch after they die.
Can a lawyer disclose confidential info to hired experts?
- In ABA formal opinion, there is implied permission to disclose certain info w/o client consent but this is just an opinion. Best to follow confidentiality
- The consulted person should ask the consulting attorney to waive any conflicts of interest or agree to an ethical screen.
- In California, there is no exception about getting advice about complying with the ethical rules or to acquire competence so the way to do is through hypotheticals.
Can a lawyer form a partnership with a nonlawyer?
NO
- A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
- w Concern that non-lawyers in MDPs might be compelled by law or subpoena to divulge information that a lawyer would not be allowed to divulge due to client confidentiality.
MUST NOT
Can lawyers share legal fees with a nonlawyer
Lawyers cannot share legal fees directly or indirectly with a nonlawyer or with an organization that is not authorised to practice law.
- A lawyer could hire an accountant separately and pay him a set rate an hour and 15% of the profits
Work-Product Privilege
- “Work product” covers lawyers’ impressions, conclusions, and strategies during the preparation of a case. They are immune from discovery by the other side.
- intended to preserve a zone of privacy
in which a lawyer or other representatives of a party can prepare and develop legal theories and strategy
What are some digital competency rules?
- Law firms have an ethical duty to protect client information, and encryption is a crucial measure to prevent unauthorized access or disclosure but not required. Recommended for highly sensitive stuff
- Sending messages through the Wi-Fi network at a coffee shop or airport lounge might jeopardise confidentiality.
- Lawyer must be up to date with changes in the law and its practice, including the benefits and risks associated with relevant technology.
- Standard of reasonableness applies.
- Lawyers must take reasonable steps to protect client information when using electronic communications.
What are some security threats?
- Bad pineapple - intercepts communications and creates a separate file of everything that goes across a separate network
- 0-day exploit - exploit a weakness or unseen way into a network
- Ransomware - a computer programme that lands on a computer and encrypts everything. To get access back to your data, you have to send $$
- Phishing - funny looking email
How is the problem with metadata
- Ethical issues arise when lawyers either fail to remove confidential metadata from documents before sending them or “mine” metadata in documents received from opposing counsel.
- ABA opinion is that looking at metadata is not prohibited, as long as the receiving lawyer promptly notifies the sender of the inadvertent transmission.
- A lawyer’s failure to protect confidential information on devices (e.g., not using passwords) might lead to malpractice, even if the action wasn’t unethical.
What happens when a lawyer receives a confidential document by accident
- Under ABA, if they know or reasonably should know that the document was inadvertently sent, they MUST promptly notify the sender.
- In California, they must read no more than is necessary to determine that it is privileged or subject to the work product doctrine, and promptly notify the sender.
- In a Cali case, California Court of Appeals held that inadvertent disclosure did not waive privilege as the info was marked privileged and confidential.
When is there a conflict of interest with CURRENT CLIENTS?
- Representing one client will; be directly adverse to another OR
- Significant risk representing one client will be materially limited by the lawyer’s responsibilities to another client (FULL THROTTLE RULE)
Steps to cure a conflict of interest with a current client?
- Lawyer reasonably believes that they can provide competent and diligent representation to each affected client (FULL THROTTLE)
- The law does not ban it
- It is not the same litigation or proceeding before a tribunal
- Client gives written consent
- if the lawyer’s ability to recommend/advocate for all options available to the client is impaired because of the lawyer’s duty of loyalty to the others, conflict cannot be cured (FULL THROTTLE)
What happens when a lawyer represents multiple people?
- In California, when a lawyer represents multiple parties on a matter of common interest, none of them can claim privilege against another client in a later dispute. Lawyers must disclose both “the actual and reasonably foreseeable adverse consequences” to clients of representing multiple clients.
- If all the lawyer has to do is draft a document for both, they can define the limited scope of the representation and who they are representing and consequences and conflict waiver.
- Not a good idea for private lawyer to represent two co-defs One could be offered a plea deal to snitch on the other. Court can let them do that but they will have each of the clients go through a consent conversation on the record. Def must prove that an actual conflict adversely affected the lawyer’s performance for conviction to be reversed.
- if an individual or keeps a lawyer to form an entity and the lawyer starts representing the entity, once the entity is incorporated, “the entity rule applies retroactively such that the lawyer’s pre-incorporation involvement with the person was actually with the entity, not the person.
Can clients waive conflicts in advance?
- ABA allows the limited use of advance waivers for the “sophisticated” client who “reasonably understands the material risks” of the waiver and “the actual and reasonably foreseeable adverse consequences.
- The waiver would have to be reevaluated later if circumstances changed to see whether a further waiver was necessary or if representation should stop.
- California’s rules are stricter than the ABA’s in requiring lawyers to obtain written consent after explaining the relevant circumstances and potential adverse consequences
- ABA merely considers consequences when evaluating waivers, but doesn’t require them to be explicitly addressed before consent.
- California federal cases have also found waivers invalid if they do not fully disclose potential future conflicts.
How does a lawyer representing a company give advice to?
- They represent the company but give advice to duly authorized constituents.
- Confidences shared by one partner must be disclosed to all, including limited partners.
- Confidential info can be shared among all partners and one partner cannot assert attorney-client privilege against the other. Both have access to info.
What can a lawyer do if a CEO is doing a fraud?
Under ABA, proceed as is reasonably necessary in the best interest of the organization.
They MUST report up and MAY report out.
In California, they MUST report up but CANNOT report out
- If the lawyer is hired specifically to investigate or defend the organisation concerning the wrongdoing, this rule does not apply and the lawyer cannot report
- If the CEO fires the lawyer, they can no longer report out. Has a duty to tell the other partners.
What is privileged when a lawyer is representing a company?
Corporate attorney-client privilege applies not only to the “control group” (top executives) but also to communications between a corporation’s lawyers and employees at all levels, provided the communications were made at the DIRECTION OF CORPORATE SUPERIORS for the purpose of securing legal advice.
- An attorney acting in a non-legal capacity like doing interviews not for the purpose of providing legal advice cannot use privilege
If a lawyer represents a parent company, can they represent someone suing the subsidiary?
MAYBE
- Just because a company is affiliated (e.g., subsidiary) with a current client, it does not automatically mean the lawyer cannot represent someone against that affiliate.
- ABA opinion is that lawyer is only banned from representation if the affiliate is an actual client or if the new representation would materially limit the law firm’s ability to fulfill its duties to the original client.
Upjohn Warning
- Upjohn Warning: A disclaimer issued by an attorney to an employee of a company that the attorney does not represent the employee, but rather the company as legal entity.
- Best to notify that attorney-client privilege belongs only to the company.
- There is a potential for conflict if employees believe they are receiving personal legal advice.
When a company is sold, does privilege move to new owners?
YES
- “practical consequences” test: When control of a corporation changes, such as through the sale of stock, the new management also inherits the authority to waive the corporation’s attorney-client privilege.
- Client owns the files. When a new company buys the older company, they own everything except info about the merger transaction.
- An asset sale does not transfer control over the privilege. The sale of assets does not acquire the whole entity.
When MUST a lawyer withdrew representation
- If they are fired
- If it will make them violate ethics rules
- If the lawyer mental or physical condition impairs them
- Cannot provide competent representation
- Unwaivable conflict of interest
- Cali includes a Frivolous claim to harass or maliciously injure someone
When CAN a lawyer CHOOSE TO WITHDRAW representation
- If lawyer has financial challenges as a significant impediment to the situation, you can withdraw but it has to be a real hardship.
- No reason but it does not harm client’s interests
- When a lawyer finds the client’s actions repugnant or in fundamental disagreement
- the client’s actions make continued representation unreasonably difficult.
Bad Idea File
- Representing both husband and wife in a divorce proceeding
- A private attorney representing multiple criminal defendants in a criminal case
- Representing a company on company matters and then its CEO on personal matters
- Representing both a corporation and the director with consent
- Joining the board of directors of a client
Best option is to take fee upfront and put it in client trust a/c but what if client cannot pay lawyer?
- Lawyer can ask judge for a substitute public defender lawyer. Must tell client why they’d like to withdraw.
- Could take a credit card or do instalments too. Or ask for an old car.
- If there is no other option, they might have to take the case for free if the judge does not give permission to withdraw. Advise him effectively.
- Could technically aks client to fire them.
AT THE END OF THE DAY, CLIENT OWNS THEIR FILE
Can lawyers do business dealings with clients?
- Yes if transaction is fair and there is waiver of conflict and disclosure.
- They cannot use the client’s info to the client’s disadvantage
- Cannot ask for gifts or prepare instruments where they receive gifts unless client is a relative
- Cannot get media rights until representation ends
- Can only pay for small court costs, small modest gifts for basic living expenses for indigent clients and contingency agreements.
- Must disclose terms to all clients for aggregate settlements.
- Cannot limited liability by banning clients from suing
- Cannot obtain an interest in the litigation except contingency agreements
What difference does California have with business transactions with clients?
- Silent on media rights. Case law allows for it during representation with written client consent
- Lawyers can only do written lending agreements. California is more stricter on liens.
- Insurance companies can pay for lawyers to defends the insured under 3rd party payment as long as insurance company and client’s interests are aligned.
- Lawyer must disclose terms to all clients for aggregate settlements except for CLASS ACTIONS.
- Lawyer cannot get property at a foreclosure if they have a connection to the property.
Personal Relationships and Sex with client
- Lawyer cannot have sex with client unless sexual relationship began before representation
- Lawyers cannot represent a client against someone whose lawyer is related to them or to their sexual partner. Exceptions is if they disclose in writing to client
- In one case, lawyers were suspended for 30 days after continuing to represent a client who was considering cooperating with the authorities, which contradicted their policy not to represent cooperating clients. There was a personal conflict of interest and it affected their independent judgement
Duty to Former Clients
- Cannot represent another adverse person in the same or a substantially related matter. Informed Client consent in writing is needed.
- The lawyer has the continuing obligation to preserve the client’s confidences and secrets after the representation
- Screening allows lawyers to go to different firms. Cali extends this to law students
- SUBSTANTIAL RELATIONSHIP TEST between the former and current subject matters
Substantial Relationship Test
- Is there a substantial relationship between the former and the current subject matter?
- Ahman test in California is (1) factual similarity of the cases, (2) legal similarity, and (3) the extent of the lawyer’s involvement.
- California is stricter because The “playbook approach” assumes that knowledge of a client’s general strategies or internal workings creates a substantial relationship. ABA says this does not create a substantial relationship.
Hot Potato Doctrine
If a law firm represent Person A in a minor issue and they are a small client. If Google wants to sue Person A, the law firm cannot withdraw from Person A and represent Google instead even though they are the more lucrative option.
A law firm cannot drop a client to take on an opposing client that is more lucrative.
`What do you do if the client has diminished capacity?
Client is unable to act in their own interest
- Lawyer must as far as possible, maintain a normal client-lawyer relationship
- Lawyer can seek a guardian or “other protective action” where the lawyer “reasonably believes” the client is not able to act in his or her own interest
- Lawyer is impliedly authorized to reveal info but only to the extent necessary to protect the client’s interests. Lawyer must take the least restrictive action possible.
- California does not have this so you just try to follow client’s wishes
-
What if the Guardian ad litem and attorney are the same and there is a conflict?
- If the attorney (represents child) is also the guardian ad litem (represents child’s best interests) and have differing opinions from the different capacities, the lawyer can withdraw from one role with permission from court.
- If you ask to withdraw, the court might ask why. ABA rules allow disclosure for court orders. California does not. The California lawyer would just ask to withdraw without disclosing why
Can privilege be waived to show competence?
- In a California case, Bolden appealed an order that said he was incompetent. The Penal Code required his lawyer to give his opinion on the client’s competence but the lawyer said this was privileged. The Court held that the Penal Code did not violate privilege and the lawyer still had to give his opinion on the client’s competence as the evidence was based on observations rather than confidential communications.
Can a lawyer represent someone with different personal views?
Lawyers can represent someone that they don’t share the same personal view with as long as they can do it competently. Full-throttle rule.
What must lawyers consider?
- Lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
- MAKE SURE TO ADVICE ABOUT OTHER POTENTIAL ISSUES TO LEGAL REMEDIES
- Understanding and bridging cultural gaps has become a crucial skill for lawyers.
Is there an issue if a lawyer cannot understand their client’s culture?
- Lack of sensitivity to cultural differences can be an ethics issue. Failure to do so could not only hinder communication but could also lead to ethical violations in representing clients fairly and competently
- Client-centered advocacy can help break free from the dangerous patterns of paternalism in domestic abuse cases, which can inadvertently mirror abusive behaviours.
Can lawyers be required to provide legal services to those who can’t pay?
Yes
Every lawyer has a professional responsibility to provide legal services to those unable to pay. ABA recommends 50 hours of pro bono.
WHEN A LAWYER KNOWS A CLIENT’S STORY IS FALSE, BUT THEY HAVE TO DEFEND THE CLIENT?
- They cannot present false evidence they know is false.
- Objective is to create a reasonable doubt in the jury’s mind, not to present the truth so they can cross-examine the truthful witness.
- A lawyer could still argue that the prosecution has not proven the defendant’s guilt beyond a reasonable doubt, without resorting to knowingly false claims.
- They could also suggest alternative explanations for the facts but the jury must be informed that these alternative explanations are not based on a good faith belief in their truth but are offered solely to weigh the evidence.
What if a lawyer’s omission implies a falsehood?
- A lawyer must correct it
- A lawyer must not fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
- ABA allows lawyer to take remedial measures up to and including disclosure to the tribunal.
- California does not so testifying in the narrative is the best option but not a great one.
Perjury Trilemma
- Lawyer’s duty to provide effective assistance by seeking all relevant facts.
- Duty to maintain client confidentiality
- Duty to be candid with the court
What should a lawyer do after false testimony has been presented and they were involved?
- Advise the Client to Correct the Falsehood.
- Withdraw if Necessary - Withdrawal is only permissible if it doesn’t prejudice the client and is supported by extraordinary reasons, such as the lawyer’s knowledge of perjury.
- Disclose to the Court: not in California
Can a lawyer bring a frivolous claim?
No
- If there is no factual or legal basis for the claim, not allowed to bring claim
- If it is a case with merits but very likely to lose, lawyer can still bring case
- If there was no quorum at 2 meetings, that is a technicality they can sue on once investigated. The standard for frivolousness is rather high
What must a lawyer do before filling in a complaint?
- An attorney to conduct a reasonable inquiry into the facts
- Lawyers can rely on clients’ factual statements if they are “objectively reasonable.” However, this does not absolve them of the duty to investigate
- In one case, Court upheld sanctions for a lawyer who filed a claim that was initially unsupported but later gained merit.
When must lawyer disclose adverse authority?
- Lawyer must disclose if opposing counsel has not disclosed, even if it weakens the client’s position.
- Lawyer has to disclose if it is controlling authority. Not required to disclose authority from another jurisdiction.
- Failing to cite the authority on the grounds that the case material is dicta would, at worst, run afoul of the rules and, at best, undermine the credibility of the lawyer
What can lawyers do if they submit a frivolous claim?
The “safe harbor” provision allows lawyers to withdraw a filing. Purpose of sanctions was solely to deter improper filings and not to punish.
Can a male lawyers call all the female opposing lawyers “honey”?
No
- A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
- Lawyers cannot harass or discriminate based on the protected characteristics
- For California, harassment must be unlawful
Does a junior lawyer get in trouble for following his boss’ unethical orders?
- A junior lawyer that does something clearly wrong under the supervisor’s guidance would be in trouble and his supervisor would be in trouble. The supervisor would also be in trouble if he knows of the conduct and does nothing.
- It has to be a very close call or difficult question. There must be a reasonable view on both sides.
Must firms ensure lawyers comply with ethical rules?
Yes
- Every firm must have at least one partner that is responsible for the firm and they must have measures to ensure that all the lawyers are following the rules.
- The firm itself or the supervisor might be subject to disciple for failing to have that program.
- A person who orders something bad or knows a junior lawyer did the bad thing can be in trouble.
What are discovery violations?
- Withholding requested documents
- A firm had to pay the opposing side’s attorneys’ fees for providing evasive and incorrect responses to discovery requests
How must a lawyer conduct themselves in negotiations?
- A lawyer may not “make a false statement of material fact” to a third party.
- Lawyers cannot outright lie but they can engage in puffing, exaggeration, or non-material misrepresentation.
- Lawyers must correct material misimpressions if the lawyer’s silence or omission would be equivalent to an affirmative false statement.
- Estimates of price or values and intention to an acceptable settlement of a claim is mere puffery. You can lie about that.
- Confidentiality still applies which limits disclosure.
- Lawyers cannot engage in dishonesty, fraud, deceit, or misrepresentation.
What happens if there is misrepresentation in negotiations?
- The contract may be voided, and the lawyer may be liable in tort to the injured party.
- California’s case law limits the ability to undo a “done deal” even if fraud is present, thereby restricting third-party liability for lawyers. Settlement agreements are binding, especially when they include broad releases of claims.
Prosecutor’s Duty in Plea Negotiations
Prosecutors have a duty to disclose exculpatory evidence which shows the accused’s innocence (Brady v. Maryland), but they are not required to disclose non-evidentiary information (e.g., the death of a witness) that does not directly affect guilt or punishment.
