Transactions and Communications with Persons other than Clients Flashcards
Can lawyers lie when dealing with third persons on behalf of a client?
Is there a duty to volunteer adverse facts?
No, must not knowingly make false statements of fact or law to any third person and can’t fail to correct a misunderstanding.
No duty to volunteer adverse facts, but must correct a misunderstanding of the facts if it is apparent
I know my client is about to commit a crime against person X or defraud them. What should I do.
You MUST disclose material facts necessary to avoid helping the client commit a crime or fraud BUT MUST STAY WITHIN CONFIDENTIALITY RULES (consider noisy withdraw and disaffirming documents/opinions)
When must an attorney speak with a party’s lawyer before speaking to them?
If the attorney does not represent a party in the matter, they can talk to anyone they want to.
If not taking about the matter, can talk to whoever they want to.
If reps a party in a matter and wants to talk about the matter then:
- If attorney knows that a party is represented, must talk to attorney
^These rules apply even if the other party initiates the conversation
I want to talk to a bunch of people in an organization that I am suing. For whom do I need permission from the organization’s counsel?
1) Anyone with authority to obligate the organization (ie can create responsibility or liability for the organization)
2) Anyone whose conduct can be imputed to the organization (e.g. the person who did the thing that is the subject of the case)
3) Anyone who supervises or regularly consults with the organization’s lawyer
- Consent not required to talk to former employees but can’t seek to undermine the org’s legal rights like atty-client privilege
- if a member of the org has hired their own individual counsel, may get permission from them and not the org’s counsel
What are your two main obligations when talking with someone who is unrepresented?
1) Do not act or purport to be disinterested
2) Do not give the unrepresented person legal advice if it is reasonably possible the their interest will conflict with your client. If there is no conflict, you can give advice if you want
I received a document inadvertently, what do I have to do?
- promptly notify the sender so that the sender can take protective measures. (other state law requirements vary)
After a trial, a lawyer approaches a juror and asks a question about the case. The juror says they would rather not talk about it. The attorney explains why he wants to know and then the juror agrees to talk. Nothing was harassment or coercion. Is the lawyer subject to discipline?
Yes because if a juror says they don’t want to talk, you can’t ask any more questions.
Do the rules that apply to attorney communications with actual jurors also apply to communications with prospective (almost) jurors?
Yes
What kind of information is classic puffery?
1) Estimates of price or value placed on the subject of the transaction
2) statement of party’s intentions to settle a claim
A lawyer knows their client is about to perpetrate a fraud on a person, what are their obligations?
The lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud UNLESS FORBIDDEN BY THE DUTY OF CONFIDENTIALITY
(This is often a noisy withdraw)
What is the rule about giving legal advice to an unrepresented person in connection with a case where you are representing a client?
Do not give the unrepresented person legal advice if it is reasonably possible that their interest will conflict with your client’s interests.
If there is no conflict, you can give advice if you want
Does an attorney have a duty to give advice if they notice something even if they are not asked.
Generally no, but may give advice even if unsolicited.
Also be careful that calling out an issue isn’t already in scope for the representation
