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235 Cards in this Set

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MR 1.1
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Factors for determining whether a lawyer has the requisite skill-
(1)relative complexity and specialized nature of the matter,
(2)the lawyer's general experience,
(3)the lawyer's training and experience in the field in question,
(4)the preparation and study the lawyer is able to give the matter and
(5)whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence
MR 1.2(a)
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 waive jury trial and whether the client will testify.
MR 1.2(b)
A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.`
MR 1.2(c)
A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
MR 1.2(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.
Rule 1.3: Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.5(a)
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.
The factors to be considered in determining the reasonableness of a fee
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
MR 1.5(b)
The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
MR 1.5(c)-Contingent fee agreements
A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
MR 1.5(d)-Exceptions to contingent fee arrangements
A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(2) a contingent fee for representing a defendant in a criminal case.
MR 1.6(a)
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
MR 1.6(B)
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(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 in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) 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 lawyer's representation of the client; or
(6) to comply with other law or a court order.
MR 1.7(a)
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
MR 1.7(b)
Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.
Definition of informed consent
"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
MR 1.8(a)
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
MR 1.8(e)
A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
MR 1.8(h)
A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or

(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
MR 1.8(j)
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.
Direct adversity- Comment 6 to MR 1.7
a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.
Definition of material limitation from Comment 8 to MR 1.7
The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
Consent to future conflicts- Comment 22 MR 1.7
The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding....f the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved...f the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation.
Inconsistent legal positions and conflicts of interest- Comment 24 MR 1.7-
Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer. IF there is a significant risk, then absent informed consent, the lawyer must refuse one of the representations or withdraw
Duty of confidentiality and common representation- Comment 31 to MR 1.7
continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit.The lawyer should...advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.
Conflicts and organizational clients- Comment 34 to MR 1.7-
A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client's affiliates, or the lawyer's obligations to either the organizational client or the new client are likely to limit materially the lawyer's representation of the other client.
MR 1.9(a)
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
MR 1.9(b)
A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client,

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer has acquired information protected by Rule 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
MR 1.9(c)
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
MR 1.10(a)
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
MR 1.10(b)
When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
MR 1.11(b)
When a lawyer is disqualified from representation under paragraph (a)(can't represent a client in connection with a matter that the person participated in as a public officer), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
MR 1.13(a)
A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
MR 1.13(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 refer the 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.
Considerations on how to proceed under MR 1.13(b)-Comment 4
he lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations.
When might it be appropriate for the lawyer to ask the organization ot reconsider the matter-Comment 4 to MR 1.13
if the circumstances involve a constituent's innocent misunderstanding of law and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority. If a constituent persists in conduct contrary to the lawyer's advice, it will be necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization
MR 1.13(c)
xcept 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 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.
MR 1.13(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 constituent associated with the organization against a claim arising out of an alleged violation of law.
MR 1.13(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.
MR 1.15(a)
A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.
MR 1.15(d)
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
MR 1.15(e)
When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
MR 1.16(a)
Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.
MR 1.16(b)
except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
MR 1.16(c)
A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
MR 1.18(a)
A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
MR 1.18(b)
Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
MR 1.18(c)
A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
MR 1.18(d)
When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Taint shopping- Comment 2 to MR 1.18
Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a).
MR 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 client's situation.
MR 2.3(a)
A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client.
MR 2.3(b)
When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.
Duties arising when a lawyer performs an evaluation for the benefit of a third party-Comment 3 to MR 2.3
When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer relationship, careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client
MR 3.3(a)
A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
MR 3.3(b)
lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
MR 3.3(c)
The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
MR 3.4(e)
A lawyer shall not,in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
MR 3.8(f)
The prosecutor in a criminal case shall except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
MR 4.1
In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
MR 4.2
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
MR 4.4(b)
A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.
MR 5.2(a)
A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
Mr 5.2(b)
A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
MR 5.4(a)
A lawyer or law firm shall not share legal fees with a nonlawyer....
MR 5.4(b)
A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
MR 5.5(a)
A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so
MR 5.5(b)
A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
MR 5.5(c)
A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
MR 5.5(d)
A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission;
Mr 6.1
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:

(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:

(1) persons of limited means or

(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
MR 7.1
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
MR 7.2(a)
Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.
MR 7.2(b)(1) & (4)
A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

(i) the reciprocal referral agreement is not exclusive, and

(ii) the client is informed of the existence and nature of the agreement.
MR 7.3(a)
A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior professional relationship with the lawyer.
MR 7.3(c)
Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
MR 7.4(a)
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.
MR 8.3(a)
A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
MR 8.3(b)
A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
MR 8.4
It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Model Code DR 7-102(b)
A lawyer who receives information clearly establishing that:

(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.71, 72

(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal
Model Code DR 4-101(a)
"Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
DR 4-101(b)
Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

(1) Reveal a confidence or secret of his client.11

(2) Use a confidence or secret of his client to the disadvantage of the client.

(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
DR 4-101(c)
A lawyer may reveal:

(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.14

(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.15

(3) The intention of his client to commit a crime and the information necessary to prevent the crime.

(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
Ga Rule 1.6(a)
A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the Court.
Ga Rule 1.6(b)(1)
(1) A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably believes necessary:

(i) to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law;

(ii) to prevent serious injury or death not otherwise covered by subparagraph (i) above;

(iii) 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 lawyer's representation of the client.
Ga Rule 1.6(b)(2)
In a situation described in Subsection (1), if the client has acted at the time the lawyer learns of the threat of harm or loss to a victim, use or disclosure is permissible only if the harm or loss has not yet occurred.
Ga Rule 1.6(b)(3)
Before using or disclosing information pursuant to Subsection (1), if feasible, the lawyer must make a good faith effort to persuade the client either not to act or, if the client has already acted, to warn the victim.
Ga Rule 1.7(a)
A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b).
Ga Rule 1.7(b)
If client consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected or former client consents, preferably in writing, to the representation after:

(1) consultation with the lawyer,

(2) having received in writing reasonable and adequate information about the material risks of the representation, and

(3) having been given the opportunity to consult with independent counsel.
Ga Rule 1.7(c)
Client consent is not permissible if the representation:

(1) is prohibited by law or these rules;

(2) includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding; or

(3) involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.
Ga Rule 4.2-Comment 4(b)
In administering this Rule it should be anticipated that in many instances, prior to the beginning of the interview, the interviewing lawyer will not possess sufficient information to determine whether or not the relationship of the interviewee to the entity is sufficiently close to place the person in the "represented" category. In those situations the good faith of the lawyer in undertaking the interview should be considered. Evidence of good faith includes an immediate and candid statement of the interest of the person on whose behalf the interview is being taken, a full explanation of why that person's position is adverse to the interests of the entity with which the interviewee is associated, the exploration of the relationship issue at the outset of the interview and the cessation of the interview immediately upon determination that the interview is improper.
Ga Rule 1.7(b)
If client consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected or former client consents, preferably in writing, to the representation after:

(1) consultation with the lawyer,

(2) having received in writing reasonable and adequate information about the material risks of the representation, and

(3) having been given the opportunity to consult with independent counsel.
Ga Rule 1.7(c)
Client consent is not permissible if the representation:

(1) is prohibited by law or these rules;

(2) includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding; or

(3) involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.
Ga Rule 4.2-Comment 4(b)
In administering this Rule it should be anticipated that in many instances, prior to the beginning of the interview, the interviewing lawyer will not possess sufficient information to determine whether or not the relationship of the interviewee to the entity is sufficiently close to place the person in the "represented" category. In those situations the good faith of the lawyer in undertaking the interview should be considered. Evidence of good faith includes an immediate and candid statement of the interest of the person on whose behalf the interview is being taken, a full explanation of why that person's position is adverse to the interests of the entity with which the interviewee is associated, the exploration of the relationship issue at the outset of the interview and the cessation of the interview immediately upon determination that the interview is improper.
Spaulding v Zimmerman-
Defense counsel fails to disclose the fact that the P has an aneurysm. Court finds no duty to disclose, but vacates the settlement because once the settlement was reached the proceedings were no longer adversarial and the D's lawyers were seeking the Court's approval-
Disclosure of Adverse Evidence-
Absent mutual mistake, fraud or concealment from the court, the Court will not set aside a judgment b/c the lawyer has concealed adverse evidence
Brown v County of Genesee-
P's settled for what they thought was the highest possible pay. D's suspected that it was not but this was ok-Failure of the P's counsel is not fraud on the part of the D
Virzi v Grand Trunk Warehouse
- Not ok to fail to disclose that the P died of causes unrelated to the lawsuit-
Poly trucking-
Ok for a D's attorney to keep quiet about a drafting error that helped him, but IN Stare v Tate- Not ok for a lawyer in a divorce to make a counteroffer which would diminish the likelihood that the P's attorney would notice a drafting error
Duties regarding physical evidence-
i.Lawyer Can either
1.NOT TAKE IT ( but, consistent with the diligence requirement, should go and check it out)
2.TAKE IT- ( Obligation only kicks in when the lawyer takes possession), keep it long enough to examine it, then uphold the affirmative obligation to turn it over to either
a.3rd party as long as it is reasonable (no fear of the evidence being destroyed)
b.Prosecutor
People v Belge(Dead Bodies Case)-
Taking pictures of undiscovered victims was ok. This is especially true here b/c failure to report the bodies would not result in the bodies being destroyed
Commonwealth v Stenhach-→
lawyers took evidence (rifle stock) & put it in their drawer. This was wrong (bar should punish) but lawyers get off b/c criminal law was unconstitutionally vague (would require lawyers to violate A/C privilege)
MR 3.4(a) – Fairness to Opposing Party & Counsel:
lawyer can’t unlawfully obstruct (or assist in obstructing) another party’s access to evidence or unlawfully alter, destroy, or conceal material having potential evidentiary value
What happens to the turned over evidence once the prosecution has it?
4. Prosecutor can use the evidence, but they can not disclose how they got the evidence ( from D att’y)
5. D att’y must disclose where they got the evidence and what condition it was in
Exceptions to the duty to turn over evidence
ii. EXCEPT- Physical evidence created as part of the defense ( Ex: statement of D created by the lawyer
iii. Except: Evidence state couldn’t compel the D to turn over b/c it was self incriminatory
False Swearing
statement must be material to the proceedings & must be made under oath
i. “willfulness” not required
ii. also, false swearing can result from use of a falsehood, i.e. alluding to a false doc
Perjury:
statement must be material & made under oath
i. willfulness required
ii. can avoid charges by making a timely & effective recantation
US v Gellene
- Lawyer failed to disclose & lied about his relationship with the companies in a bankruptcy proceeding- Court finds that he committed bankruptcy fraud and perjury- Rejects the literally true defense and he gets an especially stiff penalty because he made misstatements to the court and breached his client's trust-
Bronston v. US,
Literally true defense works where perjury conviction rev’d b/c he told literal truth, even if it was misleading → other lawyer’s fault for asking the wrong Qs
MR 5.1(c)
Responsibilities of a Partner or Supervisory Lawyer: lawyers are responsible for the violations of other lawyers if they’re partners or have managerial authority over the violator & know the conduct is wrong
MR 5.1(a)
Responsibilities of a Partner or Supervisory Lawyer: requires that there be a system in place for holding all the lawyers in the firm to the MR.
Obstruction of evidence
a.Attempts to alter/prevent testimony of a witness
b.Interferes w/ grand jury investigation
c.Destroys evidence
d. Does anything else that might impede the duty of an officer of the court
e.Can result from lawful conduct, if it was capable of preventing administration of justice (ex: telling a client not to testify – not wrong, but may be obstruction in a given case)
f.TIMING IS KEY: If done while the case was pending, may be obstruction. If only a possibility of a case, it may not.
g.EXCEPT: providing lawful, bona fide legal representation
Andersen document destruction
Nancy Temple emailed people at Arthur Anderson to tell them to remember the document destruction policy so that they would shred old stuff.
1. She did this before there was an investigation, but once she found out, she should have sent a second email telling them to stop shredding.
2. “whoever… corruptly persuades another person, or attempts to, or engages in misleading conduct toward another person, with intent to… (2)(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding”
3. BUT she had to have intent to impair availability for use in an official proceeding… she argues this was not her intent.
Greycas v. Proud
farmer needed $, asked π for loan, & got Δ to confirm there were no liens & he had done a UCC search (lies). Π gave the loan in reliance.
a. Δ liable for malpractice – he had a duty to π as a 3rd party beneficiary b/c there was no adversarial relationship.
b. Δ liable for negligent misrepresentation b/c “one who in the course of his business or profession supplies information for the guidance of others in their business transactions is liable for negligent misrepresentations that induce detrimental reliance” – breached his duty of care
c. Narrow b/c we don’t want to deter production of information
d. Π not contributorily negligent b/c they were reasonable in relying on Δ
Greyhound Leasing & Financial Corp. v. Norwest Bank of Jamestown
similar to Greycas except lender sent lawyer false docs (saying equip. was new).
a. Atty guilty of negligent misrepresentation but not liable for false statements b/c lender’s comparative negligence exceeded his.
Privity requirement in torts
Lawyer is only liable to those w/whom she’s in privity
i. EXCEPT: Privity of K is not required for malpractice claims where representation was for the primary benefit of 3rd parties & resulted in detrimental reliance
Privity requirement for intentional torts-
NOPE
Elements of fraud
a.material false statement
b.made w/ intent to deceive
i.can be shown by reckless disregard or extreme negligence in verifying “facts” told to atty by the client (basically, if the facts are easy to verify, atty should do so, and if atty would have to crazy to believe client, reliance on those facts could be dangerous)
c.reasonably relied upon
d.to the person’s detriment
Finley Kumble
→ smart lawyer figured out a slimy way for general partners of a failing brokerage firm to transfer its assets to a new corp.
1. This was a conversion – lawyer guilty along w/ clients b/c he intentionally manipulated the law to tread on the legal rights of others
2. You can get away with more after-the-fact (when defending someone) than before-the-fact (when advising someone)
Assisting a client in tortious/illegal conduct
1. it’s illegal for a lawyer to give advice on how to commit a crime/fraud or to advise a client on how to conceal criminal/fraudulent acts
2. illegal for a lawyer to negotiate for this client in pursuance of an illegal purpose
a. This duty is violated if:
i. client is engaged in a course of conduct that violates criminal law or is an intentional violation of a civil obligation
ii. lawyer has knowledge of the facts sufficient to reasonably discern that client’s course of conduct is such a violation
iii. lawyer facilitates that course of conduct either by giving advice that encourages client to pursue the conduct, indicates how to reduce the risk of detection, or performs an act that substantially furthers the course of conduct
Differences between the 1989 MR 1.13 and the 2002 version
(c) has changed from “lawyer may resign if it is a clear violation of the law,” but otherwise not really that different. No duty to disclose – lawyers just now permitted to disclose under certain circumstances where it would damage the company.
When will a lawyer be guilty of a primary violation?
when they were willfully blind or RECKLESS
US v. Benjamin-
- Friendly stated that the gov’t did not have to prove intent if they could show that the D closed his eyes to facts which he had a duty to see
1. Once it becomes hard to believe that a half way competent lawyer would have figured this out then the Court will be justified in drawing an inference of actual intent-
FDIC v O’Melveny & Myers
- FDIC sues law firm for malpractice, negligent misrepresentation and breach of FD. They had prepared two memorandums designed to induce outside investors into some real estate deals. There was no doubt that the BOD was acting fraudulently, they had been through two accountants and one other law firm who all knew that the value of the company was less than zero.
i. D’s argued that:
1. They had no duty to investigate a fraud being carried out by the client
a. Court disagrees- Lawyers have a duty to protect their clients and here the client was the corporation. Had to perform reasonable investigation in order to make sure that what they were saying was true.
2. FDIC was barred from bringing suit b/c they are in the shoes of the client
a. Estoppel argument is bad b.c the court wants to be able to hold the lawyers accountable and unclean hands argument does not apply to receivers b/c they are not a voluntary party in interest
Elements of secondary liability for aiding an abetting
i. Existence of independent proof of a primary wrong
ii. Knowledge of the wrong and of role in furthering it
iii. Substantial assistance in the wrong
National Student Marketing
→ Interstate & NSMC merger – lawyers wrote opinion letter saying “no reason to believe” any material adjustments in financial statements req’d. This was a lie – NSMC was tanking. Interstate’s lawyers got a letter telling them this. Lawyers now in a hole – if they admit they didn’t check up they’ll be in big trouble & stock will crash. Lawyers sued by SEC.
i. Lawyers should have followed MR 1.13 – taken measures including asking for reconsideration, writing a separate opinion, going to the directors, resigning under MR 1.16
ii. Court found the lawyers aided & abetted a primary violation of securities law when they failed to stop the closing b/c they substantially assisted the closing to occur.
iii. After this, the SEC said it was going to get tough (Rule 102(e) said in cases like this the lawyers had to “do something”), but didn’t b/c they were busy & trying to regulate lawyers is time consuming. ABA hated this rule. UPSHOT: lawyers had little to fear from this rule
Suits for primary liability
This is the only kind of case that can be brought against lawyers by the shareholders. Court will not entertain suits for secondary liability from shareholders
Klein v. Boyd
VACATED, but relied on in connection w/ Enron. Π was an investor in Mercer LP, an investment group that was really shady & lied a lot. Lawyers knew, but didn’t reveal & their statements were relied on (unknowingly) by the investors.
1.LAWYERS WHO SIGNIFICANTLY PARTICIPATE IN CREATING THE MISREPRESENTATIONS CAN BE HELD PRIMARILY LIABLE
2.Lawyers knows / is reckless in not knowing that statement will be relied on by investors
3.Person is aware of the material misstatement/omission
4.Person played such a role in the creation of the statement that he/she can be characterized as the “author” or “co-author”
5.Once a lawyer chooses make a representation then they have a DUTY TO MAKE A TRUTHFUL REPRESENTATION
Schatz v. Rosenberg
→ law firm knew its client was making false representations about material worth, but still passed these along to πs in the materials it prepared
1. Where the atty acts as scrivener & offers no legal opinion she ≠ author/co-author
2. Worried about impairing client’s ability to share confidential info w/ lawyer
a. No duty to disclose info about client to 3rd party purchasers in the absence of a confidential relationship, even if lawyers know the writing is wrong
Barker
→ securities law must lag behind ethical standards so you can’t go too far w/ liability rules (no need to wait for ethical rules to change
Elements of the ACP
1) Communication
2) Between privileged persons
3) In confidence
4) For the purpose of obtaining/rendering legal advice/assistance
Things not considered a communication under the ACP
1) Physical evidence of crime(stenhach)
2) Client's identity- Last link exception-where the client’s identity would be the last link necessary to convict the client of a crime (ex: hit & run, tax fraud cases – Baird v. Koerner)
3)Fact that the client retained a lawyer
4) Details of the fee and who paid it
5) Client's whereabouts
6) Pre-existing docs or docs prepared for another purpose
Thins covered by the communications part of the ACP-
1. oral, written, non-verbal (ex: rolling up sleeve to reveal tattoo)
2. must be told to, not witnessed by the atty (ex: physical description)
Between privileged persons
1. current clients, past clients, authorized agents, prospective clients
2. doesn’t count if speaking to lawyer as a friend
3. a lawyer is someone the client reasonably believes is a lawyer
4. for prospective clients, doesn’t matter whether the lawyer takes the case or not
In confidence
1. doesn’t count if there are 3rd persons around (except secretaries, investigators, etc.)
2. waived if client tells 3rd parties
3. doesn’t count for communications intended for a non-lawyer or for public consumption
Duration of the ACP
continues after relationship terminates, continues after death
PROCEDURE TO INVOKE the ACP
must appear, testify, & invoke the privilege in response to a Q; if a judge tells a lawyer info is not privileged, he must testify or risk contempt
Exceptions to the ACP
i. Crime/Fraud exception
ii. Dispute concerning a decedent’s disposition of property
iii. Lawyer self-protection
iv. Disputes in which a trustee or fiduciary is charged w/ a breach of fiduciary duty by a beneficiary
Elements of the corporate ACP
i. Communication b/w employees & counsel
ii. at direction of corporate superiors
iii. Within scope of employee’s duties
iv. employees aware that purpose of the communication is to obtain advice
v. confidential
Upjohn v US
Upjohn pharmaceuticals bribed foreign officials. General council sends out questionnaires to lower level employees. IRS wants the questionnaires for its investigation.
i. Court rejects Control Group Test: privilege extends only to senior management b/c they’re the ones in “control” of the organization. Not good enough b/c lawyer needs info from other people
ii. Court finds these communications were privileged under a Modified Subject-Matter Analysis:
1. Purpose of Communication
2. Nature of the Information (this was all the original subject-matter test looked at)
3. Process by which the information was communicated
4. Elements: Listed above
iii. Applies only in federal Q cases
1. in state courts or diversity cases, state rules apply (some use Upjohn, some use control group, some use R§, etc.)
2. creates a choice-of-law issue; as corporate counsel, you now have no predictive value, b/c you don’t know what law is going to apply to you. So if you’re a lawyer, you better try to comply with the narrowest test – probably the control group test
MR 1.13(f)
– Organization as Client – lawyer shall explain identity of the client when the lawyer knows or reasonably should know the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing
: “we represent the corporation, and because you are an employee of the corporation we also represent you; and we need to talk with you in order to be able to provide adequate legal advice to the corporation. Anything you say to us will be kept strictly confidential pursuant to the by A/C privilege.” Is this a good warning?
Nope- Privilege does not belong to the client- Don't want to create ACP w/ the employee.. in which case the lawyer will have a conflict of interest now
Model Statement for the ACP-
Although we do not represent you personally, what you tell us is privileged from disclosure outside the Company. However, the Company may determine, in its own discretion, to advise…others outside the Company of the results of our work. The decision whether to disclose this information will be made solely by the Company. If we determine that you are personally at risk in this investigation, we will advise you. You are free to retain your own lawyer…. Sign below.”
Comment 7 of Rule 4.2
In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organizations lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organizations lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule.
Scope of the Corporate ACP
1. US v Bergonzi- Firm prepared a report about SEC liability after a company agreed to share info with the SEC. Court held that it was not privileged b/c it was after they had already agreed to disclose- Not in confidence
Who may claim the corporate privilege-
1. Current management may claim the privilege on behalf of the corporation
2. When management is replaced the successor gets the privilege-
a. May result in the subsequent board revealing things that embarrass the previous board
b. Shareholders can challenge the corporations decision to invoke the privilege and can thereby gain access to otherwise confidential corporate communications
MR 3.4 (f)- advising corporate employees not to speak to opposing counsel
allows a lawyer to request a person other than a client to refrain from voluntarily giving relevant info as long as-
i. Person is a relative, employee or agent of the client
ii. Lawyer believes that the person's interest will not be adversely affected by refraining from the testimony
Gov't disclosure and the ACP
1. Narrower than the privilege of corporations-
2. Hillary Clinton case- IC tried to get notes from HC to her lawyer that were taken during her testimony at the Whitewater hearings
a. Gov't argued that they should get the corporate privilege
b. 8th circuit disagreed-
i. Gov't is different-
ii. Duty to report wrong doing
iii. Employees can not subject the gov't to liability
iv. Duty of public service favors disclosure over concealment
Three elements of the 5th amendment
i. compelled (by govt)
ii. self-incriminating
iii. testimonial
When does the ACP protect documents from the client
/C PRIVILEGE ONLY PROTECTS DOCUMENTS THAT WOULD HAVE BEEN PROTECTED IN THE HANDS OF THE CLIENT
i. If the info is protected by the 5th in the client’s hands, then it’s protected in the lawyer’s
1. ex: journals – testimonial – might be protected b/c it’s personal
2. ex: where production of the documents themselves would be a crime (marked money, securities fraud paperwork)
ii. Documents created after A/C relationship may be protected under A/C privilege or WP doctrine
iii. Pre-existing documents not protected just b/c they’re turned over – only if production is testimonial
Exception to compelled production of documents
: a grant of immunity gets rid of the 5th amendment privilege, so the docs are no longer protected under A/C privilege
Thing to remember in the ACP/5th amendment context
in the hands of the client, a doc is protected by 5th amend.; in the hands of the lawyer, it’s protected by A/C privilege – not the 5th amend.
Fisher v US-
∆ has consulted an accountant who prepares some documents. The ∆ then turns them over to the lawyer. Gov’t wants to get the documents from the attorney . Court holds.
i. 5th amendment does not pertain to summons served against a non-defendant-
ii. If the client’s documents are protected by the 5th amendment privilege and the disclosure was made to further legal advice then the ACP protects the documents-
1. IF the client had a 5th amendment privilege then they would not be able to reveal it to the lawyer which would undermine the ACP
iii. Here the only thing that is being compelled is the production of the documents-
1. The ∆ had already prepared the documents
2. Here the act of production of the documents is not very incriminating
a. Subpoena was reasonably specific
b. Only thing revealed by disclosing the documents is that they did have the papers that were asked for
When is the act of production self incriminating?
i. When the subpoena is very broad and the defendant has to use his own mental process to determine what the gov’t was looking for
US v Hubbell-
Hubbell was an official in Clinton's justice dept- He was being investigated for Whitewater and the court turned up info of mail fraud and tax evasion. The court subpeonad a large category of business documents and he refused on the ground that the act of production would be incriminating-
1. Gov't granted use and deriviative use immunity about the current charges. In those documents, the court found evidence of other crimes and brought charges-
2. DC dismissed the new charges and the COA came up with a new test to find if there was a violation.
a. If the gov't could establish with reasonable particularity that is knew of the existence, possession and authenticity of the documents, then they act of production was not incriminating
b. IC argued that he could use the information as long as he did not use the fact that H turned over the documents
3. Supreme court- Responding to the subpoena was akin to asking Hubbell about his business practices-
Crime fraud exception to the ACP
b. OTHERWISE PRIVILEGED COMMUNICATION IS NOT PROTECTED IF CLIENT CONSULTS ATTY W/ INTENT OF USING LEGAL ADVICE IN FURTHERANCE OF ONGOING CRIME OR FRAUD
Intent under the CF exception
intent of the client to use the advice; lawyer’s intent irrelevant.
a. Ohio Sealy mattress Mfg Co v Kaplan
INtent must have been to break the law not just find the boundaries.Documents revealing that the client's belief that his plan would ultimately be found to be illegal was not evidence of BF to get to an awareness of wrongdoing but rather an evaluation of the weakness of their position
US v Bauer
2. if client asks about the boundaries, but then later breaks them anyway, this may not fall under the exception b/c his intent may still have been to find the boundaries. Court held that the CFE did not apply to evidence that the lawyer had told his client that he should do something which he ignored. IF you ignore the lawyer's advice then it is unlikely that you will be found to have been counseled in furtherance of the crime
In furtherance of for the CFE
iii. Assistance must be obtained in furtherance of the activity, or closely related = causation
1. some say “in connection with” – some say “closely related with”
2. HYPO: if atty tells the client “if you kill him you won’t be able to plead temporary insanity” & the client kills the guy anyway, the crime/fraud exception doesn’t apply b/c the atty’s advice didn’t further or assist the client.
Purcell v DA→
iv. Must successfully obtain the advice (actual assistance) – crime/fraud must actually occur-Janitor told his atty he planned to burn down a building; atty disclosed to the police; the client was arrested; privilege preserved b/c crime never took place therefore not made in furtherance of a crime. Rationale: A/C privilege lost through client abuse
Zolin Doctrine
after the “reasonable person” threshold is met, court may conduct an in camera review of the material privileged to see if the exception applies
Lewinsky →
Lewinsky signed an affidavit saying she never had sexual relations with the president. Her lawyer is subpoenaed for documents & testimony.
i. Crime/Fraud exception applies – no A/C privilege b/c Lewinsky consulted her lawyer for the purpose of committing fraud.
ii. This was material to the case b/c it was intended to influence whether the Dist. ct. upheld the original subpoena & was capable of doing so.
Waiver of the Attorney Client Privilege-
A/C privilege belongs to the client; client can waive the privilege by:
a. Consent – agree you don’t want the info protected
b. Conduct – disclosure to a 3rd party
i. by client
ii. by lawyer if
1. client authorizes
2. made while acting w/in scope of agency relationship & in furtherance of representation
a. HYPO: did Jake waive A/C privilege when he told his wife about Carl Lee? NO → not acting w/in the scope of representation (even if it did violate confidentiality)
Exceptions to waiver of the ACP
i. disclosure b/w Δs
ii. Agents (accountants, translators, etc.)
iii. consultations with PR firms
iv. privileged disclosures
Subject-Matter Waiver-
you open the door, you’ve waived the privilege to the whole subject – can’t use the privilege strategically to offer up the good info & suppress the bad
a. Waiver by Putting-in-Issue: implied when client puts his/her communication w/ the atty at issue in the lawsuit
b. Self-Defense: ex: if atty is sued for malpractice, client asserts a claim for ineffective assistance of counsel, etc.
c. Waiver for fee: waived if atty sues to collect atty fees
d. also implied if 3rd party makes atty’s conduct an issue
Partial Waiver
a. Extra-Judicial Settings: if info is revealed in a non-legal setting, it’s only for the specific info revealed
b. VonBulow II → atty writes a book & is giving info on the case in the book. Court says this wasn’t a waiver – privilege is only waived as to the info given in the book; it was done outside the judicial setting & there is no attempt to gain a tactical advantage.
Selective Waiver
privilege waived w/ respect to some parties but not others; generally sought in the context of govt investigations of corporate wrongdoing. 3 approaches:
a.not allowed
i.justifications:
1.does nothing to further A/C relationship – violates traditional privilege
2.could be used strategically
3.would lead to greater difficulty determining when & if the privilege is in place
4.privilege shouldn’t be able to be K’d around
ii.Columbia/HCA Healthcare Corp. → co. under investigation for medicare fraud. Did internal investigations, which they turned over to DOJ along w/ confidentiality agreement. Court rejects the use of selective waiver.
b.allowed at all times – disclosures to govt agencies don’t waive privilege
i.benefits public by allowing govt to uncover wrongdoing
ii.prevents corps from being easy targets in private lawsuits
c.allowed in limited circumstances –
i.must be:
1.disclosure to govt
2.pursuant to a confidentiality agreement signed by both the govt & the disclosing party
ii.confidentiality agreement must reserve the right to assert the privilege in subsequent proceedings
Gov't pressure to waive
d. Despite disapproval of selective waiver, govt still pressures corp.’s into waiving in govt investigations b/c sentencing guidelines consider waiver the sine qua non of cooperation w/ the govt & thus ↓ fines; this can cause problems for corp.’s, though, b/c then everyone can sue (stockholders, etc.)
Inadvertent disclosure as a waiver of the ACP
a. Traditionally = privilege waived completely
b. Modern = waived only if disclosing party was palpably negligent (ex: lawyer throws away all of his deposition notes in the trash can at his opposing counsel’s office)
i. TEST: if the disclosing party took reasonable precautions against waiver & acted immediately to rectify it may not be waived
1. Could put a disclaimer in things disclosed, could also agree with the other side that any accidental disclosure will be immediately returned
Self defense exception to the Duty of confidentiality
i. Client charges a lawyer with wrongdoing in the course of representation
1. Client waives the duty by putting the lawyer's representation in question
ii. When the lawyer sues the client to enforce some duty
1. Unfair for the beneficiary of a fiduciary's services to receive those services and not perform duties owed to the fiduciary
iii. When a third person sues the lawyer for wrongdoing in the course of representation ( usually complicity)
Meyerhofer v. Empire Fire & Marine Ins. Co
→ Goldberg represents Empire, which lies in its prospectus before publicly offering its stock. G says they should disclose, they don’t, then he goes to the SEC the same day & tattles so he won’t be charged.
a. Goldberg didn’t violate the rules – he was allowed to defend himself against accusations of wrongful conduct by disavowing his role in the transaction
b. Goldberg is DQ from representing πs (b/c of his duties to former clients)
c. Goldberg should have gone to his former firm, first or said something to the client – maybe shouldn’t have disclosed at all since there weren’t any charges – didn’t even know yet that there was a need to defend himself.
d. MR 1.6 comment 14: should only disclose what you must to stay out of trouble
Disclosure of current client fraud under the model code
1. Current/future fraud-
a. DR 4-101(c)(3)- The intention of his client to commit a crime and the information necessary to prevent the crime.
Disclosure of past fraud under the Model Code
2. Past Fraud-
a. DR 7-102(b)(1): lawyer shall call on the client to rectify past fraud, and if that doesn’t work, shall reveal the fraud to the affected person or tribunal except where protected by A/C privilege
3. These are very narrow circumstances-
Disclosure of current fraud under the Model Rules
Current/future fraud- 1.6(b)(2)-future information-May reveal to prevent the client from committing a crime or fraud that will result in substantial; injury to the financial interests or property of another AND in furtherance of which the client has used or is using the lawyer's services-
a. Has to have been a result of the services-
b. Injury must be substantial
i. Doesn’t it depend on who the individual is
c. Discretionary provision
Disclosure of past fraud under the Model COde
-1.6(b)(3)-Prevent mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result
a. Could be that it is too late and there is no way to mitigate the harm
i. Comment 8- Can disclose to held them recoup their losses-
3. Under the old formulation of 1.6 noisy withdrawal was the only recourse-
a. NOW 1.13/1.6 allow for discretionary disclosure
Noisy withdrawal under the model rules
1. Comment 10- MR 1.2 The lawyer must, therefore, withdraw from the representation of the client in the matter. In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like
2. Comment 3 MR 4.1- Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like.
Bootstrap to required disclosure
1. MR 4.1(b)-In the course of representing a client a lawyer shall not knowingly: fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
2. If you are permitted under 1.6, then under certain circumstances you may have to disclose this
a. Comment says that usually NW will be enough but you may be required to disclose if there is no way to get around it
OPM case-
OPM was using leases to secure loans from banks. It was essentially a ponzi scheme. The lawyers knew that the owners of the company were involved in check kiting scheme. They began a deal with Rockwell that involved making up the number of leases that they were getting. The CFO wrote a letter to the lawyers telling them about the fruad, but the CEO grabbed it out of the hands of the lawyer. Eventually they met with the lawyer for the CFO and they learned directly that OPM was involved in serious fraud.
1. Lawyers hired an ethics effort-Ethics guy says-
a. Fraud was in the past so they can't disclose it
b. No direct knowledge that they were involved in a fraud so they didn't have to withdraw
c. Lawyers could continue to represent them in new lease deals as long as Goodman said that they were above boards
2. Probably would still get the same advice
Balla v. Gambro
Co. sells dialysis equipment not up to US standards. Lawyer tells boss he has to disclose, boss fires him, so lawyer tells FDA & files a retaliatory discharge claim.
a. Retaliatory discharge denied b/c there is NO whistleblower protection available for in-house counsel b/c of lawyer’s special relationship w/ client / worry about a chilling effect on communications b/w lawyer & client.
b. Plus, lawyer already has an ethical obligation to disclose under the MR
General Dynamics
→ 2 situations where lawyers have a retaliatory discharge claim:
a. Lawyer fired for refusing to violate a mandatory ethical requirement (may v. shall)
b. (a) the circumstances would support a claim by a non-lawyer employee & (b) the claim could be established without violating the duty of confidentiality/privilege.
Duty to warn people about dangerous clients
iii. NO general duty to warn about dangerous clients
1. EXCEPT where (Tarasoff):
a. Atty has first-hand knowledge &
b. Potential victim doesn’t know the client is dangerous/released from custody
Hawkins v. King County
→ Hawkins wants out of jail, mom wants him committed b/c he’s dangerous. Lawyer gets him out & he assaults mom, commits suicide, & becomes amputee.
a. NO disclosure required b/c lawyer only had 2nd-hand knowledge & mom knew of danger
b. Lawyer could have looked to MR 1.14(b) – Client with Diminished Capacity, to protect his client if he believed he was dangerous – “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.”
Exception to the no disclosure rule for potential harm
: there is a duty to warn of true threats to harm a judge when an atty has a reasonable belief that such threats are real (Washington v. Hansen)
Confidentiality and the duty to disclose- In Re Shafer
- Guy who blows the whistle about crooked judge is still on the hook for violation of confidentiality b/c he could have disclosed the judge’s fraud without revealing the clients personal information
Two types of conflict of interest
i. Concurrent Conflicts: current v. current, current v. prospective, prospective v. prospective.
1. if you take on the representation & later find out you have a conflict of interest, you have to withdraw (1.16) unless you obtain consent.
ii. Successive Conflicts: current/prospective client v. former client
Test for direct adversity under MR 1.7
whether client would think it affects the relationship, b/c concern is loyalty
Materially limited conflict
i. Focus on representation, b/c concern is quality of work (pulling punches, soft-pedalling)
1. Think about the possibility under comments about cross examining a former client-
ii. Diverging interests that are likely to have a harmful impact on the quality of the representation of one or more clients
iii. Ex: 2 clients seeking joint representation where interests of one may be adverse to interests of another (cop & city v. civil rights π will both try to pin blame on the other)
Westinghouse v. Kerr-McGee Corp
Kirkland & Ellis Chicago represented Westinghouse in an antitrust suit while K&E DC had written a confidential report for the other side.
i. Just having a big law firm take opposite positions in 2 unrelated cases is ok as long as there is not a significant risk that the action will materially limit the lawyer’s effectiveness of another client (MR 1.7 comment 24).
ii. ALWAYS ASK 1ST: WAS THERE AN A/C RELATIONSHIP?
1. Here there was an A/C relationship b/w K&E and the companies it wrote the report for, even though there was no consent, b/c the companies believed there was an A/C relationship
2. Here this was an IMPLIED PROFESSIONAL RELATIONSHIP and LOYALTY & CONFIDENTIALITY duties arise
iii. SIZE & GEOGRAPHICAL SCOPE OF FIRM DON’T EXEMPT IT FROM MR 1.7.
1. Irrebuttable presumption that confidences will be shared
2. Chinese Walls / Screens are generally not allowed
iv. So in the absence of informed consent, the firm has to withdraw from representation of 1 client
Differing approaches to the use of DQ'd lawyers work
a.Irrebuttable Presumption Approach: treats lawyer’s work the same way as the atty – assumes the DQ’d atty’s work contains confidential info & bars successor counsel from using it.
b.Burden on Moving Client: burden on moving client to show the work contains confidential info
c.Balancing Approach: if the risk to the moving client that confidential info will be used > harm to the current client from being denied access to the info, it can’t be relied on by successor counsel
d.Rebuttable Presumption: same as irrebuttable approach, but can be rebutted
e.Unlikely to Contain: situations where it’s unlikely the work would contain confidential info
i.work was unrelated to representation of moving client
ii.work involves depositions or case summaries
iii.work involves legal research on procedural/evidentiary issues
Pickering v Varian Associates
- Court held that JD could not cure a conflict by dropping the new client like a hot potato. JD merged with a smaller patent law firm. The smaller firm had been representing a client who was about to be sued by one of JD's larger clients in an unrelated matter-
i. Court said that dropping the new client does not cure the COI-
ii. Should have withdrawn from the litigation prior to the merger and then the case would be one of successive representation-
1. Lawyer may oppose former clients in matter unrelated to the previous representation
iii. Thrust upon doctrine- when a conflict is created by a change in the client-
1. Court look at this in a better light and may allow them to continue to represent
Worldspan v. Sabre
→ Alston & Bird was local counsel for Worldspan on tax matters – minor client. When Worldspan signed up with A&B, they signed an advance waiver. Worldspan sues Sabre & tries to get A&B DQ’s as local counsel for Sabre.
i. Court finds the language of the waiver needs to be more specific & identify exactly what you might do – ridiculous standard – makes informed prospective consent basically impossible.
ii. Firms really upset about this – should let sophisticated clients K out of obligations like this; shouldn’t let clients strategically keep firms from representing others
Concurrent representation in criminal cases
i.IF the D raises an objection-Then the Court must inquire into conflict or there will be an automotive reversal- ( US v Holloway)
ii.IF the D raises no objection-
1.There is no duty to inquire UNLESS the Court knows or has reason to know that a CONFLICT exists- Just asking if the D's are ok with this is not enough of an investigation
a.Just seeing multiple representation is not enough
2.NO automatic reversal for failure to inquire-(Mickens v. Taylor) Must show an actual conflict of interest that adversely affected the performance of the lawyer in the case-
Cuyler v. Sullivan
3 Δs indicted for 1st degree murder, all represented by the same 2 lawyers. Δ1 goes to trial doesn’t object to the multiple representation. Lawyer presents no defense. Δ1 found guilty & sentenced to life in prison, while other 2 Δ’s are acquitted. Δ1 sues for ineffective assistance of counsel due to conflict of interest. Remanded to determine whether there was an actual conflict
Waivers of COI in the criminal arena
i. 6th amendment issue → you have the right to choose your counsel
ii. BUT the court can over-ride Δ’s decision to waive a conflict
Wheat v US-
D appealed his conviction when the court refused to allow him to waive any conflict problems-
a. SCOTUS says that the DC must be given substantial latitude in deciding how to decide conflicts- There are a lot of things that are hard to predict. D's can't really give an effective waiver of their rights.
MR 1.7 comment 23
potential for conflict of interest in representing multiple Δs in a criminal case is so grave that ordinarily a lawyer should decline to do so. My be ok if Δs want to present a united front against divide-and-conquer prosecution
State v. Callahan
→ lawyer represents both buyer & seller in a real estate transaction, but is a good friend of buyer, who ends up defaulting on seller, who doesn’t have a lien b/c of lawyer’s doings.
i. This was a violation – didn’t have informed consent (may not have worked anyway b/c it may not have been possible to provide diligent representation to both- MC puts it into the consent plus zone)
ii. Under DR 5-105 © he has to make a full disclosure of any ties to any of the clients
1.Has to talk about the conflict and the effects that they could have on the representation-
Full disclosure requirements for concurrent representation in transactions
i.Informed consent-
1.Agreement after adequate information about risk of and reasonably alternative proposals
2.Circumstances dictate how much you have to disclose
ii.Must include the implications on the ACP-
1.Duty of confidentiality affects the scope of the ACP to have joint clients
A v. B
Firm represents a husband and wife in drafting their wills. They find out later that the husband has an illegitimate child and tell the husband that they have to tell the wife b/c it would affect some assets that she might receive from her husband's estate. TC said you can’t tell.
i. NJ Sup Ct reverses-Court said that under MR 1.6 the firm had discretion to disclose the fraudulent behavior of the husband and that failing to tell her about the kid while drafting the wills =fraud-
Lawyer serving a third party neutral-
MR 2.4- Parties can act as third party representatives, but they have to state that they are not the lawyer for the parties. Can also work for one of the parties later, but they have to get informed consent-
Concurrent conflicts in estate planning
CMT 27-1.7A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer's relationship to the parties involved.
Comment one to MR 1.9
if a lawyer who has represented multiple clients in a matter can not represent one of the clients against the others in the same/substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent.
Comment 3 to MR 1.9-Definition of substantially related
"substantially related" = involving the same transaction/legal dispute or if there otherwise is a substantial risk that confidential factual info as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter
Difference between the analysis for current and successive conflicts-
i. Concurrent- Doesn’t matter if there’s a relationship b.w the cases. Principle concern is duty of loyalty
ii. Successive- Must be a substantial relationship. Principle concern is the duty of confidentiality ( but loyalty also applies). Key issue is use or possible use of info gathered during former representation.
Varying formulations of the substantial relationship test
1.MR: same transaction or dispute or “substantial risk that confidential info could materially advance subsequent interests of successive client”
2.5th circuit: “akin to present action” (lenient)
3.7th circuit: “relevant to next rep”
4.2nd circuit: “issues identical, patently clear
Brennan’s Inc. v. Brennan’s Restaurants
former joint rep. for Brennan family of their companies; now they split & Brennan’s Inc. sues to DQ lawyer( as well as new counsel) from working for B’s Restaurant.
1.Even though there was no confidential info shared b/c they were joint clients, this creates an appearance of impropriety & thus implicates the duty of loyalty.
2.Key is not whether the info was technically confidential, but that he had info & could use it against the former client → MR 1.9(c)(1).
3.New counsel should not be disqualified if Sprung jointly represented both clients-
1.B/c then there would not be any confidences between the joint clients
Which rule applies to a conflict between a current client and former prospective client
MR 1.9-Rule for successive representation applies. (Substantial relationship + sig harmful test)
What is the test for relatedness under MR 1.18-
1. “Substantial relationship +” Test – it’s not enough that the lawyer rec’d info from the prospective client – must have the potential to be significantly harmful to the prospective client.
MR 1.18 comment 5
: can get prospective client to give informed consent that no info they disclose will prohibit you from representing anyone else in the matter.
1. remember that you have to actually get informed consent – remember all the factors (sophistication, may need another lawyer involved, etc.)
Nemours v Gilbane-
P's filed a motion to DQ Biggs b/C Bradley used to be an associate at Berg which had represented a co-party of Nemours ( and Nemours as co-counsel). As an associate, Bradley had worked on materials for settlement, reviewed documents produced by Nemours, he had reviewed thousands of documents and claimed that he had not recollection of any information in any of the documents-
i.Bradley is DQ’d under 1.9(b)- Bradley represented Nemours, this is the exact same relationship, directly adverse and no consent-
ii.Firm is not tainted- Normally there is an irrebuttable presumption , but the Ct here wants to protect lawyers who move from firm to firm
1.Balancing Test: Protecting Confidences v. Client’s Right to Choose Counsel
1.Effectiveness of “cone of silence” (court likes new term b/c implies ethical)
1.timing (screened right away?)
2.physical characteristics of screen (how was it carried out?)
3.size of firm (bigger = more likely not to share confidences)
4.involvement of DQ lawyer (partner v. associate? Lead v. secondary counsel?)
2.Other factors:
1.Pragmatic: no other firm in the area that could do it – no local counsel if DQ
2.Pragmatic: no prejudice would result
3.Good Faith: Motion to DQ might have been a strategic tactic
iii.Even though MR 1.9 applies the Court refuses to DQ the firm
Screening generally
: most jurisdictions – including GA & MR 1.10 – do not recognize screening (EXCEPT government lawyers MR 1.11; prospective clients MR 1.18; & non-lawyers MR 1.10 com. 4)
Client perjury trilemma
i.duty to investigate – obligation to conduct a thorough investigation
ii.duty of confidentiality – bound to keep info pertaining to the representation confidential
iii.duty of candor to the court – obligation to refrain from misleading the court. WINS
MR 3.3 Comment 10
Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer's direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done ÷ making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.
Crary Case
divorce lawyer having affair w/ client – she lies about it in deposition.
i. Crary breached his duty of candor b/c he knowingly allowed her to lie in deposition.
ii. Should have stopped the deposition – no need to disclose (so no 5th amendment problem), but you have a duty to stop false testimony.
iii. NOTE: A/C privilege does not apply b/c of client’s abuse by trying to commit perjury
In re Paula Jones case
→ Lewinsky gave a false affidavit that Bennett relied on in Paula Jones. Later found out it was false & sent a letter telling judge to disregard affidavit & all Qs regarding it.
i. Under MR 3.3 Comment 10 does he have to go to the point of saying “in addition, my client testified falsely,” or is the inference enough?
ii. Bottom line: He did let the court know.
Client perjury in the criminal context
A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
i. SO to avoid allowing fraud, a criminal defense lawyer can let Δ testify in a narrative fashion, or could also disclose to the court that the client is giving false testimony
A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
i. SO to avoid allowing fraud, a criminal defense lawyer can let Δ testify in a narrative fashion, or could also disclose to the court that the client is giving false testimony
Nix v. Whiteside
Δ went to friend’s house to buy drugs & ended up stabbing him in alleged S/D. At trial, Δ wanted to lie & say he saw something metallic.
i.lawyer’s refusal to let Δ commit perjury is not ineffective assistance of counsel under the 6th.
1.Performance Prong: no serious atty error b/c he did what he was supposed to do
1.Strong presumption that atty conduct is ok
2.Ct looks to ABA standards as guides for deciding what’s reasonable – if you fall below, violation isn’t per se deficient – the standards are a ceiling (if you do this, it is ok)
2.Prejudice Prong: no prejudice b/c duty to client doesn’t include letting him lie – no difference in outcome b/c you’re not allowed to perjure yourself so couldn’t have changed the result.
1.Also there is COI, b/c the client has no right to commit perjury
Wilcox v. Johnson
lawyer suspects client will lie, so tells judge & judge tells client that if he lies he might take away counsel.
i. This was wrong – you have to have firm knowledge that the client will lie before disclosing
ii. MR 3.3 comment 9: “unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.”
MR 3.1
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Comment 3 to 3.1- false claims in criminal defense context
The lawyer's obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.
Dirty Tricks
MR 3.4(e): NO deliberate injection of impermissible matter that lawyer doesn’t reasonably believe is relevant/will be supported by admissible evidence (risk mistrial)
11.MR 3.4(e): NO assertion of personal knowledge/opinion
Two kinds of retainers
A. general retainers – lawyer is your lawyer – paid to be your lawyer
1. earned when received
2. may want to put it in a separate trust account for safety, but it’s not clear that this is required.
B. special retainers – lawyer is yours for a certain time
1. $ must be put it in a separate trust account set up solely for the purpose of depositing these funds – can’t be mixed with personal funds (separate trust for each client NOT necessary)
2. thought of as being earned when you complete the representation – you deduct as you incur expenses or complete work in the case.
Matter of Fordham
Fordham was inexperienced in DUI cases, but good at other stuff so he charges a client $50K for services that usually go for $3-10K.
1. Even if lawyer did not pad fees & acted in good faith, lawyer should not have billed the “learning curve” time
Bargaining power and fees
1.If a party has ↑ bargaining power (sophisticated client) & receives substantial value from the attorney’s services, that cuts against finding that the fee was unreasonable
2. But if party has ↓ bargaining power & the fee “shocks the conscience” it will be found unreasonable (fee unconscionable considering level of client & amount of work done
Brobeck, Phleger & Harrison v. Telex
$1 million for cert petition upheld-
Bushman v. State Bar of CA-
5k for a quickie divorce when the wife is 16 is bad
Elements of malpractice
1.Duty (typically to client, but maybe 3rd parties in certain contexts – i.e. where representation was for the benefit of the 3rd party)-
i. standard = skill knowledge, competence, prudence & diligence of a lawyer of reasonable competence (may be higher for specialists)
2.Breach
3.Causing (but for lawyer’s negligence, client would have achieved a better result; in criminal cases, this means Δ must prove actual innocence) – hard.
4.Harm
ii.Lucas v. Hamm
RAP is so complicated that no reasonable lawyer would get it.
Smith v. Lewis →
→ lawyer erroneously determined that retirement benefits weren’t part of community property.
a.Rule was arguable, BUT lawyer is guilty b/c he didn’t even do any research to try to find out. You must inform yourself to make a strategic decision.
b.If you make a strategic decision & you’re wrong, you’re not accountable.
c.Also, if the law is unsettled, you should talk to the client about what should be done (remember MR 1.2).
Can you contract around general competence requirements?
NO!
Ineffective assistance of counsel- old standard
a lawyer would only be found ineffective if their representation was a “farce and a mockery” – very high standard.
New standard
1.OVERALL CONCERN: was this a fair trial with a reliable result?
2.(1) Prejudice Prong: Δ must show that there was a “reasonable possibility” that but for counsel’s errors, the result in the case would have been different.
i.This prong is considered first – if the purported mistake by the atty in no way affected the outcome, there is no reason to look at whether it was bad conduct).
3.(2) Deficient Performance: standard = objective reasonableness
i.Strong presumption of competence (to overcome hindsight review by judge