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Profession definition

a vocation founded upon specialized educational training, thepurpose of which is to supply objective counsel and service to others, for adirect and definite compensation wholly apart from expectation of otherbusiness gain

Occupational Licensing

Todaythink of it as a given now – but back in the day only law was a licensedprofession (was a crime to practice without a license) nothing else was (evenmedicine – not until 1850s)

Reasons forEthical Codes for Lawyers:

1. Regulate the Conduct of Lawyers


2. Preserve the Independence of the LegalProfession


3. Enhance the Status of the Legal Profession


4. Provide a Mechanism for the Articular of CoreProfessional Values as Perceived by Prominent Lawyers

Uniquenessof the Legal Profession:

Officer of the Court: a quasi-public occupation,seems more like a government official, lawyers are part of the administrationof the justice system, and not just loyal to their clients.




Learned Profession


Require a higher level of education and trainingthan most other occupations. Higher education implies higher duties/responsibilities.

Vocation (part professional definition)

= job, therefore subset of jobs


i. Historically was much more narrow – small subset of “job”


ii. Older idea was a small group learned group– law, medicineand clergy

Objectivecounsel and service” (part professional definition)

i. Unlike normal job where at the dictates of the employer,but here the professional might tell the employers something they don’t want tohear

UnitaryNature of the American Legal Profession

1. Unitary = either alawyer or you weren’t, how we think of the profession, think of as oneprofession not multiple


- if lawyer participate in the monopoly

BritishSystem –was binary

a.(1) Barristers (advocate) (argue cases wear funnywigs)




(2)Solicitors (legal advisers) (have legal documents – who clients canapproach about counsel)

othercategories of lawyers used in other countries

Notary (draft documents for people but not understood torepresent clients)




Patent Agent




Real Estate Conveyance

The Role of Lawyers in an Adversarial Legal System - DEBATE - different roles

(1) Membersof a Learned Profession


(2) Officersof the Court


(3) Individualswith a Social Status Equal to that of the Upper Gentry


(4) Membersof the American leadership class


(5) Agentsof the client

(1) Members of a Learned Profession

oldnotion of learned professions and lawyers part of an elite group


(got from U.K. - learned professions now eroding)

(2) Officersof the Court

ideamembers of the bar have a quasi public function and that gives a higher status




i. Right to argue on behalf of someone else before thecourts only because we have been granted this right




ii. Lawyer fees back in the day (18th century) were set bystatutes – made possible to argue for this idea

(3) Individualswith a Social Status Equal to that of the Upper Gentry

(Esquire, Attorney as a Title; Gentleman)




i. British echo – British barristers – treated as uppergentry,


ii. Attorney as Title: using this as anesquire like title


iii. Inconsistent with democratization of U.S. society, seemsundemocratic

(4) Members of the AmericanLeadership Class

viewlegal profession as outside check on democracy, likes the idea of their beinginstitutional constraints on it, inherently conservative




i. Primary part law – provide knowledge of leadership andgovernment and then move into leadership positions (lawyers shaped early U.S.)


i. Continues till today – part of leadership class, morelawyer presidents than any other occupation (the higher the leadership the morelikely to be a lawyer)




(1) BUT has been declining – still largest group in officebut not as high as were for most of the 20th century



(5) Agents of the Client

i. Highly trained but not different from other jobs, have askill and sell it in the market place




ii. Most people think of this as a choice of occupation, notthe same as being a priest etc. most people choose since looks like high payingjob etc.

Lawyer have duty to

(1) public - Duties to the Tribunal and the Legal System


(2) clients

Dutiesto the Tribunal and the Legal System

Notionlawyer has duty to public to correct mistakes which would result in unfairjudgment

When duties to Client & Public conflict - example

a. Example: relevant case that works against your client - see thatlawyer on the other side & judge are unaware of a case i. If an agent view – nothing says need to reveal this case,don’t owe anything but to client ii. If to public à Should they have a dutyto reveal this authority (YES have this duty)2.

Maintenance of Independence of the Profession

majorpoint concern for Bar – want legal profession to maintain their autonomy




1. Used to be that most engineersare solo practitioners, but now hired as employees and therefore don’t need toget licenses (change of profession)




2. Lawyers don’t want thisto happen à prohibit lawyers from forming partnershipswith non lawyers (e.g. lawyer and real estate agent)




a. Risk putting lawyer under control non-lawyer and turnedinto mere employees


b. But most lawyers work for other lawyers

Problem of Elitism

1. Considered upper segmentof society, there was something undemocratic about that


a. At time learned law by apprenticeship, therefore became“sons of lawyers” etc. who became lawyers


b. Worried majority would turn on this elite class oflawyers


2. Solution: decentralizedthe admissions process


a. Impractical for people to have to go to state capital tobe admitted to the bar, the licensing authority was therefore given to localjudges (circuit court)


i. Just need to convince these judges you can practice law(no educational requirement just need to convince them)


ii. These judges lesser pedigrees and had local pressure


iii. Within world of white males system becomes non elitist




3. Elitist but open to anyone with the request skills à no one kept from beinga lawyer (not an inherited privilege) (except non white males)


a. Soon however becomes too democratic, too many unqualifiedbeing admitted


b. Problem was no code – resulted in bar movement

Why bar created

profession became to open after solved problem of elitism with giving local judges power to admit lawyers to their court

2 Purposes of Bar Associations

a. (1) Raise standards for admission to the bar b. (2) Police misconduct of lawyers

(a) DEBATE: should Randall have been disbarred?

(i) Against: (1) His conduct doesn’tnecessarily mean clients won’t want to keep him as a lawyer (other clients willstill want to hire him) (2) Also doesn’t seem hewill likely harm clients in the future (ii) For: special occupation with set of rules and oneof the rules = honest / obey the law 100% of the time Moral

Main Point Famous Lawyers

MP = wouldn’thave lost professional license for most other professions, lawyers punishedmore severely, integrity implication in every profession but don’t impose thatprinciple of any group other than lawyers

4 Punishment Mechanisms

(1) PrivateReprimand (least severe)



(2) PublicReprimand




(3) Suspension




(4) Disbarment

PrivateReprimand

a. (least severe) i. Letter from state bar disciplinary board saying thatconduct below standard integrity, tells you to stop and if you do won’t becomepublic ii. Internal punishment

PublicReprimand

a. identical to above except is made publici. Beforeinternetwasn’t as big of a deal / much bigger of a deal than #1, would need to go tocourt house to see (1) Now with internet anyonecan see

Suspension

a. can be for any duration (rare to see them for less than amonth), some states have an upper limit (VA = 5 years)




i. Once over then can practice again


ii. Economically devastating (shut down practice for a yearetc.)

Disbarment

a. worst, indefinite and potentially infinite i. Most states have after a period of time can petitionstate bar or supreme court to be re-admitted ii. = end of one’s legal career

MODEL RULE 8 (MP)

MORALCHARACTER: Maintaining the Integrity of the Profession




MP = punishthose lawyers who don’t meet the integrity standard

MR 8.1

MP = one can have a character too poor to be admittedto the bar; since focus on integrity if admit someone with bad track recordwould undermine this




BarAdmission & Disciplinary Matters: An applicant for admission to the bar, or alawyer in connection with a bar admission application or in connection with adisciplinary matter, shall not:

Rule 8.1(a):

knowinglymake a false statement of material fact; or

Rule 8.1(b):

failto disclose a fact necessary to correct a misapprehension knownby the person to have arisen in the matter, or knowingly fail to respond to alawful demand for information from an admissions or disciplinary authority,except that this rule does not require disclosure of information otherwiseprotected by Rule 1.6.

MR 8.2:

Judicial& Legal Officials

Rule 8.2(a):

Alawyer shall not make a statement that the lawyer knows to be falseor with reckless disregard as to itstruth or falsity concerning the qualifications or integrity of a judge,adjudicatory officer or public legal officer, or of a candidate for election orappointment to judicial or legal office

Rule 8.2 (b):

Alawyer who is a candidate for judicialoffice shall comply with the applicable provisions of the Code ofJudicial Conduct.

MR 8.3:

ReportingProfessional Misconduct. (Whistleblowingobligation)

8.3(a):

Alawyer who knows that another lawyer has committed a violation of theRules of Professional Conduct that raises a substantial question as to thatlawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shallinform the appropriate professional authority.Rule

Rule 8.3(b):

Alawyer who knows that a judge has committed a violation ofapplicable rules of judicial conduct that raises a substantial question as tothe judge's fitness for office shall inform the appropriateauthority.

Rule 8.3(c):

ThisRule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in anapproved lawyers assistance program.

MR 8.4:

Defines misconduct --> 6 categories

Rule 8.4(a):

violateor attempt to violatethe Rules of Professional Conduct, knowingly assist or induce another to do so,or do so through the acts of another;

Rule 8.4(b):

commit a criminal act that reflects adverselyon the lawyer's **honesty, **trustworthiness or fitness as alawyer in other respects;




(1) ** = standards of legalprofession à what differentiate a speeding ticket

Rule 8.4(c):

engagein conduct involving dishonesty,fraud, deceit or misrepresentation;

Rule 8.4(d):

engagein conduct that is prejudicial to theadministration of justice;

Rule 8.4(e):

stateor imply an ability to influenceimproperly a government agency or official or to achieve results bymeans that violate the Rules of Professional Conduct or other law; or

Rule 8.4(f):

knowinglyassist a judge or judicial officer in conduct that is a violation ofapplicable rules of judicial conduct or other law.

standards of legal profession à what differentiate a speeding ticket

Rule 8.4(b): ** honesty and ** integrity

RuleFull Disclosure:

a. not the fact have committed bad acts (unless heinous)issue is when you don’t admit to the past offensive, be candid and honest withthe bar about past discretionsi. Failing to report = surely will prevent admittance to thebarii. If an admitted lawyer gave character reference someoneapplying to the bar and wasn’t honest – 8.1 would apply iii. Also if admitted and then later comes out were lyingstill subject to 8.1

Student Loan Cases

i. Applicationof William W. Gahan for Admission to the Bar of Minn. (1) Discharging student loans in bankruptcy without goodreason is grounds to fail character & fitness. (Minn. 1979)(2) Practicing without being admitted is unauthorizedpractice of law and is subject to criminal sanction. Rule 5.5, infra.




ii. Cord v. Gibb (Va. 1979) illustratesthat judges of Supreme Court was not just a simple matter of testing someone’scompliance with morality(1) Application cannot be refused on the ground that theapplicant jointly owned and resided in the same dwelling with a man to whom shewas not married.




i. Applicationof William W. Gahan for Admission to the Bar of Minn.(1) Discharging student loans in bankruptcy without goodreason is grounds to fail character & fitness. (Minn. 1979)(2) Practicing without being admitted is unauthorizedpractice of law and is subject to criminal sanction. Rule 5.5, infra.ii. Cord v. Gibb (Va. 1979) (Some Conduct Will Not Fail Moral/Fitness Requirement à Societal Judgment on “Immoral” Living Arrangement Bears NoRational Connection to Fitness to Practice Law)(1) Application cannot be refused on the ground that theapplicant jointly owned and resided in the same dwelling with a man to whom shewas not married. iii. Ir reApplication of Griffin (Ohio 2011) (Some Conduct Will Resultin Failing Moral/Fitness Requirement à Applicationto Bar Denied, Failed Character/Fitness/Moral Qualifications)(1) Application can be refused on the ground that applicant’sstudent-loan and credit card debt, part-time employment, and lack of a feasibleplan to satisfy his financial obligations.iv. Radtkev. Board of Bar Exam’rs: historian wrote article didn’t cite enough where should,denied admission because of failure to report these accusations of plagiarismeven though no formal proceeding

STEPS RULE 8

1. Anything dealing w/ bar admission? à cannot make falsestatements or fail to disclose material facts. MR 8.1a. Cannot say, “Haha oh you didn’t notice my 2 feloniesprior to passing the bar?”


2. Statements about judges or legal officials: No false statementsabout their qualifications or integrity. MR 8.2a. There is a sort of truthfulness exception, but the ruleprovides a chilling effect. Must be REALLY sure, since we do not wantlawyers making statements about judges.




3. MUST report misconduct: any member of the barmust report the misconduct of another bar member. Duty to report and tell anofficial about the professional misconduct, despite the potential consequences.a. Some states make it optional but a lot just make itmandatory. Should not report unless you KNOW and there is at least a“substantial question.” MR 8.3




4. Misconduct further defined: violates the MR, criminal act that affectshonesty/trustworthiness, activities that involve deceit/fraud. MR 8.4a. Anything that makes it seem like they cannot be trusted à it’s all about theimage!b. Or if they are burdening the judicial system and takingadvantage of their position as a lawyer. c. NOT EVERY criminal act undermines thetrustworthiness/honesty of a lawyer (e.g., reckless driving)




5. Violations follow you—no territorial defense: NC lawyer sanctioned in VA will likely suffer similarconsequences in the NC bara. If one violates a VA law but is admitted to the bar inOhio, subject to punishment in Ohio too.

ESTABLISHING/TERMINATINGTHE CLIENT-LAWYER RELATIONSHIP

MP = Under what obligation to take client whocomes to you?




1. UK RULE: Barrister cannot decline a client who requesttheir services if … (first come first serve if …) a. Matter is one the barrister practices in and b. In court in which the barrister practices and c. The client can pay the fee for their services d. Modern justification à unpopular clientswouldn’t be able to get representation i. E.g. heinous crime2.




U.S. RULE (MR 1.16) = not obligated to take cases if don’t want to and can withdraw if meetlaid out scenarios

UK RULE: when can turn client down?

Barrister cannot decline a client who request their services if … (first come first serve if …) a. Matter is one the barrister practices in and b. In court in which the barrister practices and c. The client can pay the fee for their services d. Modern justification à unpopular clients wouldn’t be able to get representation i. E.g. heinous crime 2.

U.S. RULE: when can turn client down?

(MR 1.16) = not obligated to take cases if don’t want to and can withdraw if meet laid out scenarios

Rule 1.16(a)

a. MP = when shouldn’t takecase




(1) will violate rule /illegal (e.g. conflict of interest rule = most common)




(2) Mental / physicalcondition impair representation of the lawyer


(a) E.g. KKK client and if represented them would make yousick, won’t represent fairly iii.




(3) Have to quit whenclient fires you


Rule 1.16(b)(a) TRUMPS CONTRACT

Rule 1.16(b)

a. When can you withdrawfrom case?




(1) Won’t materially adversely effect client


(a) If only a couple hours ok, the longer time has passed theharder this is




(2) Client has engaged in crime or fraud




(3)Clientuses lawyer services to perpetrate crime / fraud




(4) “the client insists upon taking action that thelawyer considers repugnant or with which the lawyer has a fundamentaldisagreement;”


(a) Justification à can’t adequatelyrepresent them since so repugnanted




(5) Client doesn’t pay you – have to pay them for certainamount of time




(6) “the representation will result in an unreasonablefinancial burden on the lawyer or has been rendered unreasonably difficult bythe client; or”


(a) Cases sometimes go in a different direction – thought wasa breaking and entering turned out to be a murder, don’t have time or resourcesto continue to represent this person




(7) catchall “other good cause”

Rule 1.16(c)& (d)

process what do to withdraw




i. Need judicial approval




ii. Have to continue to represent if ordered to do so by court

client-lawyer relationship - Certain Core Things Can’t Contract Around:

1.1: competence à Lawyer assuring client thathe is competent to take the case, if lawyer lacks this confidence is ethicalbreech if know is a matter in which have no ability


E.g. even if believe can learn anything, may not bereasonable for certain topics




1.3: Diligence (& promptness)




1.4: Communication: needto communicate with client about the case


1.3 & 1.4 – seem obvious but are most commoncomplaints from clients

1.4:

Communication: need to communicate with client about the case

1.3:

Diligence (& promptness)

1.1:

competence à Lawyer assuring client that he is competent to take the case, if lawyer lacks this confidence is ethical breech if know is a matter in which have no ability E.g. even if believe can learn anything, may not be reasonable for certain topics

Isthere an attorney/client relationship?

A. Does NOT have to be in writing (or contract). Can beinformal—a conversation. – common sense e.g. when comes into your office 1.




RULE: Detrimentalreliance: when reliance was reasonable under the circumstances, points to avalid relationship (Togstad)




clientmight reasonably believe the advice the lawyer was giving is of the sort wouldgive in client-lawyer relationship = relationship formed




2. Critical: Did the clientintend to engage in professional relationship by parting w/ confidentialinformation?




a. Sophistication of the potential client: helps answer ifthe client could reasonably believethey were obtaining legal advice




3. Even those w/ thesequasi-clients: Competence, Communication, Confidentiality (MR 1.6), Conflicts(MR 1.7-1.8)

1.6 STEPS

TerminatingRepresentation: MR1.16 lists instances where a lawyer can/must withdraw. a. Mandatory: representation willresult in violation of the model rules, lawyers’ physical/mental conditionimpairs à lawyer is discharged. Perhaps if you find clientso morally reprehensible, you must turn them down since you cannotzealously represent. MR 1.16(a)b. Permissive: if withdrawal would have no material adverseeffect, client persists in conduct that is criminal or fraudulent, clientinsists on taking action the lawyer finds repugnant (refers to things that havesubsequently surfaced), unreasonable $$ burden, etc. MR 1.16(b)c. Tribunal: can order you torepresent. Sometimes a lawyer must notifythe tribunal/court in order to withdraw. Must do what the judge says. Lastminute withdrawal type stuff. MR 1.16(c)d. Must give client notice, and opportunity tofind other counsel, surrender papers/property of client. à generally must minimizedamage to the client. MR 1.16(d)

Dutiesto Prospective Client:

1. a person who consults alawyer about forming a client/lawyer relationship. MR 1.18(a)




(a) Even if no relationship ensues, cannot disclose/revealinformation learned as MR 1.9 would allow. MR 1.18




Higher standard forclient waivers: waiver has to be preceded by the transfer of information fromclient to lawyer so the client is informed about the nature of the informationthey are giving up to the lawyer




(b) IF lawyer is not chosen as lawyer by A, she is disqualified from representing B, C,& D if interests are materially adverse to A in the same matter. MR 1.18c (try to avoid learningconfidential info from prospective clients)




(c) Firm is disqualified too. Only time lawyer and/or firm can stillrepresent another adverse client is if:




Affected client and prospective client gave informedconsent.

Higher standard for client waivers:

waiver has to be preceded by the transfer of information from client to lawyer so the client is informed about the nature of the information they are giving up to the lawyer

TerminatingRepresentation:

MR 1.16

Communication:

MR 1.4(a)

Diligence:

MR 1.4(a)

Competence:

. MR 1.1

CLIENT AUTHORITY& LAWYER AS COUNSELOR/ADVISOR

MR Rules 1.0, 1.2, 1.14, 2.1, 2.3, 2.4)

Definitionof “Informed Consent”

MR 1.0(e)

Scopeof Representation & Allocation of Authority

MR 1.2

Clientw/ Diminished Capacity

MR 1.14

Advisor

MR 2.1

Evaluationfor Use by Third Persons

MR 2.3

LawyerServing as a 3rd party neutral

MR 2.4

1.2-MAIN POINTS

MP Rule= hiring lawyer to assist you not make yourdecisions



(1) MODERN APPROACH à distinction between procedural matters (lawyer’s decision) v. objectives of representation (client’s decision)




(2) Scope representation à function of the client i.




E.g. client has ability to explicitly and implicitly forwhat matter the lawyer is being retained and what matters not

CASES 1.2: MP

tensionbetween clients wishes v. justice is done à Whatdo you do when the conflict? à 1.2 seems to go with the client




a. Blantonv. Womancare (Allocation of Authority: ClientRetains The Right to Make Ultimate Decision Affecting the Client’sEssential/Substantive Rights): woman gets lawyer to represent her forbotched abortion. Lawyer is intimidated by representing the woman against thebig corporate hospital, submits the case to arbitration instead of letting itgo to trial. Lawyer gave away client’s chance at recovery for the pain shesuffered, and the court tried to vacate the arbitration. i. TheCourt says the client holds the authority at the end of the day to make thedecision regarding his/her own essential rights. The lawyer should not havemade this bad/cowardly decision on behalf of the client. b. Hollandv. Florida (“Gross Negligence” by CounselDirectly Resulting in Late Filing of a Petition Does NOT Qualify asCircumstance for Equitable Tolling): death penalty lawyer did notcommunicate with Holland about status of case and failed to file habeas corpuspetition. i. Court sayslawyer is disqualified for seeking the death penalty for his client justbecause he wanted it.

Choiceof Law

Rule 8.5(b)


a. For conduct inconnection with a matter pending before a tribunal, the rules of thejurisdiction in which the tribunal sits, unless the rules of the tribunalprovide otherwise; a. For any otherconduct, the rules of the jurisdiction in which the lawyer’s conductoccurred, or, if the predominant effect of the conduct is in a differentjurisdiction, the rules of that jurisdiction shall be applied to the conduct. Alawyer shall not be subject to discipline if the lawyer’s conduct conforms tothe rules of a jurisdiction

DisciplinaryAuthority

1. (Rule 8.5(a)) a. A lawyer admittedto practice in this jurisdiction is subject to the disciplinary authority ofthis jurisdiction, regardless of where the lawyer's conduct occurs. b. A lawyer not admitted in this jurisdiction is alsosubject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services inthis jurisdiction. c. A lawyer may be subject to the disciplinary authority of both this jurisdiction andanother jurisdiction for the same conduct.

PermissibleWithdrawal

1. (Rule 1.16(b))[lawyer terminates]a. Must be very careful to have good causeb. If no good cause, malpractice or breach of fiduciary dutyc. May withdraw if:i. Can be accomplished without MAE ii. Client persists in a course of action involving thelawyer's services that the lawyer reasonably believes is criminal orfraudulent iii. Client has used the lawyer's services to perpetrate acrime or fraudiv. Client insists upon taking action that the lawyerconsiders repugnant or with which the lawyer has a fundamentaldisagreement;v. Client fails substantially to fulfill an obligationto the lawyer regarding the lawyer's services and has been given reasonable warningthat the lawyer will withdraw unless the obligation is fulfilledvi. The representation will result in an unreasonablefinancial burden on the lawyer or has been rendered unreasonablydifficult by the clientvii. Other good cause for withdrawal exists

MandatoryWithdrawal

1. (Rule 1.16(a))a. Must refuse to begin representing client or withdraw fromexisting attorney-client relationship if the lawyer is:i. Fired by the client(1) Client must still pay the lawyer’s fee, unless there’s afee defense(2) In-house lawyers may be protected against retaliatorydischarge(3) The client must seek permission of the court inlitigation. Rest. § 31, cmt. c.ii. Unable, by reason of physicalor mental disability, to represent the client adequatelyiii. Representation would result in a violation of the rules of professional conduct or other law.

Clientwith Diminished Capacity: MP

MR 1.14


1. MP: = The emphasis here is always on the client’s best interests as the client defines thema. (a) Normal relationshipbut…b. (b) May take necessaryprotective action à e.g. consulting individuals or entities – seek toappoint a guardian

Definitionof “Informed Consent”

1.0(e) "Informedconsent" denotesthe agreement by a person to a proposed course of conduct after the lawyer hascommunicated adequate information and explanation about the material risks ofand reasonably available alternatives to the proposed course of conduct.

Professional Duty ofConfidentiality

1.6(a) MP = “A lawyer shall not reveal information relating to the representation of a client




UNLESS:


(1) the client gives informedconsent,


(2) the disclosure is impliedlyauthorized in order to carry out the representation or the disclosure ispermitted by paragraph (b).”

Exceptions to Professional Duty of Confidentiality (1.6(a))

Mayshare information with other lawyers in same firm




Authorizedto Carry Out Representation




InformedConsent




Disclosureto Prevent Wrongdoing




FinancialHarms




SecuringLegal Advice




Self-Defense




Compliance with law

1983 1.6(b) rule v. current rule

a. Spaulding v.Zimmerman (Minn. 1962)i. Defendant’s expert discoveredaortic aneurysm in plaintiff — permissible to report?ii. 1983 Rule:(1) Cannotdisclose because nothing criminal about client’s act of not reporting somethingthat the other side didn’t request in discovery(2) Solution:Persuade client to disclose or give informed consent to disclose.iii. New Rule:(1) Harm will involve death,and it’s reasonably certain to occur, so can disclose.

Securing Legal Advice

exception duty confidentiality




(1.6(b)(4))

Self-Defense

exception duty confidentiality




(1.6(b)(5))

People v. Belge

Murder case, Garrow accused of murder and reveals tolawyer has killed a few other people as well and where the bodies are




RULE: Can’t use exception (b)(1)or the acts of crime / fraud since the crime has already been committed (1) Confidential duty trumpsoutrage of public, family of the dead, and even the body reporting itself(technically a crime – would be a fine, punishes lawyers lightly)

Spaulding v. Zimmerman

Defendant’s expert discoveredaortic aneurysm in plaintiff — permissible to report? 1983




Rule:




(1) Cannotdisclose because nothing criminal about client’s act of not reporting somethingthat the other side didn’t request in discovery




(2) Solution:Persuade client to disclose or give informed consent to disclose.




New Rule:(1) Harm will involve death,and it’s reasonably certain to occur, so can disclose.

FinancialHarms

Exception Duty of Confidentiality


(1.6(b)(2),1.6(b)(3))

Attorney-Client Privilege:

1. Applies only when thelawyer is called on to testify. à Rule of Confidentialityapplies to a broad ranger of information, whereas the A-C privilege covers onlycommunications from the client under fairly narrowly defined circumstances. 2. Privilege extends ONLYto communications (what you said/wrote to the attorney) and NOT underlyingfacts of the case. (e.g., if client incorporated the fact in communication, thefact is not protected.3. Exceptionsto Attorney-Client Privilege [top]a. Crime-Fraud Exceptioni. Covers communications made by the client for the purposeof obtaining the lawyer’s assistance to commit a criminal or fraudulentact. Rest. § 82ii. State v. Hansen (Wash. 1993)(1) Defendant’s statement that hewas going to blow away the judge triggered exception. This is a stretch though...iii. Applies even if:(1) Attorney does not share the client’s purposes(2) Not just for prosecutors — can be used in civillitigation too(3) The client’s conduct does not fall within the technicaldefinitions of crime or fraud in the jurisdiction.

Work Product Doctrine:

A. protects someinformation an attorney learns during legal representation—materials preparedby the lawyer in anticipation of litigation. Includes info gained by thoseother than a client, but is limited to materials gathered in preparation forlitigation.




B. Breach: client wouldhave malpractice action against the lawyer if the breach was negligent.

Attorney-Client Privilege for Corporate Communications (Upjohn Co.v. United States)

a. Rejected straight “control group” test, which held thatprivileged communications only occurred with person who controlled thecorporationb. Assuming other elements of attorney-client privilege aremet, a court will now ask one of these questions:i. Was the communication made by an employee of thecorporation who directs the entity’s actions in response to legal advice? (Controlgroup test) (1) Employee need not necessarily be senior managementii. Was the communication intended to enable the attorney togive legal advice to the entity? (Subjectmatter test)iii. Was the communication made concerning the conduct of anagent that is within the agent’s scope of employment, and liability for whichmay be attributed to the organization? (Vicarious liability test)

MP behind conflict of interest rules

1. lawyer shouldn’t represent multiple parties to the samedispute, (for civil and criminal suits_ a. INCONSISTENT wit advocate theory of justice i. Really just being the judge

DEBATE: should rules on conflict beconstrued narrowly or broadly

a. Reasons to Construe Conflict Rules Strictly




i. Loyalty — lawyer may be tempted to pull his punches


ii. Confidentiality — possibility of unintentionaldisclosures


iii. Process Integrity — good intentions aside, the gamewouldn’t work right




b. Reasons to Construe Conflict Rules Looselyi. Client Choice & Availability of Counsel — both forpoor (legal aid) and rich (locking up top firms)


ii. Economic Interests of Lawyers — the more stringent therules, the harder to lateral


iii. Avoid Game-Playing with Conflicts Rules — cf. Rule11.




Appearance ofImpropriety” — strong nationwide trend against this as a standard fordisqualifying lawyers.

Problem w/U.S. System: Unlike other countries only ONE types of lawyer

a. Most other countries = 3 or 4 Types


i. (1) Advocate – can’t fairly representboth sides (in reality just taking over judge’s role)


(a) When actual litigation


(b) HERE = when conflict on interest simplest and moststraight forward (c) Issue much of what U.S. lawyers do not limited to this


ii. (2) Legal Advisor


(a) Just giving legal advice, not being an advocate


iii. (3) Drafter of Documents


(a) In other countries called notaries – more like person goto to get building permit, more administrative


(b) Idea is they are your notary - not lawyer clientrelationship


(i) If A wants to sell house to B – notary will listen tothem both and draft documents not a problem




b. Issue in U.S. à try to apply samestandard to ALL lawyers (MAIN THEME – try to apply same set of rules to alllawyers can cause issues)


i. But for (2) & (3) not as much of an issue, notobvious can’t represent both in these capacities


ii. Can turn out to be problems – e.g. issue with buying thehouse etc., turn out sue each other etc.

FOURSTEPS: Conflict of interest current clients

a. Identify client relationships


b. Identify conflicts


c. Ascertain consent ability


d. See if there has been effective consent

step 1 Conflict of interest current clients

1. STEP 1: IdentifyClient Relationships: a. May involve quasi-client problems — closely heldcorporations, corporation and affiliate, etc.b. Remember that a lawyer for a corporation represents thecorporation itself, not the executives. Rule 1.13(a).

Step 2 conflict of interest current clients

1. STEP 2: Identify Conflicts: 1.7(a)


a. Two types:


i. 1.7(a)(1): The representation ofone client will be directly adverseto another client.


ii. 1.7(a)(2): There is a significantrisk that the representation of one or more clients will be materially limited by the lawyer's responsibilitiesto another client, a former client or a third person or by a personal interestof the lawyer.


(1) Separate from clients atissue – lawyer is somehow prejudice by certain thing


(2) This includes personal interests, like a spouse on theother side of the litigation.




b. Direct Adversity


i. Can be on either side of the “v.”


ii. Codefendants or coplaintiffs can have legal positionsthat are adverse to each other if recovery for/against one directly affects theother.


c. Doesn’t matter if it’s (a)(1) or (a)(2) — the rest of theanalysis is the same


d. Must monitor for conflicts throughout representation

step 3 Conflict of interest current clients

STEP 3: Ascertain Consentability:



b. All conflicts are consentable except:


i. Rule1.7(b)(2):Representations prohibited by law (1) Includes a few former government lawyers who areprohibited by criminal statutes from representing certain clients.


ii. Rule1.7(b)(3):Client vs. Client in the Same Litigation


(1) “The representation does not involve the assertion of aclaim by one client against another client represented by the lawyer in thesame litigation or other proceeding before a tribunal”


(a) Client suing client, OR


(b) Nonclient suing client cross claiming against client.




(2) If the lawyer is representing two clients in differentmatters, one of which involves both of them, that’s consentable


(a) Firm represents A in suit against B and B in a deal withC.


iii. Rule 1.7(b)(1): Zero-Sum Representation


(1) “The lawyer reasonably believes that the lawyer will beable to provide competent and diligent representation to each affected client”(2) Unless each clienthas the same opportunity to achieve a good result with the conflictedlawyer as she would with an independentlawyer, the lawyer cannot represent both clients.

4 factors must meet to waive a conflict - current client

(1) must believe can handle both sides


(2) no legal prohibition


(3) parties aren’t suing each other directly


(4) informed consent for both parties (disclose the consequences) and must be in writing (to protect the lawyer)

Step 4 Conflict Current Client

1. Has There Been Effective Consent?


a. Requires fulldisclosure and consent in writing


i. Good idea to also put disclosure in writing.b. 1.7(b)(4): Each client must waivethe conflict c. May need to get confidentiality waiver to explain problemto other client to get consent to waive conflict.d. Factors that must be discussed:


i. The interests of the lawyer and the client giving rise tothe conflict


ii. Contingent, optional, and tactical considerations andalternative courses of action that would be foreclosed or made less readilyavailable by the conflict


iii. The effect of the representation or the process ofobtaining other clients’ informed consent upon confidential information of theclient.iv. Any material reservations that a disinterested lawyermight harbor about the arrangement if such a lawyer were representing only theclient being advised.


v. The consequences and effects of a future withdrawal ofconsent by any client, including, if relevant, the fact that the lawyer wouldwithdraw from representing all clients.


vi. Advance waivers are permissible, butonly where the client concerned is a sophisticated consumer of legal services.

1.10(a): General Rule

Whenin a firm or in-house, if one is prohibited from repping a client, then ALL are

1.10(a) exceptions

Personal Interest Exception (a)(1)


Screening exception (a)(2):

Personal Interest Exception Imputed Conflict Rule

a. (a)(1) The conflict is based on a personal interest of the disqualified lawyer and does not present a significant risk ofmaterially limiting the representation of the client by the remaininglawyers in the firm.


(1) Interest is unique tothe disqualified lawyer and would not transmit to another lawyer in firm(2) From rule 1.8 – where family member etc.


(3) Personal interest includes things like a spouserepresenting the opposing party.

Screening Exception

Exception to 1.10(a) imputed conflict


a. (a)(2): Prohibition is based on Rule 1.9(a) or (b) and arises outof the disqualified lawyer’s association w/ a prior firm AND




i. Disqualified lawyer is TIMELY SCREENEDfrom any participation in matter and is given no part of the fee,AND:




(1) Timely screened = cannot have anycontact with the lawyers working on the relevant case & no fee




Why no fee = if in somehow entitled to fee then the lawyer wouldhave an incentive to share the valuable information with those involved at thematter at the firm


(i) But if know won’t benefit from this – then strongerscreen


(ii) Not clear how this would work in practice à makes sense withpartners since they would get certain percentage from the matter – moredifficult with an associate (maybe pay check docked?)




(2) AND:




ii. Written notice is given to any affected former client to enableformer client to ascertain compliancew/ provisions of Rule. (ii)




(1) Reason = Allowing formerclient to police the process, making sure the disqualified lawyer is isolatedfrom the representation of the client. (a) Lawyers don’t trust selves to do this




(2) NOTICE MUST INCLUDE:


(a) How the law firm will achieve this – describe proceduresgoing to use


(b) Assert will follow those procedures


(c) Tell client that if they have an reservation aboutcomplying with procedures will be a mechanism for them to report this 2


(i) Also can ask any questions about the process to the lawfirm and they have to answer


(d) Certificate of compliance with these rules andwith this process – given through out process / matter (at reasonable intervals(can’t ask for 3 times a day etc.) upon clients request and at the end of thematter


(i) Statement under oath where lawyer infected needs tocertify that they have continued to honor the restrictions


(ii) A partner of the law firm has to certify this as well (ifthe person is an associate)


(iii)firm certifies compliance, putting credibility on theline

What is required for notice in screening requirement

(a) How the law firm will achieve this – describe proceduresgoing to use(b) Assert will follow those procedures (c) Tell client that if they have an reservation aboutcomplying with procedures will be a mechanism for them to report this 2(i) Also can ask any questions about the process to the lawfirm and they have to answer (d) Certificate of compliance with these rules andwith this process – given through out process / matter (at reasonable intervals(can’t ask for 3 times a day etc.) upon clients request and at the end of thematter (i) Statement under oath where lawyer infected needs tocertify that they have continued to honor the restrictions (ii) A partner of the law firm has to certify this as well (ifthe person is an associate) (iii)firm certifies compliance, putting credibility on theline

Screening Debate & history

(a) FOR: see concerns above




(1) Leads toincrease number of situation where firms have to turn away clients becauseof conflicts = very inconvenient to firms need to give up business and devoteresources to tracking conflicts need to keep database to identify conflicts


i. No geographic limits – e.g. different offices (2) Impedes the inter-firm mobility and impedeslawyers moving from public sector to private sector


i. Public lawyer can’t be hired by private firm if they willhave conflicts with their clients with any cases with the government agencythey worked at previously


(1) FOR THIS à government trainingthese people and then they go to firms and government shouldn’t be subsidizingtraining lawyers for private firms


(2) AGAINST THIS à people know this andtalented young lawyers won’t go to work for the government since know will bestuck there




(b) AGAINST: can’t make one that is fail save / trustworthy


(i) Either wouldn’t work and conflict gives law firm upperhand or


(ii) Still looks bad – makes look like lawyers




(c) History: Screens were allowed in public to private sector moves


(i) Found this to be important and made an exception from thegeneral rule


(1) Found that with adequate screens this was legitimate


(ii) BUT ABA – resistantmoving this principle to private sector


(1) Recommended changes in 80s was to extend this to theprivate relocation s but ABA refused to approve this


(2) Less than a decade later– 2008, rule 10 was amended to include private sector

MR 1.12

FormerJudge, Arbitrator, Mediator or Other Party Neutral


- 1.10 rule for these

1.11

Former or Current Government Lawyers @ Firm(Special Conflict): - 1.10 rule for these

When a lawyer is leaving a firm Imputation rule

1. 1.10(b):a. General Rule: When a lawyer hasterminated an association with a firm, the firm is NOT prohibited fromthereafter representing persons w/ interests materially adverse to those of a clientrepresented by the formerly associated lawyer.b. Exceptions: UNLESS:i. The matter is the same or substantially related (if newlitigation is a continuation of the litigation when the old lawyer was at thefirm)(1) Matter needs to be thesame & ii. Any lawyer remaining in the firm has informationprotected by Rules 1.6 and 1.9(c) that is material to the matter.(1) Someone still thereneeds to have information about the case (2) If lawyer who left =only one who knew any information about this client then won’t be a conflict c. MP exception = work out arule that protects clients but doesn’t egregiously injure the firm economically

Imputation rule

(a) general rule - if one lawyer can't rep - whole firm can't


UNLESS - personal matter or screen


(b) when lawyer leaving firm - can take on averse parties of former lawyer UNLESS


(1) same matter


(2) some else at firm has info about the matter


1.11 - government to private rule


1.12 - former judges and arbitrator rule

A. DEBATE: what should the clientlawyer relationship be when = advisor? (clear when advocate = zealously represent clientwhether guilty or not etc.) DifferentModels (core question should the lawyer tell the client what to do?)

1. Hired gun model (one end) à lawyers simply sayhired to murder anyone / do what they ask you to do – servant of client – haveno own morality and never second guesses the wishes of a client a. Never tells client what to do ask client what to do anddo what they say




2. Godfather model (other end) à the Don – lawyers =moral center – come to them with problem but then they takes care of it and clientinvolvement drops to zero a. Just tell the lawyer what needs done and then lawyerdecide they merits of the request and the mechanism to obtain that b. Tell the client what to do – tells everyone whatto do




3. Guru model à admirable lawyer ofliterature (e.g. Atticus Finch etc.) idea that lawyers are simply smarter andmore sensitivity to larger interests of the community – but unlike Godfatheractually tend to care about people a. Therefore take control not for own power but for benefitof the community b. Tell the client what to do – has more refined moral sensei. Problem à can have goodintentions but can’t know everything ii. Well intended arrogance credits lawyers with more thanactually possess




4. Friend Model à one the book endorse –at essence of friendship – care about morals of each other – will inform theirfriend about moral issues BUT and won’t take away the power to deal with thisproblem / tell them how to deal (Guru / Godfather) a. Doesn’t tell friend what to do but tries to engage themin a discussion about what to do b. Get them to do what you want them to do but try to givethem the impression that it is really what they

Hiredgun model

1. lawyers simply say hired to murder anyone / do what theyask you to do – servant of client – have no own morality and never second guessesthe wishes of a client a. Never tells client what to do ask client what to do anddo what they say

Godfathermodel

1. the Don – lawyers = moral center – come to them withproblem but then they takes care of it and client involvement drops to zero a. Just tell the lawyer what needs done and then lawyerdecide they merits of the request and the mechanism to obtain that b. Tell the client what to do – tells everyone whatto do

Gurumodel

1. admirable lawyer of literature (e.g. Atticus Finch etc.)idea that lawyers are simply smarter and more sensitivity to larger interestsof the community – but unlike Godfather actually tend to care about people a. Therefore take control not for own power but for benefitof the community b. Tell the client what to do – has more refined moral sensei. Problem à can have goodintentions but can’t know everything ii. Well intended arrogance credits lawyers with more thanactually possess

FriendModel

1. à one the book endorse –at essence of friendship – care about morals of each other – will inform theirfriend about moral issues BUT and won’t take away the power to deal with thisproblem / tell them how to deal (Guru / Godfather) a. Doesn’t tell friend what to do but tries to engage themin a discussion about what to do b. Get them to do what you want them to do but try to givethem the impression that it is really what they

Advisor Rule

MR 2.1.(answerto above – should lawyer try and get client to do what thinks is right?) = Lawyer is supposed to render candid legal advice and mayrefer to other considerations (economic, social/political factors) that may berelevant.


Key = CANDID LEGAL ADVISE

Advisefor 3rd parties rule

MR 2.3.


a. can be made if the lawyer reasonably believes that makingthe evaluation is compatible with other aspects of the lawyer's relationshipwith the client. i. When come into office not for document but for advice

Thirdparty neutral rule

MR 2.4


a. when the lawyerassists 2+ persons who are not clients of the lawyer to reach a resolution of adispute or other matter that has arisen between them à OK. Like an arbitrator.(must inform is neutral) i. Lawyer must informunrepresented parties that the lawyer isnot representing them. If lawyerreasonably should know they don’t understand, then they must explaindifference.(1) Can’t rep 2 people in common contested matter (e.g.couple in divorce)

MR 1.8(a):

1. When there is a business transaction w/a client - NObusiness transaction w/ client, unless: a. Terms fair &reasonable to the client AND are fullydisclosed in writing, such that they can be reasonably understood bythe client. b. Client advised in writing of desirability of seeking, andgiven reasonable opportunity to find, advice of independent counsel on the transaction.c. Client givesinformed consent in a writing signed by client to the essentialterms—including whether the lawyer is representing the client in thetransaction.

background - 1.8(a)

i. Ability of Ls to take advantage of business opportunities(back in day didn’t get high fees – wealth came from business opportunities –need to take advantage of these)

“Substantially related” definition and steps / test

a. means there is a substantial risk that confidentialfactual information as would normally have been obtained in the priorrepresentation would materially advance the client’s position in the subsequentmatter. (Westinghouse Electrical Corp.)



(1) 1st make factual reconstruction of the scopeof the prior representation.


(a) Factual relationship? Look at nature and character of theprior legal representation.




(2) 2nd determine whether it is reasonable toinfer that the confidential info allegedly given would have been given to alawyer representing a client in those matters




(3) Finally, determine whether that info is relevant to theissues raised in the litigation pending against the former client

MR 1.9(a):

1. Lawyer who hasrepresented a client in a matter shallnot represent another person in the same or a substantially related matter inwhich that person’s interests are materially adverse to the interests of theformer client. a.




Critical: can new rep be construed as “switching sides”? OR isit factually distinct (this is OK)

MR 1.9(b)

1. If previously associated w/ a firm that had repped client whose interests arematerially adverse AND whom the lawyer acquired information protected by MR 1.6and 1.9(c) that is material to matter, CANNOT knowingly rep a person in thesame or substantially related matter. a.




Exception: Unless informed consentin writing.

MR 1.9(c)

1. A lawyer who has (or firm has) repped a client SHALL NOT: a. Use info relating to the repping to the disadvantage ofthe former clientb. Reveal info relating to the repping (except as the rulespermit)

MR 1.8(b):

1. Can’t use info gleaned from the representation to thedisadvantage of the client.




a. Exception: Unless given informedconsentb.




Envisions situation where L has info from client and usesit for personal benefit and NOT classic conflict benefit of differentclient

MR 1.8(c):

1. Can solicit any substantial gift from client. a. Exception: Unless lawyer or otherrecipient of gift is related to client.

MR 1.8(d):

Can’tmake agreement w/ client giving lawyer literary or media rights toa portrayal or account regarding info relating to representation.

MR 1.8(e):

1. When can the lawyer pay clients legal costs? Can’tprovide financial assistance to a client in connection w/ pending orcontemplated litigation. a.






Exceptions: Except:




i. May advance court costs, the repayment of which may becontingent.




ii. May pay court costs for indigent client.

debate: when can lawyer pay clients legal fees?

a. Background:i. Contested rule à Idea is L should notuse their power to stir up litigation or own any share in the client’s causeii. Practice often justified on fundamental justice basis(1) Ok for L to pay fee up front and if client prevails L canbe compensated out of recovery(2) Came from pity for client who is poor with worthy cause(a) For sake of fairness – no benefit to you

MR 1.8(f):

1. No aggregate settlements when repping 2+ clients, a. Exception: UNLESS: i. Informed consent in writingii. Lawyer’s disclosure shall include the existence andnature of all the claims or pleas involved and of the participation of eachperson in the settlement. iii. **You have to secure theagreement of each D before any plea or agreement goes forward IF you can’t dothis, then the lawyer usually withdraws.

MR 1.8(h):

1. When lawyer can limit malpractice liability – Cannotlimit liability for malpractice, a. Exception: unless client is independently represented when making theagreement. b. Nor can you settle the malpractice claim w/ a former orunrepresented client unless that person is advised in writing that he shouldseek advice of independent counsel. à where a lawyer isguilty of malpractice, has to put in writing that the client is given areasonable opportunity to seek another lawyer. Just have to give your clienttime to do so if he wants to.

MR 1.8(g):

1. No aggregate settlements when repping 2+ clients, a. Exception: UNLESS: i. Informed consent in writingii. Lawyer’s disclosure shall include the existence andnature of all the claims or pleas involved and of the participation of eachperson in the settlement. iii. **You have to secure theagreement of each D before any plea or agreement goes forward IF you can’t dothis, then the lawyer usually withdraws.

limiting malpractice debat

i. Arises in fiduciary duty context (trustees)ii. Wants ordinary standard of care of bailee and not higherstandard of fiduciaryiii. *Liability waiver agreement can be entered into as longas the client waiving is represented by another lawyer in the matter(1) Must do so in way where client realistically hasopportunity to seek out legal counsel

MR 1.8(i):

a. Exception: except: i. A lien authorized by law to secure the lawyer’sfee/expenses(1) If POOR client – can attach this fee to make sure arepaid ii. K w/ client for a reasonable contingent (1.5) feein a civil case.b. About contingency fees à not allowed in U.K.

MR 1.8(j):

1. No sexual relations unless consensual relationshipbegan before the attorney/client relationship. a. Can have sexual relations w/other lawyers in firm’sclients

MR 1.8(k):

APPLIESTO ALL IN THE FIRM. Exceptsexual relations.

In re Hager

Attorney May Not Enter Into Agreement W/ Opposing Party In Which HisClients Are Awarded Full Purchase Price Refunds When Attorney SECRETLY HasAgreement to Receive Attorney Fees and Makes Agreement Never to RepresentAnyone w/ Related Claims Against Opposing Party and Agrees Not to Disclose InfoLearned):

Maxwell v. Superior Courtof LA County - debate over selling story to lawyers

a. CA caseallowed use story rights to pay for representation (murder case) becauseindigent and even if indigent should still have a choice, doing this becausewants better chance to win w/law firm than legally appointed counsel)i.




DEBATE:


(1) Don’t allow sell story à worried lawyers willonly be interested in making trial interesting not in winning


(2) Allow sell story à can be all indigentpeople have and have right to choose their attorney = only way have true choice

3 concepts - 1.9

a. (a) Inappropriate for L whopreviously represented someone in past to now litigate against them in thepresent in a matter related to the subject of the previous representation




b. (b) When you use informationthat you obtained from your old client for the benefit of a new client (in away that would be adverse to your old client, even though they are not a partyto the current litigation)




c. (c) Separate and apart fromrepresentation of clients lawyers should not exploit (reveal is better word)info they learn from their clients

a. Westinghouse Elec. Corp v. Gulf Oil Corp - DEBATE/POSSIBLE ALT RULE:

i. Question is how do weknow if substantially related info is risk in a firm particularly - do need to show actual knowledge?




(1) You could say only when lawyer actually knows


(a) Rule is not applied like this


(b) AGAINST: Would bog court down in tedious fact finding




(2) At time of this case → it was ABAcode of professional responsibility so it had the canon “court should avoidappearance of impropriety”(a) This language was dropped later(b) Now we don’t put same emphasis on appearances ofimpropriety




(3) Court could air on theside of caution


(a) Why is Westinghouse who could hire any law firm in theworld hiring an 8 man law firm in NM to do this antitrust case?


(b) Probably better to be cautious but if you don’t you couldhave devastating results

i. Question of how you determine who is current client andwho is former client, particularly when representationis sort of sporadic

(1) No ongoingrepresentation contract, corp just goes to firm when it needs services


(2) Rules for past clientsare more flexible than rules for current clients


(3) Panel seems to thinkit’s been more than two years than corp/firm contact and this is sufficient todeclare relationship is ended

lawyercan rep both parties up until the point that it becomes an actual conflict. 2 limitson this: (1.7(b))

(1) 1) L must reasonably believe he can rep both parties w/oadversely affecting either one




(2) 2) Both clients have to be informed of this and must giveinformed written consent(a) Only problem is if firm represents both and it turns intoreal conflict situation it will probably have to withdraw from both sides

Entityrepresentation rule

1.13(a)


representsthe entity not the employees BUT interactions with the constituent

Lawyer's duty to report corporate misfeasance

MR 1.13(b):


A. Lawyer’s Duty à (puts a lot of pressureon the lawyer to understand what the scenario is and then make a decision aboutbest course of conduct)


1. MUST (mandatory) report substantial injury




a. Suggests there are injuries that aren’t substantial i. E.g. getting a parkingticket with corporate car


2. How to report = “asis reasonably necessary”a. Suggests there are a variety of ways to respond




b. Preferred solution = report whateverconduct has created this obligation to more higher ranking person in thecorporation (e.g. CEO) (NOT required to go outside corporation) i. Exception = “Unless think not inbest interest of corporation”


(1) Some circumstances whenlawyer can go to the individual (just go and ask them about it)

exception to lawyer duty to report corporate misfeasance

1.13(c)


1. Someone in corporationwith authority to do so instructs the lawyer to investigated if there has beena violating of law 2. Or asked to be defenseattorney

Iflawyer withdraws or is discharge - duty to report corporate misfeasance?


1.13(e)


mandatoryobligation (b) NOT relieved (even if caused by trying to comply)

MR 1.13(f):

A. Lawyer must (mandatory) inform EMPLOYEES – not representing them representthe corporation1. Reason = employees (e.g. CEO)won’t understand that statements they make to counsel are NOT privileged2. Issue: critics this a loop holefor the lawyer – if goes around and tells people obligated to report it andguarantees no one will talk to the lawyer about misconduct

A. Can lawyer separatelyrepresent those employed by the entity?

MR 1.13(g):




1. YES if – anything not related tocorporation a. e.g. want to buy a condo with husband etc. not related tocorporation




2. Exception: – when the rules about conflicts apply – willprevail (controversial matters)

Originconcept licensing for lawyers:

1. Officer ofthe courta. 1st: Power of attorney idea à designate someone totake legal actions on behalf of yourself i. Officer ofthe court à could only pickadvocates who had been previously approved by court where case is being tried(have to have skill to advocate)ii. Idea license = courts can test lawyers to make sure havesufficient legal knowledgeb. 2nd: for a time legal feeswere set by statute i. Well established that courts could set fees for lawyers (1) This system broke down ii. But notion of lawyer as officer of court inbackground c. 19th century: officer of court idealed to creation of model rule i. Lawyer concerned about lack of professionalism – idea =way to subject to bench must agree to these rules ii. Most rules = about fair representation (not aboutmanipulating the legal system)

decorum(possible alt rule/DEBATE)

1. don’t address talking in front of the court – language /demeanor a.




CASES à BUT - ABA rules justtake a decorum requirement for granted


i. Disbarred a lawyer due to his behavior


ii. FL lawyer – band from file on his own behalf




b. Argument for DecorumRulesà somehow legal profession has become increasinglyunprofessional in that lawyers are rude to one another i. Think should emphasize the decorum issue




c. Argument against à radicals have todisrupt court to get rid of bias in legal system i. Issues not addressed by rules

reason behind ban on frivolous law suits

a. Reason for rule = litigation = expensiveworried about people using lawsuits / legal system to bully other people i. US RULE à have to pay for lawsuit expenses even if win (different fromU.K.)

Exceptions: to frivolous law suit ban

i. (1) Modification or reversal of existing law = notfrivolous ii. (2) Criminal case à lawyer knows forcertain defendant is guilty – can he defend? Or is this frivolous? (1) Constitutional component – Lawyer must put up adefense – otherwise would be violating more serious issues / concerns thanfrivolous law suits

Special duties of prosecutor

a. NOT simply an advocate. He is partly responsiblein seeking proper administration ofjustice.b. MP = the prosecutor has aspecial set of duties preforms not just as lawyer but chief prosecuting agentof the state i. Prosecutor has higher duty to see justice is done – stateisn’t the client of the prosecutor in the same way as an individual client

Impartiality and Decorum ofTribunal:

1. MR 3.5:


a. Obvious: lawyer shallnot …


i. (a) Seek to influence a judicial official of any kind (judge& jury) in way not permitted by law


ii. (b) Communicate w/ such a person (judge or jury) unlessauthorizedb.




Less obvious


i. (c) Can communicate w/juror after trial / discharged jury EXCEPT IF:(1) Prohibited by court, (2) Juror has made known to lawyer desire not to communicate(3) The communication involves misrepresentation/coercion/duress/harassment


ii. (d) Engage in conduct intended to disrupt tribunal (decorum coming in)


iii. àUnethical to communicatew/ any other participate in the process

History: switch from old lax to new strictdiscovery rules:

a. Washington State Physicians Ins. Exch &Ass’n Fisons Corp. i. Before 1980s trial was a lot more likely to have evidenceor facts to come up for the first time at trial (1) Discovery rules were less rigorous needed to requestspecific things(2) Then moved to much more liberal ii. Here 1993 = lawyers got caught in this transition –didn’t fully understand how much this new discovery rules changed the landscape(1) Didn’t feel needed to give smoking gun evidence since notspecifically requested enough

Fairness to Opposition/Counsel:

1. MR 3.4: Fairness to Opposition/Counsel:(MustComply w/Rules of Discovery) Alawyer shall NOT: a. (a) Unlawfully obstructanother party’s access to evidence or unlawfully alter, destroy, or concealanything having potential evidentiary value. (In ReRyder)b. (b) Falsify evidence, counsel or assist a witness to testify falselyc. (c) Knowingly disobey an obligation under the rules of atribunald. (d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligenteffort to comply w/ a legally properdiscovery request (Fisons Corp.)e. (e) In trial, allude to any matter the lawyer does notreasonably believe is relevant or that will not be supported by admissibleevidence, assert personal knowledge offacts in issue except whentestifying as a witness, or state apersonal opinion as to the justness of a cause, the credibility of awitness, the culpability of a civil litigant or the guilt/innocence of anaccused.i. Issue: every TV lawyer has donethisf. (f) Request a person other than a client to refrain from voluntarily giving relevantinformation to another party (can’t dissuade witness from testifying attrial) i. Exceptions: UNLESS:(1) Person is relative or an employee of the client(a) Unless = person who committed crime (2) And the lawyer reasonably believes that the person’sinterest will not be adversely affected by refraining from giving suchinformation.

Candor toward court:

a. (a)(1) Make falsestatement of fact or fail to correctfalse statements made by a previous lawyeri. Have obligation for as long as matter it continuous (notnecessary if was 15 years ago etc.)




b. (a)(2) Fail to discloselegal authority known to be adverse to client and not disclosed by opposingcounsel


i. Where duty to legalsystem trumps duty to client



c. (a)(3) Offer evidencethe lawyer knows to be false.


i. Broader than perjury (1) e.g. if find someonewilling to testify which will help your case but know wasn’t what the weatherthat day can’t put them on stand even if they don’t know that it wasn’t thatweather that day


ii. Criminal Trial: A lawyer may (optional) refuse to offerevidence, other than the testimony of D in a criminal matter, that the lawyerreasonably believes is false.




d. (b) Allow someone to engage in fraudulent orcriminal conduct related to the proceeding must à take reasonable remedial measures/discloseto tribunal.i. “Lawyer knows the client intends to attempt to underminelegitimacy of judiciary process” (1) E.g. obstruct officialsfrom preforming duties ii. “Reasonable remedialmatters”= don’t need to risk their life can just call police etc.




e. (c) a & b continue until conclusion of proceeding ANDcomply even if compliance requires disclosure of information otherwise protected




f. (d) Ex Parte Proceeding: A lawyer shall inform the tribunal of all material facts known to the lawyer thatwill enable the tribunal to make an informed decision.i. There are circumstances where failure to make adisclosure is the equivalent of an affirmative misrepresentation.




g. Types of remedialmeasures: Recess, Remonstrate w/client, Resign if it will remedy perjury, Revel the perjury if only effectiveresponse.

False Evidence and Criminal Trial Rule

i. A lawyer may (optional)refuse to offer evidence, other than the testimony of D in a criminalmatter, that the lawyer reasonablybelieves is false.


(1) If know if false à can’t allow thetestimony


(2) Reason = lawyer isn’t the jury– free to put on evidence thinks might be false but not sure = jury’s job notthe lawyers job & constitutional rights of D


(3) Case – “pretty sure false”


(a) If lawyer doesn’t want to put testimony on doesn’t haveto


(b) BUT à if D in criminal casewants to testify falsely NOT prevented by 3.3. (can’t prevent perjuringself – but not constitutional requirement)

Expedite Litigation:

1. MR 3.2: Expedite Litigation: A lawyer shall makereasonable efforts to expedite litigation consistent w/ the interests of theclient. a. Legit reasons delay: can’t find a witnessneed – need to track them down, key witnessb. Illegit reason delay: it is not proper for alawyer to routinely fail to expedite litigation solely for the convenienceof the advocates or for the purposes of frustrating opposing partyi. E.g. if on trial the longer it is the longer not inprison

Lawyer must have a claim that is not frivolous

1. MP = Can’t bring case or proceeding unless there is a basisin law or fact for doing soa. Reason for rule = litigation =expensive worried about people using lawsuits / legal system to bully otherpeople i. US RULE à have to pay for lawsuit expenses even if win (differentfrom U.K.) b. Shelly v. Kramer = can’t take this too far i. Before this case found racially exclusive covenants to belegal – but after this found them illegal ii. Want to be able to come and argue important issues à don’t want this rule toprevent changes needed in law therefore exceptions

Trial Publicity

3.6

general trial publicity rule

3.6(a)




a. Cannot makeextrajudicial statement: if reasonably should know it will be publiclydisseminated and will have a substantiallikelihood of materially prejudicing an adductive proceeding.


i. (1) Will bedisseminated to public (wide spread communication)(a) Not amongst lawyers themselves


ii. (2) Comments = substantial likelihood will have prejudicial impact on the procedure


(a) Key issue = lawyer make publicstatement which is broadcast to local public and jury pool sees this


(i) (1) unfairly / prejudge


(ii) (2) even if admit prejudice – harder to get jurors (b) See MR 3.6(d) Comment 5 for list of subject more likelyto have material prejudicial effect.(c) One relevant factor is the nature of the proceeding. Criminal juiry trials are most sensitiveto extrajudicial speech, civil trials less so, and non-jury hearings and arbitrationeven less.




iii. MR 3.6(d): Imputation principle: Applies to lawyers if firm or governmentagency.




iv. KEY = Don’t want anyoneto manipulate the opinion of the public.

EXCEPTIONS: to general rule of trial publicity

i. Concern = don’t want rule to beviewed as context for which lawyer speech can be repressed when have goodreason (using this rule as a guise)




ii. (1) Information that wouldbe accessible anyway (a) Even if would be widely disseminated


iii. (2) Ask for help– about knowledge about a particular set of events (a) Murky area – criticism gives lawyerswho want to break this rule area to operate




iv. (3) Warning ofdanger (a) Must be based on reasonable belief



v. 1 to 6 = all cases civil or criminal




vi. 7 = extra protection for criminal (a) Info could be acquired from other sources

Reason of exceptions to general rule about trial publicity

i. Concern = don’t want rule to be viewed as context for which lawyer speech can be repressed when have good reason (using this rule as a guise)

Competing concerns trial publicity

i. Integrity of the process à Greatest concern = the neutrality of the jury (if newsprejudices them or decide one way or another before trial & if confessprejudice – need to pick new one) (1) Old days: jury was picked based on who was most familiar with theincident / the defendant (2) Now taken a complete 180: want them neutral –only get information presented at the trial itself




ii. Lawyer’s Limited 1stAmendment Right à Other concern = First amendment (1) Long thought that getting lawyers license = give up somerights have(a) Including advertising (overturned in the 90s) (2) Regarding ones clients also raises 1st amendment issues (Cutler) à bar courts about whatlawyers can say in public about their cases

Rightto respond

a. MR 3.6(c): Right to respond: lawyer may make a statement a reasonable lawyerwould believe necessary to protect the client from asubstantial undue prejudicial effect of recent publicity NOT initiated by the lawyer or client. i. If other side smears client can respond

DEBATE - when third party (e.g. doctor for opponent) sends criminal evidence to lawyer - what do?

4.4




i. (1) Not required notify sender: just unlucky and they nowhave that document




ii. (2) Block use of documents entirely (a) Problem = not how human mind works (b) How can you ever know that they actually destroyed thedocument (c) Could also be used unfairly – if think have no case sendthe other party a lot of documents and then say they can’t use them under thisrule etc.




iii. MODEL RULE solution = all do is tell the party had thedocuments

a. DEBATE: Therefore have modelrules higher than the court standard of negligence

(1) If made them the same –would (a) (1) lower the standards of the profession OR (b) (2) sanction lawyers throughtort liability that was reasonable but not meeting higher standards of legalprofession (bigger fear) (2) Is what the court meanswhen say he violated rule 4 and even if liable just the violation of model rulewould not be enough to prove negligence (not liable here because of privity)

Slotkin:

1. Failureto disclose supplemental insurance policy in settlement negotiations — andactively asserting that there was no supplemental insurance — was grounds forcivil law fraud against the lawyers.a. Not clear here if did purposely or by mistake

Brooks:

a. MP = be careful with strictly leaning on breach of model rulefor negligence – enormous body of case law says can’t i. Even if violation no clear negligence

Respectfor rights of 3rd Parties:

A. MR 4.41.


(a): Respectfor rights of 3rd Parties: (applies rules from MR 3) a. a lawyer shall not use means intended solely toembarrass, delay, or burden a third person, or use such methods of obtainingevidence that violate the legal rights of such a third person. b. So a lawyer cannot steal something or obtain it by fraud.– i. e.g. lie to 3rd party to get evidence2.




(b): A lawyer who receives adocument relating to their representation and who knows or reasonably shouldknow the document was inadvertently sentshall promptly notify the sender.a. Example: fax sent to wrong number/ adverse parties, e.g. doctor send document to opponent’s law firm rather thanthe correct lawyer (1) Here unlike (a) – not by maleficence, accidental

Dealingw/ unrepresented persons: (

A. MR 4.3: Dealing w/ unrepresented persons: (one side haslawyer other does not) 1. Issue = power imbalance, shouldn’t exploit this to benefit yourclient 2.




(1) CANNOT DO: In dealing on behalf of a client w/ a person whois not represented by counsel, a lawyer shall not state or imply that thelawyer is disinterested. 3.




(2) Must Fix: when the lawyer knows or reasonably should know that the unrepresented persons –must resolve misunderstanding 4.




(3) advice 2unrepped party: a. Can’t present self as neutral for 2 parties (e.g.divorce) b. Rule 3rd Party neutral – if e.g. witness asks advise –can give BUT not if possibility their interest = averse to client in future

MR 4.2:

A. A lawyer shall notcommunicate about the subject of the representation w/ a person the lawyer knows to berepresented by another lawyer in the matter. (general rule = must communicate w/their lawyer) 1. This is true evenwhen the represented person initiatesor consents to the communication. 2. Exceptions: unless a. The lawyer has the consent of the other lawyer or b. Is authorized to do so by law or a court order.3. Example Issue: two people trying to make a sale of property –one side goes to his lawyer and says that the other lawyer is making things toocomplicated / slowing things down – and think should go talk to the clientdirectly a. BUT – CANNOT – no excuse for breaking this rule 4. No prohibition on clients talking to other clientas way of getting around the lawyer a. BUT problematic if thelawyer tells the client to do this to get around this rule = at leastarguably a 2.5 situation b. Argument = tried to make client an agent for the lawyer

Must speak truth to 3rd Parties

MR 4.1


A. s Isn’t rule 8 – deals with more specific situation wherelawyers trying to benefit their clients and in doing so may not make honestrepresentation to third parties 1. (a) no knowingly falsestatements. i. E.g. to get access to their house (say cable guy etc.) 2. (b) Cannot fail to disclose a material fact to 3rd partywhen disclosure is necessary to avoid assisting a criminal or fraudulent act bya client, unless disclosure is prohibited by Rule 1.6. i. Lawyer has absolute duty to inform any third person whomight be a victim

1. DEBATE ISSUE = should the tort of retaliatory discharge apply tolawyers? – when reporting violating rules can be discharged

a. YES should apply:


i. Wieder v. Skala à YES tort retaliatorydischarge does apply (lawyer infirm filed complaint about associate breaking rule when told by superiorsnot to) (1) Reasoning – if don’t allow thisthen lawyers will sit on this information and would harm the public (a) Here = lawyers only therefore below reasoning does notapply


ii. Strange to say need to havestructure to prevent rule breaking – but then allow them to fire for followingthe rules






b. NO should not apply:


i. Balla v. Gambro à NO does not apply (in house lawyer reported employer toFDA)(1) Reasoning - Would undermine lawyer-client relationship (a) Chilling effect – won’t tell attorneyanything more than have to tell (b) Need lawyer to have full knowledge – and therefore wantclients to be candid


ii. Can always come up withanother reason


iii. Already have incentive not to do this a firm à don’t want thisreputation in legal industry (1) Counter – first case did do this anyway iv. Response to harm publicargument: that he is a lawyer and if rule tell him to report the conduct hewill do this (lawyer will also do right thing) (1) Counter à super naïve

Responsibilitiesof Nonlawyer Assistants:

5.3


1. : (b) Lawyers must have reasonableassurance that the person’s conduct is compatible w/ the professional obligationsof the lawyer When responsible: a. MR 5.3(c)(1): If lawyer orders conduct, then is responsiblefor it. i. Not clear what “responsible” means – not clear if tort orcontract liability would extend to lawyer ii. Common case = breach ofconfidentiality à lawyers will be responsible if non-lawyers revealunder MRs (1) Rules agency non-lawyer not liable (2) Firm would be though – negligent in not preventing thisperson from revealing information (3) But from our prospective: lawyer under ruleshave responsibility to oversee the nonlaywers conduct and will be responsible b. MR 5.3(c)(2): If lawyer is partner or comparable managerial authority,and knows of the conduct but takes notremedial action or fails to mitigate, then he takes responsibility.

Responsibilitiesof Subordinate Lawyers:

5.2


a. (a) Bound by MR’s even ifacting at the direction of another. i. NO “following orders defense” b. (b) Close case: A subordinate lawyer does not violate theRules of Professional Conduct if that lawyer acts in accordance w/ asupervisory lawyer’s reasonable resolution of an arguable question ofprofessional dutyi. Example: filing out bill for client and charging an awful lot forvery little work etc. (1) Go to partner and express concerns – probably enough thepartners tells them if you work as long as I do I don’t think this is aviolation – etc. if still send the bill and the client complains c. Subject DEBATE: what canone reasonably expect of associate at firm? – hard question = when someone elseat firm violates rule (when know & how act?)

Close case for subordinate lawyer reporting

a. Close case: A subordinate lawyerdoes not violate the Rules of Professional Conduct if that lawyer actsin accordance w/ a supervisory lawyer’s reasonable resolution of an arguable question ofprofessional dutyi. Example: filing out bill for client and charging an awful lot forvery little work etc. Goto partner and express concerns – probably enough the partners tells them ifyou work as long as I do I

Responsibilities of Partners/Managers/Supervisors

1. MR 5.1(a): Responsibilitiesof Partners/Managers/Supervisors (those w/power): shall make reasonableefforts to ensure that the firm has in effect measures giving reasonableassurance that all lawyers in the firm conform to the Rules. (not enough just make sure not violating rulesneed mechanism in place (b) = traditional make sure follow rules) a. (c) Responsible for another’s violation IF:i. Orders /ratifiesconduct: Thelawyer orders or, w/ knowledge of the specific conduct, ratifies the conductinvolved. ii. Superior & Knowsabout conduct & fails to act: The lawyer is a partner or has comparable managerialauthority in the law firm in which the other lawyer practices, or has directsupervisory authority over the other lawyer, and knows of the conduct when its consequences can be avoided or mitigated but fails to take reasonable action. b. Firms often hold meetings on ethics in order to comply w/this rulec. NO willful blindness

Background/History: - law firm responsibilities

1. Old: autonomy model = back in the daydidn’t have large law firms usually just associate for a few years then gostart own practicea. Most lawyers work for themselves a few partnerships 2. Current: Big firm model (started around 1985) a. Significant majority of lawyers work for other people –in a practice context3. Challenge = how adapt norms(rules) created in one world to the other world a. Area imputed conflicts = biggest issues à conflict of interestwithin the law firms (addressed by RULE 5)

a. DEBATE: should referral fees beallowed?

i. AGAINST: Issues w/ Referral Fees




(1) Can be manipulated (a) If have advertise for cases don’t actually handle andthen refer to another lawyer and take referral fee (Broker)




(2) Lawyer would have to charge higher fee since now has topay referral fees ii.




FOR:


(1) Don’t want lawyers taking on clients if don’t have time


(2) Should be ok if they are modest feeb. Another type fee sharing = if another lawyer is broughtin i. Thought could do case self but turned out needed anotherlawyer with particular expertise to help ii. Not so objectionable c. Challenge Rule = permit reasonable fee division but preventexploitation

(1) Possible alt rule / DEBATE: Difference w/UK where contingency fees = banned – shouldthey be?

(a) FOR: we determined for access need to have them (longresolved) (see case about selling life story)




(b) AGAINST: U.K. à give an ownershipinterest to lawyers in case and induces litigation that would otherwise nothave occurred (i) Contingency fee might be higher since the risk won’t bepaid (ii) Common Complaint about contingency fees from clients = didn’t know had topay court fees (can be high – lawyer not obligated to pay them)

i. DEBATE: double billing

(1) FOR: In own mind only paying what would have paid anyway(2) AGAINST: (a) ABA à consistently takenposition that this is unethical (even though a lot of lawyers admit to doingthis)

Reasonable fee

1. MR 1.5(a) Basic rule: attorney must charge a reasonable fee.)a. If client had free &informedchoice before entering into the agreement and the fee is w/in the range customarily charged bylawyers in similar representation, it is almostalways reasonable. i. Is clientsophisticated, like a corporation, where they freely negotiated the feearrangement? ii. Even though rule does not have an explicit informedconsent provision, courts will often look into the quality of disclosure the lawyer gave, and the client’s sophistication/experience in dealing w/ lawyers. b. List of factors: (none point to clearanswer) i. (1) “The time and labor required, the novelty anddifficulty of the questions involved, and the skill requisite to perform thelegal service properly;”ii. (2) “The likelihood, if apparent to the client, that theacceptance of the particular employment will preclude other employment by thelawyer;”iii. (3) Fees are local specific – locality iv. (4) Amount involved and results obtained (1) Gallagher case à example (a) Minimum have to charge for foregone opportunity v. (5) Time limitations imposed by the client vi. (6) Nature and length of professional relationship withthe client vii. (7) Experience / reputation / ability of lawyer viii.(8) Whether fee is fixedor contingent

MR 1.5(b):

A. Scope ofrepresentation/rate shall be communicated to client, preferably inwriting (possiblealt. rule – used to have to have it in writing) & any changes 1. Exception: Not necessary for regular clients unless there isa rate change.

ContingentFees:

A. MR 1.5(c): Contingent Fees: allowed unless prohibited by rule or law.Must be in writing and signed by the client. 1. Require: a. (1) MUST be in writing & client must signb. (2) Once cases is over – also need full accounting inwriting of what the fee was and all charges

Exceptions to Contingency Fees

1. MR 1.5(d):




2 Important Exceptions:




Lawyer is NOT allowedto collect contingency fees in a.




1) Domestic relations matters, or i. E.g. child custody ii. Reason = client could be manipulate to pay too much – doanything for child b.




2) Representing D in criminal case. i. Reason = dealing w/loss of liberty of client ii. Issue = if don’t ask for payment up front will becontingent anyway (since if lose in jail won’t pay) 2.




Note: if the casedoes not really make the lawyer accept much risk for recovery, then it cutsagainst the contingency fee being reasonable. Ask: does the skill of the lawyermake difference to the outcome?

Divisionof Fees

1.5(e)


A. Lawyers NOT in the samefirm sharing fees: 1. Allowed IF: a. (1) Split the feesproportionate to eachs’ contribution to the case i. AND must assume joint responsibility ii. Limits brokers (with the ads) – can’t be compensated forassuming entirely passive role b. (2) Client agrees toarrangement i. Include in agreement: (1) Share each willreceive and (2) Must be in writingii. Idea if client agrees client will have sensitivity totheir own interest à protect against inflated fees c. (3) Total fee is reasonable

Prohac vice

a. admission à EXCEPTION – lawyercould come into a jurisdiction and argue a specific case (had to petition thecourt)


i. Only if associated with a lawyer admitted to the state


(1) But had to involved directly in the proceedings


ii. Led to creation of smallmulti state partnerships


iii. Only worked for representing someone at court

a. DEBATE: shouldthere be a restriction on pro hac vice of residency requirement?

i. FOR: Concerned about lawyers coming into their stateparticularly because D.C. / Maryland lawyers coming into their state (VA) ii.


AGAINST: Greatly limits pro hac vice – since whole point

a. DEBATE: should there be a stateresidency requirement?

i. FOR: states can’t deny rights to citizens of other states


ii. AGAINST: no legal practice is different, law is afunction of state sovereignty

Practiceof law definition

1. MR 5.5 (a): Practiceof law definition – every jurisdiction defines what “practice of law” isa. Must follow the definition of the jurisdiction practicingin (even if would not be considered practicing in another jurisdiction)

Notbarred in the jurisdiction? What can't do

1. MR 5.5 (b): Notbarred in the jurisdiction? Cannot (1) practice there, open office or (2) misleadpeople into thinking you are barred there.

Allowed Temporary Practice in Jurisdiction NOT barred in

1. MR 5.5(c): But CAN practice underMR 5.5(c) exceptions on a temporary basis:




a. (1) Associated w/ lawyer who is admitted in thisjurisdiction & actively participate in the matter




b. (2) Related to the proceeding occurring in one’s ownjurisdiction


i. Or person lawyer is assisting is authorized by law ororder to appear in such proceeding or reasonably expects to be so authorized




c. (3) Arbitration or mediation reasonably related to alawyer’s practice in his own jurisdiction (and no requirement for pro hac viceadmission)




d. (4) Not within paragraphs (c)(2) or (c)(3) and arise outof or are reasonably related to the lawyer’s practice in a jurisdiction inwhich the lawyer is admitted to practice. (most important) i. E.g. going to another state to take disposition


(1) Rule: as long as = incidentalto matter engaged in own jurisdiction then don’t need to secureadmittance to that states bar (2) Issue = what is incidental?

Issue in house counsel and not admitted to several jurisdictions

1. MR 5.5(d): (addresses issueof in house counsel – allow to practice in multiple states and eveninternationally w/out securing admission): “may provide legal services throughan office or other systematic and continuous presence in this jurisdiction that:”a. (1) Are provided to the lawyer’s employer or itsorganizational affiliates(a) When foreign lawyer à can’t give advise aboutjurisdiction not admitted b. (2) If overriding state of federal statute allowing themto practice that trumps

foreign lawyer

1. MR 5.5(e): foreign lawyer is NOT admitted to any state a. Foreign jurisdiction must treat its lawyer in way expect– need to establish foreign legal

balance of rule 5.5

a. One hand: old notion that states can still control who canpractice in their jurisdiction i. Really about bar restricting their own members




b. Other hand: don’t let states be able to too tightly control


i. Recognizes some situations that do require lawyer to gointo another jurisdiction and shouldn’t feel running risk of being penalized


ii. E.g. in house counsel, non-judicial matters etc.

Restrictions on Rights to Practice

A. MR 5.6: Restrictionson Rights to Practice: CANNOT agree to restriction on right to practice: even not to representother persons in connection w/ settling on behalf of a client. – 2 prongs …


1. (1) Lawyersought never to enter into relationship that restricts their ability topractice lawa. E.g. covenant not to compete b. Exception = for retirementbenefits (if can’t practice to get retirement benefits)




2. (2) Lawyer cannot have “an agreement in which a restrictionon the lawyer's right to practice is part of the settlement of a client controversy”


a. Issue = if settle and requirethat lawyer won’t bring anymore suits on this matter

Law-Related Services

1. Law Related Services = Today certain types legal services not the exclusivedomain for lawyers (e.g. real estate agents and titles, drafting of generic documents)


a. Can do without being authorized to practice


b. Problem = not the practice oflaw therefore if a lawyer charged with malpractice is it a defense to say wasjust a “law related service” and if person had not been a lawyer wouldn’t havebeen under this bar rule?




2. MR 5.7: “just law related service” = when can be a defense (unrealisticto expect client to tell between law and law related services)




a. (a) When still subject to legal rules (not a defense tomalpractice) (MP = lawyers shouldn’t be able to unfairly capitalize on thisdistinction)


i. (1) If go to lawyer for both legal and law relatedservices – then can’t be a defense (not distinct from legal practice)


ii. (2) Burden on the lawyer to make sure the client isaware that the law related services are NOT the practice of law and clientshouldn’t expect to have the protections that has




b. (b) Defines law related services




i. Continually ask: is this the sort arrangement thatcompromises the lawyer’s professional judgment? Does he wear “two hats?” à violates personalconflict of interests (MR’s 2.1 and 2.7)

DEBATE –should state bars be allowed to restrict who can be admitted there?

a. AGAINST: states being allowed to restrict who can beadmitted to their bar:


i. Supreme Court of New Hampshire v. Piper (Opportunity to Practice Law is a “FundamentalRight” & No Valid State Interest for Denying Nonresidents Admission to NewHampshire Bar & Discrimination Does NOT Bear Close Relationship to State’sObjectives, SCOTUS held residency requirement = invalid): residentof VT wanted to practice law in NH but couldn’t b/c NH would not allownonresidents to practice law in NH. (1) Court says protected by P&I Clause of 14th(2) DEBATE: should there be a stateresidency requirement? (a) FOR: states can’t deny rights to citizens of other states(b) AGAINST: no legal practice is different, law is afunction of state sovereignty ii. VA v. Freedman (SCOTUS held that residency require to get prohac vice admission = impermissible restriction; Burdenedthe Right to Practice Law & Violated P&I Clause of 14thAmendment) (1) Facts – VA got rid with domicile requirement but had to havedomicile in VA for pro hac vice requirement (2) DEBATE: shouldthere be a restriction on pro hac vice of residency requirement?(a) FOR: Concerned about lawyers coming into their stateparticularly because D.C. / Maryland lawyers coming into their state (VA) (b) AGAINST: Greatly limits pro hac vice – since whole point






b. FOR: states being allowed to restrict who can be admitted totheir bar: c. Tolkien v. NJ (NJ & 3rd Circuit UPHELD upheld NJ’s BonaFide Office Requirement & Mandatory NJ CLE coursesà States Should Have Latitude in Regulating thePracticing of Law & Admission to Bar) i. Facts – NJ adopted law that anyone who wanted to practice inNJ said didn’t need to live there but if wanted to practice in NJ had to have alaw office in NJ (1) Court says right to practice law is not a fundamentalright for purpose of EPC. Tolchin’sclaim fails b/c mandatory attendance requirements were rationally related to NJ’s legitimate interests in regulatingthe practice of law within its borders.ii. DEBATE: should there be anoffice and CLE restriction on states bar admission? (SCOTUS hasn’t answered) (1) FOR: not as clearly designed to exclude – seem better reasonto require them (a) Didn’t think requiring an office was an unreasonablerequirement(2) AGAINST: Effort to control out of state lawyers / motivated toexclude out of state lawyers

A. Background/History: advertising Beginninglegal profession

a. idea that it was extremely unseemly to do this i. Reason = against legal order ii. Entrenched in way think about UK barristers, even todayin the UK can’t solicit clients and clients can’t even contract the barristers(need solicitor to do this for you)

Background/History: advertising 19th century

a. banned face to face solicitation and didn’t focus on advertising sincethere were limited ways could do this (no electronic media) i. Evidence that lawyers did advertise in newspaper (1) Earliest case for improper advertising have to do with subjectmatter (had way to get you a divorce) of the ads not the ads themselves (a) Was disbarred – court found subject of divorce sodistasteful ii. Letters weren’t ok for solicitation either

Background/History: advertising 1920s/ 30s:

a. no face to facesolicitation is transported to less direct ways w/new inovations - e.g. advertising(newspaper, movies etc.) i. States adopted provisions that any advertising was not okand ran risk might mislead the public

Background/History: Advertising WWII:

1. can only advertise intwo placesa. (1) Yellow Pages (can’t use larger type)i. Had a lot of “Aaron” partners since wanted top billingb. (2) Lawyer lists / directory of commercialized list oflawyers could be listed there i. Is very limited – had a standard form couldn’t pay to putin extra information c. Earned clients based on reputation not for advertising i. Difficult system to operate in if new lawyer or didn’thave connections to new community d. On business card could only put name and occupation i. Exception for patent lawyers – could say were patentlawyer (separate bar) or admiralty lawyer (since separate law)

1. DEBATE: allow advertising?

a. FOR: Traditionaljustification = consumer protection, if could advertise like everyone elseconsumers shouldn’t have to figure out what is legitimate and what isn’t i. E.g. unlike toothpaste which know won’t actually makeself more attractive to other sex s




b. Ways aroundi. Common lawyers earlier in their career would run forpublic office to get advertising / get their name out to the public ii. Face to face: (1) Join social men’s club to talk to bankers there (a) No case about corporate lawyer in trouble soliciting ongolf course with banker (2) Typical person who prosecuted = people at funerals or goto accident c.




AGAINST: push backi. Advertising really helped mid-ranked lawyers (didn’tmatter to larger firms and hurt lowest firms) but middle ranked had goodreputations ii. Also allowed lawyers to set their fees without worry ofprice competition since was extremely difficult to shop around (1) Lawyers knew would take the first lawyer go to – evenmore problematic with fee schedules

A. SCOTUS CASES: advertising case

1. Free speech protects the availability of advertising: The 1stAmendment right of free speech protects the availability of advertising TRUTHFUL information about the priceand availability of certain routine legal services. (Bates).a. Facts: s two young lawyers just out of law school without jobs,came up with idea to set up own legal clinic, needed high volume but couldn’tlet people know about it (no ads didn’t use person names not “legal clinic”)b. After this case StatesTry to limit this: SCOTUS invalidated ad limits …i. Can use firm names anything you want ii. Can send letters to potential clients (Shapero)iii. Most restricted states =(1) WI – had to thow in towel only false and misleading = notallowed (2) IO – drafted rules as narrowly as possible – particularlyhostile to tv ads (a) Knew that any tv ad would lead to disciplinary action




2. Face to face solicitation can be limited à potentially coercive.(different from advertising)a. A state can constitutionally prohibit face-to-facesolicitation in furtherance of important state interests (Ohralik).i. Reasoning = different than advertising puts client atunfair advantage over the potential client (already injured or impoverished andthe lawyer is educated and articulate) ii. Direct mailing = advertising NOT face to face b. Special protection for attorneys seeking clients in anarea where there is no commercialincentive. The state has less room to prohibit solicitation (as by ACLUor NAACP) than to prohibit solicitation for pecuniary gain (Primus). i. NEW distinction = politically /socially motivated pro bono face to face solicitation ok (1) Commercial not ok c. Anti-solicitation laws directed towards personal injurylawyers. (girl killed in plane crash)




3. Direct mail advertising to people who have aparticular legal problem is okay, but is subject to state regulation (Shapero v. Kentucky State Bar—US).a. MR 7 requires label as “advertising material.” b. Court upheld a state-imposed 30-day waiting period after an incident before direct mailings canbe sent out for a wrongful death/personal injury suit (Went forIt, Inc.) – not limited tohighly traumatic accidents. Q: differently situated?




4. Recently New York started to crack down in (Alexander v. Cahill)a. NY adopted a more stricter and more extensive rule b. Never went into effect

CommunicationConcerning a Lawyer’s Services

1. MR 7.1: Communication Concerning a Lawyer’s Services (general) –false /misleading info = prohibited a. RULE = standard should be “falseand misleading” – can draw a line between false and misleading advertisingand ads that aren’t this i. What does false or misleading mean? b. Otherwise presumptively ok

Advertising

1. MR 7.2: Advertising (reflectslegacy of Bates) Generally Permitteda. (a) General Rule: may advertise all forms of commination (written,recorded or electric medium) – not off limitsi. Current battle ground has to do with blogsand webpages b. (b) Recommendation Limitation: can’t give anything ofvalue to lawyers that recommend / endorse services (e.g. can’t have paid actorspretending to be clients – false and misleading) UNLESS (exceptions) i. (1) Pay the reasonable costs of advertisements ii. (2) Referral service= ok (usual charges) (a) A qualified lawyer referral service is a lawyer referralservice that has been approved by an appropriate regulatory authority;iii. (3) Pay for a law practice in accordance with Rule 1.17;(not worried e.g if person retiring from firm endorses you) iv. (4) Referralagreement = ok generally MUST (a) Be reasonable (not exclusicve) (b) Client informed aboutagreement and its extentc. (c) MUST include the name and office address of at least one lawyerresponsible for the content i. Someone needs to take responsibility for the ad

DirectContact w/ Prospective Clients – Solicitation

1. MR 7.3: DirectContact w/ Prospective Clients – Solicitation (fear of coercion). Lawyers must approach clientsindirectly.a. (a) General rule: NO in-person solicitation for pecuniarygains i. In person = life telephone or in person contact (1) Phone = More like in person or letter? (a) If pre-record phone message = ok ii. Worry = potential for coercion iii. EXCEPTIONS (1) CAN solicit business from another lawyer (notunfair advantage – lawyer & lawyer) (2) CAN solicit business from family or those with closepersonal prior profession relationships b. (b) CANNOT do ok things (written, recorded or electronic communication orby in‑person, telephone or real-time electronic contact when not otherwiseprohibited by paragraph (a)) IF i. (1) target made known to the lawyer a desire notto be solicited by the lawyer; orii. (2) the solicitation involves coercion,duress or harassment.(a) Possible alt. rule: VA repealedthis 7.3 and made it just (b)(2) – no coercion (allows solicitation) c. (c) Allowed MUST contain words “advertising material” i. Number of states have more stringent disclaimerrequirements d. (d) MP = problem is lawyers agree to participate in insurancelike plans and then those w/insurance have access to that pool of lawyer i. Those who run program will then go solicit face to face – NOT a problemhere under this rule

Communicationof Fields of Practice& Specialization - background

i. 2 reasons(1) Strong commitment of legal profession to unitary bar (a) May have specialties but there is only one type of lawyerand one bar exam(2) Could be misleading since bar doesn’t recognize specialistcould confuse the publicii. Old Exception(1) Patent attorneys(2) Admiral – such a distinct legal system iii. R.N.J. case à SCOTUS STRUCK DOWN thisban

a. controversialDEBATE: can identify self as a“specialist”?

i. AGAINST à can’t do this unlesshave some state certification to this fact (1) Post Bates started putting thin into ads ii. FOR: not saying state certified specialist, just sayingidentifying fact of concentration and 1st amendment protects this b. (d) = SCOTUS hold = Statescould prohibit to the extent the weremisleading i. States began approving specialty programs and then ABAgets into the business and starts certifying (1) FOR: Helps young lawyers try and change specialties andget practice (2) AGAINST: Not fraud but contrary to notion of all lawyersbeing the same (see above) and might mislead public

Firm Names & Letterheads

a. (a) MP = cannot be misleading / false (can’t violate 7.1) i. E.g. can’t call law firm designation of government agency(can’t call red cross if not associated with them)




b. (b) Firm in differentstates / jurisdiction can still use same name (even if lawyers whose names aredidn’t practice in all the offices) i. Not misleading


c. (c) Lawyer in firm w/important public office rule = can’t use name ifnot actively and regularly practicing (don’t have to discharge thepolitician)i. Long history connection between lawyers and politics ii. Concern = worried about getting special favors forclients or if being used to attract clients but wasn’t really doing much atfirm = misleading


d. (d) May imply that they practice in a partnership orother organization only when TRUE i. E.g. VA partnership where they have a common office etc.but everybody keeps their own books and not legally liable for each other(“expense sharing”) ii. Problem = brought in by fact 3person law firm and want that because can talk to each other – but not the case

1. Political ContributionsTo Obtain Legal Engagements Or Appointments By Judges

a. No state says lawyers can’t practice for judge makecontribution to forever b. CAN’T: make contribution causetrying to win particular favor or result in a case c. CAN: appoint you if madelarge contribution if think best person for the job

Alexander v. Cahill

1. State Restriction on Lawyer Advertising MustSatisfy Substantial State Interest & Be Narrowly Drawn to MateriallyAdvance Interest): Firm advertises its legal servicesthrough public media, and commercials had fictional/comical scenes. Court buysstate’s substantial interest in not wanting consumers to be misled.

Hayes v. N.Y. Atty. Griev. Comm. of the Eighth Judicial Dist.

1. (Court Will Not Uphold State’s SubjectiveStandard of Prominence Requirement for Disclaimer of Certification):NY lawyer had firm letterhead noting his certification in trial advocacy but nodisclaimer, billboards w/ disclaimer, and NY’s rule required attorneys whoadvertise they are certified in a particular field to indicated certifyingagency is not affiliated w/ government. Also required prominence of statementof disclaimer of certification to not include greater competence than attorneyhas, but this requirement lacked specificity. Court said rule unconstitutionally applied to Hayes and there was noobjective standard

Bates

1st Amendment Protects Truthful Advertising of Legal Services): 2 lawyers started their own firm, and theirbusiness model was providing services for low-income people that needed legalservices but had trouble getting them. They ran brief informationaladvertisements of their business

Ohralik v. Ohio State Bar

1. Restrictions on In-Person Solicitation ofAccident Victim): personal injury lawyer who found that hospitals are a good place tolook for patients, and goes to the hospital to try to find a girl he knows whowas in an accident. Argued that the First Amendment should extend to his rightto come in and solicit clients. a. Court upheld restrictions on the in-person solicitationby attorney of an accident victim as a potential client.

In re Primus

1. Solicitation More Likely to Be Protected byFree Speech if NOT for Pecuniary Gain): using lawyer ethics rules to prevent civilrights activity. The threat of prosecuting black members of the VA bar just b/cthey were a. Court held solicitation of prospective litigants bynonprofit organizations that engage in litigation as a form of politicalexpression and political association constitutes expressive and associationalconduct entitled to 1st Amendment Protection. b. Solicitation was protected here, because they were notcharging anyone for their services. Nopecuniary gain, so protected by free speech.

In re R.M.J

1. State Cannot Prohibit Advertising of PracticeSpecialties)

Shapero v. Kentucky Bar

1. States Cannot Blanket Prohibit Targeted MailSolicitation But Can Require Disclaimers): attorney requested approval of Kentucky Bar fora letter he wanted to mail to a select list of people in KY who had recentlyhad homes foreclosed. Kentucky Bar said letter was not false or misleading, butdeclined his request on grounds it violated existing state ethics rule. a. The Court held that states cannot prohibit targeted mailsolicitation, but it can require disclaimers. A blanket prohibition on lawyeradvertising is a direct violation of the 1st Amendment protectionsafforded to commercial speech.

Zauderer v. Office of Disciplinary Counsel

State Cannot Prohibit Targeted Print Ads or Use of Illustrations)

Peel v. Illinois

1. State Cannot Prohibit Advertising ofSpecialties & Certifications, But Disclaimers can Be Required): a. Court held the state cannot prohibit advertising ofspecialties or certifications, but it can require disclaimers.

Ibanez v. FL Dept. of Business Regulation

Lawyer May Use CPA & CTA on Business Card)

Florida Bar v. Went For It

1. State Can Impose Waiting Period/Time Limit onSolicitation of Personal Injury/Wrongful Death Clients): lawyer referralservice and an attorney were sending targeted direct-mail solicitations tovictims and their relatives who had been injured in an accident. According toFL Bar rules, such directed and targeted mailings are prohibited for 30 daysfollowing an accident/disaster. a. Court held the state can impose reasonable time limits onthe solicitation of personal injury and wrongful death clients. Here, 30-day waiting period after theaccident. 1st Amendment protection is limited b/c lawyer advertisingis commercial speech. b. Restriction on commercial speech is permissible ifgovernment (1) asserts a substantial interest in support of its regulation; (2)establishes that the restriction directly & materially advances thatinterest, and (3) demonstrates that the regulation is narrowly drawn.