prof resp outline ross

8/21/2019 Prof Resp Outline Ross

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OUTLINE

Professional ResponsibilitySpring 2010

Professor Michael Ross

Introduction to Course

A. Ethics, morals, and professionalism. Moral refers to broad question of whether an act is right or wrong. Ethics is also called moral

philosophy, the discipline concerned w/what is morally good and bad, right and wrong.

a. Ethics v. morals. (Legal) ethics are rules-driven: principles of conduct that members of the profession are expected to

observe in the practice of law.

B. Truthfulness

a. Rule 8.4prohibits dishonesty, fraud, deceit and misrepresentation.

i. Mother Rule according to Ross. General residual description of misconduct:

1. Violate or attempt to violate a rule, or to knowingly assist or induce another person to violate a rule;

2. Commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer

in other respects;

3. Engage in conduct involving dishonesty, fraud deceit or misrepresentation.

4. Engage in conduct that is prejudicial to the administration of justice;

a. E.g., boasting about relationship w/ judge

b. Typically going to be something that violates another rule

5. State or imply an ability to influence improperly a government agency or official;

6. Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct

or other law.

b. Whether a lawyer can lie or mislead someone, withhold information, shade the truth, or sit quietly and watch a client

mislead someone.

C.

Lawyers duties to clients versus their duties to the justice systema. Spectrum:

i. The prime directive of a lawyer: to advance the clients interest w/in the bounds of the law.

1. At one end, a lawyers role is almost exclusively to be the protection and advancement of client interests.

(Common for criminal defense lawyers).

ii. At the other, a lawyers primary responsibility is to protect our system of justice to ensure that proceedings are fair,

that participants play by the rules, and so on. (More common in judges).

iii. Most fall somewhere in between.


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b. Lawyers personal and professional interests versus their fiduciary obligations

i. Examples:

1. Tension between duty to protect confidences and a lawyers felt need to share aspects of her working life w/

her friends.2. Duty to provide services to clients who cannot afford to pay fees, which is in the public interest but may not

be in the lawyers financial self-interest.

c. Self interest as a theme in regulation of lawyers

i. Apparent in the rules that govern lawyers, especially ethics codes.

1. E.g., Rule 1.5(b), in explaining lawyers dutyto inform clients about the basis of fees based on time spent,

requires only disclosure of the basis or rate of the fee and expenses. The lack of specificity allows lawyers

ample flexibility in billing.

Institutions and Legal Rules that Affect Lawyers

A. Institutions

a.

The highest state courts

i. Self regulation: highest state court, not the legislature, is responsible for adopting the rules of conduct that govern

lawyers.

1. Most of the people involved in the writing of the ethical rules are licensed lawyers.

2. Judges bear primary responsibility for disciplining lawyers who violate rules.

3. Lawyers bear the primary responsibility for seeing that the rules are enforced.

ii. Performs these roles, or delegates them to a government agency:

1. Adopt ethics codes and court procedural rules that govern lawyers.

2. Sets and implements standards for licensing of lawyers, including what educational and moral requirements to

impose; and

3.

Supervises agencies that investigate and prosecute complaints of unethical conduct by lawyers; and4. Supervises administrative judicial bodies that impose sanctions on lawyers who violate the ethics codes.

iii. Why are courts responsible for lawyer regulation?

1. Aspect of their authority to administer the courts. Inherent or explicit (depending on state).

a. In some states the courts maintain their authority is exclusive. (Negative inherent powers doctrine).

iv. The NY Court of Appeals, however, interprets these rules all the time. They are the only body that trumps the rules. If

courts interpret a rule in a way that twists or trumps it, so be it.

1. Congress can trump it, too, thru legislation.


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b. State and local bar associations

i. Most are organized as private nonprofit organizations, but some have governmental functions.

1. A state bar that accepts delegated functions from the highest court is an integrated or unified bar, rather than a

voluntary bar.a. Integrated or unified bar: membership is mandatory

2. Historically, played a large role in establishing disciplinary systems. No longer have jx over these proceedings.

c. Lawyer disciplinary agencies

i. Often called bar counsels offices or disciplinary counsels

ii. Bear responsibility for investigating and prosecuting misconduct that violates ethics code.

iii. Possible sanctions:

1. Disbarment

2. Suspension

3. Public or private reprimand

iv. Run by the highest court, the state bar association or by both

d.

Federal and state trial courts

i. Set rules for the conduct of lawyers in litigation by sanctioning lawyers who violate rules and by hearing and deciding

motions to disqualify lawyers who may have conflicts of interest that preclude their representation of particular clients.

1. E.g., FRCP Rule 11 sanctions govern frivolous conduct by lawyers

ii. Judge in a proceeding must report the misconduct to the disciplinary agency if the misconduct violates an ethical rule

that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects.

iii. Separate admission to practice? Yes, but normally just requires and application and fee.

B. The Law Governing Lawyers

a. State ethics codes

i. Rules governing the ethical conduct of lawyers. Usually become law by adoption by the states highest courts and are

often based on the ABA Model Rules.ii. Ross: Disciplinary rules are NOT organic. They never trump each other. Unless rule itself states an exception or refers to

another rule, it is absolute.

b. Legal malpractice, breach of contract, and breach of fiduciary duty

i. Malpractice: case law imposing civil liability on lawyers for misconduct; based on contract law, tort law and fiduciary

law.


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Bar Admission and Discipline

A. Admission to Practice

a. Requirements for admission

i.

Modern requirements:1. Graduation from an accredited undergraduate college

2. Graduation from a law school that meets the states educational standards (usually means ABA accredited)

3. Submission of an application for admission to the bar

4. Obtaining a passing score on the bar exam administered by the state: state-specific section, Multistate Bar Exam

and the MPRE

5. A finding that the applicant is of good moral character and is fit for the practice of law

ii. Once admitted, must comply with various requirements to maintain admission

iii. If lawyer seeks admission to litigate only one case, may be admittedpro hac viceby association w/ an admitted lawyer.

b. The character and fitness inquiry

i. Criteria for evaluation

1.

Application.

2. Character Questionnaire. Must be scrupulously honestand must be consistent with your law school application.

a. Rule 8.1: bar admission matters. 8.1(b): shall not knowingly fail to disclose a fact, if asked. This rule

does not require disclosure of info listed in Rule 1.6.

i. If youre applying for the bar, you cannot lie.

ii. A lawyer, also, is required to tell the truth about another lawyer (as in a recommendation)

B. Professional Discipline

a. The history and process of lawyer discipline

i. Recently, the disciplinary systems have become professionalized. States have adopted procedural rules for

adjudication of lawyer discipline cases. Most are based on the Model Rules for Lawyer Disciplinary Enforcement.

ii.

Process:1. Complaint by client, lawyer or judge

2. Intake lawyers look at complaint to see if cause of action exists (more than 50% of complaints dont state one)

a. Absolute immunity provided to complainant, even if it can be shown that they acted maliciously and w/

intent to harm. Want to encouragepeople to make complaints.

3. If valid c/a, then bar counsel investigates complaint

a. Unless reported to the committee by a judge. Under the doctrine of collateral estoppel, you have

already had an opportunity to explain yourself fully and you dont get to re-litigate the issue.


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4. If investigation warrants, charges are filed

5. Hearing committee conducts hearing, makes factual findings, recommends sanction.

a. Complaint is not dismissed but you are privately sanctioned

i.

This is not considered discipline. Dont have to report to malpractice carrier. E.g., Letter ofCaution or Letter of Education

b. Private discipline: Admonition or Reprimand.

i. This IS discipline. Must report to carrier.

c. Public discipline: Public Censure

i. Published in local newspaper (by law)

d. Suspension or disbarment

i. NY suspends up to 7 yrs, most go up to 5

ii. Must re-apply for admission, take exam, etc

6. Hearing committee decision reviewed by judicial agency and/or by highest state court. Reviewing body makes

final decision on sanction.

a.

Once a guilty verdict, the only appeal to states high court is on constitutional ground.

b. Grounds for discipline

i. Can be disciplined for violation of the applicable ethics code whether or not the violation occurs in the course of law

practice. E.g., Clinton for false testimony.

ii. Committing a crime

iii. For inducing or assisting another person to do something that violates the rules if done by a lawyer.

iv. Violations that occur outside the state she is licensed to practice

C. Reporting Misconduct by Other Lawyers

a. Self-Regulating Profession

i. Cornerstone of disciplinary system is the duty of lawyers to report serious misconduct by other lawyers.

ii.

Rule 8.3Reporting Professional Misconduct1. A lawyer who knowsthat another lawyer committed violation of rules that raises substantial question as to

laywers honesty, etc., then inform the appropriate professional authority .

a. Objective standard of knowledge: whether a reasonable lawyer in the circumstances would have a firm

opinion that the conduct in question more likely than not occurred.

i. Knows: terminology rule 1.0F: guessing is not enough, speculation is not enough; must have

actual knowledge of the fact in question; knowledge can be inferred from the facts of the

circumstances.


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2. Exceptions:

a. Not all violationsonly those raising a substantial question of the lawyers honesty, trustworthiness and

fitness. (Substantialdenotes a matter that has clearand weightyimportance)

b.

Have to reportjudges, too, by same knowledge standard.c. Dont need to report if it would reveal information requiredto be kept in confidence under Rule 1.6. A

lawyer should encourage a client to waive confidentiality and permit reporting if that would not

substantially prejudice the client.

i. If during an adversary proceeding, may defer reporting until proceeding has concluded, if

deferral is necessary to protect a clients interests.

3. Failure to report results in discipline (though not common).

iii. 8.3(b): lawyer who knows a judge has done the same must report.

iv. 8.3(c):for my exam, the class, and the real world, you have to understand this, says prof. Exceptions:

1. Information protected by the confidentiality rules, and

2. Information learned in the course of service on a lawyers assistance program.

v. TheRat Rule. Himmel didnt report another lawyer for misconduct in order to ensure his client received the $ owed him

by the other lawyer. Himmel was sanctioned even though he was advancing his clients interest.

1. POLICY: to help break down the conspiracy of silence within the legal profession that arguably harbors

wrongdoers.

2. But if theres rivalries between firms, within firms, you have the slippery slope Gulag-esque problem.

vi. Bottom line: duty to report other lawyers when they do something, but duty carries a very high threshold b/c must have

actual knowledgeand it must raise a substantial questionas to lawyers honesty, trustworthiness and fitness

vii. Lawyers Responsibility for Ethical Misconduct by Colleagues and Superiors

1. Rule 5.1: responsibility of a partner or supervising lawyerfor ensuring compliance w/ the ethical rules by

subordinate lawyers, and explains when a senior lawyer may be subject to discipline for the conduct of a

subordinate lawyer.a. 5.1(a) Must set up systems to prevent ethical problems; including procedures to check for conflicts of

interest, to manage client funds, provide continuing education in legal ethics.

i. Applies only to partners and other managers in a law firm, but Rule 1.0defines law firm to

include legal services organizations, legal departments of corporations, government agencies,

and other organizations.


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b. 5.1(b)If a subordinate lawyer commits an ethical violation supervisor is not responsible if he did not

direct or know about it. But the violation could reveal a breach of his duty to make reasonable efforts to

prevent violations.

c.

5.1(c)Shall be responsible for the violation of rules of a partner, associate or subordinate if:i. 5.1(c)(1)He orders or w/ knowledge of the specific conduct ratifies the conduct

ii. 5.1(c)(2)He is a partner or has comparable managerial authority in the firm, or has direct

supervisory authority, knows of the improper conduct and fails to take action to reduce or

prevent the harm.

2. RESPONSIBILITIES OF A SUBORDINATE LAWYER: Rule 5.2 : when a subordinate lawyer is responsible for her own

conduct, and under what circumstances she may follow orders w/o fear of discipline.

a. 5.2(a)A lawyer is bound by the rules notwithstanding that the lawyer acted at the direction of another

person (I was just following orders doesnt cut it)

i. However, may be able to prove that she did not actually know that the action was improper.

ii. Comment 1: although a lawyer is not relieved of responsibility for a violation by the fact that the

lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a

lawyer had the knowledge reqdto render conduct a violation of the Rules.

b. 5.2(b)Not a violation if the supervisor reasonablythinks the conduct is proper, even if subordinate

believes otherwise.

i. The anti-Nuremburg rule: there must be some leeway given to underlings; if youre not sure if an

order is wrong, if it sounds wrong to you, then youre off the hook. If its absolutely not clear if

something you see a superior doing that you think might be wrong is in fact wrong, you dont

have to report it.

ii. If you disagree w/something happening in a firm, if you listen to person who is superior to you,

and theres a reasonable resolution of an arguable question, then youre given complete

protection.1. But make a memo for yourself.

3. Rule 5.3: explains responsibilities of lawyers who supervise nonlawyer employees for ensuring that the

employees comply with the rules of professional conduct, and explains when a lawyer may be subject to

discipline based on the conduct of a nonlawyer employee.

a. Basically same language as 5.1.

b. Make sure nonlawyers follow the rules. They are the lawyers agents and the lawyer is responsible for

their behavior.


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c. 5.3(c)(1): involves ratifying the conduct of someone else

viii. Legal protection available to subordinate lawyers who refuse to commit misconduct or who complaint of the

misconduct of others,

1.

Initiated after the Wiedercase in NY. Many states allow lawyers to sue for wrongful discharge if fired afterwhistle-blowing. (Though some offer no such relief). Remember the dude who ran the Ponzi scheme.

ix. Malpractice claims: top ten:

1. Ignore conflicts of interest; 2. Sue former client for unpaid fee; 3. Accept any client and any matter that comes

along; 4. do business with your client; 5. Practice outside your area of expertise; 6. Go overboard in opening

branch offices and making lateral hires; 7. Leave partner peer review to the other firms; 8. Ignore a potential

claim and represent yourself in a professional liability dispute; 9. Settle a matter without written authorization

from your client; 10. Fail to communicate with your client.

CONFIDENTIALITY

A. The basic principle of confidentiality

Duty is express in the ethical rules, in the law of agency (requiring all agents to keep the confidences of their principals), and the

law of evidence (protecting lawyers and clients from being compelled to testify about confidential communications).

1. Protection of information relating to the representation of a client: KEEP YOUR MOUTH SHUT.

i. Rule 1.6(a) Confidentiality of information.A lawyer shallnotreveal information relatingto the representation of a

client (very broad) unlessclient gives informed consent, or the disclosure is impliedly authorizedin order to carry out

the representation, OR the disclosure is permitted by 1.6(b).

1. Informed consent: client must know what is to be revealed and the ramifications of the disclosure.

2. Impliedly authorized: custom and practice, can disclose lots of information w/o explicit permission.

Depends on the kind of case, how embarrassing to client, etc.

3. Under common law, public information can be disclosed.

4.

Information: means anything, docs or oral info.5. What is informed consent? Denotes the agreement by a person to a proposed course of conduct after

the lawyer has communicated adequate information and explanation about the material risks of and

reasonably available alternatives to the proposed course of conduct.

- Means you advise client of disadvantages of a particular course of action and advise them of your

options. And you get their permission.

- It has nothing to do with privilege. It has to do with: keep your mouthshut.

6. the disclosure is impliedly authorized in order to carry out the representation:


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- The law recognizes that within the atty-client relationship you are an agent, but you are an agent

with power.

- In order for an agent to do the job, like a plumber fixing the bathroom, you have to have a degree of

latitude. Lawyers have an accepted scope of authority.What information is confidential?

- All info relating to the matter on which the lawyer is representing the client, except that which is

generally known

- Personal information relating to the client that the client would not want disclosed

- Information learned from the client, and information learned from interviews, documents,

photographs, observation, etc.

- Information acquired before the representation begins (such as during a preliminary consultation)

and after representation has ended

- Notes or memoranda that the lawyer creates relating to the matter

7. POLICY: to facilitate open communication between lawyers and clients.

8.

CONSULTATION:some clients dont want anyone to know that theyve consulted w/a lawyer, either.

Example: a client is considering a divorce, but hasnt decided what to do. Revelation of the fact that the

client has consulted w/a lawyer could be personally or financially disastrous for the client

B. Exceptions to the duty to protect confidences

1. Rule 1.6(b), these arepermissive, NOT mandatory. A lawyer mayreveal information relating to the representation of a

client to the extent the lawyer reasonably believes necessary:

i. Reasonable belief: when used in reference to a lawyer, denotes that a lawyer believes the matter in question and

that the circumstances are such that the belief is reasonable. Reasonable: reasonable prudence and competence.

ii. The risk of future injury or death

1. 1.6(b)(1)To prevent reasonably certain death or substantial bodily harm

-

If it will be suffered imminently or if there is present and substantial threat that a person will sufferharm at a later date if fails to take action necessary to eliminate the threat.

- POLICY: overriding value of life and physical integrity

- Some states impose a dutyon lawyers to reveal.

- Some states follow the Model Code, allowing lawyer to reveal intention of client to commit a crime

and the info necessary to prevent the crimes

- Some states, lawyer has broad discretion in the face of future criminal act by a client

iii. Client frauds and crimes that cause financial harm


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1. 1.6(b)(2)To prevent the client from committing a crime or fraud that is reasonably certain to result in

substantial injury to the financial interests or property of another and infurtheranceof which the client has

used or is using the lawyers services (very narrow); [future crimes]

2.

1.6(b)(3)To prevent, mitigate or rectify substantial injury to the financial interests or property of anotherthat is reasonably certain to result or has resulted from the clients commission of a crime or fraud in

furtherance of which the client has used the lawyers services already committed the fraud or going to

commit it using lawyers services. [past crimes]

iv. 1.6(b)(4)Revealing confidences to secure legal advice about lawyers compliance with these rules

v. 1.6(b)(5)Using a clients confidential information to protect the lawyers interests

1. To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client,

to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the

client was involved, or to respond to allegations in any proceeding concerning the lawyers representation of

the clientbetween attorney and client, only to the extent necessary to defend yourself or to collect money

2. Lawyer may reveal confidences even if the allegation is made by an injured third party rather than by a

client, and even if the lawyer is not the primary target of the allegation

3. If lawyer is about to be sued for malpractice, doesnt have to wait until lawsuit is filed to reveal info to

defend himself

4. Generally, should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.

5. This provision is essentially entrepreneurial. This rule is different in NY. In NY, you can reveal info in any

controversy. Doesnt say claim; says controversy. If client, then, leaks something bad about you to NY

Post, usually before you reveal, there has to be a claim against you, but in NY you can reveal when theres a

controversy.

6. Also, if youre accused of misconduct by a controversy (i.e. SEC), even if client is not involved, you can

defend

vi.

1.6(b)(6)To comply with other law or a court order1. Not allowed to give the info until it is ordered.

2. Under rule 1.6(b)(6) we incorporate by reference rules of evidence and all other law of U.S. May reveal to

comply with other lawor court order

- Not discretionary! If theres another law, you probably gotta do it. If its a court order, you gotta do

it.

3. EXAMPLE: If court were to say to a lawyer, you are required to reveal fees. Fee-related info in US: is it

privileged?


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- Everything that is confidential is not privileged. Information relating to fees in US: not privileged.

- Privileged info: unique sliver of info in the universe.

i. Must be info communicated to or from client to lawyer,

ii.

No 3d parties present,iii. Info must relate to the representation in the context of giving advice.

- Under 1.6(b)(6) if asked under deposition to grand jury or judge, required to reveal the info unless

theres a good exception. Also, gotta talk if its a court order or federal law.

i. Cant volunteer info about being paid money, but if asked in context of formal legal process,

must answer question b/c its otherwise required by law 1.6(b)(6).

vii. Under Comment 4 of Rule 1.6, lawyer may talk hypothetically about a case so long as identity of client is protected.

viii. Rule 1.8(b): conflict of interest: lawyer shall not use info relating to representation of a client to the disadvantage of

the client unless client gives informed consent, except as permitted or required by these Rules.

ix. Sarbanes-Oxley Act

1. Aftermath of Enron. Tough new disclosure rules for lawyers:

2.

SEC: lawyers who practice before it or advise companies regulated by it are required to report any

information about securities fraud to the highest officials of the corporation.

x. Other Rules relating to client fraud:

1. Prof says: he talked about confidentiality re: keep yer mouth shut; talked about it in context of 1.6 and

4.1(b) which he thinks should be part of 1.6. he wants us to take down the following rule numbers

2. Rule 1;

3. Rule 3.3 (has provisions where you have to rat out a client or witness);

4. Rule 3.4 (relating to situations where clients go into misconduct and you are obligated to reveal the info);

5. Ruel 1.16: situ when you withdraw form a case where you may be required to reveal info;

6. Rule 8.4: which defines misconduct: there maybe situs where you are reqdto reveal info.

7.

Rule 4.1(b): bars lawyers from knowingly failing to disclose a non-confidential material fact when disclosureis necessary to avoid assisting a clients fraudulent act.

xi. REESES LEASES AND THE IMPACT OF RULE 4.1

1. Lawyer is helping them commit fraud b/c he was certifying the validity of the paper to the bank.

2. Under Rule 1.6(b)(3)he may disclose.

3. But under Rule 4.1, shall not knowingly fail to disclose a material fact to a third person when disclosure is

necessary to avoid assisting a criminal or fraudulent act by a client, unless prohibited by Rule 1.6.


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4. Rule 1.6 now permits revelation of confidential info to prevent, mitigate, or remedy some criminal and

fraudulent client conduct. This means that in any situation in which a lawyersfailure to revealwould

constitute assisting a criminal or fraudulent act, Rule 4.1 now requiresa lawyer to reveal this information.

(Prof translation: you must reveal info when its necessary to avoid a client committing a criminal orfraudulent act so long as rule 1.6 doesnt prohibit it.)

xii. Noisy withdrawal: disaffirming documentspermitted but not required to send a letter to other person in

transaction saying you disaffirm that piece of information.

xiii. Lawyer cannot reveal info about a clients crime or fraud if the lawyer had nothing to do with it.

1. Rule 1.6 does not allow a lawyer who has not assisted a clients financial crime or fraud to make a disclosure

to protect another person from injury.

2. If client has not used and is not using the lawyers services to commit a fraud, the lawyer may not warn the

intended victim of the fraud.

Ross analyzes the rules of confidentiality

Must be a client

No 3rdparty present unless 3rdperson is a surrogate, P.I., translator, etc.

Information must relate to the giving of legal advice Must relate in a meaningful way. Also, must be a communication. Not a

visual (client coming to office is a visual).

Payment of money from client to attorney is not privileged b/c is a business transaction.

Must comply IF not privileged.

If a court orders to provide information contrary to privilege, you can stay the contempt to take to appellate court. MUST take it

to at least one level of appeal.

C. If lawyer fails to protect confidencesSubject to professional discipline; Liable in tort or contract for negligent or intentional breach

of duty;Disqualified from representation of one or more clients; Enjoined by a court from further revelation

D. Is the fact of representation confidential?

1.

Maybe. If a lawyer reveals that she is representing a client, she must then avoid disclosing confidential information aboutthat clients matter.

2. Some clients do not want anyone to know that they have consulted an attorney. In such a case, the fact of consultation or

representation is confidential.

Attorney-Client Privilege and the Work Product Doctrine

A. Confidentiality and attorney-client privilege, compared


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a. Privilege is common evidence law, which governs what kinds of evidence can be admitted in court. Instead of being

imposed by ethical rules like confidentiality.

i. Ethics v. privilege: ethics, 1.6. covers the whole world, privilege covers admissibility and client-lawyer

communication and what you might have to say in court.b. Offer different, but overlapping, protection to lawyer-client communications. Privileged information is a subset of

information protected by confidentiality.

i. Unlike confidentiality, which is very broad, this privilege covers only the communications between lawyer and

client in which the client is seeking legal advice or other legal services.

c. POLICY FOR BOTH: both confidentiality and privilege based on the idea that a legal system in which advocates speak for

clients will work best if clients feel free to speak openly w/their attys.

Differences between confidentiality and privilege

Ethical duty to protect confidences Atty-client privilege

SOURCE Ethical duty, Rule 1.6 Common law evidence rule

SCOPE Information relating to the representation of a

client (obtained from any source)

Narrower scope; confidential communication

between a lawyer and a client for the purpose of

obtaining legal advice

METHOD OF

ENFORCEMENT

Professional discipline Quash subpoena or otherwise exclude the revelation

from evidence

When atty-client privilege is invoked

Occasions when atty-client privilege might be claimed

Type of case Privilege might be invoked as to arguably privileged material i f:

Criminal cases A lawyer or client is subpoenaed to testify before a grand jury

A lawyer is subpoenaed to testify before a trial jury

A client is cross examined during a trial

A cleints documents are seized from his lawyer pursuant to a search warrant


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Civil cases and

administrative adjudications

Discovery is sought from a lawyer or a client through depositions, interrogatories, or a request

for production of documents

A lawyer is called to testify before a judge or jury at trial

Legislative andadministrative investigations

A lawyer or client is subpoeanaed to testify before a legislative committee or an administrativeagency

A reporting statute appears

to compel a lawyer to

disclose information even

without an official request

A lawyer seeks to avoid disclosure by preemptive proceeding (e.g. declaratory judgment or

injunction) or invokes the privilege to defend against penalties for not having made disclosures

B. Elements of attorney-client privilege

a. Communication

i. Includes face-to-face, telephone, memo, letter, fax, email, IM, etc.

1.

However, only protects against disclosure of the communication itself, not of the underlying facts that might

have been communicated.

ii. Includes communications with a prospective client or lawyer.

b. Privileged persons

i. Communications with agents of lawyers (secretaries, paralegals, investigators) are privileged as well.

ii. Interpreters, psychologists, parents, guardians, etc. can be present.

1. Though the lawyer should clarify the role of any 3rdperson present so as to avoid waiving the privilege.

2. Waiver: disclosure to a third person of the contents of privileged communication waives the privilege.

c. Communication in confidence

i. Client must reasonably believe that the communication is confidential.

C.

Client identity : protected?a. Generally, no, but a 9

thcirucit last link doctrine says that you can choose not to reveal clients ID if to reveal it would

inculpate them in a particular crime.

b. SCOTUS, also: if your services are used to commit a crime, whether you know they were or not, there is no privilege: crime-

fraud

D. Privilege for corporations

a. Who do you represent? The best interest of the entity.

i. Corporation/organization itself, and not its constituents.


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1. Sometimes, the lawyer has obligations toward other individuals or organizations affiliated w/ a client org,

especially if financial consequences toward the other person or org will impact the client org.

b. When I communicate with the entity (E.g. BLS), who am I talking with?

i.

Control group test: limits the privilege to communications from persons in the organization who have authority tomold organizational policy or to take action in accordance with the lawyers advice

ii. Whats the other test? PUT IT HERE.

c. Atty client privilege and confidentiality.

i. Example: BLS learns that an unknown member of deans staff is changing grades.

1. Lawyer is hired. Whos his client?

a. The law school. But who under the ethics rule is my client?

ii. Upjohn

1. A lawyer representing an incorporeal entity (we understand them through their people):

a. We have to have the following arrangement: if I represent BLS, I have to talk to the employees, and

that talk, w/a corporate employee, officer, middle manager, it should be privileged

b.

Who own the privilege? Upjohncourt says the corporation owns the privilege. w/o it, lawyers

couldnt have a confidential relationship with the firm.

c. So long as when the lawyer speaks to a corporate employee and there are no third parties around

iii. Rule 1.13, Comment 2: when one of the constituents of an organizational client communicates with the

organizations lawyer in that persons organizational capacity, the communication is protected by 1.6. )

d. Responding to unlawful conduct by corporate officers and other employees

i. Proceed as is reasonably necessary, even if its to report to higher authority or public officials (if its still in the best

interest of the org)

E. Crime-fraud exception

a. Prof: a destroyer of privilege

b.

No privilege if a client seeks assistance w/ a crime or fraudi. Doesnt matter whether client knows the act is wrongful when he consults the lawyer. Nor does it matterwhether

the client has concealed the illegality to the lawyer.

ii. What is allowed

1. Though can offer advice about whether a certain act is permitted under the law AND

2. Advice about a past act that was criminal or fraudulent.

c. Procedure for challenging the privilege on basis of exception: opposing lawyer must request docs based on guesses about

what they might contain.


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F. Death of the Client

a. Traditionally, the atty-client privilege lives on after the clients death. But what if client dies and lawyer believes she has

good reason to seek a waiver?

i.

SCOTUS says it makes no difference (V. Foster case)ii. Testamentary exception: furthers clients intent.

G. Waiver

a. Express: by client or by lawyer if authorized by the client.

b. By inaction: must claim the privilege before client answers or it is considered waived and is irreversible.

c. By revealing privileged communication to a non-privileged person

d. By putting privileged communication into issue; e.g., suing your lawyer.

e. Waiver as to conversation by disclosure of part of it

f. Compliance with court order: this does not wiave the issue for purposes of appeal or of other litigation.

g. A consideration from prof:

i. If in discovery a lawyer inadvertently turned over a doc, say, in document production, turned over to adversary, in

certain circumstances you can claw back the document.

ii. But if a lawyer willfully hands it over, its over.

H. Work product doctrine

a. Protects the notes and other material a lawyer prepares in anticipation of litigation from discovery in pretrial civil

proceedings.

b. Not absolute: judge order disclosure i f opposing party shows substantial need and inability without undue hardship to

obtain the substantial equivalent by other means.

i. Gives stronger protection to product that reveals the lawyers thoughts, strategies, or mental impressions than to

ordinary product.

ii. Work product privilege.

c.

If lawyer working on case in office on Westlaw, pull up a case on Westlaw, is it covered under 1.6? yes. Why? b/c the rule iskeep your mouth shut. Is it atty-client privileged? No. not a communication between atty and client. So its protected

under 1.6. doesnt get a lot of protection.

i. W.p. privilege is work you do in legal preparation, info you learn during the course of the representation.

1. Does it have absolute protection?

a. No. its sometimes protected by disclosure.

b. In order to require it, you need som requirement of need.

I. Joint Interest Doctrinealso Joint Defense


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a. Can execute a written joint interest agreement, can agree to expand privilege so other clients can talk to other lawyers

b. Joint interest privilege: basically: two clients in like matter, each have their own lawyer, they all get together. Privileged?

Yes.

i.

Two lawyers in a room, each w/different clients. But theyre working on the same case. Clients arent there. Is theconvo privileged? Yes, if they agreeto joint interest privilege.

J. Investigator is a surrogate for lawyer (3d party); accountant can be, too

K. If you go into office and secretary is there that doesnt destroy the privilege(It will be on his exam)

L. 3d parties: Media consultants:

a. If Toyota hires a media consul and pres of Toyota is speaking to media consultant about favorable press if Toyota is under

the gun,

i. Not privileged.

ii. But if lawyers for Toyota call media consultants and ask for good publicity b/c theres a prob hes not a client, hes

a third partywhat happens?:

1. Waiver: understand for his exam that most courts recogninze that such a hiring is considered privileged if it

relates to a problem

a. Doesnt create a privilege if lawyer just talking to media consultant about how Toyota needs to buy

more cars

b. There always has to be a legal strategy purpose for conversation, purpse cant just be to make $$$

Relationships Between Lawyers and Clients

Aim to protect people who believethat you are their lawyer. So long as they reasonably believethat you are their lawyer, you are

treated as such.

A. Formation of the lawyer-client relationship

a. Rule 1.1 Competence. A lawyer shall provide competent representation to a client. Competent representation requires the

legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.i. Comment 2: dont necessarily need to have special skill or training. Be aware of this comment: it sets the table for

what is required for showing of competence. Most fundamental skill: determining what kind of legal problems a

situation may involve, which transcends specialized expertise.

ii. (You gotta be pretty miserable at your job to not be competent.)

b. Choosing clients

i. Lawyer may be precluded from taking work b/c of a conflict of interest, a lack of expertise, or another problem.


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ii. No experience: If the lawyer compensates for inexperience through study or affiliation w/ another lawyer. Ethics

codes require lawyers to provide competent representation.

iii. In general, lawyers are allowed to be picky in taking on clients. There are three (3) caveats:

1.

Lawyers duty to provide legal assistance to people who are unable to pay for it. Aspire to provide 50hrs/year of pro bono representation.

2. A court may assign a lawyer to represent an indigent criminal defendant, even if the court does not have the

resources to pay the lawyer for the work.

3. Lawyer may not discriminate on the basis of race, religion, nationality, sex, age, disability, or another

protected category in her decisions about which clients to represent

c. Offering advice as the basis for a lawyer-client relationship

i. Principle: when dealing w/a layperson, you have to make it clear that a) I am your lawyer, or b) I am not your lawyer

ii. A person seeks legal advice/services from a lawyer, and lawyer gives these, the person may thereby become a

client. If reasonable laypersonthinks youre her lawyer, then you could be on the hook.

d. Practical Considerations

i.

Treat consultations as privileged in preparation of representation.ii. A declination letter: I am not your lawyer and advise you to seek other counsel or advice.

iii. Even if not retained, what client says is confidential and can disqualify a lawyer for conflict of interest in later cases.

B. Lawyers responsibilities as agents: Agency principles from book: he wont use agency terminology on exam; at the end of the day,

the message on Agency he cares about is:

a. Rule 1.2: Scope Of Representation And Allocation Of Authority Between Client And Lawyer

i. (a)Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of

representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be

pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the

representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer

shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waivejury trial and whether the client will testify.

ii. I GOT A CHART ON THE REST OF THIS COMING UP.

b. Competence in criminal trials

i. 6thAmendment issues: guaranteed effective assistance of counsel.

ii. High threshold: must show (1) counsels performance was deficient and (2) deficient performance prejudiced the

defense, i.e. that better representation would have made a difference.

c. Candor and communication


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i. Rule 1.4: what you have to tell the client.

Rule Language Author Explanation

a)

A lawyer shall:1. Promptly inform the client of any decision or

circumstance w/r/t which the clients informed

consent, as defined in 1.0(e), is required by these

rules

1.

informed consent: to settle, go to trial, waive aconflict, take a plea, decision to testify. These are the

only times a lawyer has to promptly tell a client info.

Duty is relegated to the most important aspects of the

case.

a. So: if you move for sum judg, and case is

dismissed, at least under the rule, you dont

have to give them prompt notification. A key

witness dies. Do you have to promptly notify?

No.

2. Reasonably consult with the client about the

means by which the clients objectives are to beaccomplished;

Rule 1.2 gives the lawyer some discretion about the

means to be used to carry out the representation (as

opposed to the objectives, which clients are entitled

to decide).

Courts ONLY invoke this if you dont take clients calls

and dont talk to client

3. Keep the client reasonably informed about the

status of the matter;

Status includes significant developments affecting the

timing or substance of the representation

Example: if the courts schedule delays the resolution of

a case for six months, the lawyer should inform the

client.4. Promptly comply with reasonable requests for

information; and If the laywer cannot respond promptly, he should

explain when a response may be expected.

Client telephone calls should be promptly returned or

acknowledged

You have to respond to reasonable requests for info

5. Consult with the client about any relevant Example: if client asks lawyer to claim a tax deduction that the


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limitation on the lawyers conduct when the

lawyer knows that the client expects assistance

not permitted by the Rules of Professional

Conduct or other law.

client is not entitled to claim, the lawyer should explain that he

cant do that.

b) A lawyer shall explain a matter to the extent reasonably

necessary to permit the client to make informed

decisions regarding the representation.

The lawyer should give the client enough info to participate

intelligently in decisions about objectives and means. But a

lawyer ordinarily will not be expected to describe trial or

negotiation strategy in detail. (Client decisions: plead, settle,

testify, go to trial.)

d. Diligence

i. Rule 1.3: a lawyer shall act with reasonable diligence and promptness in representing a client.

1. Has the lawyer neglected client matters; i.e. did they fail to return phone calls or file court papers on time?

2.

Comment 1: lawyer should pursue a matter for a client despite opposition or personal inconvenience andtake whatever measures are required to vindicate a clients cause; act with zeal in advocacy on clients

behalf

a. But we dont want lawyers to do scorched earth tactics

i. So, comment stresses lawyer is not bound to press for every advantage that might be

realized

ii. Rule 8.4: lawyer may not engage in dishonesty, fraud, misrepresentation, deceit.

1. Rule 2.1: In representing a client, a lawyer shall exercise independent professional judgment and render

candid advice. In rendering advice, a 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 clients situation.

a.

Comment to the rule dealing with candor: deceit and misrepresentation not permitted. Howeverthere is a sense that in negotiation , certain statements not construed as factual.

2. Where do we draw the line?

a. Puffery: in the context of negotiation, rules of candor do not apply. Its understood that in the

context of negotiation statements made are not factual.

i. But you cant lie to a judge about this stuff. Youll be guilty of misconduct. Or lie to an

arbitrator.

b. You cannot lie about coverage.


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c. Also, if your witness has died, you cant lie about that.

i. The preceding two are statements of fact.

d. You cannot make an affirmative misrepresentation.

i.

A half truth is no truth at all.ii. You cant go in on the day the trial begins and they say are you ready to proceed and your

client has died, you cant say yeah, Ill proceed.

3. Rule 1.4(a)(3): Keep the client reasonably informed about the status of the matterthis includes a big

mistake youve made

a. Comment 7: may not withhold to serve own interest or convenience

iii. Can a lawyer lie EVER for a good purpose?

1. Three exceptions:

a. A lawyer conducting an undercover sting operation, based upon a line of authority that began in NJ

and NY, its OK for a lawyer to direct an undercover civilian (i.e. ex-cop) to lie in order to uncover

intellectual property fraud.

b.

Discrimination testers: white and black person sent to apartment to see if discrimination exists inrenting. You can send undercover operators to housing complexes to see who is discriminating. The

testers are lyingand the lie was created by the lawyer.

c. Law enforcement exception: undercover operations. They, by necessity, require people to lie. In

copyright matters: fake Gucci bags in Chinatown.

iv. Rule 1.2(c):allows a lawyer to limit the scope of the representation if the limitation is reasonable under the

circumstances and the client gives informed consent.

1. EXAMPLE:a lawyer might agree to attempt to negotiate a settlement but not to file a lawsuit.

2. HOWEVER:lawyer cant enter into agreement to waive the duty of competent representation.

a. BUT: if a client asks a lawyer to perform a limited service, the lawyer would not be found

incompetent for having failed to do work that he was not asked to do.3. Unbundling: EXAMPLE: client comes to you in matrimonial case. You rep em. They talk to you about an

issue that has tax implications and how property might be split has tax issues. Used to be if you were hired

for matrimony, you knew tax, etc., all sorts of law.

4. Now: NY rule: you must specify the matter youre repping the client for. And the lawyer is only required to

rep the person in that issue.

a. If I should have spotted an issue outside my specific issue, not a problem.

b. If I could have, not a problem.


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c. Lawyers are permitted to narrow the scope of what they do.

C. Who calls the shots?

a. The competent adult client

i.

Rule 1.2Rule 1.2: Scope of Representation and Allocation of authority Between Client and Lawyer

Rule Language Authors explanation

a) Subject to paragraphs c) and d), a lawyer

shall abide by a cl ients decisions concerning

the objectives of representation and, as

required by the Rule 1.4, shall consultwith

the client as to the means by which they are to

be pursued. A lawyer may take such action on

behalf of the client as is impliedly authorizedto carry out the representation. A lawyer shall

abide by a clients decision whether to settle a

matter. In a criminal case, the lawyer shall

abide by the clients decision, after

consultation with the lawyer, as to a plea to be

entered, whether to waive jury trial and

whether the client will testify.

Client decides objectives of representation;

Lawyer must consult client as to means use to pursue objectives.

Civil case: client decides whether to settle.

Criminal: To plead guilty,To waive jury trial,To testify.

Shall consult: you dont have to follow what they say. consult

Jones v. Barnes, client says itshis life and he wants these points on

appeal. The fundamental question is, who calls the shots on anargument for appeal? Court holds that it is the attorneys call.

1. HYPO: Youre an appellate lawyer, client says, I want to see the

brief before it goes out.

a. Do I have to follow this instruction? No.

b. THE CASE: the court says that the client as a matter of

right is not entitled to the brief. Lawyer has a broad

range of responsibility and does not have to follow

clients directions on anything in an appeal except:

i. Once client has made decision to appeal, only

thing lawyer HAS to do is reasonably consultw/client

b)A lawyers representation of a client,

including representation by appointment, does

not constitute an endorsement of the clients

political, economic, social or moral views or

activities.

Example: a lawyer might represent the American Nazi Party even if he

thought its goals were objectionable. Why is it here? Its a paid political ad.

Lawyers reminding profession of the social good of being a lawyer to

unpopular people.


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i. A lawyers representation of a client does not constitute an

endorsement of the clients political, social or moral views

c)a lawyer may limit the scope of the

representation if the limitation is reasonableunder the circumstances and the client gives

informed consent.

A lawyer and a client may agree that the lawyer will provide less than the full

range of services. The client may prefer this arrangement to reduce costs orfor other reasons.

2. Almost all lawyers limit the scope of their representation.

3. Cant limit it in an unreasonable way.

a. You cant say Ill represent you, but Im never going to

speak to you.

b. This rule is made for lawyers who practice in

sophisticated fields (tax, trusts and estates).

4. If you can create a narrow retainer agreement, do it

d)a lawyer shall not counsel a client to engage,

or assist a client, in conduct that the lawyer

knows is criminal or fraudulent, but a lawyer

may discuss the legal consequences of any

proposed course of conduct with a client and

may counsel or assist a client to make a good

faith effort to determine the validity, scope,

meaning or application of the law.

Although placed in a rule about the scope of the lawyers representation, this

provision bars lawyers from advising or assisting clients in illegal or fraudulent

activity.

1. Comment 2: clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be

used to accomplish their objectives, particularly with respect to technical, legal, and tactical matters.

2. Rule1.14

a. (a) When a client's capacity to make adequately considered decisions in connection with a representation is

diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as faras reasonably possible, maintain a normal client-lawyer relationship with the client.

b. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical,

financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer

may take reasonably necessary protective action, including consulting with individuals or entities that have the

ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad

litem, conservator or guardian.


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c. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When

taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal

information about the client, but only to the extent reasonably necessary to protect the client's interests.

1. Impliedly authorized to reveal info normally protected by Rule 1.6when taking protective

action, but only to the extent reasonably necessary to protect the clients interests.

d. Comment 6: suggests that lawyer should make an assessment of clients mental capacity, consider and balance

factors such as:

i. Clients ability to articulate reasoning leading to a decision,

ii. variability of state of mind and ability to appreciate consequences of a decision

iii. substantive fairness of a decision,

iv. and consistency of a decision with the known long-term commitments and values of the client.

e. Juveniles

i. Rule 1.14 applies the same standards to minors that it applies to adults w/mental impairments. This

means lawyers should maintain normal lawyer-client relationships w/minors to the extent possible.

f.

Rule 1.2 has uneasy relationship w/1.14. 1.14describes a client with diminished capacity. If you have a client,13, engaging in high risk behavior, wants to be freed of parents in order to have freedom to (profs example, do

meth and have unprotected sex w/an HIV positive 35 year old), sub a:

i. Deals w/diminished capacity.

ii. This client is imbued with reckless youth, not diminished capacity.

iii. So she needs to be represented like anyone else.

iv. So you follow her directives unless you believe reasonably that she has a diminished capacity (a term

which is undefined).

g. 1.14(a): some other reason: often refers to situations where the client is being coerced

3. Problem 4-5: Package Bomber

1.

Must respect clients objectives of the representation. His objective is to justify what he did, yours is to gethim off. Must follow his, even when it is not what is best for him.

D. Contracts to change the duties owed to cl ients

a. Can limit scope of representation so long as you advise the client clearly that you will not be handling certain matters.

2. Terminating a lawyer-client relationship

a. Duties to the client at the conclusion of the relationship

i. Most relationships end when all the work on the relevant matter has been completed.


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1. Must return any papers and property (including entire originalfile) and any unearned payment that the

client may have made.

2. Duty to protect confidences continues

3. Ethics rules dont specify what types of papers must be returned to a client or whether they must be

delivered to the client even if the client does not request them.

4. If client has not yet fully paid the lawyers fee, or the fee is disputed, the lawyer may retain the documents

that the lawyer created for the client, for which compensation has not been received, unless retention

would unreasonably harm the client.

b. How to withdraw?

i. When you move to withdraw on ethics grounds, you do so in camera ex parte(just you and the judge).

ii. Rule 1.6still applies so we need to find an exception w/in it so you can present your case to the judge to withdraw.

1. Perhaps the judge can direct you to tell him/her? ;)

c. Grounds for termination before the work is completed

i. Client Fires the Lawyer

1.

Must withdraw2. Client always has right to change lawyers, excepta client for whom a lawyer has been appointed may not

change w/o courts permission.

3. A lawyer must withdraw if the lawyers illness or loss of capacity would materially impair the representation

ii. When continued representation would involve unethical conduct

1. Must withdraw if representation will require the lawyer to violate the law, including the states rules of

professional conduct.

2. Rule 1.16

a. Except as stated in paragraph (c), a lawyer mustwithdraw from representation (or not initiate

representation in the first place) in 3 situations:

i.

Representation will result in violation of professional rulesii. Lawyers physical or mental condition materially impairs the lawyers ability to represent the

client; or

iii. The lawyer is discharged.

o Once you enter a notice of appearance, you are not out of the case until the court

discharges/excuses you. Not automatically out of a case after being fired.

b. Except as stated in paragraph (c), lawyer maywithdraw if:

i. Can be accomplished w/o material adverse effect on clients interestsfor no reason at all!


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ii. Client persists in a course of action involving the lawyers services that the lawyer

reasonably believes is criminal or fraudulent (i.e. Im not sure youve committed a fraud,

but Im reasonably sure; I quit)

iii. Client has used the lawyers services to perpetuate a crime or fraud

iv.

Client insists upon taking action that the lawyer considers repugnant or with which the

lawyer has a fundamental disagreement.

v. The client fails substantially to fulfill an obligation to the lawyer regarding the lawyers

services and has been given reasonable warning that the lawyer will withdraw unless the

obligation is fulfilledbasically, if they dont pay you. Even if they cannot pay you, you can

withdraw. If substantial, no one will ever challenge you. In NY: rule is only if you are

intentionally not paid.

vi. Representation will result in an unreasonable financial burden on the lawyer or has been

rendered unreasonably difficult by the clientyou underestimated the cost of the case.

vii. Other good cause for withdrawal exists. (Rule 1.16) (One guy got to leave b/c of prepaid

vacation!)c. Must comply with applicable law requiring notice to or permission of a tribunal.

i. Write a letter to client stating so

ii. If before a tribunal, file a petition with court asking judge to allow you to withdraw

iii. What kind of information/reasons do you give?

1. Must find a basis to reveal the information w/o violating Rule 1.6

2. most judges think theres an exception in 1.16 allowing lawyer ot divulge info to

court. Theres not. You can ONLY withdraw invoking language of 1.16. you can

withdraw, judge will ask why, but you cant be, in some cases, specific as to why b/c

of 1.6.

3.

EXAMPLE OF OVERCOMING 1.6: your honor, Im not allowed to tell you why myclient and I have come to loggerheads, I cant volunteer why its unreasonably

difficult, but its not privileged, so if you ask me about it, I can tell you.

d. Upon termination, lawyer shall take steps to the extent reasonably practicable to protect a clients

interests: reasonable notice, allowing time to find other counsel, surrendering papers/property,

refunding and advance payment.

i. The work done on a file belongs, not to the lawyer, but to the client: the original, not a copy.

1. Retaining lien: can keep the file until youve been fully paid.


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2. Must include EVERYTHING, except confidential operations of office (?)

Concurrent Conflicts of Interest

Basic principle of ethical practice is to avoid conflicts. When a lawyer undertakes representation of a client, the lawyer owes that client a duty of

loyalty and a duty to protect confidential information.

A. In general

a. Possible consequences of representing in the face of conflict: legal sanctions (disqualification, discipline, malpractice, fee

forfeiture), business repercussions (reputation, lose business, etc)

b. Conflicts with Whom?

i. Obligations to current client, former client, or some other person related to a matter (Concurrent and successive)

ii. Obligations of other lawyers with whom one works or worked (imputed)

iii. Between clients interest and lawyers own interest

B. General Principles in evaluating concurrent conflicts

a.

Rule 1.7 Conflicts of Interest: Current Clientsi. Concurrent conflict exists if:

1. The representation of one client will be directly adverseto another client; OR

a. Directly adverse: acting directly against the interests of one of his clients.

i. I.e. lawyer reps client A in one matter, sues A in 2d matter on behalf of client B.

ii. Also, it may be that two companies compete generally against each other, but is a lawyer

rep of one directly adverse to another. May be that a lawyer helps one competitor gain

strategic advantage in the mkt, but thats not direct adversity.

2. There is a significant risk that the representation of one or more clients will be materially limitedby the

lawyers responsibilities to another client, a former client or a third person or by a personal interest of the

lawyer.a. If a client would receive less vigorous representation from a lawyer because of a lawyers other

responsibilities, there might be a material limitation conflict.

i. How likely is it that a difference in interests will eventuate?

ii. If there likely is such a divergence, would it materially interfere with the lawyers advice to

or representation of a client?

ii. A lawyer may still represent a client if:


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1. Lawyer reasonably believesshe will be able to provide competent and diligent representation to each

affected client;

2. The representation is notprohibited by law;

a. E.g., Some jx cannot represent more than 1 D in a capital case; EXAMPLE: Pasoni v. Ravkin: in NY,

you cant rep the driver and passenger of a car that is hit through no fault of the drivers

3. Representation does not involve the assertion of a claim by one client againstanother client represented by

the lawyer in the same litigation or other proceeding before a tribunal;(only applies in litigation) AND

4. Informed consent, must be in writing.

a. Must explain ways it could adversely affect them.

b. Sometimes requires disclosure of the confidences of another client, which depends on that clients

consent.

5. EXAMPLE: Can you execute a contract for the buyer AND seller of a business?

a. It depends; so long as there is no conflict or competing interests

b. Walk through 1.7(b)informed consent.

iii.

EXAMPLE: two people come to lawyer say they want to form a partnership to open a sandwich shop. Q: do theyhave different interests?

1. The interests between the two partners to be: are they differing interests, and if they are different, is it s a

waivable conflict?

2. Where the partner terms need to be negotiated, there is clear adversity.

3. You cant rep em both when negotiating the terms (adversity).

4. On the other hadn, if they come to you and say were gonna fudn it 50-50, share work equally, and write up

a partnership agreement that is 50-50, is there adversity then?

a. For the time being, not in conflict. But they may have differing interestsits a waivable conflict.

Will you waive any conflict in me prepping a partnership agreement for you? Cause I cant rep you

down the road if theres a conflict (adversity).b. How to evaluate conflicts

i. Clearly identify client(s), determine whether conflict exists

ii. Decide whether may represent despiteconflict (consentable)

c. Reasonable belief: You reasonably believe you can do a good job.

i. Standard: reasonable person applying an objective test

d. Informed consent

i. Create a situation where all 4 requirements of 1.7(b) are satisfied.


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ii. What does informed consent mean?

1. Must communicate all the adverse effects of waiving, the risks, advantages and possible alternatives.

2. Client must sign a waiver that memorializesthe actual information the lawyer gave her. (Cant just say my

lawyer explained it all to me and I waive)Unless you have appetite for risk, get a waiver

3.

Client may withdraw consent.

iii. Advance Consent

1. Maybe:validity depends on how well client understands, thoroughness of lawyers disclosure, clients legal

experience, whether she received independent legal advice, whether it can be solved by consent?

e. Withdrawal and disqualification

i. Can be on your own volition, but normally brought by an opposing partys motion to disqualify you.

f. Imputation of concurrent conflicts

i. Represent one client whose interests conflict with those of a client represented by his partner.

ii. Rule 1.10. Imputation of Conflicts of Interest: Generally

1. While lawyers are associated in a firm, none shall knowingly represent a client when anyone practicing alone

would be prohibited from doing so (by Rules 1.7, 1.9) unlessthe prohibition is based on a personal interestof the prohibited lawyer and does not present a significant risk of materially limitingthe representation of

the client by the remaining lawyers in the firm

2. Disqualification prescribed by this rule may be waivedby the affect client under Rule 1.7 (GET INFORMED

CONSENT)

a. Rule that embraces the idea that if A and B work at a firm theyll share information

b. Even if there is a conflict, you can screen. If person was at former firm and has conflict w/ a client at

new firm, you contact former firm w/r/t screening requirements to sort it out and certify

compliance w/screening procedure. (NY doesnt have this; ABA does.)

iii. Rule 1.10(b)

1.

When a lawyer leaves your firm, can take up action against his clients unless people left in the firm haveconfidential info re: those clients

iv. Applies to ALL firms: whether its 2 lawyers or 1,500.

1. Does not apply to law clerks, paralegals, secretaries or other non-lawyer employees.

a. 1.10(a) does not preclude a firm from accepting representation of a client based on conflicts relating

to work that a lawyer in the firm did before she became a lawyer.

C. Conflicts between current clients in civil litigation

a. Suing a current client


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i. CANNOT do it - involves direct adversity even though the cases are unrelated.

b. Cross-examining a current client

i. Cant do it if it would be directly adverse to client

c. Representation of co-plaintiffs or co-defendants in civil litigation

i.

Co-Ps: if there is no present or likely future divergence of interests, then allowed. If you think maybe in the future

there could be, then put in the retainer agreement what you will do in such an event.

ii. Co-Ds: depends on what the defenses are, if interests are not adverse.

d. Representing economic competitors in unrelated matters

i. If in the matters in which you represent them they are not adversarial; e.g., represent one in a lease negotiation and

one in a civil litigation w/ a third party.

D. Conflicts in non-litigation matters: Representation of both parties to a transaction

a. Allowed to do it, but usually need informed consent.

b. Applies whenever a lawyer is approached by two clients seeking legal assistance w/ a common goal.

i. When do you need consent?

1.

Whether an actual or potential conflict is reasonably apparenta. If not, if entirely harmonious interests, then no consent required.

ii. Can a lawyer keep confidences learned from one client from the other?

1. Unclear, but probably not.

iii. If a conflict develops that will lead to litigation, may not continue to withdraw both (or all) clients.

1. If w/draw from one, still may not be able to represent the other because now it is a former v. current in the

same or a substantially related matterwould need consentof former.

E. Joint representation in particular practice settings

a. Representation of criminal co-defendants

i. Case law, ethics rules, and scholarly commentary al l discouragejoint representation of co-Ds by a single lawyer

1.

Comments to model rules counsel strongly against representing two ro more clients on charges arising outof a single occcurrence

ii. 6thAmendment: Does joint rep violate it?

1. If a conflict significantly affected the representation.

b. Conflicts in representing family members

i. Divorce: if both parties want to get divorced and have no disagreement about child custody or property division,

then perhaps there is no actual adversity, only technical.

1. Some states allow a lawyer to rep both sides in an uncontested divorce.


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2. Others say not for a divorce, but ok for a settlement agreement.

a. As long as clients agree and settlement is fair.

3. Some jurisdictions say you cant rep them at all for any reason.

a. POLICY: conflicting interests, financial or otherwise.

ii.

Estate Planning: confidentiality issues.

1. Florida Bar Opinion: Husbands Extra-Marital Will

a. Duty of confidentiality must takeprecedenceto duty to communicate to a client info relevant to the

representation.

i. in situations where one party reveals something like the drafting of a separate codicil for a

mistress, the lawyer must withdraw from the joint representation under these facts.

1. An adversity of interests has arisen. (joint conflict)

2. Lawyer should inform the husband and wife of withdrawal, that a conflict of interest

has arisen that makes continued representation i

c. COMMENT 30: (To Rule 1.7): factor to consider in appropriateness of common representation: effect on client-lawyer

confidentiality and atty-client privilege.i. W/r/t atty-client privilege, rule: as between commonly repped clients, the privilege does not attach.

ii. Hence, if litigation eventuates between the clients, the privilege will not protect any such communications, and the

clients should be so advised.

1. EXAMPLE: review of the joint litigation privilege. Lawyer 1client 1. Classic relationship. Privilege.

a. Add lawyer two and client two. They gather with the 1s for a meeting.

b. Joint defense privilege, or for those who do civil litigation work, joint civil privilege.

i. Two clients talking between selves: not privilege.

ii. It is the lawyer being present which is the glue that binds.

iii. IN SUM: its always a depends except I can never rep parties with different and conflicting

interest when theyre in conflicts of interest that are non-waivable.d. Representing both parties to an action

i. Rule 1.7governs: depends on whether there is a direct adversity conflict or a material limitation conflict under

1.7(a).

ii. If it appears clients interests could conflict, lawyer must provide info about possible downsides of joint

representation and get consent.

1. Only has to get consent if conflict is reasonably apparent.


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2. EXAMPLE: in 2d Dept, have case in 1stdept, but the case pending in the 1stCir. has nothing to do with the

case in the 2d dept, no conflict of interest.

e. Rule 1.7, Comment 31: suggests a lawyer usually should not keep confidences received form one joint client from the other.

i. Informed consent process includes advising each client that info will be shared and that lawyer will have to

withdraw if one client decides that some matter material to the representation should be kept from the other.

Unless both clients agree that lawyer can keep info confidential.

F. REPRESENTING ORGANIZATIONS

RULE 1.13: ORGANIZATION AS CLIENT

RULE LANGUAGE EXPLANATION

(a) A lawyer employed or retained by an organization

represents the organization acting through its duly authorized

constituents.

This section addresses who is the client of a lawyer representing an

organizaiotn. The client doesnt include the officers, directors, employees,

sharelholdes, and other constituents, but is the entity itself. Comments 1

and 2.

(b) If a lawyer for an organization knows that an officer,employee or other person associated with the organization is

engaged in action, intends to act or refuses to act in a matter

related to the representation that is a violation of a legal

obligation to the organization, or a violation of law that

reasonably might be imputed to the organization, and that is

likely to result in substantial injury to the organization, then

the lawyer shall proceed as is reasonably necessary in the

best interest of the organization. Unless the lawyer

reasonably believes that it is not necessary in the best

interest of the organization to do so, the lawyer shall referthe matter to higher authority in the organization, including,

if warranted by the circumstances, to the highest authority

that can act on behalf of the organization as determined by

applicable law.

This section explains the duties of a lawyer If someone associated with theorganization is involved in unlawful or other action that could harm the

organization and describes the circumstances under which the lawyer must

report up to the top of the corporate ladder. A lawyer ordinarily should defer

to the decisions of corporate officers in policy and operations, but if an

officers action is likely to substantially injure the organization or if the action is

unlawful, the lawyer has duties under this section. Comment 3. What action

is required of the lawyer depends on the seriousness of the violation and its

consequences, the responsibility in the organization and the apparent

motivation of the person involved, and other factors. Sometimes the lawyer

can fulfill this duty by requesting reconsideration of the matter or by havingthe matter reviewed by a higher authority. Comment 4.

(c) Except as provided in paragraph (d), if

(1) despite the lawyer's efforts in accordance with paragraph

(b) the highest authority that can act on behalf of the

This section of the rule lays out the circumstances under which a lawyer is

permitted to disclose confidential information outside of the corporation to

prevent or remedy conduct by an employee that is reasonably certain to cause


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organization insists upon or fails to address in a timely and

appropriate manner an action, or a refusal to act, that is

clearly a violation of law, and

(2) the lawyer reasonably believes that the violation is

reasonably certain to result in substantial injury to the

organization,

then the lawyer may reveal information relating to the

representation whether or not Rule 1.6 permits such

disclosure, but only if and to the extent the lawyer reasonably

believes necessary to prevent substantial injury to the

organization.

significant harm to the corporation. Rule 1.13(c) creates another exception

(besides those in 1.6(b)) to the rule requiring protection of confidences.

Comment 6.

(d) Paragraph (c) shall not apply with respect to information

relating to a lawyer's representation of an organization to

investigate an alleged violation of law, or to defend the

organization or an officer, employee or other constituentassociated with the organization against a claim arising out of

an alleged violation of law.

This section explains that paragraph (c) does not allow revelation of

confidences as to a matter on which the lawyer has been engaged to

investigate possible illegal conduct or to defend the organization or an

employee against an allegation of illegal action.

(e) A lawyer who reasonably believes that he or she has been

discharged because of the lawyer's actions taken pursuant to

paragraphs (b) or (c), or who withdraws under circumstances

that require or permit the lawyer to take action under either

of those paragraphs, shall proceed as the lawyer reasonably

believes necessary to assure that the organization's highest

authority is informed of the lawyer's discharge or withdrawal.

This section describes the duties of a lawyer who is fired or who withdraws

because of action tha t the lawyer takes to prevent or remedy unlawful

conduct. The lawyer should take steps to inform the board of directors of the

lawyers firing or withdrawal.

(f) In dealing with an organization's directors, officers,employees, members, shareholders or other constituents, a

lawyer shall explainthe identity of the client when the

lawyer knows or reasonably should know that the

organization's interests are adverse to those of the

constituents with whom the lawyer is dealing.

This section requires a lawyer who represents an organization to explain herrole whenever she is dealing with constituents whose interests may conflict

with those of the organization.

The big provision: you gotta explain.

(g) A lawyer representing an organization may also represent This section explains that a lawyer who represents an organization may also


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any of its directors, officers, employees, members,

shareholders or other constituents, subject to the provisions

of Rule 1.7. If the organization's consent to the dual

representation is required by Rule 1.7, the consent shall be

given by an appropriate official of the organization other than

the individual who is to be represented, or by the

shareholders.

represent individuals who associate with the organization so long as the

representation complies with Rule 1.7. it also explains how to obtain the

consent of the organization.

a. FACTORS AFFECTING WHETHER THE RELATED ENTITY IS A CLIENT

Related entity more likely to be a client if: Related entity less likely to be a client if:

The lawyer received confidential information from

or provided advice to the subsidiary.

The lawyer no longer represents the initial

corporate client.

The entity was controlled and supervised by the

parent organization.

The two entities became linked (e.g. by a merger)

after the lawyer began representation of the

corporation.

The original client could be materially harmed by

the suit against the subsidiary.

b. Representing insurance companies and insured persons

i. Authority is divided re: representing ins cos and insured peeps

ii. Rule 1.8(f)A lawyer shall not accept compensation for representing a client from one other than the client unless:

1. The client gives informed consent

2. There is no interference w/ the lawyers independence of professional judgment or w/ the client-lawyer

relationship; and

3. Information relating to representation of a client is protected as required by Rule 1.6

iii. When is there a conflict?

1.

E.g., damage award may exceed the amount covered by an ins policy2. If conflict arises, should act in best interests of insured except may no assist client fraud. If not possible,

must withdraw from both.

3. Communications between the insurer and counsel for the insured should be regarded as privileged and

otherwise immune from discovery by the claimant or another party to the proceeding.

a. But insurer has financial stake in the proceedings and so should have the right to claim relief from

lawyer for loss proximately caused by professional negligence or other wrongful act of the lawyer.


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b. Lawyer cannot reveal confidential info from insured person to insurer

c. Conflicts in representation of a class

i. Conflicts can be between members of the class or between class interests and lawyers own interests.

ii. EXAMPLE: class action civil rights lawsuit against prison in upstate NY. State of NY says you did a great job: heres 50

million dollars.

1. Is there a conflict? It depends. And if you dont spot a conflict on how you spend the $$$ if you dont

identify the conflict in how the prisoners spend the money, if you dont spot this issue in this retainer

agreement you will be criticized and you will get no legal fee and front page of law journal with a sanction.

2. So how would you handle it?

a. Build things into my retainer agreement when you sign on.

b. An advanced waiver.

i. EXAMPLE: if we win and get $$$, there may be a dispute about how money is divided. If

there is scuh a dispute, my firm will not be responsible beyond time when money is won.

Arbitration, mediation, or separate court action will swettle the dispersal fo fudns stuff.

d.

AGGREGATE SETTLEMENTSi. Rule 1.8(g)

1. A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the

claims of or against the clients, or in a criminal case an aggregated settlement as to guilty or nolo contendre

pleas, unless each client gives informed consent, in a writing signed by the client. The lawyers disclosure

shall include the existence and nature of all the claims or pleas involved and of the participation of each

person in the settlement.

Conflicts Involving Former Clients, Government Lawyers, and Judges

A. The nature of conflicts between present and former clients

a.

If a conflict (NY doesnt use conflict; uses differing interests)exists both the former and the present could be injured:i. Formers confidences may be betrayed and/or used adversely

ii. New clients representation may be less zealous b/c of obligation to former

B. Duties to former clients

a. Less restrictive than concurrent conflicts. Duties are limited to:

i. Protecting confidences

ii. Avoiding side-switching

iii. Refraining from attacking work you did for the former


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b. Rule 1.9Duties to Former clients

i. (a)lawyer who has formally represented a client in a matter shall not represent another person in the same or

substantially related matter in which persons interests are materially adverseto the interests of the former unless

the former gives informed consent, confirmed in writing.

1.

Same matter: single transaction, lawsuit, document lawyer was involved in producing

2. Substantially related: Comment 3, substantial risk that confidential information as would normally have

been obtainedin the prior representation would materially affect the clients position in the subsequent

matter.

a. HYPO: You worked at Disney in the employment division, policy drafting. You leave and then offer

to rep people who worked as independent contractors at Disney for work condition infringements

(no health and an onsite injury, etc.) wrong? Substantially related? Not so much

prof resp outline ross

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