legalprof steele 2000fall-1

7/22/2019 LegalProf Steele 2000fall-1

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Introduction

Who is the Client?

Always ask this!!!

Do You Vouch for the Client? (Accountability)

1) Does representation reflect on atty?2) Does atty vouch for defs character?

The Remains of the Day:Role-relative, person-independent approachButler does o! re"ardless of feelin"s to#ards$actions of person hes attendin" to%thics as !ein" person-independent and o!-dependent &its your o! so you do it re"ardless of

ho# you feel a!out the person and re"ardless of ho# reprehensi!le person is)

There are limits, thou"h

Representin" 'redit (uisseBiled money durin" holocaust*a#yers reputation isnt supposed to !e !ased on the clients actions &+oldfar! 1)ud"ment at .urem!er" e/cerpt

'ooie Ridolfi 'ase0ttys vouch for defs character in the eyes of the ury &esp if race$se/ crime)

ypo 11

3nly represented #omen, #hich in other professions #ould !e unla#ful

Does the role let you do bad things? (ole orality)

(ee 0natomy of a 4urder

anson4orals vs ethics4ust fulfill role re"ardless of ethics

ypo 12(tolen cd player hypo5mmoral to advise her at the store !ut not as her atty

"ow hard will you #ress for your client? ($artisanshi#)

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2/27

6artisanship %/amples

The Devils 3#n: tain" partisanship too far#in at any cost0 4an for 0ll (easons: #ont prosecute (atan?

(pectrum of 6artisanship

7ealous 0dversary: *ord Brou"ham 8uote: 90 la#yer no#s !ut one person in all the #orldand that is the client 9

6u!lic 5nterest: 9alf of a decent la#yers practice is tellin" clients they are damn fools andshould stop9

'onte/tualist: 9Tell me the case and then 5ll tell you ho# far 5ll test the ethical limits90ll serve pu!lic interest in a #ay

Career Choice % &thics

%thical codes

.ot practicalideals;irst code #as 4odel 'ode

4odel Rules are more recent"overn today in almost every state !ut not 'al'al (' sets codes !ut le"islature does have some say in re"ulationRestatement of *a# +overnin" *a#yers: #ill come out soonRules in 'al: '6R'

'asics of elationshi#

Coencing elationshi#

ule: Relationship !ased on reasona!le e/pectations of client, attys no#led"e of clientse/pectations and clients reliance on attys advice &tort)


3/27

ypo 21

0tty loos at divorce petition #$ o!vious error !ut says nothin" couple sues you !$c divorce

falls throu"h and their id is ille"itimateshould duty e/tend to un!orn child?

3vert acts to mae them !elieve you #ere their atty"ivin" advice, eepin" and revie#in"forms

3r notretainer denied, no fee a"reement4istaes: time deadlines are hu"e &missin" them is an easy #ay to "et sued for malpractice)

Client Identity Issues

;amilies, 'orporation, Tri!esDoes representin" a 9#hole9 mae you counsel for the 9parts9?.o, if representin" corporation you dont represent shareholders and officers

Does representin" a 9part9 mae you counsel for the 9#hole9?

>nit 2&c): havin" a family as a client is a !ad ideahos the client #hen you #or for the "ovt

Duties to on*Clients

ule+ 3nly e/ist in narro# and special circumstances, as !elo#

Duty of confidentiality to prospective clients and former clients #ho share informationDuty o#ed to trusts and #ills !eneficiaries'ounsel for a fiduciary &trust fund) has a duty to a !eneficiary #hen the !eneficiary is a child

>nit 2&d):

5ntended !eneficiaries of #illsee 'indi 4ancias &duty to her and her child?)Representin" a fiduciary &!eneficiaries of a trust)

Control that elationshi#

'ontrol representation in #ritin"ho is represented(cope of representation

T#o letters &p @1-@2)5s it !etter to say lots or ust have a one-sentence letter &A5m not your atty)?hatever you do, mae sure to "et it in #ritin"+oals: unam!i"uous denial of representation, minimiCe o#n lia!ility &cover s$l, tell them to

"et another atty)

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4/27

,erinating the elationshi#

Termination not in 4odel or 'al Rules.ote 'R6' @-EFF&B)&1) &mandatory #ithdra#al) and @-EFF&')&1)&a) &permissive

#ithdra#al)

-) &.#ress terination

/) ,erination by drift

Test: Reasona!le e/pectations of client

ypo 22

;ormer clients suit dismissed #$ preudice cant re-raise$inactive &!ut if shes payin" offthe de!t there can !e ne# proceedin"s)

(hould it !e assumed the relationship continues until actual notice "iven?

.o "uarantee of actual no#led"e4ay allo# premature termination &if somethin" !etter comes alon")

0) &ffects of ,erination

;iles !elon" to clientmust return immediately &'R6' @-EFF&D));irst atty recovers proportionate value of her le"al services compared to the total value of le"al

services rendered to the client in the matter

ypo 2@

+et fired !y lon"-standin" clientclient o#es money !ut atty has filestermination is

clients #ay to "et out of payin" le"al fees5f you dont have files you must sue &!ut !e#are of malpractice countersuit) to recover=eep a copy of the files in case of suitBut pro!a!ly #ont !e paid

(hould as for retainer up front

ypo 2

6rior atty of your client maes a claim for part of the recoveryhadnt done much

Confidentiality % $ri1ilege

,he Critical Distinction

'onfidentiality: #ide duty &4R 1G)6rivile"e: very limited ri"ht to not ans#er Huestions even thou"h under oathBut coincide IIJ of the time


5/27

Attorney*Client $ri1ilege

ule+ 'lient holds the privile"eatty cant #aive it #$o client consent

aiver:

5ntentionally and deli!erately revealin" a confidencehen client sues atty for malp, or #hen the info !ecomes part of the case;ailure to o!ect to disclosure5nadvertent disclosure &document productions)3 if atty is actin" #$in scope of representation$authority'ircumstances approach to #hether #aiver is made

Confidentiality

ule+ 'ant reveal confidential info &info that relates to client, resultin" from representation,

other than #hat is "enerally no#n)

%/ceptions:A4ay reveal confidences if atty has &o!ectively) reasona!le !elief that clients actions #ill !e

a criminal act resultin" in imminent death or su!stantial !odily harmDefense of la#yer

4R 1G &p GG)Duty of confidentiality to potential clients #here its reasona!le for potential client to thin so

Duty of candor to court e/pressly trumps 4R 1G dutyThe le"islative history sho#s that e/pansive e/ceptions #ere trimmed !ac

1G ori"inally said Aa la#yer shall #hich placed a duty on la#yers to revel the criminalact thin"

no# its Amay reveal!ut they almost never doRestatement 11E &p KL)

Broader provision than 4odel Rules!ut 4R applies to statesDont need to no#M

6olicy

*oo at la##hen its o to reveal &o!ectively reasona!le standard)

*oo in heartfollo# your conscience0dd 1G&!)&@): if "ovt is your client you can reveal #ron"doin"

'urrent proposal to delete Aimminent &death orN) and replace #$ Areasona!ly certain

California2s 3ncertain ules

5n 'al, no e/ception under rule of confidence4R are persuasive authority in 'al and they fill in "aps in 'al la# !ut theyre not the la# in

'al

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6/27

'R6'.o rule on eepin" mouth shut &!ut see conflicts rules mentionin" 9confidential information9)Duty a!out any info relatin" to representation

'alifornia Business O 6rofessions 'ode

GFGK&e) seemin"ly prohi!its any disclosures

'alifornia %vidence 'odeRevoes privile"e on "rounds of crime$fraud e/ception &ILG).o privile"e if atty reasona!ly !elieves the disclosure is necessary to prevent client from

committin" criminal act that is liely to result in death or su!stantial !odily harm &ILGL)0$c communication for the purpose of furtherin" a future or on"oin" crime or fraud isntprivile"ed, even #hen atty is una#are of clients purpose'ant disclose freely, !ut also cant refuse to ans#er Huestion if under oath

4ocial I#lications of Confidentiality and $ri1ilege

-) Whistleblowing

( article

(ilent 6artners &G):'orporate counsel #ho try to e/pose$reveal conduct !y their employerBreach: not covered !y 4R 1G to e/pose info

.ot protected !y la#s"ot fired and sued4ust mae sure the corp actually !roe la# &not ust #as unethical !ut le"al)

Bad thin"s happen to attys #ho !reach confidentiality

'alifornia Department of 5nsurance 0rticle

Revealed confidences to le"islative staffers &political opponents)couldve "one to la#enforcement or the press

+ot rehired !y D35 !$c she had &!y state la#) a ri"ht as a pu!lic employee to reveal pu!lic#ron"doin"

Bar decided not to prosecuteeven thou"h they said she didnt do ri"ht thin"

%thics in 0shes

To!acco industry uses a$c privile"e$confidentiality to hide info included in scientific

research(hould corporations have a$c privile"e$confidentiality

/) Coo#er "ouse "y#othetical

'lient main" threatsis it o to reveal them?4R 1G applies !$c 0my is a client

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7/27

0mys actions pro!a!ly #ont result in imminent harm &4R 1G&!)&1)) !ut some attys mayhave a reasona!le !elief that shes a dan"er &if so, may reveal)

5n 'al, no e/ception under rule of confidentiality4R are persuasive authority in 'al and they fill in "aps in 'al la# !ut theyre not the la# in

'al

(ee comment L, p 1L25n real case, atty sou"ht e/pert "uidance5ssued dod"ed !$c 0my committed crime in interim and #as removed from 'ooper house

Pou can hire atty and as her or &p 1L2) to a dia"nostician.o!le thin": !earin" the conseHuences of revealin" info

0) Disclosure of 5ife Altering Inforation

(pauldin" v 7immerman &p @K)

'ar #recpls son inureda severe inury &aneurysm on aorta) didnt "et discovered

until after settlementdef ne# of inury !ut didnt disclosesettlement overturned

't must approve settlement !$c it #as a minorQacation of the ud"ment affirmed4istae and unconsciona!ility

't said defs atty didnt have to disclose to pl !ut did have to disclose to ctie if pl #asnta minor there #ouldnt have !een any reH to disclose to ct &and pl couldnt "et decisionvacated)

6) ecei1ing Inforation You 4hould ot "a1e

ulein 'al &4R): 5f you "et a document you shouldnt !e readin" you shouldnt even finish

readin" itust notify other la#yer

Pou #ould !e disHualified &ie not paid)5mmediate notification necessary

>m!rella 0rticle

3ne la#yer accidentally sent a premature settlement a"reement to opposin" la#yerfirst attyfi"hts #$ mail people to "et it !ac

o# pressures affect re"ular la#yers

ypo ;irm e!site0$c relationship is formed #hen confidentiality attaches

;irm #e!site #$ a Acontact us !utton 0cme sends e-mail #antin" to no# a!outadvertisin" la#sfor#arded to atty #ho represents competitore-mail contains info that#ould allo# competitor to sue, can atty reveal its contents?

e!site should have a disclaimer that the site cant create an a$c relationship should !eprominent and lar"e4ay!e there should !e a !o/ that pops up !efore the e-mail is sent sayin" that a$c relationship

isnt created

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8/27

ypo @1

1) 'ommitted a crime last #ee and told attyp and c

2) Tells atty theyre in the middle of a stoc s#indleconfidential !ut not privile"ed !$c ofcrime-fraud e/ception &ILG)

@) 'lient and friend say theyre a!out to !reach a contractnot privile"ed !$c of third party

&IL2) !ut confidential !$c relates to representation !ut not "enerally no#n) 3n"oin" fraud is confidential??

Duty+ 5oyalty to Client

,o Deterine Conflict of Interest

1) 5s representation adverse to current or former client?2) ho is client?@) hat is scope of representation?

ules

4Rs 1-E-1121E: conflict of interest "eneral rule$current client rule &concurrent representation)1K: transactions !et#een atty and client$pecuniary interest of client1I: conflicts #$ former clients &successive representation)11F: e/tent to #hich disHualification of an atty is imputed to other attys111: atty cant utiliCe "ovt employment for private "ain112: former ud"es and ar!itrators

'al Rules &'R6') < &p EFE)@-@FF: doin" !usiness #$ client@-@1F: conflict of interest

a) definitionse-mail is o for a #aiver

!) #ritten disclosure necessary #hen:current or former relationship #$ someone affected !y representationfinancial interest

c) true conflictneed informed #ritten consent if potential or actual conflict

&@) current client ruleyou #ould !e representin" a client youre already adverse tof) third parties can pay le"al fees if certain conditions are met

4ess, compared to 4R

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9/27

Current Client ule ( -78)

ule+ 'ant !e adverse to current client unless its reasona!le to do so, and$or theres a valid#aiver and consent

5n 'al, informed consent is reHd+et #aiver in #ritin"

(pectrum of 0dversity

0) Directly 0dverse:

(uin", ne"otiatin", patentsRepresentin" t#o entities isnt directly adverse%ven if conflict doesnt fall #$in ethics parameters, !usiness commands you dont enter into

such relationships'an sue current clients if consent o!tainedypo: t#o attys in same firm represent clients suin" each other3 if clients consent

0ttys #ont play dirtylots of incentives for clients

B) Representation 4aterially *imited:

ypo: se/ual harassment claim a"ainst corp you represent

ypo: suin" !an !ut '%3 is !est friendcould alter representation6 KK para"raph $@: economic competitors e/cepted &if the representation is on unrelated

mattersrelated matters are a conflict)

9orer Client ule ( -7:)

ule+ 'an !e adverse to former client unless

1) 4aterial confidence thats adverse

2) 4atter no# is su!stantially related to former &'* !alancin" test)materialconfidence is assumed

@) 'onsent

'al @-@1F&e):'ant !e adverse to a former client if you o!tained confidential info adverse to the former

client thats applica!le in the present interest

But can !e adverse if no confidential info &to either current or former client)rule says yes,cts say no

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10/27

4R 1I&a): former client must consent

.o actual e/chan"e of confidential info reHust a su!stantially related matter

,reating Cor#orate Affiliates

Represent parent corp, is it o to represent su!sidiary or sister corps?

Rules in 'al split:1) Represent parent, can sue su!sidiary

a) %ach corporate affiliate &entity) is distinctunless you can pierce the corporate veil and"o after the assets of the individs in the corp

2) Balancin" Test: 'ts consider clients reasona!le e/pectations of #hether a$c relationship

e/its, any si"nificant interaction !et#een attys and the affiliate, and overlap of le"al$factualissues, staff or officers of the t#o corps

a) &4orrison =nudson) loo for overlaps and see if confidences are flo#in" !et#eenaffiliates

!) 4ae sure theres not too much overlap !et#een t#o entities

,he ;"ot $otato; Doctrine

ule+ 5ts a !reach of the duty of loyalty to fire a current client to !e adverse to them

'an fire client for no reason, or ust !$c you dont #ant to represent them anymoreust cant fire to pic up ne# #or a"ainst them

I#utation and 5ateral o1eent of Attorneys

ule+ hen attys move o!s they tae actual confidences they learned &!ut not all no#led"efrom old firm is imputed on attys)

ule+ 0ttys no#led"e is imputed to all attys #$in attys firm or le"al dept

esol1ing or Curing Conflicts

ule+ 5f theres a conflict, atty can:

1) +et informed #ritten consent &after informin" current$former client of relevantcircumstances and reasona!ly foreseea!le adverse conseHuences)

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11/27

2) >se eHuita!le defenses &laches, #aiver, estoppele/ theyve no#n for ninemonths so they #aived &money and time already put in), you relied)

%thical alls(#itch o!s: tae actual confidences

0s that attys actual confidences not "et imputed to ne# firm0s lon" as this atty doesnt share confidences is it o if they #or Non your case, in our

firmNand they #ere adverse to you

Bilateral ethical #alls+ettin" consent4ust:

1) 6romise to maintain former clients confidence2) Deny the former atty access to files and documents@) .ot discuss matter around that atty

>nilateral ethical #allsDoin" it #$o asin"Trend of doin" it increasin" !ut 'als really strict a!out it'al Rules &4R 2 and 'al Rules) that unilateral #alls o #hen:

1) 0ttorney movin" from "overnment employment to private employment2) ;ormer udicial officer@) .on-attorneys &parale"als, secretaries, etc)) 0 sin"le attorney disHualified for ethical improprieties &!ad ethics not imputed)

"y#o 67--

R(0 and 'ylin for 6=6 partnership to license patents and ' represent 6=6 in a suit

a"ainst TRR(0 and 'ylin "et into another dispute and 'ylin #ants and ' torepresent them

;ormer 'lient Rule:ho is the former client? 6=6 not R(0Doesnt apply !$c R(0 isnt a former client

But R(0 #as part of party and ' represented in this case representin" the entity isrepresentin" the constituents

(o R(0 is a former client

Did and ' "et confidential info $ #as the TR case su!stantially related?.ot su!stantially related%ven if not, if material info is shared then and ' disHualified6atents #ere for different thin"s

4R 1I&c): cant sue info "ained in representin" R(0 in future matter a"ainst R(0

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12/27

"y#os

ypo 10pply 4R 1E

Representin" 7 a"ainst 0 after you represented 0it must !e reasona!le and #$ client

consent &and cant use confidential info)

ypo 2Rule: cant fire a current client to !e adverse to them &hot potato rule)4R 1I&a): cant represent 0 a"ainst B unless you "et Bs consent5nitial client intervie#;act findin" to determine conflict situation*oo for #itnesses, people #ho are affected, etcho administers trust3ther relatives4aterial #itnesses and adverse parties

Trust !eneficiariesho drafted the trust a"reement

*ets say B of 0 administered the trust and they #ere a client 1K months a"o:hat #as the matter?o# did they part?hat is firms custom?(ee 'al @-@1F&B)&1)

ypo @'urrent client &0(4)ere there any conflictin" representations? .o

%veryone sues everyone4echanics lien: placin" stae on !ld"

B'' spun outpossi!le confidentiality issues6ro!lems:;uture liti"ation6otential !ad !lood


13/27

5n re aler*ac of communication a!out costs and steps taen in t#o measures

.o preudice to clientmatters to ctDiscipline: cal!aror"T#o vie#s of competence and dili"ence: atty as service provider in maret vs atty as

champion

Disclosure

ule+ 5n settlement demands, must:

1) 'ommunicate #$ client !$c client can !e !ound to accept or reect !y #hat atty says2) 5n 'al only #ritin" settlement offers must !e passed on

-76

ule+ did you mention atty fees

Reasona!ly informed decisions

C$C 0*> % 0*>-

ule+ did you consult !efore a"reein" &@-L1F)

@-L1F&a)&2): settlement offers

In re Coo#eran ,rial

Autonoy % $aternalis

ule+ 'lients decide o!ectives and attorneys decide strate"ies and tactics

s -7/ % -7-6

-7/+ *a#yer shall a!ide !y clients decisions as to o!ectives, atty can decide strate"yand tactics &maor division)

-7-6+ %/cept #here theres a mental disa!ility the la#yer can decide

3!ectives client decides(ettle

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14/27

Dismiss #$ preudice'riminal pleas0dd or drop a defenseaive claim or defense

(trate"y atty decides'allin" #itnessesDiscoveryTheories to emphasiCe0r"uments

$aternalis

Definition: interference #$ individuals li!erty for the individuals !est interest%/ helmet la#s

ustifications for paternalismDecision main" is impaired &youn", craCy)5ndividual is under stress or coercion

5ndividual misunderstands values at staeie they "ot decision #ron"5ndividual maes valid choices !ut doesnt have #ill or a!ility to effectuate choice5ndividual main" permanent choice that causes harm and cant !e fi/ed &life and death)

3!ections to paternalism5ndividual is the !est ud"e of his o#n interest5ndividuals ri"ht to choose #hats in her !est interest

3!ections have fla#s6eople can mae disa!led, stupid choices or decisions that dont preserve life, health or #ealth

hich #e consider faulty decisions)6eople al#ays have$need input on choices

,hree liitations on #aternalis

1) Burden of proof on interferer to ustify intervention2) 5nterference ustified #hen failure to intervene #ould cause irrepara!le harm

@) 5nterferer must use least restrictive means

"ow well can the law e1aluate client choices?

'hoices concernin" the "eneraliCed means &life, health, and property) to a variety of ends?'hoices that are reli"ious, #himsical, Hui/otic, ideolo"ical?

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15/27

Autonoy for Cor#orations

.ot human, so decisions dont affect lives lie human decisions do

'an attys have more intrusive relationship !$c not human may!e

There should !e more paternalism#histle!lo#in" #ould increase

4iou. ation Case ("y#o 87-)

ule+ 'lient defines the o!ectives and atty defines the tactics$strate"y

Treaty over#ritten #$o supermaority(iou/ #anted land !ac !ut la#yers #ent for money

dama"esattys #in dams !ut (iou/ #ont touch it

ho is the client and #ho speas for the client?

'on" defined #ho speas for the nation(hould attys educate su!ects?

(hould clients !e allo#ed to pursue the land, re"ardless of impossi!ility, to mae a point?(ue on principle5snt it the clients decision?

o# can atty understand people #hen theyre not in persons shoesother values !esidesmoney

hose values are paramount?0tty: money

'lient: land

3nabober Case

hose decision should it !e to mount he insanity defense?*a#yer a!ides !y clients decision &4R 12) e/cept if client has mental disa!ility &4R 11)

(tandard for representin" yourself is lo#>na!om!er pro!a!ly satisfied it

,ra guyen2s Case ("y#o 87/)

4otives:5nvesti"ator: none6artner: outcome impacts firms rep and relationship #$ ud"e or prosecutorud"e: !usy, #ants Huic dealTeresa: payin" fees, tired of a!use

Tell client potential outcome

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16/27

4R @2 &?): #ho "ets to mae the decisions6resent costs and !enefits4ae sure you cover yourselfritin" and #itnesses that you e/plained costs and they made o#n decisions

isc "y#o

ypo E@5s atty reHd to tell the client a!out her demise?>r"e her to as the dr?ReHuest the pertinent info from her

(he must no# a!out her condition

&thics In Ci1il 5itigation

(ee outline in handout

isc

Truth vs #innin": trial attysBest #ay to #in a trial: plausi!ility over truthDealin" #$ perury &ta! B)4R @@5f atty "oes to ct !efore !ein" informed s$he cant remedy any#ay5s #illful !lindness o?

ules

'ant "ive false facts or intend to mislead

4R @@4ay have to reveal more if its e/ parte&a)&): cant offer evidence you no# is falseif its material and false you must remedy

&!): must disclose even if protected !y 4R 1G

&c): may refuse to offer evidence you reasona!ly !elieve is false

*ocal Rule 1K2 &p LK)(teer a#ay from live testimony, depo transcripts

'al Rules'ant remedy perury !$c no confidentiality e/ceptions(hould tal to client and #ithdra#

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17/27

4R says you must remedy;or criminal perury you can use the narrative techniHue !ut cant ar"ue it in the closin"

,heories of Ad@udication &thics

0dversarial$7ealous$(tandard 4odel4onroe ;reedman%/ample: if 5 can delay case #$o "ettin" sanctioned and 5 can #in, 5 should

6u!lic 5nterest 4odel

6u!lic has a stae in the outcomethe correct result !ein" achieved4R 12: attys have lee#ay to consider pu!lic interest0lso 4R 1G%/ample: no stallin" if it prevents adudication on the merits

'onte/tual 4odelo# hard atty pushes depends on #ho s$he thins ou"ht to #in%thics tailored to #ho atty thins should #in(ee also: 0natomy of a 4urder, anson

Witness $re#

Ta! D, p 1F e/amples$ non-client #itnesses, theres no privile"e so the other party can as a!out the preparation

5f its your clientprivile"ecan !e more a""ressive in preparation !$c it #ont !e

Huestioned

Abuse=3nci1il 5itigation

;rivolous liti"ation

ard to define !ut no test no# it #hen you see it6rohi!ited !y many sources:4R 12&d), @1, @2Rule 11 of ;ed Rules of 'ivil 6rocedure'''6

'ivil torts: a!use of process and malicious prosecution(ee ta! 0, 55

Discovery a!use;isons case &ta! ')0ttys didnt turn over t#o smoin" "un docsThey o!ected !ut said theyd turn them overBrand name and active in"redient #ere used interchan"ea!ly at times

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18/27

ave to ans#er Huestions as ased &see p 2I)

+eor"ias6lato$(ocrates on liti"ation

,he Duty of Candor&see outline on duty of candor)

ule+ 'ant "ive false facts or intend to mislead

Tell truth or lie to court0tty duty re"ardin" #itness perury

'al Rules'ant remedy perury !$c no confidentiality e/ceptions(hould tal to client and #ithdra#4R says you must remedy

'ooper ouse ypo5ntentional misstatement to tri!unal &4R @@&a)&1))

6ast record &p LE)depo

i"h school "raduationdepo0my #as present4ade to ud"e6ossi!ly false

4R @@&a)&): if its material and false you must remedy4R @@&!): must disclose even if protected !y 4R 1G*ocal Rule 1K2 &p LK): steer a#ay from live testimony, depo transcripts

ypo: 0r!itration earin"

5f you offered evidence you no# is false, you have to remedyeven if you find out its falselater

in a caseclient says Ado you #ant to no# #hat really happened?Dont have to "o do#n and listen to A#hat really happenedRule @@ &a)&): A5ll tell you the real story doesnt count as evidence of material falsity as

lon" as youve not !een told #hat is false &if anythin")

'linton 'ase Ta! % and p EK-EI

hatever Huestions they as, insert Ase/ual relations into the ans#er .o perury !$c the record #as unclear

&thics in Criinal 5itigation

4hould criinal defense ethics be different?

1K


19/27

Rationale: po#er of state vs lone individuallopsided asymmetry not found in civil casesDoin" ustice vs #innin"

Witness $re#

'riminal defense attys have lots of latitude to say A5 didnt no# it #as false;or criminal perury can use narrative techniHue, !ut cant ar"ue it in closin"

(ee outline in handout

Different obs

6rosecutors 9do ustice9Defense #ins ithin the !ounds of la#)

+eoff anson < ;ed 6u!lic Defender5ssues:5ll-trained officers=no#in" a perp is "uilty and t#eain" evidence &plain vie#)

u"e li!erty ramifications4orals vs ethics%thics: have o!li"ation to tell client the la#4orals: encoura"in" client to lie

0void ethical pro!lems !y asin" no Huestions

*aurel Bieller < >( 0ttys 3ffice6rosecutors must police the process in addition to prosecutin" the case.o le"al o!li"ation to present e/culpatory evidence to "rand uryB$c of sentencin" "uidelines, all the discretion is #$ prosecutor &char"in", pleas, etc)%asier to prosecute !$c its considered doin" ustice

"ardest Buestions about criinal defense+

'an you put a perurin" client on? Pes'an you lecture on the la# #hen you no# itll affect testimony? Pes

'an you destroy truthful #itness on cross e/am? Pes

&thics in egotiations

67-+ .o false statements or failure to disclose

1I


20/27

67-+ Duty of Candor or ors of the arket#lace?

'ant lie !ut can play "ames &"enerally accepted activities of maretplace)

Rule comment:

hats a fact depends on circumstances0mount of settlement isnt a fact0ffirmative misstatements allo#ed in real estate situations if one !i" corp #ants to !uy fourparcels !ut doesnt #ant homeo#ners to no# #ho they are

.e"otiators Role'ant lie to ct5n ne"otiations, cant mae lie or omit facts and !uild it into the dealBut #hat a!out Cealous representation and confidentiality duties?

The 4elian Dialo"ue

Become more 4elian if you ne"otiate #$ the same people constantly

4ilence as e#resentation?

>nder contract la#, silence can !e an assertion #hen the fact in Huestion concerns a !asicassumption of the ne"otiation and failure to disclose #ould violated "ood faith and reasona!lestandards of fair dealin" Rest &2nd) 'ontracts, section 1G1&!)

>nder tort la#, silence can !e an assertion #hen you have a duty to spea, or #hen you havespoen incorrectly or misleadin"ly, or re"ardin" facts !asic to the transaction is you understandthe other party is proceedin" on a mistaen !asis Rest &2nd) Torts, section LL1

>nder the ethics rules, attorneys have a duty of confidentiality 4R 1G 'al Bus O 6rof'ode section GFGK&e)

aes negotiators #lay

6uffin": statements that are so va"ue, open ended and hyper!ole that they cant inducereasona!leness

+ood cop$Bad copThreatenin" to call the cops$e/tortionhat the 4R 1 comments refer to as conventions of ne"otiation

isc "y#os

ypo 1@15s it a failure to disclose a material fact?as the misleadin" conduct part of the deal?Rule comment: #hats a fact depends on circumstances

2F


21/27

0mount of settlement isnt a fact0ffirmative misstatements allo#ed in real estate situations if one !i" corp #ants to !uy fourparcels !ut doesnt #ant homeo#ners to no# #ho they are

ypo 1@2

3 !y the rule !$c amounts arent statements of material fact4ay not !e smart !$c other side may ust #al out

(ettlement authoriCation is a hu"e pitfall for attys"et #ritten authoriCationM4R K: comments in 1 "overn here, not this ruleust discipline, not specific to ne"otiations

ypo 1@5ts o as lon" as its a non-frivolous claimThis is a familiar pattern and ud"es try to !lunt this

ypo 1

.e"otiation issues'leans as sno#($l issue(elf-aidin" terms in ne"otiation(#eeter deal in final docsDod"in" e-mail

6arentco #ants to sell Division to (6 and QictorDivision incorporated as .e#'o !efore thesale

6uffin": conte/t matters6arin" lot statement o !ut if hed said it in an e-mail itd !e !ad

4ay!e can add e/tra terms in ne"otiation as lon" as they arent "iven at e/pense of actually

desired terms

5aw 9ir 5ife

5s a la# firm a pyramid scheme? Pes and noThe !illa!le hour and #hat is means to youDe!t+ettin" into the firm you #ant+ettin" somethin" out of the firm>m!rella story

al#ractice

&leents of the ,ort

Duty(tandard of careBreach of ethical rules is different from !reach of standard of care &may!e)

21


22/27

Breach of rules isnt "rounds for malp%thical rules are a standard of care, thou"h5n 'al, ethical rule violations can !e some evidence of malp

Breach

'ausation

Dama"es

+eneral 5nfo4ust prove: had atty done o! properly pl #ouldve #on the case5f pl #ouldve lost, it doesnt matter ho# !i" the !lunder is

.ot ne"li"ent to tae case out of area of e/pertise, !ut must !e competent4ust advise clients of all potential claims

'ant threaten to report some!ody to the !ar ust to "et somethin" out of them thats

"rounds for malp.o malp case is #on #$o an e/pert

*ots of attys are sued after suin" client for fee claimsand vice versa4alpractice insurance(olo practitioners "et sued for malp more

0lso "et hit more !y state !ar lar"e firms have influence on !ar so they dont "et introu!le

Dont have as many resources%asier to fud"e financial records

Case within the Case

%asy to prove malpBlo#n s$l;ailure to communicate settlement offer

5n 'al, poor performance at trial is proven !y puttin" on a trial #$in the trial0ll evidence from the first trial is presentedury returns a value for the ori"inal case

*a#yers ori"inal trial roles are reversed

6l in ori"inal case !ecomes pl in malp case4ust prove they #ouldve #on ori"inal case !ut for attys ne"li"ence4ust also prove their claim in ori"inal case #as le"it &not ust that they #ouldve #on, !ut

that ori"inal def #as "uilty)6ls atty in ori"inal case !ecomes def in malp case4ust prove that pl #ouldve lost ori"inal case &even #$o the ne"li"ence)4ust also prove that ori"inal def #asnt "uilty

22


23/27

4te1e % Eathleen2s #resentation

,he i#act of &thics ules

o# ethics rules are used in malp cases:Define the standard of care

But 4R not meant to do this even says that in 4R pream!le0re evidence of the standard of care+et #itnesses to say local practices are different

0re irrelevant

,o who is the duty owed

'lientsBeneficiaries of clients?

al# "y#o

Botched root canal0ttys can "et ud"mental immunity: should put memos in the case file sayin" A5 considered a,! and c A

($l:

Bad: atty relies on client for dates

should "et medical records or other independentverification

5ndependent Qerification(hould atty !e reHd to "et independent verification or are they entitled to trust client?*oo at Rules

5s it a !reach of the standard of care not to verify? consider unsophisticated client

Beyond %/pertise5s it ne"li"ent for atty to tae case outside area of e/pertise?.o, !ut you must !e competent &Rules)

0tty must !e careful ho# they advertise themselvesdont say you specialiCe in somethin" ifyoure ine/perienced at it

0tty must advise clients of all claimsDentists alcoholism5ncl tellin" spouse a!out loss of consortium

0tty #as !elo# standard of care in:

2@


24/27

.ot findin" out #hether there #as an ar!itration clause

.ot fi"htin" motion to compel ar!itrationlose ury trial, unappeala!le

%/pert #itness:0tty couldnt afford to handle case

%/pert #asnt competent%/pert no#s attynot un!iased ill "et "rilled !y opposition)

Trial #$in the Trial

6oor performance at trial is proven !y puttin" on the dental malp case #$in the atty malp case

all evidence is presented;or malp, must prove pl couldve avoided ar!itration clause and #ouldve "otten a different

result at ury trialury returns a value for the medical malp case

Rushtons atty tries to prove:They #ouldve #on a"ainst the dentist !ut for 4cDonalds ne"li"ent conduct


25/27

'lass actions are "ood !$cResolution isnt #holly dependent on one person ho may frea out)'an pic !est #itnesses

oney=4ettleent=Atty 9ees

(ource of 6u!lic 5nterest 4oney6u!lic interest la#yers "et their money mostly from donations !ut some atty feesDe!ate over #hether to tae a J of the common fund &a contin"ency fee) or ust an hourly

feeo# does the source of the money affect their practice of la#?6u!lic interest or"s at a disadvanta"e !$c they depend on fees(ometimes "ettin" paid is more important than #innin"

6rivate firms dra# out cases !$c theyre paid !y the hourthis also s#eats pu!lic interestor"s !$c they need money

0tty ;ees(ettlement offers conditioned on #aiver of attorneys fees0tty cant say no settlement, if pl #ants to tae it'onditions of settlement should !e dealt #$ in retainer a"reement0tty cant settle #$o clients approval

'ollusion settlement:0tty settles for lo# amt !ut hi"h atty fees0tty settles for coupons, etc0tty settles for the class, !ut only a fe# people in the class are eli"i!le to collect

0tty fees:

4ust mae client no# theyre taen out of settlement(ometimes ud"es #ill a#ard them on top of settlement

(peaerseff (el!in: %B'*'(hiela Thomas: %Hual Ri"hts 0dvocates of (an ;rancisco0nn ayes: 6acific *e"al (ervices &;oundation) &6*( or 6*;)+uy allace: *e"al 0id (ociety of (an ;rancisco

ypoRule: atty cant say Ano settlement if client #ants it

6erfect claim$proof$ud"e !ut pl #ants to settle and #al a#ay

def #ill settle !ut #antsconfidentiality a"reement

hos the client, Roe or the cause?deal #$ in retainer a"reement>r"in" client not to accept a settlement !etrays their interestsouldnt happen in private sector

%/otic Dancers ypo0ttys sometimes "et ripped for the causes they represent

2L


26/27

6u!lic perception matters to pu!lic interest or"s !$c they need to have credi!ility(ome le"al services depend on federal fundin"'an "et cut dependin" on politics'on" can dictate #hat inds of cases the S can !e used for

&.clusion % arginaliFation in the 5aw

C$C /*6

'ases of Discriination

*a# school attended+rades5nvidious discrimination

ypo 2FI: #oman ased not to !e trial atty in front of ury !$c of accentBi"ots Qeto

The impact of family lifeDivision of la!or in family affects #or salary

(peaer: *a#yers 'ommitted for uman 'ivil Ri"htsRace a pro!lem in ury selection6layin" on stereotypes'ommon themeM

,he ,rial in re Coo#eran

'onflicts of 5nterest0deHuacy of e/planation and #aiver

'ommunication #ith client

What Went Wrong?

0ttys disciplined.ote: messin" #$ money al#ays leads to severe discipline

What did they do wrong?

4orehouse "uy'lient ne"lectDelayed filin"

2G


27/27

'anned !riefdidnt include stuff on felony statute &didnt investi"ate)

Bearded "uy: for"ery

0lcoholic: client ne"lect

(ocial #orer "uy*et s$l run for civil suit and other thin"sToo forever to tell client a!out missed s$l

What do they ha1e in coon?

(olo practitioners #$o !ein" ready for it>nreal e/pectationsDru" or alcohol use

.eed careful !ooeepin".eed support net#or;inancially strapped3r"aniCational pro!lemsTheir indiscretions #erent discovered until some time after they #ere committed

They all seemed to #ant other careersdidnt #ant to "et into la#

Are they being honest with us?

ho no#s?

0lcoholic #as, 4orehouse "uy #asnt, others #ere in-!et#een

Client Identity Issues

Random ypo

0tty "ets to murder scenetaes pictures #$o callin" policeDuty to call?as atty !ecome #itness?Did atty tamper #$ evidence?

legalprof steele 2000fall-1

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