Week 3 Flashcards
generally, is a lawyer allowed to communicate about the subject of the representation with a person the lawyer KNOWS to be represented by another lawyer in the matter
(two exceptions, but really, only one)
NO, unless
1) other attorney consents (never)
2) authorized by law
can a “represented person” mean a corporation? If so, who would that apply to?
Yes, likely applies only to the corporation’s control group
can a lawyer communicate about the subject of the representation with a represented person if the attorney doesn’t know they’re represented?
Yes, the lawyer is only barred from doing so if the lawyer knows that the other is represented
If a lawyer is unsure of if a person is represented, but knew they were represented by someone in the past, what should they do?
Contact the former attorney and check
may a lawyer direct a third party to talk with a represented person as a proxy?
NO! Cannot skirt the rules through the actions of others
What should a lawyer do if a represented person directly contacts the lawyer?
cut them off immediately.
can a lawyer communicate with a represented person about subjects other than the subject of representation?
Yes! Look and see what subject they got an attorney for, and that one is a no-go
Can matter in criminal cases
- e.g., where a person is in state custody for a state burglary charge, but they’re in a larger drug conspiracy scheme
what are the (3) primary functions of the no-contact with represented party rule?
1) protect client-lawyer relationship from interference by opposing counsel (protects A-C by precluding inadvertent disclosures)
2) shields client from improper approaches by opposing counsel (don’t want wedges being driven)
3) protects lawyer’s interest in their relationship with the client (no stealing clients)
What did the McDade Amendment do re: federal prosecutor’s ethical duties?
required federal prosecutors to conform to state rules of professional conduct “to the same extent and in the same manner as other attorneys in that State”
are law enforcement techniques like using informants under the “authorized by law” exception to the no-contact rule?
Yes. Covert, pre-charge contact is still generally allowed despite the no-contact rule (Hammad).
to establish an attorney-client relationship, who must indicate an acceptance to be in that relationship?
attorney, client, both?
Both!
be clear about if there is or isn’t. Problematic if the client thinks there is one but attorney does not.
