duncan pr spring2010

Professional Responsibility / Spring 2010 / Duncan

I. Relationship of the Law, the Lawyer, & Ethics

Sources of Ethical Guidelines Three perspectives:

o Could (what do rules & law allow or not allow) - legalistico Would (pragmatically, what would you do in X position) - pragmatico Should (if you were being advised by a person who wants you to be the best person you can, what would they tell

you, under the circumstances) – moral Model Rules (since 1983) – Suggestions to the various jurisdictions on rules they could adopt.

o Most jurisdictions, including TX, have adopted them. (CA, NY have not)o Last amended in 2003, so a lot of state versions are based on the old one.

Model Code – predecessor to Model Rules.o Still in effect in NYo Much criticized because it was promulgated with the idea that one lawyer represented one single human client;

didn’t work well with teams, corporations, etc. Ethics Opinions – issued by disciplinary bodies

o Provide guidance, but do not have force of law (not “case law”)o Formal EOs are on general interest topicso Informal EOs are narrow in scope; may address a particular question

Court Decisions – caselaw; does have force of law Actual laws (criminal law, etc) Agency concepts (atty is agent; client is principal; atty owes fiduciary duties to client) When there are conflicts between law and ethics rules: the law trumps the ethics rules. Spaulding v. Zimmerman – Ct sets aside settlement (P was minor at time of settlement) because of misrepresentations to the

court. P’s lawyers hadn’t made proper request to get D doctor report that had found the aortic aneurysm, but D lawyers basically lied to court when they applied for settlement approval knowing that neither P nor D knew about this (misrep that this was a fair settlement when they knew P had undergone more serious trauma than he knew about).

o Questionable whether D lawyers should have told P after the fact; D lawyers probably should have told D o Potential rule violations/implications:

1.4 (client coms) – keeping client (D) reasonably informed; may have violated this 1.6 (confidentiality) – 1.6b1, atty may disclose conf info to prevent reas certain death/BH 3.3 (candor to the tribunal) – probably did violate this; this is what the court has a problem with here 4.1 (truthfulness in statements to others) – doesn’t really cover this bc this was an omission.

The Lawyer’s Role – Prostitute, parent, “bad man”?o “Bad man” = “cares only for the material consequences which his knowledge enables him to predict”o 1.2b – representing someone doesn’t mean you are endorsing that viewo 1.2d – you can’t counsel someone how to do illegal things, although you can explain consequences of actions

Pitfalls for the Unwary Matter of Krueger – Client needed to be resident of the state to file; atty didn’t tell client to lie but did tell him how to

“manifest an intention” to continue in-state residency (renting a room there) despite no longer living there & probable intent not to do so in future. Not ok because atty at least facilitated dishonesty to the court.

Lawyers are not immune to any kind of law. You can be prosecuted/sued even if you really were pursuing client interests. Commonwealth v. Stenhach – 2 criminal defense attorneys convicted of hindering prosecution and evidence tampering;

their ∆ had told them where to find gun piece and they went and got it but never turned it over to prosecution.o Ct ruling 1: their retention of the evidence was improper. Viol. 3.4a

A-C Privilege protects COMMUNICATIONS, not EVIDENCE After “reasonable time for examination,” ∆ atty must either return to the source if that can happen w/o

harming the evidence or its availability; OR must deliver to prosecution on own motion. If ∆ atty hands over, prosecution shouldn’t be able to say they got it from the defense atty. When ∆ atty moves or takes physical evidence, he deprives prosecution of chance to find/observe in its

original state. Note: if ∆ atty only LOOKS AT but doesn’t touch, no obligation to do/say anything!!! No alter/conceal.

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o Ct ruling 2: statute about evidence tampering was overbroad re: criminal ∆ attys because it covers constitutionally protected conduct as well (the statute would also cover if a ∆ gave a written statement of guilt to atty, but atty obviously can’t turn that over without client permission!)

Belge (“Dead Bodies” case) – lawyers were told where murder victims’ bodies were; key difference is that they didn’t touch or alter anything, only took pictures. Revealed location of bodies after the trial.

o Lawyers weren’t PERMITTED to tell where the bodies were under 1.6 unless there’s an exception (and there isn’t)o Legally they did the right thing, but there was a huge public outcry; their lives were ruined

Rules re: lawyers & evidence:o A lawyer must not act in or help the destruction or unlawful concealment of evidence. o If a lawyer leaves evidence where she finds it, she can’t be compelled to reveal information gained from a

privileged communication.o If she messes with it, she can’t alter or do anything to conceal or destroy either the evidence itself or evidence of its

location/conditiono If she takes it, she can’t return the evidence to a source if she has reason to believe it will be destroyed or

concealed, or it will break chain of custody.o She will probably have to turn it over to authorities (that’s the general rule)o EXCEPTIONS:

Evidence created by defendant, to atty, as part of a defense (statement by defendant, etc) – falls under A-CP umbrella; the fact that a comm. itself is physical does not rob it of ACP protection.

Evidence that the state couldn’t compel a ∆ to produce against his will (constitutionally) MR 8.4 – Lawyers CAN be disciplined for actions outside of practicing law

II. Conformity to the Law

Levels of Lawyer Liability – Criminal, civil, disciplinary (in worst to least order)

Criminal Law US v Gellene – Federal criminal case; ∆ (an atty) was convicted of “False swearing” - knowingly/fraudulently making false

material declaration and using a document under oath knowing it contained false material declaration. (Bankruptcy case in which Gellene was required to disclose any connection his firm had with anyone involved; Gellene didn’t disclose firm’s rep of several businesses that had interest in debtor.) Other side objects bc disinterested person should rep the debtor.

o FRE 404b – other side allowed to intro other instances of D’s dishonestyo Ct upholds the convictions; D tries to say “this was just bad judgment” but ct says no; D tries to say he didn’t “use”

the doc because he didn’t refer to that paragraph, but ct says noo False swearing is broader than perjury; perjury requires willful lying; false swearing requires “knowing/fraudulent”

which = aware of need to disclose o “material” = tendency to influence person to whom it is addressed

Ordinary lawyering activity can = actus reus in these kinds of crimes; mens rea can be inferred from being a lawyer! Perjury (18 USC §1621)

o Intentionalo Falsehoodo Under oath (not necessarily at trial! Could be depo, etc)o About a matter material to the proceedingo NOTE: there is no such thing as “attempted perjury” – it either happens or it doesn’t

Under MR 3.3 – if you put someone on stand/under oath and they then commit perjury, you are obligated to take reasonable remedial measures, including possibly disclosure to tribunal

o Could try to impeach own witnesso Could approach bench and disclose to judge

False Swearing (18 USC §1623) – relaxes perjury burdeno Falsehood Knowingly offered under oath, not willfullyo If defendant has made two contradictory & irreconcilable statements under oath, prosecution doesn’t have to prove

WHICH one is false (which it would have to under 1621).

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D can avoid conviction by showing she believed each to be true at time she gave each

Subornation of Perjuryo Inducing, instigating or encouragingo Another to testify falsely (commit perjury)o Perjured testimony must actually be offeredo If no perjury results (atty tells them to but they don’t) atty can still be convicted of OJ

Obstruction of Justice (18 USC §1503, 1512b, 1519)o Influencing, intimidating or impeding the administration of justiceo Means need not be unlawful; ordinary lawyering can be used for improper purpose & it countso Official proceeding not necessarily required o §1519 – can’t alter/falsify/destroy documents in attempt to OJo Cintolo – giving advice to client supported OJ conviction (he told his immune client not to testify bc it would hurt

his other clients’ cases ;this is improper)o Arthur Andersen – firm convicted of OJ; firms are not immune to criminal prosecutiono TX obstruction statute : §37.09 – it is a crime if a person “knowing that an investigation or official proceeding is

pending or in progress … destroys .. any … document … with intent to impair … its .. avail as evidence in the inv or proceeding”

Tort Law Generally, atty doesn’t owe duty of care to people outside the AC relationship, EXCEPT in a Greycas situation. Greycas v. Proud – Lender P required letter from ∆ atty (re: person’s assets) to give a loan: ∆ and guy were related; stuff is

totally encumbered with other liens but atty letter says it isn’t. P is not ∆’s client but wants to sue for misrep/malpracticeo Distinction between malpractice and negligent misrep: They overlap because both are negligence actions, but

malpractice is narrower.o Neg Misrep CAN be brought by anyone who can show duty/breach/causation/damage – it can be a third

party and doesn’t have to be a client. Ct allows NM here. ∆ atty had duty to use due care to see that the info given to P was correct.

o Legal malpractice traditionally was just something clients could sue for, but court allows it IF “the primary purpose and intent of the A_C rel itself was to benefit or influence the third party.” (and the 3P relied to his detriment).

o This really would have qualified for intentional misrep, but that’s not what P argued.o What about the fact that Atty’s client told him it was unencumbered? Atty has responsibility to verify easily

verifiable things.o What if 3P knows atty is repping a family member? That might speak to comparative negligence re: how

reasonably 3P can rely. Texas allows suits for negligent misrep by third parties, but not suits styled as “professional malpractice” (need

privity for malpractice suits). Fraud Elements

o Materially false statemento Made w/ intent to deceive OR reckless disregard for truth/falsityo Reasonably relied on by Po Damages

Assisting the Client in Tortious or Illegal Conduct MR 1.2d: you can’t counsel client to engage in or assist criminal/fraudulent conduct

o BUT you can discuss legal consequences of proposed actionso You can tell them where the line is.

How far can you go? You may be subject to liability when:o Client engaged in illegal conducto Atty knows enough to know what client is up to (to know that it’s illegal), ando Atty facilitates the conduct through advice (how to avoid detection, etc), or an act, or encouragement to do it

Rest. §348 – lawyer can be liable if he “knowingly assists in commission of tortious fraud” by client Similar to agency law; are the lawyer and the wrongdoer acting in concert?

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Lawyer’s innocent counsel might be used for bad things, but lawyer won’t be in trouble if he really didn’t know (and wasn’t just willfully blind – avoiding knowledge won’t protect you)

Reckless Lawyering Recklessness is often the standard for transforming “otherwise innocent activity” into a crime or civil fraud. US v Benjamin – Convicted attys argued they were just incompetent and didn’t mean to help commit securities fraud; ct

rejects this and says Gov’t can meet burden by proving that a ∆ deliberately closed his eyes to facts he had a duty to see … or recklessly stated as facts things of which he was ignorant.” Can’t shut your eyes to “what was plainly to be seen”

Once it becomes hard to believe that any halfway decent lawyer would have failed to recognize the fraud, the lawyer is in danger of being found reckless

Corporate Fraud & Lawyer Action MR 1.13: lawyer for an org represents the ORG, not the individual constituents

o Lawyer’s duty to advance and safeguard client interests runs to the ENTITY, not management or other peopleo Lawyer does not need an exception to duty of confidentiality to report constituent misconduct within the client org

Difference between current and old 1.13 is that the current version allows whistleblowing outside the org if necessary (after taking it to the highest level internally), while the old version didn’t; only thing you could do in old rules, after telling people inside org, was resign

SEC v. Natl Student Mktg Corp – Issue here is whether the Interstate attys aided/abetted a violation of securities law.o Rule 10b-5 – unlawful for anyone to directly or indirectly make any untrue statement of material fact OR omit to

state a material fact necessary in order to make statement not misleadingo Primary vs secondary violations

Primary: directly violates the rule Secondary: helps a primary violator do it (This is the issue in NSMC)

o If there’s a violation of securities law by a principal, and attys knew that their role was helping it, & atty gave substantial assistance, then atty can be held secondarily liable

o Ct says these ∆s violated it via failure to interfere with the merger after finding out the financials weren’t true; attys CAN be held civilly liable (by SEC) for secondary violations of securities laws

They could have told their client; they could have withdrawn their opinion letter and resigned if you told client and they said “I don’t care”

o Elements of Secondary Violation: Commission of primary violation by another General awareness of violation Provide knowing and substantial assistance of violation

Central Bank – Private investors cannot sue attys based on secondary liability; No private cause of action for this Klein v. Boyd – Drawing the line between primary/secondary violation. Can atty be primarily liable for a violation when

the Ps didn’t even know at the time that the Attys had anything to do with it? Yes. Law firm doesn’t owe fiduciary duty ot investing public, but law firm can be held primarily liable if they “significantly participate in the creation of the client’s misrepresentations” – the statute says the y have the duty to disclose things that if absent render doc misleading/false

o Elements of Primary Violation Knows or reckless in not knowing of misrep Knows or reckless in not knowing misrep will be relied upon Played substantial role in creation of misrep Misrep is materially misleading In connection with purchase or sale of securities Plaintiff reasonably relied upon misrep Plaintiff suffered econ loss as a result

o Plaintiff does NOT have to show he relied on defendant’s role in the preparation of the misrep – just that he relied on the misrep.

o MR violated here: 4.1a, b

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III. Confidentiality

A-C vs Confidentiality: ACP is only implicated during a legal proceeding when a lawyer is being compelled to testify; it is interpreted narrowly. Confidentiality ismuch broader – implicated at any time, anywhere, regardless of source, regardless of when you rec’d the info, if the info is related to the representation. If Priv, DEFINITELY Conf. If Conf., MAYBE Priv.

Attorney-Client Privilege Restatement definition:

o Communicationo Made between privileged persons (atty, client, and agents of either)o In confidenceo For purposes of providing or obtaining legal representation

Even advice qualifies. Wigmore Defn

o Where legal advice of any kind is soughto From a professional legal adviser in his capacity as sucho The comms relating to that purposeo Made in confidenceo By the cliento Are at his instance permanently protectedo From disclosure by himself or the legal advisoro Except the protection be waived

“Client” includes a prospective client, and a lawyer who seeks legal advice from another lawyer “In confidence” – you can mess up your privilege if you make the comm. w/ other people in room, or where you can’t

reasonably expect privacy If it’s in place, the client can’t be forced to answer “Did you tell your lawyer X” and the lawyer can’t be forced to answer

“Did your client tell you X” Lawyer’s OBSERVATIONS are not communications, unless it’s observing client do something in response to question. Privilege protects documents if prepared for the purpose of seeking legal advice, but not preexisting ones or ones made for

another purpose (business records, etc). Also does not protect comms made too early (i.e. before seeking legal adv/rep) Physical evidence not covered Generally not covered: client’s name, fact that the client has retained the lawyer, details of retainer or fee and who paid it

o Exception: when the identity of the client would reveal the “last link” in chain of evidence necessary to convict client of a crime. (EX: Client gives lawyer a check to send to IRS anonymously for underpayment of taxes)

How to assert: client must appear, testify and invoke the privilege in response to a particular question Upjohn – IRS was attempting to find out info from overseas employees to Upjohn when it conducted investigation about

whether its sales people were bribing foreign officials—clearly not within control group of corporation (lower down employees), but they were the ones most likely to know about it!

o Supreme Ct said atty-client privilege extends from highest employee to lowest employee of corporation as long as the communication is for the purposes of seeking or rendering legal advice (for the corporation). (Upjohn Test). Comms were to attys in their capacity as attys, at direction of corporate superiors.

o Abandoned “control group test,” prior test re: privilegeo Note that former employees’ questionnaires are not protected by ACP; but they are protected by WP

Work Product – Protects atty mental impressions/opinions; must e created in anticipation of litigationo Fills gaps of ACP; like ACP, doesn’t cover the underlying facts themselveso Hickman v Taylor – classic WP (Atty notes from interviews with witnesses)

Fisher – Can atty protect the docs, if they would have been protected if client kept them?o Atty can’t assert 5th Am privilege on behalf of client because 5th Am is only for self-incriminationo If client had to turn it over, atty does too – client can’t create AC protection by giving it to attyo Issue becomes: Would client’s 5th Am privilege be violated if the CLIENT still had the docs & was made to turn

them over? In this case, we would count that under ACP if it would have been protected in client’s hands. Just like you don’t want to create ACP by turning things over, you don’t want to lose 5th Am privilege by giving to lawyer; no clients would give attys anything.

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If you’re an atty – assert ACP when appropriate (when client would be able to assert 5th Am)o Must constitute 1) compelled 2) incriminating 3) testimony to raise 5th Am issue.o Caveat: there really isn’t much that you can’t make a defendant produce under 5th Am.

BUT: Hubbell – suddenly opens door again for 5th Am protection by ∆s.o Hubbell was requested to produce documents and says that the production of documents itself would be both

testimony and incriminating (merely having the documents was bad; turning them over means you are saying “I have these!”)

o Act of Production Doctrine – in some cases, the very act of production can be incriminating because it says “These exist” and “I have them.” If you are forced to turn over, then it’s compelled incriminating testimony.

o Prosecutor was willing to give immunity for producing the documents but did want to use the contents against ∆. Ct doesn’t let that fly here because he had to help ID what documents were responsive (“give combination vs hand over key to lock”)

o Ct’s result: 5th am privilege turns on whether one has to exert mental energy to lead gov’t to incriminating evidence, or whether the incriminating evidence is in a form (heroin stash, etc) that requires little mental energy to disclose to gov’t

o Basically gives broader 5th AM production protections to those who commit crimes via documents than through other objects

Exceptions to A-C Privilege Client crime or fraud

o Lewinsky – atty prepared and L signed affidavit denying sexual relationship; sworn true under penalty of perjury. She is later being investigated for perjury and OJ. Issue: does CF exception apply? Yes, it does; doesn’t matter if atty knew about the crime/fraud; L is the privilege-holder so it’s her knowledge/intent that matters.

o Elements : privilege won’t protect that comm If client knows or reasonably should know Atty consulted To promote intended or continuing (NOT PAST) Criminal or fraudulent activity

o Why do we have this exception? Because this is a misuse of privilege to keep testimony out of court. Waiver

o Client can waive ACP by: 1) consent: client has given permission to divulge info, or comm has been disclosed outside of the

relationship 2) conduct inconsistent w/ maintaining the privilege: failure to object to an attempt by another to obtain or

provide evidence of a privileged comm.o Only the client can waive the privilege, but, because lawyers have implied authority to waive ACP rights, a

lawyer’s actions could end up waiving it tooo Columbia Healthcare – Columbia had produced documents to the DOJ in an agreement that would supposedly let it

keep its privilege. Ct says Columbia has given up its privilege. (Private parties are suing after the DOJ investigation and they want to get these same docs.)

Ct evaluates whether to allow “selective waiver” and decides not to. General rule is that if you waive it to one party, you waive as to everyone. Ct declines to make special rule for gov’t.

Contrast with “limited waiver”: only waive as to the disclosed info, not everything under the representation

o Scope of waiver Subject-matter waiver: broad. If client in depo says “Lawyer said X to me about Y,” client has put it into

issue and have waived as to all communications about Y. (“Waiving by putting in issue”) Waiver as to conversation: narrower. Say client talks about one conversation with a friend. Privilege is

probably waived as to that specific conversation, but not all of the subject matter. Why different? Friend convo isn’t being used to help your legal rights; that’s an extrajudicial occurrence.

But if the disclosure is during a legal proceeding , it’s a total SM waiver. Can’t cherry pick what you want to protect in a legal proceeding.

Dispute concerning a decedent’s disposition of property

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Lawyer self-defense Disputes in which a trustee/fiduciary is charged with breach of fiduciary duty by a beneficiary Disputes between reprsentatives of an org client and constituents of the org Joint representations: comms made by any of the clients to the lawyer on the subject of the joint representation are

privileged as to the rest of the world, but not to each otherAtty-Client Privilege – TRE 503

Client – rendered professional services by a lawyer OR consults with a lawyer with a view to obtaining professional serviceso Defn was extended so that your initial consulting w/ someone you dn’t end up hiring is also privileged

Representative of client – employed by client and who, as part of the legal representation, makes or receives confidential communications or someone who has authority to obtain and act on legal advice (Upjohn Rule)

o Because, who makes up the entity? If a corporation, it’s individuals. If VP goes out and gets legal advice, that should count; so should it if someone further down line (in HR, in plant, etc) has to go get legal advice

o What about those employees who are further down chain and their info is necessary for lawyer to give advice, get advice, etc?

o Texas has adopted similar rule via this part of TRE 503; this encompasses both control group test and Upjohn Test Lawyer – licensed atty OR someone reasonably believed by the client to be licensed Representative of Lawyer – one employed by lawyer to assist the lawyer in giving legal services OR an accountant who is

reasonably necessary for the lawyer giving legal serviceso PIs, anyone you hire to help

Confidential Communication – not intended to be disclosed to third persons other than necessary to further the representation or reasonably necessary for the transmission of the communication

o Designed to protect confidential comms between lawyer and client; if you’re out talking about it in public, easily overheard, that is not protected.

o What about something like you are trying to be secret, but someone eavesdrops? Common law rule was, the privilege was waived; under 503, it just has to be “not intended to be disclosed,” so eavesdropper doesn’t automatically waive the privilege.

General Rule: A CLIENT has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to client.

o Lawyer can claim on behalf of client, but it’s up to client to waive it Covered Communications

o Between client or representative of client and the lawyer or rep of lawyero Between lawyer and lawyer’s representativeo Common interest lawyers (multiple parties on same side of case)o Between reps of client or between client and reps of cliento Among lawyers representing same client

Criminal Caseso Any facts learned by the lawyer or the lawyer’s representative by reason of the atty-client relationship

Who Holds the Privilegeo The client, but others may claim on client’s behalf

Ex: lawyer in deposition may instruct witness not to answer Objection in depo alone does not preserve privilege bc witness still has to answer – have to tell them “And

I instruct witness not to answer the question.” If witness goes on and answers the question, what’s the point of having the privilege?

o in Commodity court held the trustee in a bankruptcy proceeding controlled the corp.’s assertion of the a-c priv. the priv. could not be claimed by the pre-bankruptcy managers Even before this, it had long been recognized that a corp.’s management could waive the priv. for their

predecessor’s otherwise-protected disclosure to corp. counsel.o in Garner 5th allowed litigants in a shareholder derivative action to show good cause why management should not

be allowed to invoke the priv. among the factors courts consider are:

the stakes of the shareholders actively participating in the lit. the nature of the claims they are making, and other evidence that management acted wrongly or not in the shareholder’s interest

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o The Garner approach has been extended to other cases involving fiduciary rel.o All, of course, mean that no corp. officer can ever be sure that priv. disclosures to corp. counsel will remain conf.

Exceptionso Crime – Fraud; you are still in process of committing crime or planning to commit one in future

Lawyer doesn’t have to know he is being consulted for purposes of committing a crime/fraud as long as that IS what he’s being consulted for

o Claimants through the same deceased client (will fight)o Breach of duty by a lawyer or client (malpractice cases)o Lawyer is an attesting witness to a documento Joint clients

Identity of client as a confidenceo Questions of what constitutes protected comm.. recur in situations in which such details of the a-c rel. as meeting

dates, fee arrangements, or the client’s name are sought.o Ordinarily courts assume such disclosures relating to such matters were not intended to be confidential. But

sometimes they don’t.o Consider, for example, cases involving a client’s identity. There are three types:

Bagman atty is just acting as the go-between one circuit held client’s identity was priv.

Whistleblower lawyer relayed information about wrongdoing to appropriate authorities; he was jailed for contempt for not disclosing identity, but NY court of Appeals reversed

Sugardaddy where a 3rd-party pays for atty 5th held privilege did not attach to identity of 3rd party payor

o When courts do sustain claims of priv. with respect to identity, etc. there are three overlapping rationales: first, is communication rationale, which allows priv. when disclosure would connect the client to an

already disclosed but otherwise priv. comm.. second is the legal advice rationale, which extends priv. when the name of the client would show her guilt

in the very matter for which the atty was employed the third is the “last-link” rationale, which holds that when the client’s name, etc., is the last link in a chain

of incriminating evidence, the priv. attaches Criminal cases – do not ask client whether they did it! If you know they did it, and then they get on stand and say they didn’t

do it, that is a bad ethical situation for you Physical Evidence

o General client should not lose any priv. when turning over objects to atty, such as 5th amend; conversely, he should

not gain an priv. by turning over object to atty NOTE: generally, do not take anything from your client that is contraband, and be hesitant to take

anything that is not contrabando Objects as communication

physical objects themselves probably are not priv. absent a communicative component. thus, if a client drops what appears to be a safe deposit box key on his desk without saying

anything, the key itself probably is not priv., but the act of dropping it on the desk may be as it implies, “Hey go check this out.”

thus, even if opposing side gets physical evidence from atty, priv. will probably keep atty from disclosing that atty got it from client

e.g, most courts treat photographs of generally accessible places as not o Lawyers Acquiring Evidence

Finding it independent of the client atty probably can be compelled to describe the evidence and how she found it

Client tells atty where to find evidence state’s ability to question atty is likely to be circumscribed

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But courts usually condition the availability of the priv. on disclosure, through stipulation or testimony, of the circusmstances and condition in which the evidence was found

o Issue of how opponent intends to use it as long as a party could have acquired and introduced evidence had the opponent’s atty not acquired it, the

party may acquire and introduce evidence that the opponent gave to her atty, assuming opponent is just trying to use solely the physical evidence as evidence.

However, physical evidence given by a client to an atty in confidence in order to secure legal advice is protected by the privilege if the evidence would have been privileged had it remained in the hands of the client.

this is an issue in instances of “pre-existing documents.” if a document was prepared prior to a the existence of a legal controversy, it may ordinarily be

subpoenaed.o Contraband rule

The general rule that evidence given in confidence to an atty may not thereby be linked to the client is not followed all the time in contraband cases, and attys can be compelled to disclose how they got it.

rationale: it is not part of an atty’s business to be a conduit for stolen property thus, an atty should inform client what he may have to do with it, if client gives it to him

Can a lawyer be a business advisor? Sure, nothing wrong with a lawyer acting as a business advisor. (this is more a question of prof resp than privilege)

o Although it would be prudent to inform president that the info coming to you will not be privileged, because you are not receiving it as a lawyer but as a business advisor!

o Would also need to be concerned about the document destruction stuff; if entire scheme is designed to prevent discovery, ct won’t like it (spoliation)

What about reports you give to the lawyer? Other side can get it. It’s DATA, not what was communicated to lawyer. But what about the problem that nothing exists except what was given to lawyer, because they destroyed everything else?

o Will probably hinge on “is it the same data or has it been altered in some way for the lawyer.” If it’s same, prob ok; if it has been specially changed for lawyer, getting closer to a communication.

When does the atty-client privilege begin?o Does the relationship have to exist? NO – someone consulting for PURPOESE OF SECURING rep counts.o Does lawyer’s revealing the stuff at a party waive AC privilege, assuming it exists? NO, it’s not her privilege!

She may be in trouble for talking about it, but she can’t “waive” the privilege bc only client can do that.o Will it affect Davis’ ability to claim privilege later? Noo Would it be different if K. agreed to take D as client? Noo Suppose Davis was talking about it? Has she waived privilege? YES, talking about it in public like that

Anti-Contact Rule MR 4.2 – can’t talk to a party who has representation, even if they approach you – you have to deal w/ their lawyer

o Standard here – “knows” party is represented; means actual knowledge; but under 1.0 can be inferred from circ. ONLY proper responses if they approach you: 1) I can’t discuss that with you; 2) You should discuss that with your lawyer Includes communications thru third parties, such as you having your paralegal do it – 5.3 + 4.2. When dealing with an organizational opponent: should avoid talking with A) employees involved in the incident and B)

employees who consult with the lawyer on the matter in question or have the power to compromise/settle ito Some jurisdictions apply “control group” test for anti-contact rule

In criminal cases – o “Authorized by law” plus 6th am only extends to people who are already indicted or arraigned means that the gov’t

probably can use informants to gather evidence from unindicted suspects, as long as it does’nt violate 5th am (prohibiting custodial interrogations outside presence of counsel where suspect has requested a lawyer)

Professional Duty of Confidentiality Scope of duty of confidentiality: Very broad

o MR 1.6a: “shall not reveal” unless impliedly authorized; client consents; or 1.6b exception applieso Covers info concerning matter of representation W/O regard to source, or when learnedo Extends past the end of the representation

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o Something can be confidential w/o being privileged Confidentiality differs from AC P in big ways:

o Setting – ACP is asserted only in judicial proceeding when lawyer is compelled; Conf is all the time & all matters relating to client rep.

o Source – Conf protects info from ANY source; ACP it has to be from cliento Privacy – ACP the comm. has to be confidential (no 3Ps etc); Conf it doesn’t matter.o Use – ACP arises only in litigation; Conf covers both disclosure and use of protected info

Disclosing Confidential Information: 1.6b Exceptions: May reveal, to extent lawyer believes reas. necessaryo *****ALWAYS try to get consent first under 1.6a!!! That is way easier than a B exception.o B1 – to prevent substantial bodily harm or reasonably certain deatho B2 – future client fraudo B3 – “prevent or rectify” past client fraud (where client already did it, but consequences are still playing out)o B4 – legal advice for complying with MRo B5 – self-defenseo B6 – comply with other law or court order

Subpoena, deposition, interrogatories, etc State reporting statutes (say, TX law that you must report child abuse if you hear about it)

Former clients’ info still protected from disclosure under 1.9 Using Confidential Information: Test is disadvantage to client.

o 1.8b – Can’t use client’s conf info at all if use will disadv client, unless client consents after consultation. Note that if it doesn’t disadv client, or if you have permission, Divergence from agency law; in agency

law, you can’t use it to help yourselfo Former clients – still can’t reveal info (1.9c); as to use, can’t use it at former client’s disadvantage unless it has

become generally known. Self-Defense Exception

o Meyerhofer – P firm sues Empire and firm for SEC fraud; Goldberg worked on deal and had alerted firm to problem but they ignored him, so he resigned and filed affidavit with SEC about the wrongdoing. P includes Goldberg as a ∆ and he gives affidavit to P firm to show he was not involved/was trying to raise red flag before being named as a defendant. Ct says Goldberg did not violate ethics rules because he can reveal conf info to defend self against accusations of wrongful conduct.

Note : Goldberg probably should have redacted a bunch of stuff in there & probably revealed too much; 1.6 only allows revealing it to extent reasonably necessary

1.6 also requires it to be client’s commission of crime/fraud and it’s unclear here whether client knew about the fraud or requested it.

1 .13 – Goldberg probably needed to go all the way up inside his firm before going out to file affidavit w/ SEC. That may have been a violation too.

o Meyerhofer still was disqualified from participating in suit bc of loyalty issues, but not bc he did anything wrong Client fraud exception

o OPM – Pyramid scheme; attys’ work here helped clients continue making all these fraudulent deals and keep getting loans even though they knew they wouldn’t be able to repay them. Attys actually facilitated the fraud. This fits perfectly into 1.6b3 – the attys didn’t know at first, and did not find out until after their facilitation had already happened, but the results were still playing out

Details count; lawyer who just noticed something funny in lease unraveled the whole thing Do not rely on reputation/diligence of others Inquire closely into your client’s termination of long-term advisors Learn client’s business and keep abreast of its financial affairs When trouble arises, consult a lawyer No wishful thinking Don’t lie to successor counsel because that can make you part of the crime/fraud!

o MR 4.1b – Lawyer shall not knowingly fail to disclose to 3P when discl is necessary to avoid assisting in a criminal/fraudulent act unless discl is prohibited by 1.6.

But it’s not prohibited if an exception applies (here, 1.6b2/3)

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o In past, when 1.6b2/3 weren’t in there, you couldn’t report out but could withdraw under 1.16. Withdrawing silently wouldn’t warn anyone of the conduct so you might still be on the hook for civil or even criminal liability for enabling the fraud. Solution in past – “noisy withdrawal” – withdraw and maybe send letter like “I am no longer counsel for X and you should consider seeking independent legal advice w/ respect to Document Y that I sent you before.” Obviously this tells them something is wrong w/ doc Y.

o Be reeeeeeeeeeeeeally careful about continuing on as usual after client tells you something damning! Death/injury exception & In-house counsel

o Balla v. Gambro – Balla is in-house counsel and knows some of the dialysis machines are bad; president decides to sell anyway so he appeals all the way up; president hten fires him. Balla sues for retaliatory discharge. Ct says inhouse counsel shouldn’t usually be able to sue for RD because they already have duty to disclose this stuff under rules, so it’s no choice for an atty anyway.

Version of MR here was different because atty was required to reveal the conf info to prevent death/SBH. This did fall under that exception so he was required to disclose it (under MR, he would have been allowed to but not required to)

Dissent – should have COA when atty advises not to do something, client fires them, then goes on & does o Stewart – GTE general counsel was v highly reviewed, then wrote memo on safety issues he saw. Supervisor then

gave him a relaly bad review and Stewart resigned (thinking he was about to get fired). Ct said he didn’t establish elements of constructive discharge because the one bad review wasn’t enough on its own.

Constructive discharge : new working conditions would have been so difficult/unpleasant that a reas person in the employee’s shoes would have felt compelled to resign.

o Trend in other courts is away from Balla. Now many cts do allow wrongful termination. General Dynamics was first one to recognize retaliatory discharge tort claim for terminated in-house

lawyers). But ct restricted it to claims that could be established without breaching ACP. Other courts are less restrictive; read MR 1.6 self-defense exception as removing any conf concern

o Hawkins – ct distinguishes Tarasoff and says there is no common-law duty to warn client’s mother because client’s mother knew he might harm her

Main ruling here : door held open; atty MAY have common law duty to warn only when it appears beyond reas doubt that client has formed firm intention to inflict serious personal injury on an unknowing, identified third party.

Asserting Confidentiality in Ct.

Ordinarily, 1.6b6 – complying with a court order or other law – enables you to reveal client confidences if ordered by ct, etc.Note that if it is protected by Attorney-Client Privilege – ct CANNOT compel you to reveal that info, because the privilege belongs to the client. Big diff btw ACP & Conf.

MR 1.6b6, Cmt 13 – if attorney is subpoenaed to testify

Arguments that a lawyer DOES NOT have to assert nonfrivolous objection if he has one (discretionary)1. The rules allow attorney to reveal to comply with law2. Rule 3.4 requires attorneys to comply with court orders3. Even though 3.4 permits an objection, no rule requires an objection4. Comment 13 to 1.6 is just a comment5. The language of Comment 13 is not mandatory (attorney "should" object, not "must" object). While good ethical practice suggests objection, an attorney would not be subject to discipline for failing to object.

The rules of professional conduct provide certain exceptions to confidentiality to balance that value with other important values. One critical value for attorneys is fidelity to the law. Thus, Model Rule 1.6(b) provides that "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:... (6) to comply with other law or a court order." Must an attorney risk contempt of court by disobeying a subpoena simply because there is a possible argument regarding the attorney-client privilege? There is simply no rule that requires an attorney to raise an objection in these circumstances. Indeed, the clear obligation in the rules is for the attorney to obey a court order. (See Rule 3.4(c) "A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.")

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You may well argue that comment 13 to Rule 1.6 creates an obligation to raise an objection. First, I am unwilling to concede that comments to the rules provide substantive law. Consider comment 14 to the Scope section of the Model Rules "Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules." Moreover, note carefully the language of this comment: "A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law." While this comment, and the language of Rule 3.4(c) both suggest that an attorney would not be wrong to raise the objection - and perhaps even suggest that the better practice would be to raise an objection -- nothing in the rules compels this course of action. An attorney is free to simply obey the law and provide the subpoened testimony without raising the attorney-client privilege exception.

Argument that the lawyer DOES have to assert objection if he has one1. The attorney's duty of diligence requires an attorney to "take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor" (Rule 1.3, comment 1) 3. The attorney has a duty to communicate important matters with the client (Rule 1.4) and waiving a privilege objection is a critical matter. 3. Rule 3.4 provides that an attorney need not obey a court order if he or she believes the order improper and openly objects. 4. Disclosure without raising an objection based on privilege is not reasonably necessary when an objection is not a difficult measure to take to protect the privilege. 5. Comment 13 to Rule 1.6 indicates that an attorney who lacks client consent to testify and has a non-frivolous argument that the testimony sought is protected by the attorney-client privilege, needs to raise that objection or the attorney will have violated the duty of confidentiality.

First, let's consider the attorney's duties besides confidentiality. An attorney's duty of diligent representation requires an attorney to "pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor" (Rule 1.3, comment 1) and the attorney's duty of communication requires giving the client sufficient information "to permit the client to make informed decisions regarding the representation." (Rule 1.4) How, then, could the attorney unilaterally choose to abandon a valid attorney-client privilege exception and simply testify?

Well, you might say, an attorney also has a duty to obey a court order. And I agree. But look at the language of Rule 3.4(c) regarding the obligation to obey the court's rule. It provides that "A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." (emphasis added). Doesn't this mean that an attorney's obligation to obey court rules is not an obligation to blindly obey?

Moreover, let's consider the text of Rule 1.6. Yes, the rule does provide that "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:... (6) to comply with other law or a court order." But notice that the disclosure is only "the the extent the lawyer reasonably believes necessary." How can an attorney reasonably believe it necessary to testify about matters the attorney believes are arguably protected by the attorney-client privilege without securing a court's ruling on that question? In fact, comment 13 to Rule 1.6 makes an attorney's obligations clear in this situation: "A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law." It think it is crystal clear that an attorney who lacks client consent to testify and has a non-frivolous argument that the testimony sought is protected by the attorney-client privilege, must raise that objection or the attorney will have violated the duty of confidentiality.

**********Both arguments are good – this is an unresolved issue.

What if judge denies objection?Atty must consult with client about possibility of appeal, and must seek review of the order compelling testimony if she can obtain a stay of the order and interlocutory appeal, but atty IS NOT required to run the risk of contempt in order to avoid obeying the ct order.

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IV. Conflicts of InterestA v. B

Purpose of Conflict of Interest Law: Most lawyers will represent multiple clients over the course of their careers, so we have to have some kind of regulatory

scheme to protect those clients Reasons to constrict conflict rules strictly:

o Loyalty to clients; clients expect lawyers’ loyalty to be undivided; Vulnerability of the client to disloyal acts from the lawyer; lawyer should put client’s interests first, but if lawyer has a conflict, lawyer may put own interests first.

Lawyers are agents and are governed by agency law.o Confidentiality: client’s shouldn’t have to worry that info they tell lawyers will be used against them later

Protect attorney-client relationship, facilitate trusto Process integrity/Concerns about the quality of representation – lawyer conflicts can harm the quality of lawyer’s

services as well as the AC relationship Courts have an interest in the effective presentation of the adversaries’ cases by loyal advocates

Reasons to constrict them more loosely:o Client Choice & Availability of Counsel: overly strict conflicts rules deprive clients of the lawyer of their choice

Encompasses taint shopping, too much imputation – no one can get a lawyer!o Economic liberty of lawyers: overly strict rules would prevent lawyers from ever changing jobs

Might also lead firms to ratchet up rates because taking one client would mean that you were really passing up a LOT of other opportunities

o Avoiding gamesmanship: cts may not enforce strictly bc don’t want silly game playing

Overview of Types of Conflicts: Concurrent Representation – MR 1.7

o Both are current clients or prospective clients (or one current/one prospective)o Consent-plus rule applies (consent of both clients PLUS the lawyer reasonably believes he can provide competent

& diligent rep to each affected client) Successive Representation – MR 1.9

o One former client and one current or prospective cliento Always cured by consent of former client – no “consent-plus”

Imputed Conflicts – MR 1.10o Disqualification of one lawyer due to conflict can be imputed to lawyer’s whole firmo NONE of the lawyers at a firm can represent a client if any one of them alone would have a conflict under 1.7 or

1.9o UNLESS the conflict is just based on personal interest of the one lawyer, AND does not present significant risk of

materially limiting the rep by other lawyers at the firm Gov’t Lawyer Conflicts – MR 1.11

o Special rule for current and former gov’t lawyers

Concurrent Conflicts MR 1.7a says a lawyer SHALL NOT represent someone if a concurrent conflict exists, except for 1.7b. Defn of CCI

o Representation of one client will be “directly adverse” to another client If you rep Client A for one thing, it’s a conflict to rep someone suing Client A, even in an unrelated matter Paradigm is one client suing another, but don’t forget that co-Ds or co-Ps can be adverse Connected to loyalty concerns ECONOMIC competition usually does not make clients materially adverse Can potentially occur in transactional relationships as well, although that’s more lenient

o Significant risk that the representation of one or more clients will be materially limited by lawyer’s responsibility to Another client A former client Third person

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By a personal interest of a lawyer (Connected to quality concerns – lawyer won’t be as zealous/effective of an advocate if he has a reason to

pull his punches) 1.7b exception: must meet ALL FOUR

o Reasonable belief that lawyer can provide competent and diligent rep to each affected client Unless each client has same opportunity to achieve a good result with the conflicted lawyer as he would

with an independent lawyer, the lawyer can’t rep both. Think zero-sum cases where a lawyer can’t advance a position in one’s favor without harming the other Analyze this separately from whether there IS a conflict

o Rep is not prohibited by law (NONCONSENTABLE) Limited; involves former gov’t lawyers who might be prohibited by crim statutes from repping certain ppl

o Rep does not involve one client asserting a claim against another client rep’d by lawyer in the same litigation OR other proceeding before a tribunal (NONCONSENTABLE) (Client v client in same litigation)

Ex: If you already rep the P in the suit, a prospective client (or current client in something unrelated) wants to hire you to rep them as D – can’t be fixed even with consent!

Repping one client in matter A, and prospective client wants to sue first client re: B – this is a CONSENTABLE conflict because you would not be on both sides of same case. (Still 1.7a1 though!)

o Each affected client gives written informed consent Lawyer fully explains all pertinent facts, sets out client’s options, and clearly explains any downside risk

to the concurrent representation; see MR 1.0e If a conflict arises after rep has already begun, lawyer must ordinarily either withdraw or get consent. Look out for patterns like:

o Lawyer’s interests conflict with client: lawyer has invested in a business; lawyer is on BOD; romantic relationships; lawyer’s involvement as an expert in another matter; client of firm appearing as adverse witness

o The conflict would foreclose or make less available some contingent, optional and tactical considerations and alternative courses of action

I.e., you rep a firm in a sexual harassment case, and the accused man wants to hire you too. He might want to raise defenses like “I just followed company policy.” Possible conflict!!

If the two parties can harmonize their defenses (plaintiff is lying, etc), maybe ok, but you need to know Big risk here regarding WHEN you let this happen – if too early in discovery, the parties really don’t have

a good idea about whether their interests are going to divulge latero Confidentiality concerns: it may be necessary to reveal secrets of one client in order to fully inform other client to

extent necessary to get informed consent. If first client won’t consent to disclosure, you have a problem.o Will this limit the advice you are willing to give/how frank you would be, in comparison to if you just rep’d one

party? Ex: you rep both the buyer and seller in a transactiono Consequences of future withdrawal of consent by any client

Lawyer must explain to clients that their interests may diverge in the future Law firm would have to withdraw from representing BOTH clients if one withdrew consent! Brennan’s. This is really a 1.9 issue, but still!

Analyzing CCIs Identify clients who are, or MAY BE, affected. (Includes those w/ whom you may not have an official relationship!) Is there a conflict? 1.7a.

o Directly adverse, ORo Significant risk that rep of 1 will be materially limitedo (If neither of these criteria is met – no conflict.)

Is the conflict consentable? 1.7b.o Claim by one against the other in the same litigation/before same tribunal is NOT consentable

Are consent measures properly met?o Informed consent, confirmed in writing, pursuant to 1.7b4. o 1.0b – “Confirmed in writing” means you give them a copy w/in a reasonable timeo 1.0e – “Informed consent” means lawyer has communicated adequate info about material risks and reasonable

alternatives

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o 1.0n: Writing includes electronic means (email)o (Has client revoked it? Client can revoke consent, with or without firing you. 1.7 cmt 21.)

Imputation issue under 1.10? Sneaky conflicts:

o Who’s paying you? 1.8f re: someone other than client paying the bill. Client must give informed consent; no interference w/ professional judgment; and no giving confidential info to the payor.

o Corporate stuff? A lawyer can be on the board of a corp and be legal counsel too, but still has to pass 1.7b test and get informed consent from someone ELSE who can consent on behalf of corp.

o Married lawyers repping opposing parties in litigation? Can do it, but have to watch out for PERSONAL CCIs. Clients need to give informed consent. This kind of CCI is probably not imputed to whole firm.

o Clients who compete economically? No CCI as long as you can pass 1.7b. Obviously there are limits.o Two clients who you rep on unrelated things decide to sue each other? As long as you don’t rep either of them in

the suit against each other, you can keep repping them on the unrelated things. Waiver of future conflicts:

o Subject to 1.7b test – need to look at whether the client understands the material risks involved in doing this. Going to look at how much the lawyer talked to them about it, what the informed consent doc looks like, etc.

o Client has to make INFORMED consent to waiving future conflicts, so the more specific the better.

Civil Case CCIs Westinghouse v. Kerr McGee – Law firm reps WH in antitrust suit vs Gulf, Kerr-McGee and Getty. Law firm also writes

and researches a report on competition in the uranium industry for API (a trade assoc of which the three Ds are members). Firm got a lot of conf info from the API members (including Ds) during the research process. The lawsuit grounds and the conclusions in the report are directly opposite. Conflict here is that K&E solicited a bunch of info from API members, now Ds. Ds move to DQ K&E from repping WH.

o K&E had “Chinese wall” screening mechanism here to keep the API and WH groups apart. It was breached here, but the court says that wouldn’t matter anyway – you can’t use a screening method to get around MR 1.10 imputed conflicts. Confidential knowledge imputed to all lawyers at K&E.

o It is irrelevant who K&E THINKS its client is (API or the Ds) – the fact that API is paying the bill is also irrelevant. K&E’s actions (soliciting conf info) portrayed itself to Ds as their attorney. AC relationship hinges on CLIENT’s reasonable belief – the reas belief that he is consulting an attorney, in that capacity, to seek professional legal advice. Ds here are deemed clients of K&E.

Does not hinge on an “agency” test from agency lawo What kind of conflict is it here? Concurrent conflict, 1.7a1 directly adverse (one client is suing another client).o It is the law firm’s responsibility to keep clients apprised of conflicts – not the client’s job to dig it up

Fiandaca v. Cunningham – NHLA reps 23 female prisoners who bring class action against state re: failure to establish facility equal to male prisoners. (They win but ct says no building it on Laconia grounds – Laconia is one of several possibilities.) State says NHLA has a conflict because NHLA also reps mentally retarded people currently living at Laconia (in class action suit regarding conditions there).

o State had made settlement offer to NHLA to put the new ladies’ prison facility on Laconia grounds. NHLA rep’d Garrity class at time and rejected this offer. State says the interests of NHLA’s two clients were directly adverse (settle fast and get new facility here vs. not have to move out of where they live). Ct agrees that NHLA’s rep of these two groups materially limited its representation of both.

o Ct doesn’t make them retry it, but lifts trial ct’s ban on Laconia as a potential location. Orders new trial re: remedy Hot Potato Doctrine – a concurrent conflict cannot be converted into a (easier to fix) successive conflict by firing an

objected or unwanted client.o Picker Intl v Varian Assocs – Jones Day merged w/ smaller firm. A huge JD client was about to sue one of the

new clients held by smaller firm (who repped this client on unrelated matters). Ct said that JD can’t just withdraw from repping the new client just to keep a more lucrative client. Might have been ok if one of the firms had dropped one of the clients before the merger, but too late now.

o Can still be same answer if merger undertaken by the CLIENT causes the issue! (MR 1.7 cmt 5) Remedies for CCIs: Disqualify the client’s lawyer, Discipline for violation of professional rules, Malpractice action, Fee

forfeiture, Setting aside contract, etc, (In gov’t context – maybe criminal penalties) Using a disqualified attorney’s work product

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o Restatement says you can as long as doing so does not threaten confidential information of the other cliento Approaches here: (Tx SC In Re George): P. 430

Irrebuttable Presumption approach: Forbid all use of disqualified atty’s work-prod First Wisconsin approach: Allow use of wk-prod unless movant can prove confidences will be disclosed Balance test: Balance risk to movant (that conf info will be used) against harm to current client from being

denied access to the info. (Problem here is that convenience could end up trumping confidentiality) TX approach: Once movant establishes that the DQd lawyer’s two representations were subs related, a

rebuttable presumption arises that the work product contains conf info. Current client then has burden of demonstrating that there is not a subs likelihood that the WP contains conf info. (In camera rvw)

Criminal Case CCIs Cuyler v. Sullivan – Attorneys rep 3 co-defendants in murder case. None objected. Sullivan (1st one) defense rested w/o

providing any evidence. Other two are acquitted.o If you object before/during trial, Holloway case says a lawyer repping codefendants whose interests conflict cannot

provide adequate legal assistance required by 6th Am. Ct has to consider timely objections to multiple rep.o BUT, ct doesn’t have to investigate every multiple rep itself. Absent special circumstances, ct may assume either

no CCI or parties consent to the risk of a CCIo For a defendant who didn’t object to multiple rep at trial: In order to establish violation of 6th Amendment

in multiple rep criminal case, D must prove: Actual CCI existed, AND It adversely affected the lawyer’s performance. (not prejudice, though) Adverse effect = some kind of identifiable, concrete step the lawyer failed to take because of the conflict.

Compare it w/ what an impartial/independent lawyer would do here. Largely left to discretion of lower courts Holloway : If D’s lawyer objects before trial to proceeding w/ apparent CCI, judge must investigate and may take

appropriate action. (If judge does not do anything after a timely objection – automatic reversal, even w.o prejudice) Party consent is given significance (Cuyler) Judge has broad discretion to require separate representation (Wheat) Look for ways in which the lawyer’s duty to D1 prevented him from doing something beneficial to D2:

o D1 and D2 have inconsistent defenses (maybe both want to say “I was just the getaway driver”)o One defendant has evidence that inculpates the othero A prosecution witness can put D1 at the scene but not D2 (as-is, helps D2; discrediting helps D1 but hurts D2)o At plea bargaining stage, one wants to snitch in return for leniency

But don’t always assume it’s an actual conflict – sometimes co-Ds really do have consistent defenses. Coordinating the two defenses may help them resist “divide and conquer” tactics by prosecutor.

Joint Representation and Transactional CCIs Joint reps have ups and downs

o Pros: can lower transaction costs to both clients; help clients focus on shared goals/interestso Cons: lose ACP against each other if it ever goes sour

Joint reps are covered by MR 1.7: See Comments 8, 26-33 Lawyer cannot rep multiple parties to a negotiation whose interests are fundamentally antagonistic to each other

o But he can if they are generally aligned & just have some differences If the joint rep fails – lawyer is usually forced to withdraw from repping all of the clients. 1.7 cmt 31 – if one joint client insists some info be kept from other, lawyer has to keep the confidence but has to resign from

the joint rep.o Say you rep A and B jointly. A then tells you something that will negatively affect B. You have duties to A (of

confidentiality) and B (of communication). You are screwed because you are going to have to breach one.o How to avoid this? Get a waiver of confidentiality as to each other at START of representation.

Transactional Representations – can be JUST as adverse as in litigation!o Cmt 28: Consentability turns on whether it is possible to harmonize the parties’ positions or whether the interests of

the parties are fundamentally antagonistic to one another Look at: are negotiations a zero-sum game here?

o It is a virtual certainty that most transactions of any complexity will involve at least a “material limitation” conflict, because even ones that aren’t that complex usually have some terms that could be made more favorable to 1 side

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State v. Callahan – Callahan reps both the seller and buyer of land in a transaction. Seller is little old lady who thinks lawyer is neutral and looking out for both sides. Lawyer has actually worked with buyer as his personal atty for years. Lawyer sets up a K very favorable to buyer and not great for seller; she thinks she will have a secured lien on property if buyer defaults. She doesn’t actually. Buyer defaults and a bank gets the foreclosure money.

o Lawyer tries to assert defense that he was just a “scrivener” setting down parties’ own generated terms, but that is clearly not the case here. Contract is solely on terms buyer Lygrisse wanted. Lawyer should have disclosed his existing relationship with buyer. Lawyer was deceitful here & strung her along for two years!

o Note that “I’m just a scrivener” is hardly ever going to be a good argument because lawyer always has a duty to provide independent advice and act in best interest of each client in the absence of client’s informed consent to a limited scope of representation. It would have to be a VERY limited transaction!

Successive Conflicts Successive conflicts arise when a lawyer has a current client whose interests are potentially affected by a former client. MR 1.9a: The rule here is NOT consent-plus.

o If you formerly represented a client in a matter, you can’t o Rep someone else in the SAME or SUBS RELATED matter o In which that person’s interests are MATERIALLY ADVERSEo UNLESS former client gives informed consent confirmed in writing.

MR 1.9b: A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

o (1) whose interests are materially adverse to that person;o and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material

to the matter, o unless former client gives informed consent in writing.

MR 1.9c – you can’t use a former client’s information to the disadvantage of the former client, unless permitted by 1.6 OR it has become publicly known. Nor can you reveal it unless permitted by 1.6.

Concern here is re: lawyers revealing or using conf info of FORMER client to help CURRENT client.o Also concerned with lawyers pulling punches, to current client’s disadvantage.

Can you later represent an economic competitor?o Usually, economic competition alone won’t raise a conflict.o BUT, see Maritrans GP v Pepper, Hamilton & Scheetz – case by case analysis, how great is the danger that conf

info will be revealed? How deeply involved was lawyer? What’s the issue here? o Maybe something like you set up a really innovative method of doing something for Client A – maybe they don’t

want you doing it for Client B. If your knowledge from Client A would leak over into what you were doing for Client B, maybe an issue.

Analysis Identify Current client? Identify Former client?

o Really a client at all? (Did A-C rel actually happen w/ old one?)o Or perhaps current rather than former (has relationship actually ended yet)? If questionable here, might have a 1.7

problem instead!o Former prospective client?

Materially adverse interests?o Would lawyer be limited in performing professional obligations to either one?

Same or substantially related matters?o SR = same transaction or legal dispute OR if there otherwise is a substantial risk that conf info would materially

advance client’s position in the subsequent matter. (Cmt 3) Consent of former client? Imputation problem with the firm?

Two kinds of former client conflicts:

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Side-switching former client conflict: All the lawyers stay put, but a firm stops representing Client A and then picks up a new client whose interests are adverse to Client A.

o 1.9a. Migratory lawyer conflict: A lawyer changes law firms. Question is: while working at previous firm, did the moving lawyer

represent a client whose interests are adverse to those at the new firm?o Is new lawyer DQ’d at new firm? 1.9a if he personally repped the client; 1.9b if it was just his old firm.o Is new firm DQ’d by imputation?1.10ao Another consideration: Is old firm still DQ’d after lawyer leaves? 1.10b

Cases: Brennan’s Inc. v. Brennan’s Restaurants – Brennan’s Inc and Brennan’s Restaurants used to be interconnected closely held

corps. Wegmann repped both jointly and got them trademarks (dispute over who owns now). Corps split up and Wegmann stays with BR. BI sues BR for using the trademarks. Wegmann reps BR for this and also pulls in Sprung to help. BI wants both lawyers DQ’d.

o BI is former client; BR is current client.o Interests are materially adverse bc one is suing the other over the trademarks.o Matter is not the SAME (earlier rep was getting the TM), but IS substantially related.o No consent because BI is objecting here. So, as to Wegmann, the conflict is NOT CURED and he is DQ’d.o Wegmann: The issue here isn’t access to info – D had access to the same info before the split. The issue is what

Wegmann can DO with the info. Wegman can’t use conf info against former client to sue about what he did for the former client.

Wegmann may also have a MR 3.7 problem because he will likely have to be a witness.o Sprung: Not automatically DQd because he never repped either. It depends on whether he has learned anything he

shouldn’t have from Wegmann. Trial court DQs by imputation. AC remands because this depends on whether Wegmann did in fact rep P/D jointly on getting the trademark. If jointly, then Sprung can stay because there’s nothing that D doesn’t have a right to know and use against P from their earlier joint rep. “Ds would possess no info as to which plaintiff could have any expectation of privacy” if joint.

MR 1.18 – Duties to Prospective Clients Prospective clients also get confidentiality protection. Defn of prospective client: came to you with intent of seeking legal advice or the possibility of forming AC relationship.

o You can have a conflict problem with someone who never even hired you! Analysis turns on the putative Prospective Client’s reasonable belief. See cmt 2. A person who unilaterally says things to

atty w/o reas belief that lawyer is willing to discuss possibility of forming AC rep will NOT be a PC. Analyzing potential conflicts:

o Is person a “prospective client” (reasonable belief, purpose)?o If so, cannot use/reveal info unless permitted by 1.9o Conflict? -- “substantial relationship plus”

same/substantially related materially adverse interests Attorney rec’d info from that person that could be significantly harmful to PC in that matter Imputation – under 1.18c, if lawyer is DQd whole firm is

o Curable? 1.18d Consent of both current client and PC, OR DQd lawyer took reasonable efforts to avoid learning more than necessary to determine whether to rep the

PC, AND DQ’d lawyer is screened and not given any fees, and Written notice is given to the PC. (Note, this option does not require consent.)

(The second option prevents the conflict from being imputed to the whole firm, but the initial guy is DQd) “Taint shopping” – going to all the good lawyers in town and telling them conf info to prevent other side from being able to

hire them. The “reasonable belief” test for PCs is intended to counteract this.

Imputed Conflicts

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Whether atty has successive conflict?o 1.9(a) – lawyer formerly rep’d client

This is the lawyer’s former client so go see 1.10 re: imputation to whole new firm.o 1.9(b) – lawyer’s former firm rep’d client

Did atty work on matter/get conf info? If yes, then it’s lawyer’s former client. If no, then it is NOT the lawyer’s former client.

Whether atty’s conflict imputed to current firm?o 1.10(a) – lawyer at firm

All current client and former client conflicts are imputed to lawyers working together in same firm, unless the conflict is based on personal interest of one lawyer and does not present risk of materially limiting rep

Look at 1.9a/b. If it’s the lawyer’s former client, it’s the whole new firm’s former client.o 1.10(b) – lawyer has left firm. What makes it impute:

Is that lawyer’s former client still repped by firm? Is it same/subs rel matter? Does anyone still at firm have info protected by 1.6/1.9c that is material to the matter?

o New firm’s DQ depends completely on whether the individual attorney has a conflict. If atty worked directly on the matter/got conf info, that client is a former client of the atty and the conflict is imputed to the firm under 1.10a. If atty did NOT get conf info on that client, then per 1.9b it’s not a “former client” of the migratory atty and there’s no conflict for anyone.

Under 1.10c, a DQ prescribed by this rule can be waived by the affected client under 1.7.

Mechanics MR 1.10a – If one lawyer in a firm is disqualified from repping a client, all of them are.

o UNLESS the prohibition is based on a personal interest of DQd lawyer AND does not present significant risk of materially limiting rep of client by other lawyers at firm.

Example of this: Sam works at Firm A. Sam’s wife represents plaintiff. Other lawyers at firm A can rep defendant in that suit, just not Sam. This is a personal conflict on Sam and won’t affect other lawyers.

MR 1.10b -- Former Conflicts and Imputation Nemours v.Gilbane – Lawyer Bradley works for Furlow, in suit against Pierce, at Berg firm. Furlow and Nemours are on

same side. Bradley then moves to Biggs firm that reps Pierce, w/o knowing they rep Pierce. When he finds out, he tells Biggs and they screen him. Nemours still not happy and moves to DQ whole Biggs firm. Issues: DQ Bradley? DQ all of Biggs firm?

o Bradley: Ct says Nemours is a former client of Bradley’s for conflict purposes bc Bradley had access to conf info via Nemours’ relationship with Furlow. Bradley is DQd because he actually worked on the matter on the other side at Berg firm (Same matter).

It IS legally relevant whether he actually worked on the matter. See 1.9b – if he hadn’t actually worked on it or gotten any confidential info, Furlow/Nemours would NOT have been “former clients” of his and there would be no conflict ATALL.

o Biggs firm: Ct does not impute to Biggs firm. NOTE: this is the WRONG RESULT under MR bc it would be imputed to Biggs firm under MR. But ct is not bound by MR. Ct says it would be unfair to DQ whole firm when this was basically an innocent mistake and there has been no actual disclosure of conf info.

o This ct allows the screening to keep Biggs firm from having conflict imputed. But MR doesn’t count screening.

Law Students and Conflicts Consider how deep your involvement was – do you have conf info? Alert prospective employers Keep personal records Mind your own business MR 1.10a, cmt 4 – your conflict won’t be imputed but you might need to be screened.

Government Lawyers: MR 1.11 Is attorney disqualified?

o Requires personal and substantial participation (“important, material work”)o Material adversity NOT required

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o Cured w/ consent of government agency (1.11a) Is firm disqualified by imputation?

o Screening IS permitted (Screen and don’t give screened lawyer any of the fees)o How might you screen? Locked files, passwords, instructions not to talk to new lawyer about caseo Just needs written notice, not consent.

MR 1.11 a, b, c – former government attorneyo 1.11c: can’t rep any client in PP whose interests are adverse to person to whom conf gov’t info pertains, & the conf

info could be used to that person’s disadvantage MR 1.11d – current government attorney

o Subject to rules 1.7 and 1.9o Shall not participate in a matter in which he participated personally/substantially before joining this agency,

UNLESS the gov’t agency consents in writingo Shall not negotiate to get hired by someone involved in something he’s working on now as a gov’t atty

MR 1.11e – “matter” is broad in types but narrow in that it must have been “involving a specific party or parties” This system represents a balancing of interests. You don’t want government power being used for special interests. But you

also don’t want to effectively keep people from being able to leave gov’t employment.Analysis steps for gov’t lawyers:

ID matter on which the lawyer worked while in gov’t service and the matter from which a party is now seeking to DQ attyo 1.11e defn of matter

Was lawyer personally and substantially involved as a public employee? MR 1.11a2 If not, is it possible for the lawyer to use info relating to the rep of the gov’t agency to the disadvantage of the agency?

1.11a1, incorporating by ref 1.9c Does the lawyer possess confidential gov’t information that can be used to the detriment of a third party who provided that

information to the government? 1.11co Big example: tax return information & lawyer used to work at IRSo No consent provision for this rule because it’s the third party getting hurt, not the govt agency

Did the appropriate gov’t agency give informed consent? 1.11a2 If the lawyer is personally DQd, is new firm DQd by imputation? Can avoid by screening & giving written notice to gov’t

agency, per 1.11b

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V. Who is the Client?

Individual vs Enterprise You need to know WHO your client is for purposes of:

o Conflictso Not counseling/assisting a crim/fraud act (1.2) o Mandatory termination: can’t remain in prof rel where client’s acts will result in violation of lawo Atty-client privilegeo Confidentialityo Fiduciary duties/obligations to act in best interest of client

The Organization and its Constituents MR 1.13: Repping an organization

o 1.13a Entity theory – the organization itself is your client, not the individuals working at it Your duties therefore run to the organization (best interests, etc)

o 1.13b (Whistleblowing) – Lawyer must go as high up as he can inside the org first (usu BoD) 1.13c – If they keep doing it or fail to address it, AND lawyer reas believes the violaion is certain to result

in substantial harm to the org, THEN he may go outside and reveal info even if MR 1.6 wouldn’t allow – but only to extent reasonable to prevent further injury to the org.

Reporting UP is mandatory; reporting OUT is permissive. When deciding whether to report, consider factors like seriousness of violation, apparent motivation,

policies of org on stuff like this.o 1.13d: lawyer DOES NOT have ability to disclose if:

Lawyer was hired to investigate potential wrongdoing Lawyer is defending org/a constituent against allegation of wrongdoing

o 1.13f (Miranda warning for corps) – “a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing” – make sure the officers know you aren’t THEIR lawyer!

o 1.13g – you can also rep an org’s directors, etc individually, but it’s subject to MR 1.7. If the organization must consent to it, someone other than you or the individuals rep’d have to consent.

Meehan v. Hopps – Edwards firm rep’d RI Insurance Co. in a case against its CEO. CEO says the firm rep’d him personally as well. Issue is whether Edwards firm rep’d both the CEO personally and the firm. (If they had, there would be a SCI.) The question depends on whether Hopps had a reasonable belief that the firm rep’d him personally as well. Ct says Hopps did not have a reasonable belief of that. Just because firm dealt with CEO doesn’t mean it was his lawyer.

o As lawyer for Corp., the firm’s duties are to it, not to the officers.o “Miranda warning” in situations like these can be helpful

Watch out for issues with subsidiaries. Look at reasonable expectation of subsidiary; look at whether lawyer has confidential info about the subsidiary from the rep of the parent.

Derivative Actions In derivative actions, Shareholders say the corporation has a right not being exercised currently, against the current officers,

for something bad going on.o Officers or directors have breached a duty owed to the corporation itself – they have fiduciary duties of care,

loyalty, good faith, etco Question becomes how involved the corporation’s regular attorney should be in the derivative suit. Usually the

corporate lawyers have to back off. Officers need their own new lawyer. SH should have their own different lawyer, too.

Yablonski v. United Mine Workers – Analogous to a shareholder derivative suit. Yablonski and some union members sue both the union and some of its officers for mismanagement. Lawyer for the union reps the individual officers too in the suit. Plaintiffs protest this. Lawyer then drops the individual officer to create a successive CI (Hot potato!).

o Ct says this isn’t sufficient in these circumstances. Can’t just drop the individual officer; this should be seen as a CCI. Union must get a new lawyer.

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o Indiv. Officer here is calling the shots re: union’s attorneys. The union should have its own lawyer that can assess its interests without being concerned with the individual defendants’ interests. The union’s interests may or may not be aligned with those of the individual defendants!

o Ct analogizes to shareholder derivative suits. Union is a nominal defendant in a suit brought on its behalf.o This is the leading case on the subject. Separate counsel is required, meaning the SH needs its own (new)

atty, Directors need own (new) atty, and the Corp lawyers need to stay out of it and not rep either side. The entity is just a nominal party and that’s why the entity’s lawyers need to shut up and stay out of it.

The separate lawyer requirement does jack up cost of these suits, but it’s important because of the big loyalty concerns and CCI problems.

Almost Clients Fassihi v. Sommers, Schwartz – Fassihi and Lopez are 50% partners in Livonia PC. The PC has a privilege to work at a

certain hospital. Sommers reps PC but also Lopez individually. Does not disclose the Lopez rep to Fassihi. Lopez fires Fassihi after 18 months and terminates his hospital privileges.

o Did Sommers rep Fassihi? Generally, the lawyer only reps the organization, but here, the number of shareholders is so small (2), and the contact so regular, that it was reasonable for Fassihi to believe there was an AC relationship.

o It’s NOT just that Fassihi is a 50% SH – there is not in fact an actual A-C relationship. The issue is that Sommers has a fiduciary duty to Fassihi. FD arises when one “reposes faith, confidence and trust in another’s judgment and advice.” Fassihi did that and his belief was reasonable here.

o Context here: Atty is refusing to answer deposition questions based on ACP. Ct says Fassihi is entitled to this info as a fellow member of the control group. One member of the control group can’t invoke the privilege against another. It is corporate privilege; the whole control group is deemed to know the info and have a right to it.

o Mainly, Fassihi had a right to know about the dual representation. He didn’t necessarily have a right to know about the Lopez hospital contract.

o The case here probably turns on the closely held corporation factor. Look out for close corporations! If the corp is your client, you may have to protect its best interest by telling one officer

what the other is trying to do. But if the individuals are your clients, you can’t do that because of confidentiality.o Whether the corp or the individuals are clients will depend on the parties’ reasonable expectations.

Similarly, look out for loose groups of people (15 homeowners in a neighborhood, etc). Ct will probably want to see some kind of formal structure to call it an “organization,” although it could go either way depending on facts.

Who controls a corporation’s attorney-client privilege? Garner Doctrineo Upjohn – the privilege belongs to the corporation itselfo Usually, current management controls the privilegeo BUT, management cannot prevent a communication from being revealed if SHs can make

A plausible showing of A meritorious claim That management has made a serious breach of fiduciary duty

o Garner factors p. 552 – to determine good causeo Garner doctrine is broader than the crime-fraud exception – it has to do with bad faith in asserting the privilege

rather than bad faith in consulting with an attorney (like in CF).o Garner doctrine can apply even if the original communication was “innocent” in that it wouldn’t trigger the CF

exception at the time. Garner doctrine has to do with WHY you are using the privilege NOW.o Bc ACP belongs to the corporation, the SHs who are plaintiffs in a derivative action can get access to info

that would otherwise be protected by ACP (Garner) Fickett v. Superior Court – D atty Fickett represented a guardian (Schwager) accused of squandering the Ward’s estate

(Styer). Styer sues both the guardian and Fickett. Fickett probably didn’t have any contact with Styer.o Issue: Does atty of guardian (who has fiduciary duty to ward) also have fiduciary to ward? Yes, he does.o Public policy reasoning: ward’s interests outshadow those of the guardian; when atty knows guardian is acting

adversely to the ward’s interests, the whole purpose of the guardianship can be frustrated.o It’s important here that the CLIENT had a fiduciary duty to the ward. When a client has a fiduciary duty to

someone, so does the attorney. The idea is that by agreeing to represent a fiduciary, you are taking on this duty to the beneficiary.

o Note: the ward was not found to be Fickett’s client. This is fiduciary duty for a different reason.

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VI. Litigation

Client Perjury Perjury (18 USC §1621)

o Intentionalo Falsehoodo Under oath (not necessarily at trial! Could be depo, etc)o About a matter material to the proceeding

False Swearing (18 USC §1623) – relaxes perjury burdeno Falsehood Knowingly offered under oath, not willfullyo If defendant has made two contradictory & irreconcilable statements under oath, prosecution doesn’t have to prove

WHICH one is false (which it would have to under 1621). D can avoid conviction by showing she believed each to be true at time she gave each

Subornation of Perjuryo Inducing, instigating or encouragingo Another to testify falsely (commit perjury)o Perjured testimony must actually be offeredo If no perjury results (atty tells them to lie but they don’t) atty can still be convicted of OJ

Obstruction of Justice (18 USC §1503, 1512b, 1519)o Influencing, intimidating or impeding the administration of justiceo Means need not be unlawful; ordinary lawyering can be used for improper purpose & it countso Official proceeding not necessarily required o §1519 – can’t alter/falsify/destroy documents in attempt to OJo Cintolo – giving advice to client supported OJ conviction (he told his immune client not to testify bc it would hurt

his other clients’ cases ;this is improper)o Arthur Andersen – firm convicted of OJ; firms are not immune to criminal prosecutiono TX obstruction statute : §37.09 – it is a crime if a person “knowing that an investigation or official proceeding is

pending or in progress … destroys .. any … document … with intent to impair … its .. avail as evidence in the inv or proceeding”

Crary – Crary is sleeping with divorce client; she lies in depo about where she was and Crary knows it bc she was with him at the time. Other lawyer at Crary firm realizes she is lying, asks Crary, and when Crary confirms, other lawyer stops depo. Crary is disbarred for knowingly permitting client to lie (he didn’t stop the depo, say anything, etc). He didn’t have to tell what the truth was, but he couldn’t let her sit there and lie.

o Note : MR 1.8j says don’t start sleeping with a client. (We don’t know when he started doing this)o Crary violated MR 3.3a3 – Lawyer shall not knowingly offer evidence known to be false.o Also note: Opposing atty knows Curtis is lying too – but this is NOT suborning perjury bc he’s trying to disprove

MR 3.3a1 – lawyer can’t make false statement of fact or law to a tribunal, OR fail to correct MATERIAL false statemento This includes:

False testimony on stand Referring during closing argument to facts known to be false Misrepresenting facts/law in a brief filed w/ court, or oral argument False statements of law TO JUDGE – “no, there are no cases on this point”

Interesting fact problems here: you do not have to give it to opp counsel. Say you file MSJ and don’t cite a big case that helps P because you expect him to cite it. If he misses it/neglects to cite it, you now do have the obligation to let the judge know about this case, maybe in a reply brief, although you can of course try to distinguish it.

“Oh Shit rule” – if your reaction to reading a case/statute is “oh shit,” you have an obligation to disclose to tribunal under 3.3a2 if your adversary fails to do so

o Can’t EVER make a false statement; only must correct a MATERIAL one you learn is false latero If you are a criminal D lawyer, prosecutor misses your client’s prior conviction, and ct goes with that – but neither

you nor the client EVER say anything about it either way – you do not have an obligation to say anything because you did not make any representations yourself; you have not offered any evidence and neither has your client. Nor does this have to do with “adverse legal authority.”

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MR 3.3a3 – once atty realizes false material testimony has been presented – he must take reasonable remedial measures.o Cmt 8: lawyer’s knowledge that evidence is false can be inferred from the circumstanceso Reasonable measures include: Remonstrate, Rectify, Resign, Revealo 3.3b: Can’t just stand by while client testifies falselyo 3.3c: When does the obligation here end? When all appeals are exhausted or time for review has passed (if you

learn it’s false later) Pay CLOSE attention to WHEN the atty learned about the perjury!! If the appeals process is over,

you can’t rely on 3.3 and in fact are required by 1.6 to keep it confidential. MR 3.4b – cannot counsel or assist a witness to testify falsely *******Note that KNOWLEDGE (even if inferred) is required before you can do anything remedial re: testimony!!!

o Unless it is completely irrational to believe your client’s story, you prob. don’t KNOW it is falseo If you are iffy about client’s testimony, but don’t KNOW – can warn about perjury and that can’t lie in ct, can warn

about what he will face on CX, etc, but can’t do remedial stuff yet and can’t reveal anything! In a civil matter:

o Before perjury has taken place: Advise strongly against

Includes advising that you will have to withdraw from representation under 1.16 if he persists Limit or prevent testimony (don’t put them on the stand, or be careful what you ask)

Reasonable belief that it’s false is enough to do this! Disclose fact of perjury to tribunal (privately, not in front of jury)

Cmt 10: Try to work your way up to this; can you fix it without having to reveal the perjury? Withdraw, if able, although this may not be a sufficient response on its own; needs to put ct on notice

If in litigation, this requires ct approval.o After perjury happens

Persuade client/witness to rectify Note: in some Js, this is basically getting them to admit a crime, so this may not be a reasonable

remedial measure if it’s your client Disclose fact of perjury to tribunal

Nix v. Whiteside – Guy charged w/ murder changes story right before trial (thought victim was reaching for gun; has been saying didn’t see anything but now wants to say he saw something metallic). Atty tells him, this is perjury and I will tell the court if you do that. (Atty believes it’s a lie.) D takes stand and does not say the part about seeing something metallic. He’s convicted . D then says he didn’t have effective counsel or a fair trial bc of the atty’s pressure not to say that.

o Ineffective Assistance of Counsel elements : Deficient performance (unreas professional conduct) AND prejudice to D (deprived D of a fair trial/prejudiced outcome of case)

o Ct : it is not a 6th Amendment violation to force a defendant to testify truthfully! D does not have right to perjure himself. No prejudice to D’s case by making him tell truth.

o Ct says atty behaved perfectly reasonably here – actually behaved very well. D still got to testify and did not in fact lie on the stand! Lawyer still zealously pursued defense w/o the lie. Lawyer didn’t divulge any client comms until he was compelled to do so by client suing him here.

o Brennan concurrence – thinks SC shouldn’t be stating a standard for ethical conduct here; state ct issueo Blackmun concurrence – thinks it’s a different issue: should only be looking at prejudice because there is no choice

on D’s part here. Not allowed to lie on stand, so no prejudice, so we should never even get to the “reasonable professional behavior” part.

In a criminal matter:o Before perjury has taken place:

Advise strongly against (Can’t limit/prevent testimony due to constitutional rights. Can’t refuse to put a defendant on the stand.)

But don’t ask them questions that help the perjury Disclose fact of perjury to tribunal (privately, not in front of jury) Withdraw, if able although this may not be a sufficient response on its own; needs to put ct on notice

If in litigation, requires ct approval. If you’re court appointed, may not be able to withdraw.o After perjury happens

Persuade client/witness to rectify

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Note: in some Js, this is basically getting them to admit a crime, so this may not be a reasonable remedial measure if it’s your client

May not need to because cross-ex may reveal that D was lying. Disclose fact of perjury to tribunal (Cmt 10: again, try another way first)

“Freedman’s Lawyer’s Trilemma” o Lawyers have three obligations that are in conflict:

Learn everything client knows about case (competence) Hold in strictest confidence what client reveals Act with candor toward tribunal (this is what the MR hold highest)

o How can you know everything and simultaneously keep it secret and have candor toward tribunal? Freedman wants client confidentiality to supersede candor to tribunal.

o This conflict is particularly acute in criminal cases, where there are a lot of constitutional rights at play as wello Good method of analysis – when looking at a rule, ask which of these is being sacrificed for the otherso Good lawyers are often v careful about what they let Ds tell them, for just this reason! “Why are the police saying

all these bad things about you?” Freedman doesn’t like that; impedes competence

Remedies for Abusive Litigation Conduct Professional discipline: using & enacting ethics rules by which a lawyer can be subject to sanction

o MR 3.1, a lawyer shall not bring or defend a proceeding unless there is a non-frivolous basis o MR 3.2, a lawyer shall make reasonable efforts to expedite litigationo MR 4.4, a lawyer shall not use means that have no subs purpose other than to embarrass, delay or burden a 3P o All are fairly easy to get around bc you can show ANY reason why not a violation

Court rules: Like FRCP 11, TRCP 13, by which an atty can be sanctioned by a cto FRCP 11 is the sanctions rule -- discretionary. There is a 21-day safe harbor if you correct your behavior.o Opposing lawyer must file motion on the bad lawyer to start the process.o 11b3: pleading is not frivolous if the contention is likely to gain evidentiary support after a reasonable period for

further investigation. This is why lawyers usually file these later in the proceedings.

o Rule 11 is violated when a lawyer fails to make a reasonable investigation of the facts or law, under the circumstances. Lawyer has affirmative duty to investigate.

o Most people believe this is the most effective method. Quick, efficient, personal, and in tandem with the actual proceeding and behavior.

o TRCP 13 is equivalent to FRCP 11 but has mandatory sanctions, and both attys/parties can be held in contempt. Civil liability: Allowing atty to be sued by someone who feels he has been victimized by abusive conduct

o Most lawsuits like this are unsuccessful!o Friedman v. Dozorc – Dr is sued for malpractice and wins. Dr then sues plaintiff’s atty for negligence, abuse of

process, and malicious prosecution.o Negligence -- ct here says lawyers do not owe a duty of care to adverse parties. That would create unacceptable

conflicts of interest. (So don’t try this!)o Abuse of process – also not a great option. Plaintiff must plead and prove that the use of legal process

Had an ulterior purpose, AND Was used in an irregular or improper manner. (Note that filing a lawsuit is not irregular!)

o Malicious Prosecution – Dr doesn’t win bc of special injury, but usually this is the best bet. Defendant instituted proceeding against plaintiff Terminated in favor of plaintiff No probable cause

Objective – Atty had reasonable belief that, at time of filing, suit had no support in law or fact Lawyer is entitled to accept client’s version of the facts absent compelling evidence to contrary

Malice (Can be inferred from facts that establish want of probable cause in actions against lay people) Acting with a purpose other than that of securing proper adjudication of the claim Based on atty’s subjective belief regarding whether the suit was tenable

In a minority of jurisdictions, Special Injury Stuff like you were arrested, your property was seized, etc

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Hard to satisfy so you are unlikely to win in these Jso Other potential tort liability: (P. 692)

Lawyers are immune from suit for defamation based on statements made in the course of the proceedings or “reasonably related” thereto. Restatement of Torts §586.

Usually it’s not a tort to commit perjury. Some states impose tort liability for intentional or negligent destruction or loss of evidence.

Negligent destruction cases: The claim is usually that the D interfered with P’s efforts to sue some 3P by negligently destroying or losing evidence. P must show that D had a special relationship to the P that entailed a duty to preserve the evidence (such as being P’s dr).

How Far for a Client? Catchall provisions re: dirty behavior:

o MR 8.4c: lawyer can’t engage in conduct involving dishonesty, fraud, deceit, or misrepresentationo MR 8.4d: lawyer can’t engage in conduct that is prejudicial to the administration of justice

Cts get MUCH more protection than third parties, opposing parties, etc re: dirty trickso MR 4.1a: (in regards to speaking up) you can’t affirmatively misrep facts or law, but don’t have obligation to

correct others’ wrong opinions Ex: you have a time-barred claim. Can file this and accept settlements all you want, because statute of

limitations is an affirmative defense D has to raise. Underlying claim isn’t invalid just bc of SoL. Note however that if you have any kind of overlap with MR 3.3, such as presenting the settlement to the

trial court for approval, you may be obligated to reveal the info to avoid fraud on the court! Spaulding. Note that saying things like “My client won’t go below 1 million” in negotiation, even if client really will,

are generally not considered “lies” here bc that is standard negotiation practice (Cmt 2) HOWEVER, if you are asked a direct question, you must be truthful!

o MR 4.1b: (in regards to keeping silent) you have a similar obligation to disclose material fact if necessary to prevent client’s crime/fraud ONLY IF not stopped by 1.6

Remember the 1.6b exceptions, though : permissive disclosure to extent lawyer reas believes necessary to prevent, rectify, or mitigate client’s crime or fraud that is likely to result in subs financial injury to 3P, as long as lawyer’s svcs had been used in connection with it

Witness Prep/Coachingo Ethics rules:

MR 3.4: lawyer “shall not counsel or assist a witness to testify falsely” MR 3.3 (can’t use evidence you know is false; candor to tribunal)

o There is no rule saying that you HAVE to prepare a witness, although MR 1.1 says you have to provide competent representation, and prepping witnesses may fall under that.

o Preparing is OK as long as you are not suborning perjury, encouraging people to lie, use of false evidence, etc.o The main purpose of witness prep: shaping testimony, focusing on the significant, emphasizing helpful points, and

structuring the presentation to minimize the damage caused by adverse informationo You can suggest answers to give or wording to use, IF the answers you are suggesting are truthfulo You are allowed to explain the lawo Anatomy of a Murder example – “there are four ways I can defend you for murder…” – Rides the line. He is

technically just being a “law book”; you can help someone come up with true evidence that fits a theory but you can’t cross the line of encouraging someone to make up false facts.

MR 3.4b does not allow you to plant false memories in witness’s mind; if client here was not really temporarily enraged, this could be a violation of 3.4b and maybe suborning perjury

o Baron & Budd paralegal memo – this sort of seems to go beyond refreshing memory. MR 5.3 – attorneys’ responsibility for supervising nonlawyers What was opposing counsel’s responsibility in a case like this where they were given something they

weren’t supposed to get? NOTHING pursuant to MR. Nice thing is to return it but you don’t have to! If this were a hypo: you are young lawyer about to depose witnesses and partner gives this to you to use

This runs right up to the edge of permissible witness coaching/advising about the law and runs risk of going over the line into suborning perjury, unless lawyer is sure that ALL of the facts in the memo are true.

Prettying-up witness testimony is ok as long as it is true; but you run a 3.3a/3.4b risk here

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You will have violated 3.3a/3.4b if the witnesses’ testimony turns out not to be true Under 5.2 – say you ask partner and he says “nah, it’s fine” – you are still bound by Rules, and

reliance is only ok if it is a reasonable resolution of an arguable question Under 5.1 – if this is a violation, partner is responsible too even though you did it

Fostering Falsityo Impeachment seeks to persuade the jury that a witness is lying or mistaken

Impeaching evidence you know is trueo Argument seeks to persuade the jury to draw favorable inferences from the facts

Arguing inferences favorable to your client that you know are not trueo MR 3.4e – you can’t allude to matters not supported by admissible evidence

But you are allowed to create reasonable doubt (in crim case) – so it’s probably oko Case on P. 702 – client is actually guilty, but victim is mistaken about time and client has a true alibi for that time –

you absolutely can introduce those fact witnesses because they would be telling the truth! Can’t suborn the truth. o Criminal Ds: when you KNOW client is guilty –

Before pleading stage MR 3.1: don’t just say “Plead not guilty” but you can tell client that he would probably win if he pleaded not guilty because state doesn’t have great evidence.

If you find out during case and don’t want to rep now: try to withdraw but cite personal reasons making you ineffective as counsel. Can’t say “ethical reasons” because that implies client asked you to do something unethical, and can’t say anything about what client tells you bc 1.6 confidentiality.

o What if you believe client is innocent but he wants to plead guilty? Unless he is stating facts (outside the plea) to the court that are dishonest, no problem for you, as long as SOME evidence shows factual basis for guilty plea.

Dirty Tricks In Courto Alluding to things you know can’t come in – MR 3.4e prohibits thiso Asserting personal knowledge or belief or opinion – prohibited by MR 3.4e, except when testifying as a witness

You are not allowed to say you believe someone, etc. You have to do this nonverbally – obviously you want to appear zealous for your cause but do not cross

the line and say you know it’s true, etc.o Intimidating/harassing witnesses – not necessarily a great idea because you might make jury sympathize o Blaming the victim – Dalkon shield example. MR 3.4d bars frivolous discovery requests. Frivolous = not

reasonably calculated to lead to admissible evidence. But STDs are relevant here, so questions about sexual past might actually be relevant.

o Trickery – if you don’t have court’s permission, this is a bad idea because judge may view it as dishonesty toward the court.

Thoreen case – attys sat someone who looked like defendant at defense table, then the witnesses misidentified D as that person. Problem was, they did not tell the court they were doing that. The lawyer was charged/convicted of criminal contempt.

Prosecutor’s role: MR 3.8 – special rules. Must disclose material exculpatory evidence. MR 3.4b – you can pay reasonable expenses of witnesses; just not to the level of “improper inducement.” Should not be

“compensating” witnesses if not an expert, but it’s ok to reimburse for expenses. MR 4.4b: a lawyer who rec’s an inadvertently produced document “shall promptly notify the sender” – but the rule doesn’t

say you are obligated to abide by the response you get! Can look at them!

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VII. Lawyer-Client Relationship

Fees Four types of fee arrangements predominate in lawyer-client relationships:

o Flat fee for a particular legal matter ($500 for filing forms)o Hourly rate fee ($300 per hour for work on a matter, times number of hours)o Proportional fee (handling real estate transaction for a percentage of purchase price)o Contingent fee (fee of $10,000 to be paid if a particular result is obtained)

Most personal injury fees are contingent and proportional (40% if I win your case) Model Rule 1.5 addresses fees. MR 1.5a: A lawyer can’t make an agreement for, charge, or collect an unreas. fee or an unreasonable amount for expenses.

o Factors considered include: Nature of the matter: time and labor required, skill required, novelty of questions involved opportunity costs: Is lawyer passing up something else to do this? Will this conflict lawyer out of a lot of

work in future? stakes for client (Amount involved and results obtained) fee customarily charged in the locality, time limitations imposed by the client or the circumstances

firm should be able to charge a premium for a “drop everything” case nature and length of professional relationship w/ client (atty is less likely to overbill/chg excessive fee to a

repeat client, but might have more incentive to do it with a one-shot client) experience, reputation and ability of lawyer/s performing the svcs whether fee is fixed or contingent (Who bears the risk? Lawyer does in a contingency fee case, so lawyers

often charge a premium there) In some jurisdictions (Fordham) – “safe harbor formula” of reasonable hourly rate * reasonable number of

hours = a reasonable dollar figure to use as a measuring stick.o Discipline for this is rare, though; normally there is judicial control or a client just refuses to pay (-> lawsuit)

MR 1.5b: You have to explain the scope of representation and basis or rate of the fee and expenses for which client will be charged, before or within reasonable time after starting representation, as well as any changes

o Except when it’s a regularly represented client at the same rate/fee It’s ALWAYS a good idea to have fee agreement in writing! Why?

o Reduces risk of client surprise or misunderstanding about feeso Emphasizes seriousness of matter of retaining attyo More easily enforcedo Provides evidence of atty’s compliance w/ duty to communicate fees clearlyo Probably helps clarify scope of representation depending on how drafted

Cmt 4: You can charge in advance, but must return any unearned portion. Amount of the Fee

o Fordham – Professional discipline case. Father is looking for DWI lawyer for son; the first two lawyers he asks estimate $3k to $10k. He hires attorney after speaking w/ atty’s wife. Atty says he has never done a DWI case before and says he charges $200/hour. Atty then wins in pretrial phase due to novel motion argument.

Atty bills dad for $50k. Dad pays $10k and refuses to pay rest, and then files for discipline Issue: Is fee clearly excessive? Discipline court says no, but superior court says this is far too many

hours billed on a case like this. The problem isn’t that the hourly rate is too high, or that the attorney lied, or that he calculated the fee

wrong. It’s just substantially in excess of the # of hours that a prudent, experienced atty would have spent. Witnesses testify that $10k or less is the normal DWI case rate.

No indication that Dad understood he was signing up to pay $50k even though he understood $200/hr. What about fact that Fordham is inexperienced in DWI? That justifies a little more but not 5x as much.

An inexperienced lawyer can take new job like this in good faith as long as the preparation required won’t result in unreasonable delay or expense to the client.

o Bushman – Professional discipline case. 16-year old girl hires lawyer to get a divorce; he charges her a $5,000 promissory note and a $60/hr fee. Court orders husband to pay $300 in atty fees. Bushman then calls the note due

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and has billed $2800. Ct says this fee is exorbitant and wholly disproportionate to the work he performed because he just filed a simple routine series of documents. Almost no additional work and the other side’s lawyer spent only 5 hrs. (Bushman had claimed 100 hrs!)

Bushman is suspended for a year for this.o Brobeck – Fee litigation case. Brobeck firm sets up elaborate contingency fee agreement with Telex. Telex hired

Brobeck because they needed the best lawyers in town to try to get in front of Supreme Ct. Brobeck obtains one of the result arranged for in the contingency agreement and then bills Telex for $1M. Telex won’t pay so Brobeck sues to collect. Ct says this is an appropriate interpretation of the fee agreement and the fee itself is fine because these are both sophisticated parties and Telex received substantial value from Brobeck’s svcs.

Suggests that you can in fact charge a premium if you are really really good. Also contrasts with Fordham because Telex clearly understood what it was bargaining for. The more sophisticated the client is, the less likely the fee will be unreasonable.

o White v. McBride – Fee litigation case. White was atty for the estate of a dead former client; sought to collect in quantum meruit on a contingency fee. The contingency fee agreement said he would get 1/3 of the client’s share of wife’s estate. Trial ct finds that he spent about 114 hours on matter and multiplies by $150 to set reasonable fee at $12,500.

He then appeals – appellate court says this was an excessive fee that you never should have tried to charge in the first place, so you forfeited your right to any fee!

o Flat fees – “My fee is $50k for doing this, flat fee.” Have to consider whether this is a deposit/retainer fee, or a flat fee. If a retainer, client is entitled to unearned portion. If a real flat fee – what if the case suddenly settles a week after you take it?

Watch out for nonrefundable retainer issues – interferes w/ client right to fire you under 1.16 Look at reasonableness: the factors in 1.5a. If you barely even started, probably unreasonable to keep the

whole amt when you barely did any work. Illegal Fees

o Fees are usually illegal because they are fraudulent or because they violate a statutory limit.o Fee Padding – double billing, billing extra, etc.

Golden rule: you can only bill the time that actually elapsed. If your partner tells you to do it – MR 5.2 says that A) you are bound by MR anyway, even if just

following orders, and B) to get out of it, it has to be a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. This is not arguable!

If you’re the partner who orders it – MR 5.1 says that you are responsible for subordinate’s violation of MR if you A) ordered/ratified it or B) knew about the conduct at a time when the consequences could be avoided or mitigated.

If you are traveling: ARE allowed to charge for travel time, even if not working on the file during travel; you are giving up opp to do something else to travel.

While on plane, if you work on client’s file, can still only bill for actual time elapsed. If you work on other client’s file, you have to divvy up the actual time elapsed somehow. Can’t bill them

both for the time of the plane ride. It can be easy to fall into it accidently if you do things like put down 15 min for a 2 minute phone call (in

firms that use quarter-hour billing). Less easy to get away with this in general now because clients have gotten much more particular about

their billing. Confidentiality & Fees: MR 1.6b5 – you can reveal client confidences to collect a fee or establish a defense in a dispute

with a client over a fee, but only to the extent necessary to support your claim or defense. Contingent Fees

o MR 1.5c: Agreement for contingent fees must be in writing and state the method by which fee will be determined. Also must clearly notify client of any expenses for which client will be liable.

o MR 1.5d: NOT ALLOWED in: Domestic relations matter in which the payment or amt is contingent upon securing a divorce OR upon

amt or alimony or support OR a property division in lieu of support. Note: Cmt 6 says this does not prohibit a CF k for recovering POST-judgment balances!

Representing criminal defendants. o Why allow contingent fees?

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Access to lawyers even though you don’t have a lot of money Attorney gets more interested in matter (aligns interests w/ client) – maybe tries harder Helps eliminate stupid lawsuits because contingent-fee lawyers won’t take them!

o Bad side of contingent fees – maybe creates conflict of interest btw client and lawyer if lawyer has a direct stake in the outcome?

That is why we make it off limits via 1.5d in certain situations The rest of the MRs also help govern bad behavior.

o Courts will probably scrutinize a contingent fee if A) the percentage is too high or B) the total fee is too high, even if the percentage seems reasonable up front.

Courts might also dislike a contingent fee if there was no real risk of non-recovery (non-tort case, etc). It is unreasonable to charge a contingent fee if there is no uncertainty about the recovery because the whole point of contingent fees is to provide incentive for lawyer to take on the risk of non-recovery.

o Lawyers are usually permitted to advance costs of litigation expenses and then get reimbursed (even if client recovers nothing in the litigation)

Referral Fees – when a lawyer takes a case, then hands it off and gets a fee for doing that (i.e., Jim Adler)o MR 1.5e: Governs division of fees between lawyers not in the same firm.

Division must be in proportion to services performed by each lawyer (or both assume joint responsibility) Client agrees in writing to the fee arrangement, and The total fee is reasonable.

o Note that this only pertains to lawyers in different firms – partner can get a “rainmaking” bonus. But note that you CANNOT split fees with nonlawyers under 5.4a, so no “referral bonuses for everyone”

kind of arrangements (secretaries, etc). This violates rule 7.2c and 5.4a.o Note that you can pay reasonable fee to participate in a qualified referral service under 7.2c.

Sometimes MR 1.8 ties in here too – o 1.8e: Can’t give indigent client money for food, etc to help out. Only court costs and litigation expenses.o 1.8(i)2 – Can’t acquire a proprietary interest in the cause of action, except for liens and contingent fees.

So you could contract that you will receive 30% of the land as payment for winning at trial, but COULD NOT ask client to assign it to you in advance.

Advance fees: MUST segregate under 1.15. Withdraw as you earn it. Must return unearned portiono Refundable vs nonrefundable – nonrefundable retainers have little justification unless they are actually preventing

you from taking other employment. Many states consider nonrefundable retainers per se unreasonable. Cmt 5: No agreement whose terms might induce lawyer to improperly curtail services or act contrary to client interest.

Handling Client Property Lawyers have fiduciary obligation regarding others’ property in their possession. Five obligations:

o Segregation – MR 1.15a requires a lawyer to hold property of clients/third persons separate from the lawyer’s own property.

ESPECIALLY client funds!! Only time you can commingle funds is to pay bank service charges on the account.

Also must safeguard it. This usually means go get a safe deposit box.o Notification – MR 1.15d says that upon receiving funds or other property in which the client (or third person) has

an interest, the lawyer must promptly notify them.o Record keeping – MR 1.15a says keep records for 5 yrs following end of representation.o Accountingo Delivery – MR 1.15d requires lawyer to promptly deliver to client/third party any funds/property they are entitled

to receive Unless MR 1.15 provides otherwise, other law permits lawyer to hold property, or client consents. If there is a dispute about ownership of property – MR 1.15e requires lawyer to keep it separate until

dispute is resolved. Purpose of these requirements – reducing danger of conversion, negligent misappropriation or loss, as well as protecting

property from seizure by lawyer’s creditors. A lawyer can use one trust account for the funds of multiple clients, but must maintain records that adequately ID the share

of each person.

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Lawyer’s trust acct: if you get, say, settlement proceeds that need to be divided up – that needs to go in TRUST ACCT, not in the firm’s account. You write check to client first, out of the TRUST ACCT, then deposit your portion to firm acct.

Watch out for things like multiple claims and lawyer is trying to use recovery from first claim toward the other claims. This is probably a mid-stream renegotiation of the fee/billing agreement and is NOT OK. Breach of fid duty/maybe conversion!

Authority (Agency Principles) Principal has power to terminate agent’s authority at any time, even if it violates K with agent When does agent have authority? Types of authority: categories are not mutually exclusive, and you only have to find one

for the principal to be liable to the third party!o Actual – When the principal really told the agent to do this

When principal’s actions, words, or conduct would lead a reas. agent in this position to believe this was what the principal wanted.

Reasonable agent’s perception is important! (Ex: I mean to send email to Bob to buy stock, but I send it to Sally; Sally has authority)

Looking at 1) Principal’s actions and 2) Agent’s state of mind Express actual authority – “Sell my car” and physically selling the car and accepting money for it Implied actual authority – “Sell my car” probably includes the steps necessary to getting a car sold –

advertising it, letting someone test drive it, etc. Agent’s actual authority changes real-tie; whatever the principal’s will is, if agent has reason to know it,

his duty is not to act contrary to it.o Apparent – Has to do with third party’s perspective – occurs if, based on Principal’s actions, a third party would

reasonably believe that Principal gave actual authority to Agent Can have both Actual and Apparent, or just Apparent (Paul tells Al, buy me cow; Paul also sends letter to

auctioneer saying “Al is my agent” (Actual and Apparent); Paul later tells Al not to go do it, but doesn’t say anything further to auctioneer (Only Apparent))

Looking at 1) Principal’s actions toward 3P and 2) Third Party’s state of mind Say Al goes to another auctioneer and says, “I’m Paul’s agent,” and buys a bunch of cows.

No actual authority bc Paul did not give him permission to do this Prob not apparent authority either – Principal didn’t act here and Third Party really should do

some checking up before buying this story Sometimes apparent authority can be created by the title you give your agent (such as “Treasurer” or CFO

– indicates they have certain abilities/responsibilities), if you do nothing to dispel such an assumptiono Agency by estoppel – when Principal really didn’t give authority to Agent, but hears about a

misunderstanding/misrepresentation by Agent to Third Party, and allows it to stand Say Al goes to another auctioneer and says, “I’m Paul’s agent.” A friend of Paul overhears this and tells

Paul, but Paul does nothing about it. Al then buys a bunch of cows from second auctioneer. Agency by Estoppel here because Paul is allowing a misrepresentation to stand, and it would not

be fair to third party (2nd Auctioneer), who has relied on this misrep, to let Paul get off scot free Looking for the idea of induced reliance in the third party, and Principal doing nothing about it

o Inherent – NOT actual or apparent; Comes from an existing agency relationship and potential harm to third party 2d Rest §161 Really a catchall category that courts apply to protect third parties; general idea is that it is foreseeable

that agent would do this Agent does something w/o authority but which is usually done in connection with

transactions he is employed to conduct Principal gets a benefit, generally, from the agency relationship; it lowers transaction costs; this kind of

says “you get the benefits of when they do what they are supposed to, and you have to take the hits when they occasionally do not do what they are supposed to, or don’t do it just right”

Also comes from need to facilitate business transactions How to prevent this if you are Paul? Give express instructions to Agent; choose agent wisely; fire

renegade agents; get insurance; maybe make it known w/ third parties that Agent does not have authority to do this

Circumstances have changed since original consent given - p 14 But it is NOT strict liability for principals.

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Not in 3d Restatement of Agency.o Ratification – Even if agent has no authority whatsoever, principal will be bound to third party if principal, with

knowledge of material facts, affirms agent’s conduct by manifesting intent to treat it as authorized, or acts in a way that is justifiable only if he has such an intention

Serves the function of clarifying situations of ambiguous/uncertain authority. Principal’s ratification validates the agent’s right to have acted as he did.

Keeping the cows you don’t want = ratification What if agent keeps on accepting extra dogs, then finally principal says no on the last one? Agent may

have ACTUAL authority; original ratifications have made agent and the sellers think this is the norm for this seller and no one has instructed them otherwise

Indicates why principals have to be very careful w/ instructions to agents!o Acquiescence – If agent performs a series of acts of a similar nature, and principal doesn’t object, this indicates

consent to the performance of similar acts in future under similar conditions. Liability issues and agents

o P liable to TP: if a type of authority existso TP liable to P: if a type of authority exists

Exception: Undisclosed P and knowledge by P or A that TP would not deal with P First: is there authority at all? Second: can you show that TP wouldn’t deal with P, at all, under any circumstances? Third: did P or A know that TP wouldn’t deal with P?

This is a very narrow exception; you have to show ABSOLUTE not dealing w/ each other, or maybe misrepresentations by A

It’s not at all shady/improper for a principal to be undisclosed Common law does not want to interfere w/ undisclosed principal transactions because that is

perfectly ok; more efficient; businesses have lots of reasons to not disclose (Undisclosed vs unidentified – undisclosed = you think agent is acting directly; unidentified = you know

there is a P but not who it is)o A liable to TP:

Depends on whether principal is bound under contract. When P is bound: Undisclosed P: A is liable too

o Why? If TP has only seen/dealt with/known about A, it can’t do due diligence on P, and fully expects A to be liable.

Partially disclosed (unidentified) P: A is liable tooo Why? If TP has only seen/dealt with A and doesn’t know P’s identity, it can’t do due

diligence on P, and probably expects A to be liable too Disclosed P: A is NOT liable

When P is NOT bound because A has no actual/apparent/inherent authority Then A is generally liable. One base for this: A has made an implied warranty of authority to TP Another possible base: A can be held liable on K itself

o A liable to P: If actual authority, A is not liable to P, of course. If apparent authority, but no actual authority, A is liable to P for damages

Cow auction hypo above (P had sent letter to auctioneer): P IS liable to TP because apparent authority existed (even though no actual authority)

If inherent authority, some cases agent is liable, some cases the principal is stuck with the deal.o P is liable to A:

If A has actual authority, P must indemnify A. Same for inherent authority

Scope of the Lawyer’s Authority The basic rule: MR 1.2a

o the client has the right to decide the objectives of representation (“ends”); o the lawyer has the right to decide the means by which they are pursued.

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The lawyer has implied authority to take certain actions on behalf of client w/o asking permission. Per MR 1.2a and MR 1.4, the lawyer must reasonably consult with the client about the means. MR 1.4 cmt 5: Lawyer has a duty to provide client with enough information to participate intelligently in

decisions about the means by which the objectives will be pursued.o Look at whether what the lawyer is doing here relates to means or ends.

Hypo re: “Rambo” tactics used against a meritorious claim, when client said it pursues baseless claims hard but wants to settle reasonable claims – as the matter becomes more central to client’s interests, it should be considered as having more of an “ends” quality. Could argue that the client’s reputation among consumers is sufficiently important that this is a decision relating to the ends of the rep. (Could also argue client’s policy to settle meritorious claims and say that was an instruction regarding settlement.)

o If a client and a lawyer disagree about means – lawyer should consult with client and try to come up with a mutually agreeable solution. MR 1.2 cmt 2; MR 1.4 cmt 3.

o Note that you can always attempt to talk client out of stupid decision, even if he has ultimate auth to decide MR 2.1 – lawyers are required to be candid w/ clients and to exercise independent judgment.

o MR 1.2c: a lawyer may limit scope of rep, but only if limitation is reasonable under the circumstances! Civil Representation

o When is a lawyer’s action binding on client? Presumption that the lawyer has communicated relevant information is almost irrebuttable

o Client always has actual authority to settle; must authorize lawyer for lawyer to have authority to settle; as to 3Ps, though, lawyer may have apparent authority bc of what the client has done

A lawyer shall abide by a client’s decision on whether to settle a matter (MR 1.2a) ***A lawyer MUST inform client of an offer of settlement made by other side!!! MR 1.4.

Get ready for significant malpractice exposure if you don’t and then you lose at trial… International Telemeter v. Teleprompter – Trying to negotiate settlement; old president signs final

settlement documents and Tele lawyer tells ITC lawyer; Tele lawyer files stipulation of dismissal, then new Tele president says “nope, we won’t settle.” Tele lawyer tells ITC lawyer about this and then resigns. ITC sues to enforce settlement. Ct says that Tele lawyer was acting within the scope of his apparent authority and ITC was entitled to rely on it as long as there was no reason to believe he exceeded it. Further, Tele lawyer did in fact have authority to negotiate and consummate a settlement. Tele officials didn’t tell him to stop until way later.

o Actual Authority: principal (client) through words (express) or deeds (implied) causes the agent (lawyer) to reasonably believe that he has authority to act.

o Apparent Authority : principal (client) through words or deeds causes a third party to reasonably believe that the lawyer has authority to act.

Must be created by principal’s actions; can’t be created by agent’s actions. Cts generally require a showing of reliance and good faith on 3P’s part.

Criminal Representation o Based on fundamental constitutional rights, Client has actual authority to

Plead guilty Waive jury trial Testify Appeal (or refuse to appeal) Compromise case

o Decisions a criminal lawyer may make: Cts have upheld lawyer’s authority to decide “strategic matters” (under MR 1.2a). These decisions

include: what witnesses to call, whether a defense is plausible, whether to agree to mistrial, the nature of opening/closing argument, whether to waive Batson objection, whether to seek change of venue

o Jones v. Barnes – Issue: Whether criminal defense lawyer assigned to handle an appeal from criminal conviction has a constitutional duty to raise every non-frivolous issue requested by the defendant. Ct says no, this undermines the ability of counsel to use professional judgment to present client’s case. Adding weak arguments just dilutes the stronger ones.

Brennan dissent : this just encourages lawyers not to heed clients’ wishes; doesn’t help with the mistrust that criminal Ds often have for defense attys.

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Blackmun concur : thinks defense lawyer should have to argue all nonfrivolous issues on which the client insists.

o Anders – required appointed counsel who had determined client’s appeal to be frivolous to nevertheless “discuss anything in the record that might arguably support the appeal.”

o Ineffective assistance issues Failure to argue everything D wants probably not IAC Failure to investigate is IAC Failure to communicate a plea bargain is probably IAC Guilty plea without client consent will be set aside

MR 1.2c: A lawyer can limit scope of representation if A) the limitation is reasonable under the circumstances and B) the client gives consent.

o This limits client’s ability in 1.2a to set the “objectives” of the representation. MR 1.2d: A lawyer can’t tell a client to engage in a crime or fraud, or help them do it – BUT a lawyer can be a “law book”

and explain the legal consequences of a proposed course of conduct.

Clients with Diminished Capacity MR 1.14a – lawyer should try to have as normal of an A-C rel as possible MR 1.14b – if lawyer believes client is unable to act in own best interest, lawyer should consider steps to protect the client.

o Cmt 5: Lawyer’s protective actions should be guided by factors such as client’s wishes and values (to extent known), client’s best interests, intruding in client autonomy to least extent possible, maximizing client capacity

Say you have a schizophrenic client on trial for murder. He is on medicine now that works very well. You want him to go off it temporarily so that the jury can see the extent of his unmedicated craziness. Psychs conflict on whether this will have a long-term effect on him or no real effect. Can you tell him to do this?

o Conflict between lawyer’s usual ability to make decisions regarding means, vs lawyer’s need to consider client’s best interests and possibly help him maintain mental health.

o While he’s on his medication, D is almost certainly competent to decide to come off it, but once he’s off it, then what? AC rel during unmedicated phase is regulated by MR 1.14.

o At a minimum – lawyer should explain proposed course of action to extent that D can make an informed decision (while medicated) – MR 1.4b; may refer to other considerations that might bear on the decision, MR 2.1; should recommend that the client consult with relevant experts if necessary, MR 2.1; may have to make ultimate judgment call here.

o Argument that this is really unethical: the legal issue at trial is D’s state of mind at the time of the crime; this might make a vivid picture for jury but is fooling around with the client’s mental health; respecting client’s best interests creates an obligation not to take actions that will interfere w/ client’s mental health.

o Might want to look at WHO suggested going off the medication – if he suggested it, maybe it’s paternalistic of you to say no. But if YOU suggested it, you’re the one who planted the seed here, so it’s disingenuous to call it “paternalistic” if you are looking out for his health.

Forming/Ending the Relationship MR 1.16 governs declining or terminating representation. Declining Representation – per 1.16a, you can’t even start repping a client if:

o Representation will result in violation of rules of professional conduct or other lawo Lawyer’s physical or mental condition materially impairs the lawyer’s ability to rep the client, oro Lawyer is discharged.o Basically, you shouldn’t take the rep unless you can perform it competently, promptly, w/o improper C/I and to

completion. (Cmt 1) Deciding whether to accept of new clients

o It is ALWAYS better to decline a representation if you feel iffy about it than to accept it and then withdraw (assuming you have a choice and are not court-appointed; that is governed by MR6.2) .

o Why? Potential malpractice liability/competence issues; duty to represent zealously; communications obligations; conflict of interest issues; confidentiality issues; billing issues

Withdrawalo Mandatory Decline/Withdrawal – MR 1.16(a)

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Representation will result in violation of rules of professional conduct or other law Note: if client files a complaint against you but doesn’t fire you yet – falls in here because now

you have a 1.7 conflict of interest w/ your client. This would encompass a client about to perpetrate a fraud that you are a part of now – such as

you are a divorce atty and find out client is lying about assets in a settlement agreement you are supposed to present to the court the next day.

Lawyer’s physical or mental condition materially impairs the lawyer’s ability to rep the client, or Lawyer is discharged

A client has the right to fire a lawyer at any time for any or no reason, subject to liability for payment for lawyer’s services.

Client’s right to fire appointed counsel may depend on the law.o Permissive Withdrawal – MR 1.16(b). You need either good cause, or no material adverse effect.

B1: Withdrawal can be accomplished w/o material adverse effect on client interests Under b2-7 (the rest of these), you can withdraw even if harm exists!

Client persists in course of action involving lawyer’s services that lawyer reasonably believes is criminal/fraudulent

Not a 1.16a situation because these are your past services and you are not actively in the fraud. Ex: divorce client uses a separation agr you prepared, before you knew she lied about $$, to apply for loans. You aren’t defrauding the banks, she is.

Client has used lawyer’s services to perpetrate crime/fraud This would entail you finding out after the fact.

Client insists upon taking action that lawyer considers repugnant/fundamentally disagrees with Client fails substantially to fulfill obligation to lawyer, & lawyer gave reas. Warning

This is what you could use if client won’t pay bills, AS LONG AS YOU WARN FIRST. Representation will result in unreas. fin burden or has been rendered unreas difficult by client

This is where you might try to get it in if your client is a real jerk/won’t cooperate (Other good cause exists) Cmt 7: Lawyer may also withdraw if client insists on taking action that the lawyer considers repugnant or

with which the lawyer has fundamental disagreement.o Proper Withdrawal – MR 1.16(c&d)

Comply with law requiring notice/permission by tribunal – must continue if ordered by tribunal If attorney is of record in litigation, court permission is required to withdraw.

Take reasonable steps to protect client’s interests. This applies even if lawyer was unfairly discharged by client! (Cmt 9)

o Kriegsman – accepting a retainer constitutes a lawyer’s implied agreement to prosecute the matter to a conclusion unless reasonable cause for withdrawal exists or the client consents

o Note: can’t withdraw from one conflicted client for hot potato reasons. Must withdraw from BOTH representations.

Old clients’ access to their files: MR 1.15d and 1.16d say that you must give the client what the client is entitled to receive under other law.

o But Sage Realty v. Proskauer – Client was held to be presumptively entitled to entire file.o Includes attorney’s work product, if the client paid for it!

Ending The Relationship Before it Startso Togstad – Atty sued for malpractice. Wife met with lawyer to discuss possible med-mal claim for her husband

against hospital. She gave him a fair amount of detail. Lawyer said at meeting that “he didn’t think they had a case” but he would talk to partner and call her back if he changed his mind. He never called so wife thought Atty had decided there was no case. She didn’t consult another atty until a year later (which was outside 2 yr s/l).

Experts here say that at the very least he should have done some investigation or at least told her about the 2 yr s/l. Jury gives Togstads $650,000!

Elements of legal malpractice claim here: Atty-client relationship existed Defendant acted negligently Defendant’s acts were proximate cause of P’s damages But for D’s conduct, Ps would have been successful in prosecution of med-mal claim

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Ct agrees that there was an A-C relation here. This is based on Togstad’s reasonable belief! (Greycas case)

A lawyer has a duty of care in any conversation with a person who reasonably believes she is consulting the lawyer for purposes of obtaining legal advice.

Ct also thinks he was negligent for failing to tell of 2 yr s/l and failing to do any research.o Lessons from Togstad:

Do what you say you will do – even to a “non-client” Clarify, clarify, clarify Relationship is what the client reasonably believes

o MR 1.18 – Prospective Clients person who discusses with a lawyer the possibility of forming an A-C relationship w/respect to a matter 1.18 [cmt. 9] – MR 1.1 governs duty of lawyer giving assistance on merits of a matter to a prosp. Client

o MR 1.1 – Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal

knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Is the person a client or not? Remember Greycas, Westinghouse and Togstad – existence of A-C relationship is based on the putative client’s

reasonable belief.o Also remember MR 1.18 re: prospective clients.

Most common reason someone reasonably believes an AC rel has started: transmission of confidential info You have general consumer law info up on your website. No method for anyone to tell you who they are or talk to each

other. Not a client because no personal relationship and no reasonable belief here that a relationship began. Factors that help you if it is an iffy situation (re: NOT a client) – these are persuasive/relevant but not determinative:

o Person already repped by another attyo You gave no legal advice to persono You did not enter into any kind of agreemento You were an investor in the business (say, guy asks you if you are interested in investing, sends you stuff to look

at, you invest, and it turns out that he committed an SEC violation in the documents) In this case: DO NOT give any legal advice, and strongly encourage him to have indep counsel

Someone at a party says, “You’re a lawyer, right?” and proceeds to ask you whether she can do X involving real estate without getting in Y kind of legal trouble. You tell her “generally, ABC; you might want to DEF.” She doesn’t talk to you again but she then proceeds to do Y. People then sue her for doing Y.

o Malpractice: Yup, you are probably in trouble. Under Togstad: Contract theory of malpractice: if someone asks you for advice in your capacity as attorney, and you

provide that advice, and she reasonably relies on it – A-C rel. Tort theory of malpractice: atty could reasonably foresee harm to client if advice is negligently given Key here is, you did not just give general info about the law but applied it to her problem. You can

answer a general question about the law in a social setting and be ok – this is just too much.o Conflicts: Depends on how long ago you talked to her to decide if it’s Rule 1.7 or 1.9. But you have an issue.

You have confidential information that would be material in the litigation, and your duty to keep it confidential to her would materially limit your ability to rep new clients.

o Confidentiality: She is probably a client for MR 1.6 purposes, because she consulted you for legal advice and expected you to keep it confidential. Even if ct says she is NOT a client in a malpractice suit – prob. Conf anyway

Man calls you (divorce atty) and insists on asking questions on phone before coming in. He indicates intent to hide property from wife. You say you do not work with clients who don’t obey law, so won’t rep him, and advise him to get different atty, then follow up with a letter saying the same.

o No reasonable belief here that he IS your client, but he prob does count as a prospective client under MR 1.18. You have a website on Hague Convention with an email link saying “email me if you have questions.” A guy takes his kid

to Canada, then emails you saying he did this and he wants a lawyer and needs legal advice. A few days later you email back and say you can’t take his case. Later the wife tries to hire you for the divorce.

o Man is not your actual client because there is no reasonable expectation here; you never comm’d anything to him (contrast Togstad where he gave her legal advice) except to say “Not your lawyer.”

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o BUT: probably is a prospective client under MR 1.18. So you can’t rep wife w/o his consent (and hers).

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VIII. Competence

Competence Basics MR 1.1 Cmt 2: “Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation

may involve”o Cmt 3: In an emergency a lawyer may give advice/assistance in a matter in which he doesn’t have the skill

ordinarily required, but must be limited to what is reasonably necessary in the circumstanceso Cmt 4: may accept representation if the requisite level of competence can be achieved by reasonable preparation.o Cmt 5: Competent handling includes research and adequate preparation

MR 1.3 – reasonable diligence and promptness in representing a client – could also play in hereo Cmt 1 – lawyer should take whatever lawful and ethical measures are required to vindicate client’s cause – BUT is

not bound to press for every advantage that might be realized. Does not require use of offensive tactics.o Cmt 2, 3 – lawyer needs to control workload and not procrastinateo Cmt 4 – Unless relationship is terminated under Rule 1.16, lawyer should carry through to conclusion all matters

undertaken for a client. Clarify when your relationship ends IN WRITING so client knows you aren’t still repping him!

Malpractice Note: lawyers usually won’t take a malpractice claim unless the client has suffered a large $$ harm and has good chance of

winning the case. Malpractice cases are hard fought and expensive. Usually won’t take them on contingent fee either. Elements of a Malpractice Claim

o Duty (Togstad) – A-C relationship (or client’s reas belief that there was one) Or in jurisdictions that don’t require privity, some other showing that there was a duty to P (Greycas)

o Breach (Lucas v. Hamm) – failure to exercise the care that reasonably competent lawyers exercise under similar circumstances

Usually includes knowledge, skill, prudence & diligence Plaintiff must usually obtain testimony of other lawyers re: the standard applicable.

o Causation (Smith v. Lewis) – lawyer’s act or omission was both cause-in-fact and proximate cause If the harm is loss of a claim, P usually has to show that underlying case would have succeeded had the

case been properly brought or litigated. “Trial within a trial.” Also that D would’ve been able to pay!o Harm (Togstad) – usually purely economic.

That you would have received a different and more advantageous result in the transaction or litigation Lucas v. Hamm – lawyer drafting a will messes up rule against perpetuities and this ends up costing the will beneficiaries

$75,000. Plaintiffs here are not clients, but are intended beneficiaries of the will.o Ct allows these beneficiaries to be plaintiffs; lack of privity isn’t a problem because they were the intended

beneficiaries of what the lawyer was doing, so he had a duty to them.o But court then says there was no breach! Defines breach as: failed to use such skill, prudence & diligence as

lawyers of ordinary skill and capacity. Doesn’t think ordinary lawyers can understand RAP!o Note: this is silly; why doesn’t he have to consult someone who does know? Sets bar very low!

Smith v. Lewis – Atty repped wife in divorce proceeding. During property division phase, she tells him about husband’s state and federal pension and asks if that should be part of the community property. He doesn’t look anything up and just says “no, it isn’t.” Property division occurs and that is put down as husband’s personal property. Turns out after the fact that one if not both should have been CP.

o D tries to defend by saying the state of the law was uncertain on these two things. Ct looks at the law as it was at the time and says no – for the state law pension, authority was unanimous that this was community property (vested retirement benefits earned during marriage). This was readily accessible to D at the time.

Federal one was more questionable because payments hadn’t started yet & law was unsettled. But even on that one, he could have made a reasonable argument that it was CP!

o Defendant’s failure to conduct any research whatsoever into whether these were CP can constitute a breach. D is expected to possess knowledge of plain/elementary principles of law commonly known by well

informed attys, and ALSO to discover rules of law which aren’t commonly known but can be found through standard research.

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With unsettled area of law, atty assumes obligation to undertake reasonable research to ascertain relevant legal principles and make an informed decision.

“There is nothing strategic or tactical about ignorance.”o Majority here clearly thinks that D’s failure to research is the cause of P’s loss of this as CP.o Dissent – P hasn’t shown that D’s neg, rather than uncertain law or strategic decision re: alimony, is the cause

What if an attorney didn’t communicate a settlement offer?o P would then have to prove 1) he would have accepted and 2) payor would have actually paid.

Attorney cannot contract with client that client won’t sue for malpractice – only exception is under 1.8h1, if client is independently represented in that agreement.

If a client threatens to sue, can the attorney settle with him?o 1.8h2 – Client must be advised in writing on the desirability of seeking, and is given reasonable opportunity to

seek, independent counsel (regarding that). A violation of the MR can’t form the basis of a cause of action, but can be some evidence of a breach. Note: You can also sue attorneys for: Breach of contract; Breach of fiduciary duty (does not require harm); DTPA

Effective Assistance of Counsel under the 6 th Amendment (Dow) Under the 6th Amendment, defendants have a right to counsel at:

o A preliminary hearing at which probable cause to proceed is determinedo A post-arrest lineupo Trial and sentencingo A first appeal (but not discretionary appeals or habeas proceedings)

Some showing of indigency must be made for D to qualify for ct-appointed counsel. Criminal D is entitled under 6th am to be represented by counsel anytime state threatens to deprive his liberty.

o Further, that right is not just to counsel but to effective assistance of counselo In every state, someone who is convicted of an offense that carries a prison term has a right under state law to an

appeal (“direct appeal”) and under the 14th amendment (EPC) everyone who is convicted of a crime that carries possible prison sentence in a state that has an appellate regime w/ automatic appeal, is entitled to lawyer during that first appeal.

Strickland v. Washington – D keeps going against lawyer’s advice, confessing to serial murders and pleading guilty. Counsel talks to wife and mother and D about his background. In sentencing phase, counsel decides not to do any more research and decides not to try to show mitigation bc of background or emotional state. TC finds lots of aggravating circumstances and says they would outweigh any mitigating circumstance. D gets death sentence and then appeals on IAC.

o To successfully raise IAC claim, the criminal defendant must prove: Lawyer’s performance fell below an obj standard of reasonable competence.

This means that the lawyer was so bad that the D didn’t get the “counsel” reqd under 6th Am. Client’s case was prejudiced as a result

Errors were so serious as to deprive D of a fair trial/a trial whose result is reliable. An error that doesn’t cause prejudice will NOT get your conviction set aside! D must show that, but for D’s unprofessional errors, there is a reasonable probability that

the result of the proceeding would have been different. In a criminal conviction, this is whether the factfinder would have had a reasonable doubt concerning guilt.

o Courts must indulge a strong presumption that the lawyer’s conduct is within the wide range of reasonable options. D must overcome presumption that under the circumstances the challenged action might be considered

sound trial strategy. Reasonableness of counsel’s actions can be determined or substantially influenced by D’s own statements

or actions.o A court must also presume that, absent challenge to evidentiary insufficiency, judge/jury acted according to law.o Court does not automatically have to consider factors in order or even consider both. If one clearly fails, court can

stop right there w/o looking at other one. Ct here doesn’t think lawyer fails either test. Not unreasonable to stop looking and no prejudice. Note that this might have a different result under Wiggins bc of lack of investigation.

DP cases:o Question at trial is whether defendant committed the act that the state accused him of

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The act the state accused him of is the act of committing a death-eligible homicide (under that state’s law; ex: in TX not every homicide makes you eligible for DP).

o Question at punishment phase is whether D should be sentenced to death or something less. In a non-capital case, Strickland prejudice means: had the lawyer done as he should have, reasonable probability that D

wouldn’t have been convicted (Jury would have found reasonable doubt.) In capital case – Strickland prejudice CAN mean that, but can also mean:

o that the D would have been convicted, but of a non-death-eligible offense, oro that the D would have been convicted of death-eligible offense but wouldn’t have been sentenced to death

(Wiggins). First element was harder to prove than you would think, until SC decided Wiggins v Smith. SC had never embraced any

written standards to define obj level of competence that DP lawyers had to satisfy, but they did that here. o Wiggins case – Wiggins’s lawyers didn’t learn anything about his bg. Mom was a single parent drug addict; didn’t

feed them; left them at home unattended and locked out of kitchen; they ate paint chips) In Wiggins, SC said a DP lawyer has to do this to satisfy first prong: Conduct a thorough

investigation into client’s background. Any decisions that the lawyer makes w/o conducting that investigation are not presumed to be reasonable.

o Smith case – former Mormon choir boy, joined Marines, went to Iraq & went crazy, ended up killing wife This is actually an easier case because he wasn’t messed up until war experience did to it Contrast w/ Wiggins, messed up from the moment they are born into abusive household

In Strickland + Wiggins – presumption that a lawyer’s decision is sound is to be indulged in by rvw ct only if it concludes that the lawyer has conducted the inv necessary to make that decision.

o Ex: A lawyer can’t decide not to call any mitigating witnesses w/o even investigating to see who they might be and what they would say.

Even though it is possible for an IAC to be raised in that first appeal, it almost never iso Practical reason – direct appeal lawyer is usually the trial lawyer!o Conceptual reason – appellate issues fall into two categories:

1) record-based claims (claim that appellate lawyer can ID simply from reading record of proceeding). Direct appeal lawyer goes and gets every piece of paper, etc. But the record doesn’t tell you what the trial lawyer DIDN’T do. This means that most Strickland claims are non-record-based claims; in order to know that the trial lawyer was ineff, the appellate lawyer has to do own investigation – figure out what trial lawyer would have learned if he did an inv prior to the original trial.

2) non-record-based claims Habeas corpus is available to people in gov’t custody, whose custody is alleged to violate the constitution or statutory law.

o If you show IAC then you show a violation of 6th amo Have to ask state court first (exhaustion requirement) – Have to tell them the facts that support that claimo Only have one try in state cto Federal ct doesn’t like to do it

28 usc 2254d – a federal ct is not authorized to grant relief to a habeas petition just bc federal ct believes that Strickland prejudice has been shown. Before 1996, even if you lost in state ct you could win at federal ct if the federal ct thinks one juror would have held out. Not anymore; under this law, a state ct judgment that denies habeas relief

o (State ct has concluded that you haven’t proven that even one juror would have held out if it denies you Strickland relief)

o You are entitled to federal habeas relief only if judge thinks state ct’s conclusion to the contrary was “objectively unreasonable” (more than wrong). Not just being wrong. 2+2=5 vs 2+2=10.

The lesson to learn re Strickland is deficient performance + prejudice. But if you are denied relief in state ct, you don’t get any help from fed ct unless it is really really wrong. So win in state ct!

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IX. Regulation of Competition for Legal Services (Advertising/Solicitation)

MR 7.1: False/Misleading Comms (Governs ALL comms about a lawyer’s services) Lawyer shall not make false or misleading communication about the lawyer or his services. False/misleading = contains material misrep of fact OR law, or omits a fact necessary to make NOT mat. Misleading Truthful statements that are misleading are also prohibited – subs likelihood that it will lead a reas person to formulate a

specific conclusion about a lawyer or his services for which there is no reasonable factual foundation. An advertisement that truthfully reports a lawyer’s past results for clients may be misleading if presented to give reasonable

person an unjustified expectation that the same results could be obtained in similar matters, w/o ref to facts/circ of that case Comparison of your fees/svcs with another lawyer’s can be misleading if the comparison isn’t really warranted/substantiated

o Cts/ disciplinary boards are veeeeeeeeeeeery likely to frown on anything that makes you look like you are asserting you are better than other lawyers… we do it well, small town service, etc

********Disclaimer in your comm. can preclude findings about what a “reas person” could get out of it!!*******

Don’t forget Rule 8.4e re: you cannot state or imply that you can influence a gov’t agency or official, or that you can achieve results that violate MPC or other law.

MR 7.2: Advertising Subject to 7.1 (no false/misleading comms) and 7.3 (regulating direct contact with clients), you can advertise ANY comm. under this rule must include name and office addr of at least one lawyer/firm responsible for content! Can’t give anything of value to someone to recommend you, EXCEPT

o Can pay reasonable costs for ads/permitted commso Can pay usual charges of a legal svcs plan OR a nonprofit/qualified lawyer referral service

(Why? These are generally seen as consumer-oriented conduits for access to legal svcs) Lawyer must act reasonably to assure that the acts of the plan are compatible with MPC obligations

o Can pay for a law practice acc to 1.17 (can buy out a firm)o Can refer clients to another lawyer OR nonlawyer in exchange for their referrals, if not otherwise prohibited, if

Reciprocal agr is not exclusive, AND client is informed about existence/nature of this reciprocal agreement. Cmt 8: any agreement like this must not interfere w/ lawyer’s professional judgment Remember 1.5e re: referral fees. Except under 1.5e, can’t pay anything solely for referral. Cmt 8: These agreements should not be indefinite; should be reviewed periodically

Balancing two concerns here:o Traditional view that lawyer shouldn’t quest for clientso Public’s need to know about legal services

Cmt 2: Permits ads containingo Lawyer/firm name, addr, telephoneo Kinds of services lawyer will undertakeo Basis on which fees are determined, incl prices for special svcs, or pmt/credit arrangementso Foreign language abilityo Names of referenceso With consent, names of clients regularly representedo Other info that “might invite attention of those seeking legal service”

Cmt 5: Remember Rule 5.3 in regard to whoever is PREPARING this adv stuff for you.

MR 7.3: Direct Contact w/ Prospective Clients 7.3a – A lawyer SHALL NOT by “in person, live telephone or real-time electronic contact” solicit employment when

“significant motive is lawyer’s pecuniary gain” – UNLESS:o Person contacted is also a lawyer, ORo Person contacted has a family, close personal, or prior professional relationship w/ the lawyer.

7.3b – can’t solicit employment at all, if:o The prospective client has made known to the lawyer a desire not to be solicited by him, oro The solicitation involves coercion, duress or harassment

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7.3c – unless it’s a person listed in 7.3a, you have to have “Advertising Material” on the envelope/at beginning and end of any recorded or electronic comm.

o Cmt 7: doesn’t apply to RESPONSES to people’s comms to you OR general announcements (chg in location) 7.3d – lawyer can still use a legal svcs/qualified referral svc -- NOT owned or directed by the lawyer – that solicits Special potential for abuse in situations where lawyer is one-on-one w/ lay person like this.

o Less worried about that with advertising and written/prerecorded communications – these are ok. Cmt 5: if you send a letter/comm. under 7.2 and they never respond, any further effort to contact may violate 7.3b

Shapero v. Kentucky Bar Assoc. – Issue: Can state, under 1st/14th amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful/nondeceptive letters to potential clients known to face particular legal problems?

Issue here is targeted letters. KY SC had a rule at the time prohibiting written ads “precipitated by a specific event or occurrence” involving the addressee as distinct from the general public.

o Rule 7.3 at the time allowed NONtargeted letters Lawyer advertising is in the category of constitutionally protected commercial speech (Bates v. Arizona) Ct says relevant inquiry is not whether a potential client’s “condition” (needing legal svcs) makes him susceptible to undue

influence, but whether the mode of comm. poses a serious danger that lawyers will exploit that susceptibility Basically says written comms, if not false/misleading, don’t present as much danger as in-person ones whether they

are targeted or not. MR 7.3 changed after this to reflect this distinction btw written (basically whatever ) and in-person.

End result of the constitutional cases is that states may not ban truthful, non-deceptive advertising by lawyers in print, electronic or direct-mail advertisements, although they may impose certain limited restrictions.

The dichotomy here is ADVERTISING vs SOLICITATION. Advertising is ok; solicitation (in-person-esque going after clients) is not. Ohralik decision upheld state restrictions of live/in person solicitation of prospective clients for pecuniary gain.

X. Attorney Discipline

State has burden of proof re: atty disciplinary violations.

Should MR 8.4 (Misconduct) be read broadly or narrowly? Those who favor narrower standards are concerned with the potential for abuse of the discipline system and the fairness of

imposing discipline under such vague standards. Proponents of narrower standards are especially concerned with discipline for an attorney's "private" conduct, arguing that attorneys should not be subject to higher standards of personal morality or ethics than any other member of the public. These proponents may view the purpose of a discipline system in the specific terms of protecting clients and the courts but reject a more general purpose of protecting the reputation of the profession or the public's attitude toward the system of justice.

I have found that those who favor broad definitions of misconduct, also tend to view the purpose of discipline very broadly. They would use the discipline system specifically to protect the public and the courts, but also generally to preserve the public's trust in the legal profession and the system of justice. The argument I most often hear for broad standards is that it is impossible to more precisely define misconduct without leaving significant gaps. Without these general "gap filler " provisions, we will be unable to act against those attorneys who should not be practicing law. Those who favor these broad standards are generally comfortable with the significant discretion these standards vest in the courts and their disciplinary agents.

You can get punished via civil/criminal action AS WELL AS in a disciplinary action. No double jeopardy rule.

In a case where it is iffy whether a lawyer should face discipline: Should we apply the rules formalistically or purposively? Formalistically : look at the language of the rules to see whether the rules were literally violated Purposively : approach the rules in terms of their underlying purpose or rationale. Ask what harm the rules seek to prevent

and balance that against the good that could be done by permitting a certain amount of deviation by lawyers.o Look at particular conduct here – why was it done? Is the context special? What would the precedent be if we

allowed this? Who does it help and who does it hurt? Analogous to any other kinds of conduct that we generally allow or generally frown upon?

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Supervised Lawyers (Rule 5.2) – “reasonable resolution of arguable question” implies that you actually did some research into the question/answer, because how else would you know that the question was arguable or that the supervisor’s order was reasonable?XII. Guest Speakers

Stacey & Benton Bond Both worked in District Attorney’s office as prosecutors She went to UH, he went to STCL Now he works at Union Pacific She is a defense attorney who is a partner at her firm Ethical dilemmas:

o Make sure the money you are paid is clean – not ill gotten gaino Look out for who is paying your feeo UP – making sure people understand he is the company lawyer, not the individuals’ lawyero Manage the conversation very carefully at first (Stacey) – “What are you charged with?” then look at state’s

evidence. “Don’t tell me what you did.” See what state is trying to prove, and what evidence they have, then figure out how to counteract it w/ very guided questions. Don’t let them tell you too much.

o Have to be careful dealing w/ family, friends.

Jordan Mintz Former general counsel/VP at Enron Global Finance – worked under Fastow and Kopper. Got promoted there from being a

tax lawyer at Enron. At the heart of a lot of the bad stuff. Stayed for first year of bankruptcy. Came on and immediately noticed LJM (the partnership that had Fastow as GP) was weird. Wrote a LOT of memos to the

file reflecting concerns. LJM had done about 20 transactions already and the files were in disarray. Some of the Enron employees were working exclusively for LJM. Huge conflict of interest issue. He was v. uncomfortable with it.

Does not describe self as whistleblower, just was keeping track of his concerns. Started having monthly meetings with overall GC and outside counsel to give them the info and ask if what is going on here was ok. Gave recs to fix it. Wishes he had been more explicit.

Eventually hired Fried Frank to look @ past filings & ask about LJM, but didn’t tell anyone, bc if he was wrong, didn’t want to be embarrassed.

Mostly came out pretty well except for SEC suit. Now at Kinder Morgan. Was sued by SEC and is currently dealing with that. Was a tax lawyer

Ann Foster – TLAP Director at TLAP for 10+ yrs Graduated from UT law in 1985 Fought a personal drug/alcohol addiction, just alcohol when graduated law school; worked like that for years; eventually had

a moment of clarity and went into rehab. TLAP works with students/lawyers facing drug/alcohol addiction, depression, stress, etc.

o Confidential without written permission to disclose.o Tries to put them in touch with counseling, peer assistance, some financial assistance for treatment costo “safety net” before people hurt anyoneo Does outreach on drugs, alcohol, depression, stress

Average population – 8 to 10% get depressed; lawyers are twice that. Lawyers also 2x average for drug/alcohol abuse. TLAP usually gets two kinds of calls: ones from the individuals themselves and ones from “concerned others.”

o Concerned others think someone has a problem and want to know what to do.o COs are immune from suit if calling in good faith.o TLAP sends a volunteer to visit the person – offer help, leave a card. Can’t force to do anything.

Tx Board of Law Examiners is now aware it’s important to look at drugs, alcohol, mental health bc of link to misconducto TX Rule 8.03a: must report misconduct

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o TX Rule 8.03c: if you suspect or have knowledge that someone is impaired by drugs, alcohol, mental issues, you can fulfill your reporting duty by calling TLAP!

This sets a very different process in motion than telling a court because all they can do is approach.

Prof. David Dow Ineffective assistance of counsel claims Current case he has (Pondexter): lawyer was incompetent, but client he had did something awful (gang member, broke into

elderly woman’s house, buddy shot her in head, then he shot her in jaw, then they stole her car). Lawyer didn’t do even bare minimum in representing client

It does matter whether he thought the lady was already dead when he shot her.o Ex: in tx you have to have intent to kill to be eligible for death penalty murder. Not homicide to shoot dead person.o Lawyer consulted no experts regarding whether she was already dead (even though state actually argued she was in

the first guy’s trial)o So here he has to prove that 1) lawyer should have investigated it and 2) he wouldn’t have been convicted of death-

eligible offense Ct in Pondexter case said, nah, he might have had a strategic reason for doing that (A “strategic reason” makes you fail the

first prong)o When this got to federal ct, they said there is no sound basis for saying this was strategic – it wasn’t informed. A

decision cant’ be strategic unless it is informed by adequate investigation.o If confidence in reliability of death sentence is undermined in liht of the new evidence, then meets stage 2o If it arises at guilt-innocence phase, it’s whether the guilty verdict was undermined

Hypo from PR 4/10 Raise & quickly state that Mr has all kinds of good claims Legal malpractice hinges on A-C rel Togstad – elements of legal malpractice (both Minnesota cases, etc)

o Duty (a-c relationship) This is the key issue

o Breach (negligently or in breach of contract)o Causationo (Damage) But for defendant’s conduct, Ps would have been successful in prosecution of medmal claim

Duty questiono Alholm

Greycas – her subjective reasonable belief He is discussing conf info and claims He can’t just arbitrarily limit the scope w/o her informed consent (1.2c) If scope is limited to Jones Act, why is he trying to file med-mal later? In Minnesota—loss of consortium is derivative of medmal claim; she could have recovered under med

mal and she would have been client there; there’s at least some duty here Under Togstad, if she brings a loss of consortium argument – he has to be really clear. Shouldn’t lawyer

be saying , “That’s a good question, but I can’t help you with it” or “You can only get that with Med Mal,” not just cutting it off short at no w/ jones act

o Lawyer Deposition: she says no Husband had diminished capacity; she is just standing in for him; MR 1.4 Lawyers can limit scope of representation Med-mal claim still belongs to the HUSBAND, not the wife – doesn’t indicate he’s representing wife

o Overall, she has a good argument for duty. Breach (Negligence)

o Alholm Indicates breaches of 1.1, 1.2, 1.3, 1.4

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He should have told her that you can’t get it this way but you can get it another way – or at least investigated how to get it another way

At least a “should have known” here Should have clarified somehow!! He didn’t even tell her “this is the scope of my rep, Jones Act”; no facts indicating that she

consented to just Jones Act; no follow-up letter etc Should have advised her of timebar on med mal

o Lawyero Again – mostly good for Alholm here

Damageso Argue about whether med mal case was good enougho (This is why all these facts are given at the beginning of the case!!)

If the fact pattern looks like a case you read, then you talk about the case too, not just model rulesPg 826Jones v. Barnes case – same author as Nix v Whiteside – Justice Burger. Criminal cases mean that certain things are more important to put in client’s hands, constitutionally.If you agree with brennan dissent, doesn’t it seem like Nix is wrongly decided? If client has right to testify, why do you let lawyer get in the way of that?Don’t forget to relate today’s criminal stuff to Nix. Nix is the law.

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List of the Model Rules

Rule 1.0 Terminology

Client-Lawyer Relationship

Rule 1.1 CompetenceRule 1.2 Scope of Representation and Allocation of Authority Between Client and LawyerRule 1.3 DiligenceRule 1.4 CommunicationsRule 1.5 FeesRule 1.6 Confidentiality of InformationRule 1.7 Conflict of Interest: Current ClientsRule 1.8 Conflict of Interest: Current Clients: Specific RulesRule 1.9 Duties to Former ClientsRule 1.10 Imputation of Conflicts of Interest: General RuleRule 1.11 Special Conflicts of Interest for Former and Current Government Officers and EmployeesRule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral Rule 1.13 Organization as ClientRule 1.14 Client with Diminished CapacityRule 1.15 Safekeeping PropertyRule 1.16 Declining or Terminating RepresentationRule 1.17 Sale of Law PracticeRule 1.18 Duties to Prospective Client

Counselor

Rule 2.1 AdvisorRule 2.2 (Deleted)Rule 2.3 Evaluation for Use by Third PersonsRule 2.4 Lawyer Serving as Third-Party Neutral

Advocate

Rule 3.1 Meritorious Claims and ContentionsRule 3.2 Expediting LitigationRule 3.3 Candor toward the TribunalRule 3.4 Fairness to Opposing Party and CounselRule 3.5 Impartiality and Decorum of the TribunalRule 3.6 Trial PublicityRule 3.7 Lawyer as WitnessRule 3.8 Special Responsibilities of a ProsecutorRule 3.9 Advocate in Nonadjudicative Proceedings

Transactions with Persons Other Than Clients

Rule 4.1 Truthfulness in Statements to OthersRule 4.2 Communication with Person Represented by CounselRule 4.3 Dealing with Unrepresented PersonRule 4.4 Respect for Rights of Third Persons

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http://www.abanet.org/cpr/mrpc/rule_1_0.html




































Law Firms and Associations

Rule 5.1 Responsibilities of a Partner or Supervisory LawyerRule 5.2 Responsibilities of a Subordinate LawyerRule 5.3 Responsibilities Regarding Nonlawyer AssistantRule 5.4 Professional Independence of a LawyerRule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of LawRule 5.6 Restrictions on Rights to PracticeRule 5.7 Responsibilities Regarding Law-related Services

Public Service

Rule 6.1 Voluntary Pro Bono Publico ServiceRule 6.2 Accepting AppointmentsRule 6.3 Membership in Legal Services OrganizationRule 6.4 Law Reform Activities Affecting Client InterestsRule 6.5 Nonprofit and Court Annexed Limited Legal Services Programs

Information About Legal Services

Rule 7.1 Communication Concerning a Lawyer's ServicesRule 7.2 AdvertisingRule 7.3 Direct Contact with Prospective ClientsRule 7.4 Communication of Fields of Practice and SpecializationRule 7.5 Firm Names and LetterheadRule 7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges

Maintaining the Integrity of the Profession

Rule 8.1 Bar Admission and Disciplinary MattersRule 8.2 Judicial and Legal OfficialsRule 8.3 Reporting Professional MisconductRule 8.4 MisconductRule 8.5 Disciplinary Authority; Choice of Law

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duncan pr spring2010

Documents

open refusal

cintolo giving

reasonable

im pauls agent

reasonable

requires ct

materially

reveal information