Professional Responsibility

Question 1

What is the duty of loyalty?

Answer 1

Lawyer must put the client’s interests ahead of his own and to do nothing to harm the client
i. This extends to all matters connected with the agency relationship

Question 2

What are the rules of the duty of loyalty?

Answer 2

i. No Self-Dealing: can’t acquire a material benefit from a 3P in connection with your actions as an agent
ii. No Current Conflict: can’t take a position adverse to the principal, or on behalf of a party adverse to the principal, regarding a matter related your agency relationship
iii. No Competition: you can’t compete w/ the principal or assist its competitors during agency relationship
iv. Nondisclosure: can’t use the principal’s property, or use or communicate the principal’s confidential information for the benefit of the agent or a 3P
v. Harmful conduct: can’t engage in conduct that is likely to damage the principal’s enterprise
vi. Separate accounts: must segregate the principal’s property from your own and keep and render an account of money or property received or paid by the agent for the principal.

Question 3

What is the duty of care?

Answer 3

Lawyers must act reasonably and live up to the standard of care of professional competence and diligence in similar work and geographic region

i. ASK: what would a reasonable lawyer similarly situated to you do in this situation, and did you do that?
ii. When you see a duty of care violation it is often because a lawyer was foolish, lazy, overextended, or debilitated

Question 4

Rules of the duty of care

Answer 4

i. Scope: must comply w/ the express and implied terms of any contract with the principal
1. Duty to safeguard confidential client info during AND after representing a client
ii. Authority: must act only within the scope of actual authority and comply with all lawful instructions from the principal regarding the agent’s actions for the principal
iii. Communication: must inform the principal of all facts material to the agency relation and all facts the agent knows or has reason to know the principal would have known

Negligence and Malpractice liability correspond to this duty
However, in order to succeed on a suit for legal malpractice (breach of care), there must be a breach by L that relates to his duty as an attorney

Tante v. Herring [use of client information for personal benefit]
iii. Reasoning: atty used confidential information to his own advantage
1. No duty of care violation b/c L still won the case, so only liable for breach of loyalty

Question 5

What is the duty of confidentiality?

Answer 5

Confidentiality: lawyers can’t use client confidences for their own benefit or to the client’s detriment, AND duty not to disclose client info unless required by law

In CA you can only break confidentiality if they are going to cause harm or commit a crime

b. Restatement §16(2): L’s must act with reasonable competence and diligence
c. Restatement §52(1): L’s must live up to the standard of care of professional competence in similar line of work and geographic region/jurisdiction

ASK: what would a reasonable lawyer similarly situated to you do in this situation, and did you do that?

Question 6

Rules of duty of confidentiality

Answer 6

Confidential info: info relating to representation of a client that is not generally known

Term: duty to safeguard confidential client info during and after representing a client
1. can’t use or disclose confidential client info if (i) a reasonable probability that doing so will adversely affect a material interest of the client or (ii) if the client has instructed the lawyer not to use or disclose the info
2. must take steps reasonable under the circumstances to protect confidential client info against impermissible use or disclosure by the lawyer’s associates or agents that may adversely affect a client’s material interest or otherwise than as instructed by the client
3. also have to disgorge any profits made if you use a client’s info for pecuniary gain

Question 7

What are the requirements of the duty of confidentiality?

Answer 7

i. Scope: must comply w/ the express and implied terms of any contract with the principal
ii. Authority: must act only within the scope of actual authority and comply with all lawful instructions from the principal
iii. Communication: must inform the principal of all facts material to the agency relation and all facts the agent knows or has reason to know the principal would have known

Question 8

Duty of Confidentiality

Answer 8

Lawyers cannot disclose confidential client information unless the client consents or an exception applies (e.g., to prevent death, substantial harm, or as required by law). The duty applies during and after the attorney-client relationship.

Question 9

How does attorney-client privilege differ from the duty of confidentiality?

Answer 9

Privilege only applies to communications between a lawyer and a client for the purpose of legal advice and is primarily an evidentiary rule. Confidentiality is broader, covering all information related to the representation, even outside court

Question 10

Under what circumstances can a lawyer disclose confidential information?

Answer 10

Lawyers may disclose information to prevent death or serious bodily harm, prevent or rectify financial harm if their services were used, defend themselves in claims related to their representation, or if required by law

Question 11

What does a lawyer do if they inadvertently receive confidential client information?

Answer 11

The lawyer must stop reading, inform the client, and seek advice on how to proceed. The duty of confidentiality still applies unless an exception (such as preventing a crime or self-defense) applies

Question 12

What is a lawyer’s duty if they learn their client is committing a crime or fraud?

Answer 12

Under the ABA rules, the lawyer may disclose the information to prevent the crime or mitigate harm if the lawyer’s services were used to further the crime

Question 13

Can it be argued that a document and conversation with a lawyer is privileged if obtained via a lawful search warrant?

Answer 13

The attorney-client privilege may not apply if the document and conversation were not intended to be confidential or if it records conversations not directly related to seeking legal advice. It can be argued that the evidence is admissible if privilege is waived or doesn’t apply

Question 14

Publishing Client’s information post-representation

Answer 14

No, the lawyer’s duty of confidentiality extends beyond the representation. Publishing confidential information without the client’s consent, even post-representation would be a violation of this duty unless it fits within an exception, such as self-defense.

Question 15

What is the fiduciary duty of a lawyer to a client?

Answer 15

The duty to treat the client with utmost candor, care, loyalty, and good faith, placing the client’s needs above their own within the bounds of the law

Question 16

What creates an agency relationship in the lawyer-client context?

Answer 16

When the principal (client) manifests assent to the agent (lawyer) to act on their behalf subject to the principal’s control, and the lawyer agrees to do so or fails to object and reasonably should know that the person relied on their services, or a tribunal appoints them

Question 17

What does the duty of loyalty entail for lawyers?

Answer 17

The lawyer must put the client’s interests ahead of their own, avoid impermissible conflicting interests, and must not use client information to the client’s disadvantage or for personal gain

Question 18

What standard must lawyers meet under the duty of care?

Answer 18

Lawyers must act reasonably, with the same diligence and competence expected of lawyers in similar fields and geographic areas. A violation often occurs due to negligence, such as overextending

Question 19

What is the duty of confidentiality?

Answer 19

Lawyers cannot use client confidence for their own benefit or disclose client information unless required by law. This duty extends beyond the termination of the lawyer-client relationship

Question 20

Under what circumstances can a lawyer disclose confidential information?

Answer 20

Lawyers may disclose information to prevent death or serious bodily harm, prevent financial harm from a crime/fraud, or in self-defense (e.g., to defend against allegations by the client)

Question 21

What is attorney-client privilege?

Answer 21

It protects confidential communications between a lawyer and a client made for the purpose of legal advice. This is narrower than the duty of confidentiality, which covers all client-related information.

Question 22

What is apparent authority in the context of legal representation?

Answer 22

Apparent authority arises when a client’s actions lead third parties to believe that the lawyer has authority, even if no formal authority exists. Lawyers must clarify the limits of their authority to third parties.

Question 23

How does confidentiality work in joint representation?

Answer 23

Each client in a joint representation is still owed the full set of duties. However, co-clients cannot invoke confidentiality against each other if the matter pertains to the joint representation

Question 24

When is a lawyer prohibited from representing a client due to a conflict of interest?

Answer 24

A lawyer cannot represent a client in the same or substantially related matter where the interests are materially adverse to those of a former client unless the former client consents (if this happens, no one in the firm can represent them)

A conflict of interest exists if 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 by a personal interest of the lawyer

Question 25

What is the self-defense exception to confidentiality?

Answer 25

A lawyer may disclose confidential information to defend against accusations of misconduct or respond to allegations in proceedings, but only to the extent reasonably necessary

Question 26

What is the lawyer’s duty when representing an organization and discovering illegal conduct?

Answer 26

The lawyer must act in the best interests of the organization, report the issue up the chain of command, and if necessary, may reveal confidential information to prevent substantial harm to the entity

Question 27

How do you determine who has authority?

Answer 27

Lawyer control the “means” of representation and the client control the “end” of representation

L also has a duty to keep client informed of all settlement offers –> atty can’t act unilaterally bc client controls the “ends”

Question 28

What is involved in actual authority?

Answer 28

Actual authority: assent of client manifested to L. Alter C’s legal rights and obligations within bounds of the assent

Implied authority: implication from assent of client manifested to L to do things necessary to carry out C’s instruction.

Question 29

What is inherent authority?

Answer 29

power to alter a client’s rights and obligations as needed to enforce a result of a proceeding

Lawyers are special agents who have authority to bind clients to procedural matters (binds principal to agent’s actions regardless of consent)

Question 30

Can you have a collective group settlement if all client don’t agree?

Answer 30

No each of them must consent to a settlement or a plea

Question 31

Do lawyers have apparent authority to settle claims?

Answer 31

No because the client either needs to manifest beliefs to 3rd party or tell the attorney to settle because they control the ends

Question 32

What is included in lawyers “means”?

Answer 32

Technical, legal, and tactical matters (e.g., what witnesses to put on, jury instructions, what defenses to enter, etc.)

Lawyers get to make some decisions even if a client disagrees (the more a particular question affects the effectiveness of courts, the more likely it is for lawyer to have the final say on that question)

Question 33

What do the rules say about lawyers lying to tribunals?

Answer 33

Forbids lawyers from lying to tribunals (including failing to correct a previously false statement made!) or from introducing evidence the lawyer knows to be false (affirmative duty to remediate—including disclosure, if necessary)

Question 34

How does a lawyer limit their scope of representation?

Answer 34

L can limit the scope of his rep as long as it’s reasonable and he gets informed consent from C

Means L only represents C for some purposes (like for liability phase, but not sentencing)

Question 35

What is confidential information?

Answer 35

All info relating to the representation of a client that is not generally known. Information is generally known if a reasonably diligent person with ordinary knowledge in some field could obtain the information employing lawful means.

Question 36

Privilege v. confidentiality

Answer 36

Privilege applies to information you’re being compelled to disclose in court. Applies only to confidential communications between L & client made for the purpose of obtaining legal advice

Confidentiality pertains to voluntary disclosure and applies both inside and outside court. Duty arises from duties of loyalty and care. The attorney is forbidden from disclosing any of the client’s confidential information or using that information against the client.

Question 37

Joint Representation Restatement

Answer 37

If 2+ clients are jointly repped, communication of either co-client that would otherwise be privileged & relates to matters of common interest is privileged against 3rd parties. Any co-client can invoke the privilege unless it’s been waived by the client who made the communication. BUT co-clients can’t assert the privilege against each other

Question 38

What are the duties to prospective clients?

Answer 38

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

The lawyer cannot represent a client with adverse interests to a prospective client in the same or related matter if the information could significantly harm the prospective client.
Firm Rule: If the lawyer is disqualified, the whole firm is disqualified unless exceptions apply.

Representation is allowed if:
Both affected and prospective clients give informed, written consent, or
The lawyer took steps to avoid too much exposure to disqualifying information:
The disqualified lawyer is screened, gets no fee, and
The prospective client is notified in writing.

Question 39

What are the duties owed to the client during representation?

Answer 39

General Rule:

A lawyer cannot reveal information related to client representation unless:
The client gives informed consent,
Disclosure is impliedly authorized for representation, or
Disclosure falls under specific exceptions in Rule 1.6(b).
Exceptions to Confidentiality (when a lawyer may reveal information):

To prevent death or substantial bodily harm.
To prevent a crime or fraud likely to cause substantial financial harm, if the client used the lawyer’s services.
To prevent, mitigate, or rectify financial harm from crime or fraud involving the lawyer’s services.
To secure legal advice about the lawyer’s own compliance with the rules.
Self-defense: To establish a claim or defense in a dispute with a client or respond to legal allegations.
To comply with law or a court order.
To detect conflicts of interest (like when changing firms), without compromising privilege or prejudicing the client.

Confidentiality covers all information related to representation

Question 40

Duties owed to clients after representation

Answer 40

General Rule: Substantial Relationship Test

A lawyer cannot represent a new client in a matter substantially related to a former client’s case if the new client’s interests are materially adverse, unless the former client gives informed, written consent.
Use of Confidential Information

A lawyer cannot use information from a former client to disadvantage that client, unless the information is generally known or allowed by the rules.
Imputation of Disqualification

If a lawyer is disqualified under Rule 1.9, the entire firm is also disqualified, unless:
The former client gives informed, written consent, or
Screening measures are in place to prevent shared confidential information.
Screening

When a lawyer moves firms, the firm can use screening to prevent conflicts, ensuring no confidential information is shared and the former client is properly notified.

Question 41

Can attorney represent an entity and its officers/employees/shareholders?

Answer 41

Yes, ONLY if the entity consents to this joint rep.

Question 42

What are the “upjohn” warnings?

Answer 42

4 core points:
1. I represent [entity] and I am here to talk to you about [subject matter]
2. I do not represent you personally
3. Our conversation is privileged, but [entity] controls the privilege. That means [entity] may disclose to third parties what you tell me if management chooses to do so.
4. You are free to consult with your own lawyer if you wish to do so.

Question 43

What is disclosure authorized by implication?

Answer 43

When the client does not have an intent to keep information confidential, then disclosure of the information will be authorized by implication (e.g., if C reveals info to a 3rd party that would otherwise be protected, the implication is that L can now discuss the info as if it was generally know)

Question 44

What are the exception to duty of confidentiality?

Answer 44

Disclosure as reasonably necessary to prevent reasonably certain death or substantial bodily injury (1.6 (b)(1))

Crime/fraud:
C must use L’s services to advance the crime or fraud AND crime/fraud must be reasonably certain to result in substantial injury to somebody else’s financial interests or property (can’t have already happened)

Prevent or rectify serious financial harm in which atty’s services have been used (You can disclose but you don’t have to)

Secure legal advice about L’s compliance with rules

Lawyer self-defense: a lawyer may respond to a legal claim or disciplinary charge alleging a lawyer’s complicity in a client’s conduct, or other misconduct of the lawyer involving representation of the client, to the extent he believes is reasonably necessary to establish a defense. Need at least an allegation tho from anyone.

Mandatory disclosure: says you can’t knowingly fail to disclose a material fact if necessary to avoid assisting a criminal or fraudulent act by your client, unless disclosure is prohibited by MR 1.6 (1). SO, if MR 4.1 requires you to disclose, and there is an exception in MR 1.6, then you MUST disclose!!

Protecting the entity client: L must act in the best interest of the entity

Note: L can disclose any documents that help him, but should realize that doing so means he has to disclose all docs pertaining to the communication at issue–even the damaging ones!! Don’t want to make others case easier

Question 45

How long does the duty of confidentiality last?

Answer 45

Duty of confidentiality lasts until client releases L from his duties OR the info becomes generally known AKA it survives termination

Question 46

How should a lawyer handle a conflict of interest?

Answer 46

Unless both parties agree, an L who has repped a client in a matter may not subsequently rep another client in the same manner or a substantially related matter in which the interests of the former client are materially adverse.

If there is a conflict of interest, the lawyer may represent the client only if the lawyer reasonably believes there will be no adverse effect, and the client provides written consent

Question 47

Are facts covered by A-C privilege?

Answer 47

NO! Just the communications

Question 48

When is A-C waived?

Answer 48

The A-C privilege is waived if the C, L, or an authorized agent of C voluntarily disclose the communication in a non-privileged communication.

Or if C just waives it

Doesn’t count for someone helping the lawyer represent the client at their instruction

What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from an L

Question 49

What kind of communication is involved in A-C privilege?

Answer 49

The primary purpose of the communication must be to obtain legal advice, or that legal advice predominate other aspects of a communication (like business advice).

Question 50

Who controls privilege and confidentiality?

Answer 50

The client

Question 51

What are the exceptions of privilege?

Answer 51

Communications in furtherance of crime or fraud (does not matter if L knows or not)
No Conviction Required – just have to show prima facie case of crime or fraud showing that the privileged communications between the client and attorney were related to and in furtherance of a present or intended criminal action that the attorney has no knowledge of

joint clients

common interest exception to waiver

Question 52

Receiving evidence rule

Answer 52

L may not use means/methods of obtaining evidence that have no substantial purpose other than to embarrass, delay, or burden another person.

Can’t use methods that violate the legal rights of a third person (law not clear if this relates to contractual rights, but likely not).

Question 53

How does the other side prove privilege was waived?

Answer 53

Once privilege is est., the burden shifts to the opponent to prove an exception in order to argue that privilege shouldn’t apply
1. One of these arguments could be that the privilege was waived (the scope of waiver = subject matter)

Question 54

What happens when privileges docs are disclosed by accident?

Answer 54

Inadvertent waiver: An L who receives a doc relating to the rep of C and knows or reasonably should know that it was sent inadvertently shall promptly notify the sender

Question 55

What happens to privilege when entity is transferred?

Answer 55

Think of duties/rights as company assets so when a company is sold, so are their duties/rights
i. i.e. when you buy a company, you buy the duties that attys owed to old corp., like the rights to the A-C privilege

Question 56

What is the Bevill test?

Answer 56

a corporation is free to obtain information from its officers, employees, and consultants about company matters and then control the attorney-client privilege,

Individuals must show joint representation through 5-factor Bevill test:
a. 1) Approached counsel for the purpose of seeking legal advice
b. 2) Made it clear upon approach that they were seeking legal advice in their individual capacity
c. Counsel agreed to talk to them in their individual capacity, knowing possible conflict could arise
d. 4) Convos w/ counsel were confidential
i. Problem with this one: MR 1.4 requires the atty to disclose to the client (entity) if anything important comes up… creates a conflict for the L!
e. 5) Substance of their convos w/ counsel did not concern matters w/in general affairs of the company

The Bevill Test draws the distinction between whether the L was talking to the person in their individual capacity, or in their capacity as a rep/avatar for the entity
a. Protects the ability of the entity to “throw people under the bus” by not allowing just anyone to say they are privy to the A-C privilege for their individual statements

This means that the company can waive the A-C privilege

Question 57

What happens if a firm is under investigation?

Answer 57

firms must disclose to clients privileged info communicated during the firm’s investigation of that client’s issue

L’s duty to inform client of material developments basically erases any privilege of the firm as to the client and the client has a right to know enough info about firm’s conduct so as to decide whether or not to fire them

Question 58

Fiduciary exception

Answer 58

the beneficiaries of a fiduciary relation (such as a trust) can learn about communications between the fiduciary (i.e. trustee) & L so long as the communication relates to the performance of the fiduciary’s obligations

Question 59

What is the fairness doctrine?

Answer 59

can’t disclose part of a conversation that is favorable to your client / case but exclude other parts of the same conversation and claim privilege over that part.

Rule: if in litigation you disclose for a strategic purpose to establish a defense, you waive privilege with respect to the communication you disclose AND other communications about the same subject matter.

Doctrine does NOT apply when client or atty make extrajudicial disclosures and those disclosures aren’t subsequently placed at issue during litigation.

Question 60

What is a joint defense agreement?

Answer 60

provides an exception to the rule that disclosure = waiver w/ respect to the communications dealing w/ choosing a defense and/or settlement (different than joint representation).

Applies when C’s have a common legal interest (share at least a substantially similar legal interest; aka facing same/similar legal issue).
a. i.e. multiple clients facing same CoA, same breach of K, same criminal allegation, etc.

Purpose: to protect communications between lawyers and possibly between lawyers and clients (communication must be between lawyers, not clients themselves).

Rationale: extends the privilege to help ensure that lawyers can adequately represent their clients and share information among themselves.

NOT a duty of loyalty
a. Joint defense agreements are not K’s; they are notice of D’s invocation of a common law privilege that guards against waiver
b. A promised duty of loyalty in one of these agreements would have no legal effect & would be misleading to the D’s signing it
c. Plus, it would essentially create joint rep b/c all L’s would be bound to all other D’s– which is the BIGGEST difference between joint agreements & joint rep

Unless clients agree otherwise, these communications are NOT privileged between clients in a subsequent adverse proceeding between them.

The common interest privilege only applies where each separate client group has its own attorneys. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver

Atty to C1 doesn’t owe duty of loyalty to C2 in JDA – just a duty of confidentiality, which ends when the joint rep ends (i.e. when & if C2 decides to roll).

Judge is saying these common interests need to be written the right way so that there is no duty of loyalty among JDA parties because this would create unavoidable conflicts cross-examining defendants who flipped and became a cooperating witness

Question 61

What is the work product doctrine?

Answer 61

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, those materials may be discovered if:
1. they are otherwise discoverable under Rule 26(b)(1); and
2. the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
3. If the court orders the discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

Work product can be shared with expert witnesses

It is waived when you do something that makes it available to the opponent (place it at issue) or disclosed and relied on by testifying expert

Third party witness can do whatever they want → they can disclose whatever they want

generally includes everything you produce while working for a client in anticipation of litigation.

Question 62

Opinion v. fact work product

Answer 62

Opinion Work Product: work product that reflects your impressions, opinions, research, conclusions, or theories. (Restatement § 89) (almost absolute protection)

“Fact” Work Product: anything that is not opinion work product. Facts without mental aspect from lawyer (Restatement § 88)
a. May be disclosed if the party asking for it has substantial need for the material and can’t get the information in some other way without undue hardship

Question 63

What is the exception to work product?

Answer 63

WP immunity can be invoked by OR for a person on whose behalf the WP was prepared.

Crime-fraud

Self-defense

Question 64

When is work product waived?

Answer 64

WP immunity is waived if C, C’s L or authorized agent:
i. Agrees to waive it; or
ii. Disclaims protection and another person reasonably detrimentally relies on the disclaimer; or
iii. Fails to properly object to an attempt by another person to put WP in evidence; or
iv. Discloses the WP to a 3rd person in a situation where there is a high likelihood an adversary will obtain it.

WP immunity is waived if the work product is placed at issue or disclosed to a testifying expert.
Danger: if you disclose opinion work product to an expert witness who relies on that work product in forming an opinion, the work product must be disclosed under the general rule requiring disclosure of all materials an expert considers in forming an opinion.

Question 65

What is implied in the duty of care?

Answer 65

Duty of care requires lawyers to act competently and diligently

Lawyer Inexperience – if you’re inexperienced, you’re going to have to ask for help. As a junior, satisfying your duty of care means you’ll have to consult with senior lawyers.

Question 66

Can atty limit representation scope?

Answer 66

L can limit the scope of a representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Scope derives from the agreement between the parties!

You are responsible for ensuring client knows he might have an alternate Course of Action that he must pursue on his own/with a different L if you’re going to limit the scope!

Question 67

What are the elements of civil malpractice?

Answer 67

L is liable for breach of duty of care ONLY if that breach was a legal cause of injury to P.

A malpractice plaintiff must show that, but for the lawyer’s negligence, the plaintiff would have been better off

1. L owed plaintiff a duty
2. L breached that duty
3. L’s breach was the actual and legal cause of the harm plaintiff suffered
   a. Requires P to show that but for the breach, P would’ve had a better result
4. actual damages

Civil case: Duty, breach, cause, harm

Criminal malpractice → civil malpractice suit where the underlying matter was criminal defense (duty, breach, cause, harm, innocence)
i. A civil plaintiff (the defendant in the criminal case) alleging malpractice by a criminal lawyer must pleas and prove that he or she was actually innocent of the crime alleged

Question 68

Difference between criminal malpractice and ineffective counsel = remedy requested

Answer 68

Criminal malpractice: D wants $$ / damages

Ineffective Counsel: D wants conviction overturned on appeal / new trial

Question 69

What is the Strickland test?

Answer 69

you can bring ineffective assistance of counsel claim if you prove 2 things:

1. (1) Start w/ strong presumption of effective assistance!
2. D can rebut by showing both:
   a. Atty’s conduct was deficient – (i.e. outside a wide range of reasonableness) ▪ Basically, have to show atty made errors so serious that atty was not functioning as “counsel” guaranteed by 6th Amendment (judged at the time decisions made)
   b. Atty’s deficient conduct prejudiced the defense – (i.e but for an error in judgment, the outcome would have been different)

judgement calls go to L (deference) unless there is no decent/reasonable reason for L to have used that tactic

Question 70

The Strickland chart

Answer 70

i. Presumption: assume effectiveness by L
ii. Can D rebut? (Can take 1 of 2 tracks)

1. Track 1:
   a. D wasn’t given an L at all (Scottsboro)
   i. No jx gives you NO lawyer!!
   ii. Unhelpful
   iii. BUT things like sleeping thru relevant evidence may = denial of counsel (Burdine v. Johnson)
   b. State interference
   i. Intrusion into the A/C relationship (bugging atty/client contact)
   ii. Doesn’t happen often either
   c. Conflict that actually affects L’s performance (Cuyler v. Sullivan)
   i. Conflict must have played out against the client’s interests.
   Prejudice is presumed on this track!!
2. Track 2 (D must show both):
   a. Conduct outside the WRR (wide range of reasonableness) (FAIR FIGHT)
   i. If L made a judgement call, almost impossible to overturn this
3. LOTS of discretion given
   ii. But, if L just chose not to do something, this could be conduct outside the WRR
   b. Prejudice (RELIABLE OUTCOME)
   i. Reasonable probability to undermine confidence in the outcome
4. But for the error identified, the result would be different
   ii. Allows a surprising amount of conduct to go!

Question 71

Obligations of Prosecutors

Answer 71

In a criminal case, a prosecutor:
i. Can’t bring charges known to not be supported by probable cause;
ii. Has to make reasonable efforts to ensure D has been advised of right to counsel & given a reasonable opportunity to actually obtain counsel;
iii. Can’t seek a waiver of rights from an unrepped D;
iv. Must timely disclose all info they know tends to show D is not guilty or mitigates the level of D’s guilt;
v. Must refrain from making extrajudicial comments that have big likelihood of increasing public condemnation of accused; (AKA: the Brady doctrine)
vi. Must disclose if he discovers evidence that creates a reasonable likelihood that D didn’t commit the crime, & investigate further; and
vii. Must seek to remedy the conviction if evidence est. that another D in their jx was convicted of a crime they didn’t commit.

Prosecutors serve truth/justice first–have to win fairly

Question 72

When can a lawyer be liable to non-clients?

Answer 72

Rule: A lawyer (L) can be liable to non-clients if:

(a) Duty imposed by law (Biakanja factors)
(b) Invites 3rd party reliance (Restatement §51(2))
(c) Agrees to benefit a 3rd party (C intends to use L’s services t benefit 3rd party) (Restatement §51(3))
(d) Represents a fiduciary involved in fraud/crime (Restatement §51(4))
(e) Misrepresents or commits fraud
(f) Secondary liability through aiding/abetting (child keeping case)

Question 73

What are the Biakanja Factors?

Answer 73

Factors for duty to a 3rd party:

Intent to benefit the 3rd party
Foreseeability of harm
Certainty of harm
Connection between D’s conduct and 3rd party injury (all stemmed from the same issue)
Promotes prevention of future harm
No undue burden on attorney-client relationship

Question 74

Misrepresentation

Answer 74

Lawyers must not:
(a) Knowingly make false statements of material fact or law
(b) Fail to disclose material facts when necessary to avoid assisting in a crime/fraud.

Note: If disclosure is allowed under MR 1.6(b), you must disclose under MR 4.1.

Question 75

Can a lawyer be liable for “deliberate ignorance”?

Answer 75

Yes !

Question 76

When can duties to 3rd parties arise?

Answer 76

Duties to 3rd parties can arise when:

(a) Lawyer invites reliance
(b) Client intends lawyer’s services to benefit 3rd party (Restatement §51(3))
(c) Client acts as a fiduciary for 3rd party (Restatement §51(4))

Question 77

What rules attempt to limit the 3rd party costs of litigation?

Answer 77

Rule 3:

Forbids lawyers from asserting frivolous claims (need to have a good faith basis) (A lawyer may not assert a legal claim for the purpose of harassing another party or gaining an unfair litigation advantage)

requires counsel to make reasonable efforts to expedite litigation

forbids lawyers from lying to tribunals (including failing to correct a previously false statement made!) or from introducing evidence the lawyer knows to be false (affirmative duty to remediate—including disclosure, if necessary)

forbids lawyers from obstructing access to/concealing/destroying evidence; falsifying evidence/counseling a witness to testify falsely; alluding to matters not supported by admissible evidence; asserting personal knowledge of facts in issue— except when testifying as a witness; making frivolous discovery requests; or asking third parties to refrain from giving evidence.

Question 78

When is L not liable to 3rd party?

Answer 78

An L who advises/assists C to make or break a K, enter/dissolve a legal relationship or enter/not enter a K’l relation is NOT liable to the 3rd party for interference if the L acts to advance the C’s interests w/o using wrongful means