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41 Cards in this Set
- Front
- Back
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The Lawyer as a Fiduciary
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L as Fiduciary: has obligs to care 4 & protect interests of their beneficiaries or Cs. -owing their C a duty of competence 1.1; & 1.3 (duty to h&le matter w/ reasble diligence & promptness duty of loyalty (eth rules dealing w/ C.O.I express this concept of loyalty-arise in various 4ms: btwn current Cs in a single matter or in unrelated matters (1.7), btwn current C & 4mer C (1.9), conflicts btwn the interest of a C & a L’s personal or financial interest (1.8(a)).xcept L not necessarily precluded under 1.9 from undertaking rep against a 4mer C. The L may do so, even w/out the 4mer C’s consent, if the current & 4mer matters aren’t “substly related.” -duty of confid. (1.6 “A L shall not reveal info relating to rep of a C unless the C gives in4med consent…”) exceps
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The Lawyer as a Officer of the Court
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RPC’s designed to preserve integrity & proper functioning of adversarial system. i.e. Ls may not make false statements of law or fact to tribunals (3.3); try to influence judges, jurors, or other officials by improper means (3.5); or engage in trial publicity that has a subst likelihood of materially prejudicing a proceeding (3.6).
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Lawyer as a Person with Interests
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Moral & eth st&ards apply to to Ls regardless of motives. 8.4(c) “It is prof. miscond 4 L to engage in conduct involving dishonesty, fraud, deceit or misrep” 8.4(a) “It is prof. miscond 4 L to violate or attempt to violate RPC, knowingly assist or induce another to do so, or do so through acts of another.” Law Governing Ls. 3.4(c) L shall not “knowingly disobey an oblig under rules of a tribunal except 4 open refusal based on assertion no valid oblig exists.” When unsure-P.O.L.s guide: C-centered philosophy—philosophy of morality—2.1 states in giving advice to Cs, Ls “may refer not only to law but to other considerations such as moral , economic, social & political factors,:” & 1.16(b)(4) allows Ls to w/draw when “C insists upon taking action L considers repugnant or L has a fundamental disagreement.”
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Duty to Report Misconduct
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8.3 L who knows of miscond by another L “that raises subst question as to that L’s honesty, trustworthiness or fitness as a L in other respects, shall in4m appropriate prof. authority.”-Wieder But see Bohatch xcept applies only if L “knows” of miscond. dif btwn “knows” & “reasonably should know.” Compare 1.0(f) to 1.0(j); 1.0(f) requires actual knowledge (bc it is impossible to penetrate into a person’s mind, actual knowledge can be inferred from circumstances).; whereas 1.0(j) is objective st&ard based on what a reasonably prudent & competent L would know. & case law states person has knowledge of a fact if person’s conduct shows conscious avoidance or deliberate ignorance of facts. &, under 8.3(c) an L’s duty to report miscond is subject to L’s duty of confid. to C: “doesn’t require disclosure of info otherwise protected by 1.6 (stating “L shall not reveal info relating to rep of a C unless C gives in4med consent regardless of whether it is subject to the evidentiary L C privilege). A comm is subject to L-C priv only if comm is made in confid; if 3rd party (not L’s or C’s agent) is present when comm is made comm is usually not in confid.
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State Discipline System of Lawyers
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8.4(b) L engages in miscond when L commits a crim act that “reflects adversely on the L’s honesty, trustworthiness or fitness as L in other respects. (crim conduct can be basis 4 prof. discipline, even applying to Ls not acting in a leg capacity. 8.1 prohibs misrep, nondisclosure, & non-cooperation in connection w/ admissions & disciplinary matters-dif sanctions when L is found guilty of miscond: disbarment, suspension, probation, reprim&, admonition, restitution; often times made public. –& only some const protections 4 Ls in disciplinary process-(i.e. rt. to notice of charges, but priv of self incrimin doesn’t prevent Ls being required to produce docs & records. Generally finding of miscond must be supped by “clear & convincing’ ev. But mostly Ls are self-regulated. (L’s in smaller firms in bar trouble more than big firms bc..).
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Civil Liability and Criminal Punishment
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4ms of civ remedies in reg of Ls: leg malpractice, disqualification, & monetary sanctions.—duty of care owed by Ls to their Cs requires L “to exercise the competence & diligence normally exercised by Ls in sim circumstances.” (specialists have to do the same but as specialists). 1.1 imposes oblig of competence on Ls.& 1.3 (diligence) (but violation of rules themselves may not be a a basis 4 a malpractice suit (MR Scope Paragraph 20-aspirational). Plaintiff must prove Ls miscond, breach, caused damages to plaintiff. Disqualification motions .Monetary sanctions FRCP 11 (4 friv filings). Crim Law—Contempt of Ct.
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Competency
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Ls have eth duty to provide competent rep-includes knowledge of the law, skill & prep. 1.1. but proving IAC hard. (Strickl& 2 part test):
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Fees
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Under 1.5(a) L may not charge unreasble fees. Gen retainer assures availability of firm rather than to serve as payment 4 specific services rendered, & thus gen retainer non-refundable. But special retainer is advance fee payment, & L must refund C any excess of advance fee over the fee 4 services rendered. Many Ct.s have voided non-refundable retainers. 1.15 is L’s obligs regarding trust accounts. flat fee is dif; C gives up rt. to refund if the time value of the Ls services is less than the amount of the flat fee & L gives up rt. to additional compensation if L’s services exceeds amount of flat fee.-but some Ct.s have held non-refundable flat fees must be reasble, & some Ct.s don’t like Ls making flat fees nonrefundable.1.5(d) prohibs contingent fees in crim cases. 1.8(d) restricts Ls in cases from negotiating & agreement giving the L literary or media rt.s to a portrayal or account based in subst part on info relating rep. applies only to agreements made prior to the conclusion of rep of a C.
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Trust Accounts
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1.15 (1) Ls must keep money & property belonging to Cs & 3rd persons separate from their personal & firm funds. (makes sure Ls don’t misuse Cs funds & protects C funds from being subject to the claims of L’s creditors. (only gen retainers & flat fees can be deposited in the firms gen account). (2) Ls must keep careful records of C money & property that comes into their possession. 1.15(a) provides that records shall be kept 4 a period of five years after termination of rep. (3) duty to notify promptly—to Cs or 3rd parties when Ls receive money or property in which Cs or 3rd parties have an interest.(4) duty to deliver promptly to Cs or 3rd parties any funds or property in which such person has an interest. (5) On request, L must render full accounting
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Confidentiality
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Info About Unsolved or Contemplated Crimes dif btwn 3 related but distinct concepts 1.6 expresses eth duty of confid.. Subject to certain xceps rule requires Ls to maintain confid. of info “relating to the rep,” under all circumstances, whether in connection w/ Ct. proceedings or otherwise. By contrast, L-C priv is a rule of ev that deals w/ question when a L may be compelled in Ct. or other official proceedings or investigations to reveal info received in confid from a C. ((1)where leg advice is sought (2) from a prof. leg advisor in his capacity as such, (3) the comms relating to that purpose (4) made in confid (5) by the C (6) are at his instance permanently protected (7) from disclosure by himself or by the leg advisor, (8) except the protection be waived.). work product doctrine, is discovery rule prevents discovery of materials prepared in anticipation of litigation, unless a showing of undue hardship & subst need. Purcell-L ethly may disclose confid. info to prevent a C from commiting a crime that will harm another person, but the L cannot be compelled to testify about the comm bc the L’s testimony would violate the L-C privilege.
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Exceptions to Confidentiality
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1.6(a) L may reveal confid. info if the “C gives in4med consent.” 4 the definition of “in4med consent” see 1.0(e). McClure—consent can be infered from the circumstances, —& 1.6(b)(6) recognizes that a Ls must comply w/ other law or a Ct. order, & thus L may disclose confid. info to the extent the L reasonably believes ncsry to comply w/ other law or Ct. order.”see cmnts 12 & 13.
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Tort Liability
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Generally no Tort or crim liability 4 failure to disclose confid. info to prevent or rectify wrongful conduct Tarasoff, Hawkins, & Belge
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Physical Evidence
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Fruits, & Instrumentalities of Crimes- (1) L’s may take possession of physical ev of a C crime, from C or 3rd party & hold it 4 reasble time to examine it & 4 tests that don’t alter or destroy its material characteristics but then L must notify authorities of L’s possession or turn it over. (2) restatement, & case law suggest L C priv applies to comms made about turned over crim ev (Fisher) compulsion would violate C’s 5th—P may not reveal source of ev to jury.
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False Testimony
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MR states L should not knowingly participate in the intro of false testimony. L must refuse to present such testimony if L knows of its falsity be4e it is offered & L must take reasble remedial measures to correct false testimony that has been offered, including if ncsry disclosure to the tribunal—the integrity of the tribunal is superior to any interest the C may have in loyalty & confid. regarding false testimony. 3.3 & cmt 2. Possible remedies 4 L: (1) remonstration (dissuading the C from falsely testifying 3.3 cmt 6 & 2.1), (2) w/drawal (if a L has a reasble belief, as opposed to knowledge the L has discretion but is not required to w/drawal), (3) disclosure to prevent false testimony 3.3(b), (4) refusing to call D as a W when L “knows” the C will testify falsely. 3.3(a)(3), but dp issue bc L not able to waive that rt. Rock-says crim D may always testify on his own behalf-neither L nor judge can stop him, (5) narrative testimony, & (6) remedial measures after false testimony has been offered (doesn’t have to involve disclosure of confid. info. Nix v. Whiteside
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Knowledge
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in 3.3 depends on whether L has knowledge D intends to or has testified falsely-definition-1.0(k) 2 propositions-1-knowledge means “actual knowledge,” (“firm factual basis”). 2 tests (“factual admission test” saysL has actual knowledge that the crim D intends to testify falsely if D’s testimony will be inconsistent w/ facts D has already admitted) & “factual inconsistency test” (…or w/ facts known to the L through independent investigation).-2- knowledge may be inferred 4m the circumstances.
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False Testimony of Witnesses
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although crim Ds have the rt. to decide whether to, Ls have authority to determine which Ws to call. 3.3(a)(3) “L may refuse to offer ev other than the testimony of a D in a crim matter, that the L reasonably believes is false,” thus can refuse to call W, but under 1.2(a) “L should only refuse to call W after consult w/ C.” If L learns W has already testified falsely, L has duty to take reasble remedial measures, including disclosure to tribunal, if ncsry. 3.3(a)(3).
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Competency
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MR assume Ls rep Cs able to comm w/ their Ls & make fundamental decisions. 1.2(a). but when L C has DC & C is making decisions harmful to them, i.e. refusing to raise certain defenses or accept favorable plea bargain (DC could be caused by mental illness, retardation, physical disability, or addiction to drugs—& children may have less than full capacity). 1.14 provides guidance (2 types of DC) Is the C “impaired” (meaning C suffers from DC but can participate in L-C relationship to some degree-1.14(a) instructs Ls “as far as reasonably possible, to maintain a normal C-L relationship.” But when C’s DC is so severe that C is at risk of subst harm unless action is taken & C “cannot adequately act in Cs own interests,” L may take steps to protect C from harm.” 1.14(b). (factors to determine severity of DC are Cs ability to articulate reasoning leading to a decision, variability of state of mind & ability to appreciate consequences of a decision; the fairness of a decision; & consistency of a decision w/ known long term commitments & values of the C. L may seek guidance from appropriate diagnostician if situation dem&s. 1.14(c) & cmt 6 L is impliedly authorized to consult w/ mental health experts to obtain advice about C’s condition. (L may decide to go to trial rather than to stigamitize D as mentally incompetent & possible indefinite commitment 4 a small offense. MR doesn’t require disclosure of Cs DC to Ct.-its L’s discretion-best interest of C (but incompetent C st&ing trial violates DP).
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competent but possible impaired
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Competent Cs genly have authority to make ultimate decisions in their case.1.2(a). i.e, pleas to enter, whether to accept a plea, whether to waive jury trial, whether to testify on own behalf & whether to appeal. L has strategic & tactical decision-making authority-after consultation w/ the C—i.e., what Ws to call, whether & how to conduct cross, what jurors to accept or strike, what trial motions to make & what ev to introduce-a DL who strongly disagrees w/ Cs decision has limited options: but L can attempt to persuade C otherwise, enlist assistance of family members to help persuade C to do otherwise, (1.14, cmt. 5) or move to w/draw bc C insists on “taking action L considers repugnant or which L has a fundamentally disagreement. 1.16(b)(4), or L can simply follow Cs directions.
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LIMITATION OF P & the Defense;
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Ps have oblig to seek justice. 3.8 cmt 1 “P has the responsibility of a minister of justice & not simply that of an advocate.” 3.8 provides limited number of special obligs that apply to Ps. Disclosure of exculpatory ev Both Ps & defense counsel have a limited oblig to disclose adverse leg authority. See 3.3(a)(2). P’s have Brady oblig but MR eth duty applies only to ev or info “known to the P,” while the const st&ard applies to any ev in the h&s of the gov, even if not known by the P. Charging & other discretionary decisions Ps have discretion so long as PC exists. see 3.8(a) but can threaten charging to get guilty plea. Talao P has duty to refrain from communicating w/ reped Ds
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CIVIL LITIGATION; C-L Relationship: Engagement & Non-engagement Letters
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Togstad-L’s have duties to prospective Cs who consult them 4 advice even if they don’t accept the case. Ct.s gen resolve ambiguities & uncertainties against L. Ls must define clearly matters 4 which L agreeing to rep C. L should reach clear underst&ing w/ C regarding matters that the firm is h&ling & matters C is not retaining the firms services 4. or L’s face risk of malpractice liability. Under 1.8(h), L may not enter into agreement w/ C prospectively limiting L’s libility 4 malpractice-undermines L’s duty to rep C competently & diligently; & Cs may not have sufficient info to eval reasbleness of such disclaimer. &MR says limited engagement agreements okay (i.e. 4 Cs who only want 4 hours of an Ls time), but w/ qualifications. 1.2(c) states “L may limit scope of rep if limitation is reasble under the circumstances & C gives in4med consent.” (benefits could be reduced leg fee or ability to retain a particularly able L) Cmt 7 states limitation of time not be reasble if not sufficient to allow L to provide advice on which C could rely. & limited engagement doesn’t exempt Ls from duty competence.
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Allocation of authority btwn L & C
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C sets overall objectives of rep & L chooses means 4 achieving those goals. 1.2(a) states subject to limits “L shall abide by C’s decisions concerning objectives of rep &, as required by 1.4, shall consult w/C as to means to be pursued. 1.2(a) identifies matters as decisions 4 the C to make: whether to settle; in crim cases, plea to be entered, whether to waive jury trial, & whether C will testify. (In4med consent-see 1.0(e) & cmt. 6). &, 1.4, which deals w/ comm w/ C provides that L must present C w/ sufficient info to enable C to give in4med consent when required by the rules. See 1.4, cmt. 2. but Ls have duty to counsel Cs regarding C’s objectives. See 2.1. The role of counselor gives Ls broad authority to advise Cs on both leg & non-leg considerations involved in a proposed course of action. 2.1 states in providing advice “L may refer not only to law but other consideration such as moral, economic, social & political factors, that may be relevant to the C’s situation. but Cs rt. to make decisions doesn’t mean L must follow every decision C makes. Ls may not counsel or engage in conduct L knows to be crim, fraudulent, or in violation of a Ct. order-or subject to discipline (see 1.2(d)). Ls have broad authority to make strategic & tactical decisions. Ls required to keep Cs reasonably in4med about C’s matters. (see 1.4(a)). L may counsel C about wisdom of Cs decision. (see 2.1). & L could move to w/draw if Cs instructions make it unreasonably difficult 4L to carry out rep. (see 1.16(b) which allows L to w/draw if C decides on a course of action “w/ which L has a fundamental disagreement” or if “good cause exists 4 w/drawal.”-C decides whether to settle a case (1.2(a)—& this imposes a duty on the L to in4m the C about settlement offers (1.4 cmt. 2). Rt.s of Ds in crim cases are broader-see 1.2(a) &
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Termination of the C-L relationship: discharge & w/drawal
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categories: m&atory & permissive w/drawals. Under 1.6(a), L must w/draw from rep if rep will result in violation of RPC’s (i.e. if L faces a C.O.I. or C dem&s L engage in illeg conduct). & L must w/draw if C discharges L or L’s physical or mental condition impairs L’s ability to rep C. 1.6(b) deals w/ permissive w/drawal, i.e., miscond, breach of contract, or non-cooperation by C. See 1.16(b)(2), (3), & (5). Other grounds, are based on L’s interests, either personal or financial. See 1.16(b)(1), (4), & (7). Under 1.16(b)(4), L may w/draw if C insists on conduct L considers to be “repugnant or that L has a fundamental disagreement.” While the language of the rule is quite broad, the intent of the rule is more limited-reporters note states w/drawal is allowed “when disagreement over objectives or means is so fundamental that L’s autonomy is seriously threatened.” 1.16(b)(5) allows L to w/draw if “C fails substly to fulfill an oblig to L regarding L’s services & has been given reasble warning of L’s intent to do so (unless severe prejudice might result). L may w/draw due to extreme financial hardship provided Ct. approval is obtained. See 1.16(b)(6). & MR allows L to w/draw if can be accomplished w/out material hardship to C. controversial when firm wishes to withdra from one C to rep more lurative C-hot potato doctrine-which MR is silent (might violate C’s reasble expectations that L wouldn’t screw him-Restatement approach). When a matter is pending be4e a tribunal, L must obtain Ct. approval to w/draw from rep, even if the w/drawal is m&atory rather than permissive. See 1.16(c). In terminating rep L must take reasble steps to protect Cs interest from prejudice. 1.16(d). If time 4 filing appeal is about to expire, L whose rep has terminated should nonetheless file notice of appeal to protect Cs interest. L should then file a motion w/ the appellate Ct. to w/draw from rep.
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The Cs file
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is silent restatement says L must give back C’s docs after rep (unless jurisdiction allows lien & wouldn’t prejudice C) & Cs can look at & copy docs in file (except internal memos & any w/ protective order.
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C.O.I.s; Rep Against Current Cs--Rep of one C against another C in a single matter & in unrelated matters
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1.7(a) deals w/ concurrent C.O.I.s, & states L may not undertake rep “directly adverse” to another C unless permitted by 1.7(b). 1.7(b) distinguishes btwn conflicts involving rep of one C against another in a current proceeding be4e a tribunal & in unrelated matters. Under 1.7(b)(3) L may not undertake rep involving a claim against another current C in the same litigation or proceeding be4e a tribunal, even if C consents.—bc loyalty- See 1.7, cmt. 1. in a single matter L cannot be loyal both Cs. Whatever L does 4 one C will necessarily harm other C in the matter. &, if L’s rep of C is infected by a COI, the adversarial nature of the rep is undermined & public benefits flowing from the adversarial system may be reduced (see cmt 17 of 1.7). &, if rules of ethics prohib L’s conduct, that prohibion extends to all members of L’s firm. See 1.10. Rule prohibing Ls & members of their firms from undertaking rep in a single matter but & to adverse rep in unrelated matters. (i.e., if a member of a firm reps C A in one matter, a member of that firm may not genly rep C B against A C in an unrelated matter even though the firm doesn’t rep A in second matter. See 1.7, cmt. 6. Rottner--a L’s duty of loyalty precludes L from undertaking rep of one C against another C even if matters are unrelated to one another. (but, w/ in4med consent in writing L may undertake rep of Cs in unrelated matters, but may be difficult to obtain consent from both Cs. 1.7(b)(1), (4).
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Who is a current C
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1.7 applies only if Cs are both current Cs. If adverse C is 4mer C rather than current one, a less restrictive rule applies: L may ethly undertake rep against a 4mer C, even w/out that 4mer C’s consent, if the current & 4mer matters aren’t “substly related”. 1.9(a). Even when firm not currently doing work 4 C, Ct. will treat C as a current when an ongoing prof. relationship exists btwn C & firm such that C reasonably expects firm is its L.
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Who is a current C in “entity” rep cases
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law firm that reps an entity (partnership, corp, or association) doesn’t necessarily have C-L relationship w/ every member of the entity. 1.13(a) states concept of “entity” rep means L reps it rather its members or constituents; but L who reps a partnership could have C-L relationship w/ a partner, depending on facts & circumstances. Westinghouse Ct. found firm who reped an association & who contacted sev companies who were members of the association & who interviewed represntatives of the companies & who told the companies that the info divulged remained confid. had created L-C relationship w/ company-members of the association as well as w/ the association. C.O.I.s arise when law firm reps member of a corporate group & is asked to undertake rep against either the parent corp or a sister corp, i.e. Discotrade-held that two companies owned by parent company were a single entity 4 purposes of C.O.I. bc the two companies were owned by the same parent company, shared same board of directors & ect. (L can’t rep two adverse parties when both parties are current Cs). (subst relationship test doesn’t apply to conflicts btwn current Cs-where the rep is ongoing, L must show there will be no actual or apparent conflict in loyalties or diminution in the vigor of rep (heavy burden).(there is a conflict bc the one C refused to waive the C.O.I.)—a positional conflict may arise bc of adverse leg positions or bc L reps competing economic interests (see cmt 17 & 6 to 1.17.
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Consentable Conflicts
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1.7(b) precludes rep of one C against another C when prohibed by law or when the rep involves adverse claims in the same proceeding be4e a tribunal. If these limits don’t apply, L may undertake adverse rep if “(1) the L reasonably believes L will be able to provide competent & diligent rep to each affected C & (4) each affected C gives in4med consent, confirmed in writing.” United Sewage Company v. Jelco—give C-full disclosure
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Validity of prospective waivers
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MR also allow firms to obtain prospective waiver of future conflicts if “C reasonably underst&s the material risks the waiver entails.” 1.7, cmt. 22-identifies factors relevant to the determination.-i.e. C agrees to consent to a conflict which he is already familiar, but consent that is gen & open ended usually not okay even if signed bc C probably didn’t underst& material risks involved, unless maybe C had independent L in4m him previous to his signing it. (blanket waiver probably not be en4ced—but maybe if independent counsel)
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Rep Against 4mer Cs/ subst relationship test
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L can’t rep a current C adverse to a 4mer C if current matter is substly related to 4mer matter bc otherwise there would be C.O.I. regarding confid. info of the 4mer C. (“subst relationship” test).but-if matters aren’t substly related, rep against 4mer C is ok, even w/out consent 4mer C. (not disloyal bc sev reasons-lifetime duty-higher prices, ect) Ct. should make no further inquiry to determine whether confid. info is actually being used bc would defeat C-L confid.-which rule is designed to protect. remedy 4 violation of subst relationship test is disqualification of current C in the substly related matter against 4mer C.
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Imputation of Disqualification
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1.10(a) recognizes principle of “imputed” disqualification when Ls are currently associated in a firm & one of the Ls is disqualified from h&ling a matter, that disqualification is imputed to apply to all members of the firm. rationale is based on fact that Ls practicing in a firm have access to firm files & have mutual financial interests. thus, assumed that any confid. info one member of the firm has is accessible to other members & that any C.O.I. that affects a member of the firm also affect other members.“firm” can include co-counsel relationships-1.10 cmt. 1.
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Imputation when disqualified L leaves firm
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old firm not disqualified from h&ling matter against a 4mer C when the matter was h&led by a departed L unless current matter substly related to prior rep & some L still remaining w/ firm actually received material confid. info regarding 4mer C. 1.10(b).
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Family Practice; multiple rep of spouses
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per se improper only when exists an actual conflict 1.7(b)(3), bc the L reping the parties could not advocate the interests of one w/out injuring interests of the other—when conflict only potential rep of the two parties ok-but L may not undertake multiple rep unless “the L reasonably believes that the L will be able to provide competent & diligent rep to each affected C.” 1.7(b)). but Ct.s goes both ways.L should decline rep if it is likely that (1) advocacy will be needed, (2) independent counseling will be ncsry, or (3) the L will not be able to function as a neutral intermediary. As the rep of the spouses, the L has obligs of loyalty & care to both. A dangerous situation exists if the L has had a close relationship w/ one of the parties. Assuming L reasonably believes she can competently & diligently rep both parties, L must obtain the Cs’ in4med consent, confirmed in writing. 1.7(b)(4). In4med consent requires L to provide info about the “implications of the common rep, including possible effects on loyalty, confid. & the L-C priv & the advantages & risks involved.” 1.7, cmts. 18, 30, & 31. (explain advatages & disadvantages) If Cs agree to dual rep after being in4med of the advantages & disadvantages, L should obtain their written consent at the time.
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Alternative to simultaneous rep (The “one C only” approach)
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If Cs decide to have L rep only one of them, & the unreped spouse refuses to obtain counsel, L may proceed w/ matter on behalf of C, dealing w/ other spouse as an unreped party, (4.3- L shall not give leg advice to an unreped person, other than advice to obtain counsel, if there is a reasble possibility that the 3rd party’s interests conflict w/ those of the C). &, cmt. 2 to 4.3 allows L to negotiate terms of transaction or settling a dispute w/ unreped person so long as L explains he reps an adverse party & is not reping the unreped person-L may in4m the person of terms on which the L’s C will enter into an agreement or settle a matter, prepare docs that require the persons signature & explain L’s view of the meaning of the doc or the L’s view of underlying leg obligs.
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3rd-party control
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Presence of 3rd-party payor’s raise eth probs if 3rd party attempts to control C-L relationship or seeks confid. info. 1.8(f) states L may ethly receive payment of leg fees from 3rd party if C gives in4med consent to the arrangement, & 3rd party doesn’t interfere w/ L’s independent prof. judgment on behalf of C, & 3rd person recognizes L is bound by rules of confide. When 3rd-party payor involved, it is prudent 4 L to obtain in writing C’s consent to payment of fees by 3rd party & L should notify payor in writing of L’s eth obligs under 1.8(f).
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Rep of Cs w/ DC
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prob- L is not appointed as guardian 4 C & thus not authorized to make recommendations on Cs behalf, yet C is not fully competent to make decisions. 1.14(a) states L’s should maintain a normal C-L relationship w/ impaired C to maximum extent possible-L required to comm info to C & assist C in making decisions regarding rep. (declaration of incompetency doesn’t deprive a developmentally-disabled person of the rt. to make all decisions—on perceiving a conflict btwn the person’s preferences & best interests, L may in4m the Ct. of possible need 4 guardian ad litem. See 1.14(b). If ad litem appointed-L is genly required to follow decision of the guardian unless guardian is engaged in conduct that amounts to breach of fiduciary duty. Appointment of guardian is serious step that deprives C of a subst degree of personal liberty.cmt. 7 to 1.14 (stating appointment of guardian may be “expensive or traumatic 4 C.”). Ls must exercise prof. discretion in deciding whether to seek appointment of guardian, considering costs & benefits to the C, along w/ other possible options 4 dealing w/ C’s incompetency (i.e., involving
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Commencement of Actions, Investigation, & Discovery; Friv Claims, Actions & delay
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eth duties & discovery sanctions 3.1 expresses the eth oblig of Ls not to engage in friv leg proceedings. 3.2 states Ls shall exercise reasble ef4ts to expedite litigation. 3.1 applies to all steps in leg proceeding. Although MR doesn’t define friv action Cmt. 2 to 3.2 states Ls required to make reasble ef4ts to in4m themselves of the fact of their Cs’ cases & applicable law & determine whether L can make good faith arguments to supp Cs’ positions. Under cmt. 2, action is not friv simply bc facts have not been fully developed or bc L expects to develop ev in supp of the contention during discovery. & action not friv “even though L believes Cs position ultimately will not prevail. FRCP 11 provides 4 monetary sanction when Ls engage in friv proceedings. Ls subject to disciplinary action under 3.1, & tort liability 4 friv actions (i.e. malicious prosecution in civ proceedings, & abuse of process-4 people who misuse the process (civ or crim)).
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Investigative contacts w/ potential Ws or potential Ds prior to filing suit
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4.2 states L is prohibed from communicating w/ person L knows is reped by counsel in the matter w/out consent of the person’s L, unless comm is authorized by law. &, when an entity is involved in the matter, the “no-comm” rule applies to some current employees of the entity, even if the employee is not personally involved in the matter or personally reped by counsel. plaintiff’s counsel can engage in investigation prior to filing suit so long as they don’t have actual knowledge that the person contacted is reped by counsel. (i.e. Taco Bell—sexual harassment case) Ct. said friv litigation is avoided by a L’s careful investigation of a Cs claim be4e filing suit. Employer can protect themselves against comms w/ their employees be4e suit is filed—3.4(f)(1) allows employer to request its employees not discuss the matter w/ plaintiff’s counsel. & an employer could have its L send other L letter saying its employees are reped by counsel in the matter & any comms should be made through employees L—reciept of such notice would give counsel actual knowledge that employees were reped by counsel. When L has actual knowledge an employee is reped by counsel, comms prior to filing suit are improper—& could result in suppression of the statements, or removal of L.Even if anti-contact rule doesn’t apply, a L contacting a W or a potential W must keep in mind the obligs w/ regard to unreped people set 4th by 4.3 “L shall not give leg advice to unreped person other than advice to secure counsel, if L knows or reasonably should know that the interests of such a person are or have a reasble possibility of being in conflict w/ interests of the C.” Thus it is proper 4 the L to comm w/ a W or a potential D, but L must use care in doing so. L may not mislead about L’s role nor give the other party leg advice.
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Investigation: Contacts w/ Employees; Prohibion of comm w/ a person reped by counsel: “Anti-contact” rule
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4.2 states L may not comm w/ person reped by counsel in matter w/out consent of person’s L “in reping a C, L shall not comm about the subject of the rep w/ person L knows is reped by another L in the matter, unless L has consent of other L or authorized by law or Ct. order.” Cmt 1 of 4.2 states rationale is to protect integrity of the L-C relationship from interference by a L reping another in the matter. cmt 3 states rule applies even if reped person “initiates or consents to the comm. (can’t be waived by C)” cmt states when L learns C is reped, L must immediately terminate the comm. rule applies only to Ls, not to their Cs. Cs can negotiate directly, & L can advise Cs of rt. to comm directly w/ opposing party. 4.2, cmt. 4. Comm in an emergency is permissible. (doesn’t include comm w/ gov officials). Most controversial issues involving 4.2 deals w/ application to employees of corps or other entities when the entity is reped by counsel. If employee is named party & unreped, L 4 adverse party may comm w/ employee subject to 4.3. If employee is named & personally reped, L 4 adverse party must obtain consent of employee’s L, not corps L, to comm w/ employee. Niesig-where only corp is a party & the L 4 opposing side wishes to comm w/ one of its employees. 4.3 cmt., 7, reduces the class of employees subject to the no-comm rule to the following: “In the case of a reped org, this rule prohibs comms w/ a constituent of the org who supervises, directs, or regularly consults w/ org’s L concerning matter or has authority to obligate the org w/ respect to matter or whose act or omission in connection w/ matter may be imputed to the org 4 purposes of civ or crim liability.” & 3.4(f) states it is improper 4 L to request a person “refrain from voluntarily giving relevant info to another party,” but xcep if person is “relative or employee or other agent of a C.” There4e, L 4 a corp could ask all of its employees to voluntarily refrain giving info to opposing L except through 4mal discovery. 4.2 cmt. 7 cautions Ls not to engage in improper conduct during an otherwise proper ex parte interview w/ an employee: “in communicating w/ a current or 4mer constitutuent of an org, L must not use methods of obtaining ev that violate leg rt.s of the org. 4.4.
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Application of prohibion on comms w/ an opposing person to 4mer corporate employees
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Cmt. 7 to 4.2 states “consent of org’s L not required 4 comm w/ 4mer constituent.” But Ls must not use methods of obtaining ev that violate leg rt.s of the org. 4.4. & L still must comply w/ 4.3.
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Other application of MR 4.2: settlement offers, expert Ws, & treating physicians
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1.4(a)(1) & cmt. 2 require Ls to convey settlement offers to their Cs. But L may not comm directly w/ the other reped C, but 4.2 cmt. 4 states parties to a matter may comm directly w/ each other.” L can advise his C that the C has the rt. to convey a settlement offer directly to the opposing party. 4.2 doesn’t apply to Cs. & although 8.4(a) prohibs L from violating the RPC’s “through the acts of another,” 8.4 doesn’t apply in the context of advising a C about a C’s rt. to convey a settlement offer to the opposing party when L has good reason to believe opposing counsel has not done so.
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Commencement of Actions, Investigation, & Discovery: Inadvertent Disclosures
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4.4(b) states “L who receives a doc relating to the rep of the L’s C & knows or reasonably should know the doc was inadvert sent shall promptly notify sender.” allows other L to take protective measures. cmt. 3 provides Ls have prof. discretion to take other steps, including return of the doc. See 1.2 & 1.4.
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