Professional ResponsibilityLaw 115

Wed., Dec. 5

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DUTY OF LOYALTY(conflicts of interest)

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• Successive Representation

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• Rule 1.9 Duties To Former Clients• (a) A lawyer who has formerly represented a

client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

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• Comment 3 to 1.9• substantially related = same transaction or

legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter

what happens when you jointly represented A and B in the past

and now want to represent B only in a substantially related matter in which B’s interests are materially

adverse to A’s?

what if lawyer represents organization and constituent and then there is a falling out

may lawyer continue representing organization in a substantially related manner when organization’s interests are materially adverse to constituent’s?

accommodation client

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• Prospective clients

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• Rule 1.18 Duties To Prospective Client• (c) A lawyer subject to paragraph (b) shall not

represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).

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• Comment 2 to 1.18• A person who communicates information

unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a).

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• If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

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• 1.18(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

• (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or

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• (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

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

• (ii) written notice is promptly given to the prospective client.

• Imputed conflicts• Transitory lawyers

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• 1.10(a)• If one lawyer in a firm is prohibited from

representing a client (w/o consent) under conflicts rules 1.7 or 1.9 (not personal interest conflicts), all lawyers in the firm are.

• Also applies to 1.8 conflicts, except 1.8(j)

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screening does not help, except…

1.10(a)(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;

(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and

(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.

• MR 1.10(b)• If a tainting lawyer leaves the firm, the

remaining lawyers are free of limitations except

• They still not may not represent (w/o consent) someone with interests materially adverse to a client of the tainting lawyer

• If the matter is the same or substantially similar to the earlier representation and

• The remaining lawyers have confidential information material to the matter

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• MR 1.9(b)• If a lawyer who was tainted leaves the firm

with the tainting lawyer, he is free of limitation except

• she still may not represent (w/o consent) someone with interests materially adverse to the tainting lawyer’s client

• If she has confidences material to the matter

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• Assume X, a lawyer at Firm 1, defended A in connection with an antitrust claim against A brought by B. May Y represent D, who is suing A for antitrust violations?

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Firm 1

X Y

A

B

Dantitrust

antitrust

A

• X moves to Firm 2. May W, another lawyer at Firm 2, represent D in his suit against A?

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Firm 1

X

A

B

Dantitrust

antitrust

Firm 2X

W

A

• After X leaves for Firm 2, may Y, who is still a lawyer at Firm 1 and who did a small amount of discovery work in B’s suit against A, represent D?

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Firm 1

X

A

B

Dantitrust

antitrust

Firm 2X

Y (small amt. of discovery work)

A

• May V, who is still a lawyer at Firm 1 and who knew nothing about B’s suit against A, represent D?

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Firm 1

X

A

B

Dantitrust

antitrust

Firm 2X

Y (small amt. of discovery work for A)

V

A

• Assume Y moves to Firm 3. May he now undertake to represent D?

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Firm 1

X

A

B

Dantitrust

antitrust

Firm 3

Y

Y (small amt. of discovery work for A)

A

• May U, another lawyer at Firm 3, represent D?

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Firm 1

X

A

B

Dantitrust

antitrust

Firm 3

Y

Y (small amt. of discovery work for A)

U

A

• Assume instead that V moves to Firm 3. May V represent D?

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Firm 1

X

A

B

Dantitrust

antitrust

Firm 3

V

Y (small amt. of discovery work for A)

V

A

Firm 1 and Firm 2 cooperate jointly in the defense of A in an antitrust case. At the same time Firm 1's is representing B in his suit against C, who is represented by Firm 2. Is there a conflicts problem?

Duty of Competence

• Malpractice• also disciplinary law

• Rule 1.1 Competence • A lawyer shall provide competent

representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

• Comment [2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. …A lawyer can provide adequate representation in a wholly novel field through necessary study.

• Comment [3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.

• Rule 1.3 Diligence• A lawyer shall act with reasonable diligence

and promptness in representing a client.

Malpractice• duty of care• breach– failure to exercise are that a reasonably

competent attorney would under the circumstances

• causation• harm

Lucas v. Hamm (Cal. 1961)

Smith v. Lewis(Cal. 1975)

Problems with causation

• Lawyer botches case by failing to call witness in a medical malpractice case

• She is sued for malpractice• Even if she was breached her duty of care,

how can she escape liability?

Lawyer undertakes to represent P in P’s slip and fall suit against DLawyer already represents D in a breach of contract suit against XP was not informed of Lawyer’s representation of D.Malpractice action?

Malpractice in criminal defense

• Public defenders usually immune• But even if lawyer was not public defender,

plaintiff can successfully sue only if post-conviction relief was granted

• Sometime actual innocence must be shown

liability to third parties

Greycas v. Proud(7th Cir. 1987)

• Attorney asked to draft opinion letter concerning whether liens on some property owned by the client

• Attorney knows that the letter is to be given to X, who intends to loan money to client, provided that debt can be secured by property

• Attorney negligently drafts the letter, stating that the property has no liens on it, when in fact it does

• X decides for other reasons that it cannot make the loan, but tells another company, Y, that it should make the loan to X because it may be secured by the property

• Y makes the loan to the client. The client defaults and Y sues the attorney for negligent misrepresentation. What result?

Limiting malpractice liability

1.8(h) A lawyer shall not:• (1) make an agreement prospectively limiting the

lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or

• (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

Duty of Candor in Litigation

3.3(a)(1)-(2)• (a) A lawyer shall not knowingly:• (1) make a false statement of fact or law to a

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

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

During your client’s sentencing hearing, it becomes clear that neither the court nor the prosecutor are aware of your client’s previous conviction on a similar offense, which your client told you about. Under the Model Rules, must you correct the court’s mistake?

May you correct the court’s mistake?

What if the court asks you, “He has no prior convictions, right?” May

you respond, “Not to my knowledge”?

3.3(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

• Rule 8.1 Bar Admission And Disciplinary Matters• An applicant for admission to the bar, or a lawyer in

connection with a bar admission application or in connection with a disciplinary matter, shall not:

• (a) knowingly make a false statement of material fact; or

• (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

• Bar application asks whether you ever suffered from “mental illness” defined as including use of prescription psychotropic drugs

• You took drugs for depression• You think that you would accepted even if

you answered yes• Thinks it is an invasion of privacy and

therefore answer no• Violated MR 8.1?

• Let’s say that they ask you whether you have used marijuana, a misdemeanor in the state

• May you explicitly refuse on 5th Amendment grounds?

• Let’s say a student has cheated and was disciplined

• On the application the Dean says no cheating occurred

• Does applicant have a duty to correct the misapprehension created by the Dean?

• Disciplinary proceedings are being brought against Lawyer for violating the duty of confidentiality

• The complainant’s witness offers evidence that suggests that the material was not confidential, although it actually was

• Must Lawyer correct this misapprehension?

• except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

• Lawyer1 is representing lawyer2 in disciplinary hearings– Lawyer2’s confidence should not be affirmatively

divulged by lawyer

• Lawyer1’s information to correct a misapprehension caused by others is a confidence of another client, who does not want it divulged

3.3(a)(1)-(2)• (a) A lawyer shall not knowingly:• (1) make a false statement of fact or law to a

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

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

- You are writing a brief in favor of a motion to dismiss in state court. - You discover that there are no cases in that state on the issue, but in fact the supreme courts of five other states have decided unanimously against your position. - You write in your brief, “There is no precedent on this issue.” - Have you violated Rule 3.3(a)(2)?

• 3.3(a) A lawyer shall not knowingly:• (3) offer evidence that the lawyer knows to be false. If a lawyer,

the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

• (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

• (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

You are defending your client in a robbery case. Your client is not going to take the stand. You know from your client that the robbery occurred at 4:00 A.M. Amazingly, the victim, who has identified your client, testifies that the robbery occurred at 2:00 A.M. You have an alibi for your client up to 3:00 A.M. You present the alibi in your client’s defense. Have you violated Rule 3.3?

• Your client is being sued for breach of contract. • Your main defense is that the plaintiff and the

defendant rescinded their contract in writing. • You present as evidence the written recession,

which your client told you, and you believe, is genuine.

• It is in fact an obvious forgery, as shown by the fact that both your client and the plaintiff’s signature are in the same handwriting.

• That it is a forgery becomes abundantly clear at trial.

• Have you violated Rule 3.3?

• Rule 3.1 Meritorious Claims And Contentions• A lawyer shall not bring or defend a

proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

• Your client is being sued for negligent driving. • You know from your investigation that your

client did not signal when he made the left hand turn that caused the accident.

• You stumble across a witness who is convinced that your client did signal.

• May you present the witness at trial?

• Let’s say instead that you are only pretty sure that the witness is wrong.

• May you present the witness at trial?

• May you refuse to present the witness at trial?

• You discover that your client has falsely testified as a witness in a case in which you are not involved. Must you inform that court, even if you will reveal client confidences?

• 3.3(a) A lawyer shall not knowingly:• (3) offer evidence that the lawyer knows to be false. If a lawyer,

the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

• (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

• (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

• May you do so?

• Your client indicates that he is going to testify in a civil case that he is 21 rather than 20 years old.

• The issue is likely to come up in the routine questioning at the beginning of your questioning of him or in the cross-examination.

• It is not relevant to your client’s actual civil liability.

• He wants to say he is 21, because a bartender at a bar he frequents will be in the audience.

• What should you do if your client doesn’t tell you in advance of his intent to lie about his age, but you are instead surprised by the lie during your questioning of him?

• Do you need to take remedial action?

• Assume that the surprise lie by your client in question above was relevant to his civil liability. What then?

• What if you found out about the lie after there was a judgment in your client’s favor?

• Your client, who is a criminal defendant in a murder case, is rather naive and indicates that he is guilty.

• He then asks you what type of testimony he should come up with.

• You say that he cannot testify falsely at trial. • He insists that he will. • What do you do?

• Assume that you do withdraw. • The client, a little wiser now, does not tell his

second lawyer the truth. • He gives perjured testimony at trial. • Can you do anything about this?

Special Problems in Criminal Cases

• Tension with right to counsel and right to testify in one’s defense

• Nix v Whiteside

“Narrative” approach