Professional Documents
Culture Documents
Us PR Outline
Us PR Outline
CHAPTER 4 CONFIDENTIALITY....................................................11
Confidentiality...................................................................................11
Privilege..................................................................................... 11
Aspects of the Privilege.....................................................................12
Competing Views on the Application of Privilege Wigmore / Upjohn................12
Exceptions to Attorney-Client Privilege 81-85 Restatement of Law Governing
Lawyers.............................................................................................................. 13
Corporations and the Attorney-Client Privilege....................................13
Upjohn v. United States (Supreme Court)...........................................................13
Documents, Attorney-Client Privilege and the Bill of Rights.................14
Fisher v. United States........................................................................................ 14
United States v. Hubbell..................................................................................... 15
The Crime-Fraud Exception.................................................................15
United States v. Chen......................................................................................... 15
Waiver of Attorney-Client Privilege.....................................................16
In re Columbia/HCA Healthcare Corp. Billing Practices Litigation.......................16
Transactions with Persons Other than Clients......................................17
CHAPTER 7 LITIGATION..............................................................44
Client Perjury.............................................................................44
Perjury in Civil Cases.........................................................................45
United States v. Shaffer Equipment Co..............................................................45
Perjury in Criminal Cases...................................................................46
Nix v. Whiteside.................................................................................................. 46
Monroe H. Freedman Perjury: The Lawyers Trilemma.......................49
2
Lawyer-Client Transactions..........................................................59
Transactions with Clients...................................................................59
Business Transactions........................................................................59
Committee On Professional Ethics and Conduct of Iowa State Bar Association v.
Mershon............................................................................................................. 59
Lawyer Equity Investments in Clients..................................................60
Passante............................................................................................................. 60
Contracting with a Client for Rights to the Clients Story.....................60
Gifts from Clients...............................................................................60
Sexual Relationship with Client..........................................................60
Handling Property of Clients and Others.............................................61
Negligent Misrepresentation..............................................................67
Greycas, Inc. v. Proud......................................................................................... 67
Professional Malpractice....................................................................68
Tort of Malpractice is made up of the following elements:....................68
Fraud and the Recklessness Standard of Intent...................................68
Assisting a Client in Tortious or Illegal Conduct...................................69
Hazard: How Far May a Layer Go in Assisting a Client in Unlawful Conduct?. 69
CHAPTER 9 COMPETENCE..........................................................73
Ethics Rules on Competence...............................................................73
Malpractice.......................................................................................73
Overview of the Tort of Malpractice....................................................73
Standard of Care and Causation.........................................................74
Lucas v. Hamm................................................................................................... 74
Smith v. Lewis.................................................................................................... 74
Effective Assistance of Counsel Under the Sixth Amendment................75
Ineffective Assistance: The Constitutional Standard............................76
Strickland v. Washington.................................................................................... 76
Malpractice Claims Against Criminal Defense Lawyers.........................77
In re AMB, 248 Mich App 144 (2002)..................................................................77
Hypotheticals.............................................................................84
Holding
Ratio
Reason
ing
Keller v. Wolf: equity will prevent one party from taking an unconscionable
advantage of anothers mistake for the purpose of enriching himself at the
Notes
others expense
Rule 60.02(6) of Rules of Civil Procedure
Issue
Ratio
Reason
ing
Note
Issue
Holdin
g
Reason
ing
Notes
Later, the parties settled for the recommended amount, the court placed the
settlement on the record, but plaintiff's counsel did not inform anyone of his
client's death when the settlement was confirmed and made part of the record.
Ps attorney claims his actions were not unethical/improper P was alive at the
time mediation statement was filed and there was nothing false/misleading in
the statement he did not become aware of the death until 3 days after award
of mediation panel
Ps attorney argues ct had the authority to enter the settlement order since a
personal representative had been appointed for P by probate court
Did Ps attorney have an ethical duty to advise the Court and Ds
attorney, who was unaware of the death of P, that P had died a few
weeks prior to the settlement agreement?
Ds claim settlement is void because Ds attorney did not know of Ps death at
time of settlement and Ps attorney failed to disclose
While the death was not caused by injuries related to the lawsuit and did not
have any effect on the fairness of the $35K mediation award, it had a
significant bearing on Ds willingness to settle
By not informing the Court of Ps death or not filing a motion to substitute
parties, Ps attorney led the Court to enter an order of settlement for a nonexistent party
Ps attorney owed a duty of candor and frankness to the Court and
such duty required disclosure both to the court and opposing counsel
of a significant fact such as death
- Opposing counsel does not have to deal with his adversary as he would
deal in the marketplace. Standards of ethics require greater honesty,
greater candor, and greater disclosure, even though it might not be in the
interest of the client or his estate.
Standards of ethics establish greater candour and honesty
Lawyer/Professional ethics = client over all others
However, the preference of ones dead client is not right
Unlike Spaulding, however, the holding of this case rests on a concealment
from the court rather than the failure to disclose to an adverse party
People v Belge
FACTS
Ratio
Reaso
n
10
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CHAPTER 4 CONFIDENTIALITY
Distinction between confidentiality and privilege:
Confidentiality
- Confidentiality is a duty of Professional Conduct. It is governed by Rule 1.6.
o Information gained in the course of the representation
o This rule applies outside of the setting of the proceeding
o The Professional rule/duty of confidentiality is broader than the law of
attorney-client privilege
- A lawyers duty is to talk for a client, not about a client
- This is what applies when the lawyer is at the office, in public, etc.
- Does not require a proceeding
- Can continue after a proceeding
- Keeps a lawyers mouth shut about a clients affairs in everyday life
- Extremely broad
o The ABAs version of its definition of confidentiality reflects this
Rule 1.6: A lawyer shall not reveal information relating to the
representation of the client unless the client gives consent
- Talking about who your client is is confidential
Privilege
- An evidentiary rule that says (Wigmore on evidence) the privilege is what a client
tells the lawyer, when they know they are talking to their lawyer, for the purpose of
getting advice
- Also refers to the lawyer giving the advice to the client
- Requires a proceeding in order to be brought to life (because this is where
the rules of evidence apply)
- Allows a lawyer or client to refuse to give testimony on certain matters in court or in
another proceeding in which the evidence rules apply
- Generally info about who your client is (physical description, etc.) is non-privilege
o ABA Rule 1.9(c) a lawyer shall not use info pertaining to a former client
unless the information has become generally known
o Note the wording: generally, not publicly thus, even if a case is public, it
does not mean that it is generally known
o This promotes the confidential relationship a lawyer is selling to his/her
client the ability to hold secrets
- Ex of when a clients identity is in fact privilege:
o Where it is inextricably related to the incident
o i.e. footnote 20 on pg. 263 the lawyer represents the person accused of
leaving the scene of an accident. He will not provide the identity of that
person but he wants to make restitution on that persons behalf (wants the
client to meet the obligation to report without revealing who the client is
would create a larger issue by failing to report)
o i.e. it is a crime to fail to file your income taxes in the US. It is not uncommon
for someone to decide later on to anonymously pay your taxes. Hire a lawyer
to go to the IRS. A judge should not command the identity because in this
rare circumstance (either by case law or logic) that privilege would be
maintained
-
A privilege is another kind of a legal right, but one that usually takes the form of an
exemption from the duty to do something
12
13
14
TEST
1.
2.
3.
4.
5.
6.
Reason
s
Comme
nts
Using control group method may not permit full disclosure of information
and thus not allow lawyer to provide appropriate legal advice frustrates
the purpose of the privilege
Information that came from non-management employees was required to
provide proper legal advice and obtain complete information
Work rule doctrine is not overcome memos from interviews are
privileged because they would be littered with notes from attorney
showing his mental process in collecting the information Fed R. Civ Pro
Rule 26 protection against revealing attorneys mental process
15
16
17
Notes
Review
Class
- To invoke the crime-fraud exception successfully, the government has the burden
of making a prima facie showing that the communications were in furtherance
of an intended or present illegality and that there is some relationship
between the communication and the illegality
- Whether there is reasonable cause to believe that the attorneys services were
utilized in furtherance of the ongoing unlawful scheme. Mere allegations or
suspicion by the government are insufficient. But Beyond a reasonable doubt
is not necessary to justify application of the crime-fraud exception.
- Rule 1.2(d) lawyer can advise about consequences but not assistance in doing
crime
o Have to make a motion, have to have that motion supported by something
other than the communication that your trying to get at to prove the crimefraud exception
o An example would be from the Clinton era, the Monica Lewinksy
scandal
-
18
Issue
Holding
Ratio
Arguments
Comments
19
party have entered into an explicit agreement that the SEC will
maintain the confidentiality of the disclosed material
Transactions with Persons Other than Clients
- The above case is about privilege. What about inadvertently released information?
i.e. a lawyer who receives a fax that was clearly not intended for him
Rule 4.4(b) A lawyer who receives a document or electronically stored information
relating to the representation of the lawyer's client and knows or reasonably should
know that the document or electronically stored information was inadvertently sent
shall promptly notify the sender
- Prior Rule: Lawyer should stop reading ASAP. Advise the sender they received it.
Destroy all matters or return to original sender
o This was changed waiver is waiver
o Even if the information was inadvertently waived, it has still been waived
o Now must communicate this information to the client. See rules 1.2, 1.3, 1.4
Model Rule 4.4(b)
- Where a document is sent that is privileged, you need to notify the sender to allow
them to take protective measures
- It is a matter of law put to the Court whether the privilege is waived and should
be picked up in a matter of litigation
- Whether they can notify the client is up to professional judgment see 1.2 and
1.4 (duty of communication)
ABA Model Rules
1.0 terminology
- What is defined
- 1.0(f) knowledge = actual knowledge
1.1 competence
1.2 scope of representation page 12
- if you are representing a client, you need to do certain things while representing that
client
- (a) setting up relationship between lawyer and client (lawyer is responsible for the
objectives, client is responsible for the goals)
- (c) may limit the scope of representationafter informed consent
1.3
1.4 duty of communication page 16
- Essence is that you have a duty to keep your client informed of what is going on in
the case and important developments in the case
1.5
1.6 Confidentiality of Information
1.8 (b) is related to confidentiality
1.7, 1.8, 1.9, 1.10 are all related to conflict of interest
1.9 (c) is also about confidentiality related to 1.6
- 1.9(c)(1): what can you say about someone you used to represent; the duty of
confidentiality is eternal (beyond death even) but the duty of loyalty is not
1.13 additional exceptions not included in 1.6
20
Organization as client (MAY report, NOT SHALL report option to report and withdraw
without criminal sanctions corporations as non-human clients)
1.18 prospective client rule: still covered if they are not happy with the advice and decide
not to become a client at that time, where there is reasonable expectation that they would
have become a client if you inadvertently blurt out information this is not protected
4.4(b) transactions with persons other than clients
8.4 (b) and (c) talk about how a lawyer should not engage in fraud or criminal activity that
reflects adversely on a lawyers fitness to practice
Other pages: 321, 323, 324 (Meyerhofer)
21
Can one client tell lawyer information and specifically hide it from joint client?
creates conflict
o Lawyer has duty to other client (must be loyal, diligent and communicate)
o BUT lawyer would compromise confidentiality with initial client and risk
impairing the level of trust therefore, at a minimum, must resign from the
joint representation
Lawyer should obtain advance waivers of confidentiality when
representing joint clients
In the absence of agreement among the joint clients and the
lawyer, there is a risk that the lawyer will be liable either to the
communicating client, for breaching the duty of confidentiality
(M.R. 1.0(e)), or to the other client for failure to communicate
material information (M.R. 1.4)
Case Law: A v. B
[GOOD HYPO]
o Law firm that jointly represented husband and wife when drafting a will,
learned that husband had an illegitimate child (information did not come from
child, but alternate source)
Firm wrote to the husband that it believed it had an ethical obligation
to inform he wife of the situation
o NJ S. Ct. held lawyer had option to disclose information about the child at
their discretion (note: here they were only dealing with whether the lawyer
could disclose).
Firm had discretion to make disclosure under New Jerseys version of
1.6 which permits, but does not require lawyers to reveal such
information (because in one sense, husband was committing fraud by
making a joint will, and not informing wife of potential split in assets
upon death)
o Another issue not addressed here: can the lawyer be held responsible as an
aider or abettor if he did not provide the information to the wife?
If you can be prosecuted as aiding and abetting does this change
your decision to inform the wife about the child?
IF A CONFLICT ARISES, SUCH THAT THE LAWYERS DUTIES OF
COMMUNICATION AND COMPETENCE REQUIRE COMMUNICATION
OF INFORMATION PROTECTED BY THE DUTY OF
CONFIDENTIALITY, THE LAWYER MUST WITHDRAW FROM
REPRESENTING BOTH CLIENS, AND MAY NOT COMMUNICATE
THE SUBSTANCE OF THE CONFIDENTIAL INFORMATION
22
o
o
o
Self-Defense Exception
Model Rule 1.6(b)(5)
- Arises in three types of cases:
o When a client charges a lawyer with wrongdoing in the course of
representation
Client waives the attorney-client privilege by putting the lawyers
representation in issue
o When a lawyer sues the client to enforce some duty owed the lawyer, such as
payment of a fee, and
It is unfair for the beneficiary of a fiduciarys services to receive those
services and not perform duties owed to the fiduciary
o When a third person accuses a lawyer of wrongdoing in the course of
representing a client, perhaps in complicity with the client
Meyerhofer
- Meyerhofer v. Empire Fire and Marine Ins. Co.
Facts
Empire Fire made a public offering of 500,000 shares of stock at $16 a share on
March 28, 1972. Goldberg, working for the law firm realized that there was
misrepresentation of commission fees for brokering deals. Plaintiff later
purchased stock and lost money (along with other purchasers) and thus
brought a class action that prospectus was materially false and misleading.
Goldberg was later contacted to be a defendant in the case but he said that he
had worked for D and expressed concern over the excessive fees that were
not disclosed properly. Goldberg insisted on full and complete disclosure, but
the firm disagreed thus he resigned from the firm.
Later, he presented evidence to Plaintiff that resulting in Plaintiff adjusting
claims, adding more specific details, but the overall theory of the claim stayed
the same.
Originally brought a motion to disqualify!
Issue
- Was Goldberg justified in making this information public once he learned that he
had been included as a co-defendant?
Ratio
A lawyer may reveal confidences or secrets necessary to defend himself against
an accusation of wrongful conduct but disclosure has to be limited
Reasoni - Goldberg had the right to defend himself; the problem arises in the way in which
ng
he defended himself
- Goldberg overshared there was no need to give up information about a 3rd
party breaking confidentiality
Comme - Goldbergs disclosure violated Canons 4 and 9 of the Code of Professional
nts
Responsibility, but Plaintiffs law firm did not violate any of these
Rule 3.7 a lawyer who is witness before a jury cannot serve as a lawyer in that trial
1.0(f) actual knowledge is defined
Obtaining Confidential Information Improperly
23
Beiny v. Wynyard: prominent Wall Street firm gained privilege documents through
deception. Court ruled that the evidence should be suppressed and the firm
disqualified
- A lawyer encouraging another to breach client confidences is liable to be disqualified
from the relevant case and may face other serious sanctions
Client Fraud
- O.P.M.: A Case Study and its Lessons
- OPM (Other Peoples Money) was created in 1970 to purchase mainframe computers
and lease them to businesses
- Banks lended OPM the money to purchase these computers, and the loans were
secured by the leases. The leases would generate enough money to repay the loans
and leave OPM with a profit
- OPM became one of the largest computer leasing companies, but slashed its prices
and they stopped generating a profit. OPM retained the appearance of solvency
because of fraud
- Classic pyramid or ponzi scheme, where they lied to lender about the size of the
lease payments and about the existence of a lease that was to generate the money
to repay the loan
- Law firm of singer Hunter handled legal work, providing legal opinions to the lenders
concerning the soundness of the security to loans, knowing that OPM were capable of
serious illegality
- In June 1980, Clifton, a former CFO of OPM, had evidence that leases were fraudulent
- Goodman (major member of OPM) was at law office when letter from Clifton arrived,
and retrieved the letter before the lawyer could read it. Goodman left the firm and
told Hunter (another lawyer at Singer Hunter) that he was responsible for a wrong
- Hunter met with Cliftons lawyer, but did not request a copy of the letter or seek
details on the fraud
- Hunter and Singer obtained ethics consultancy, and told them they wanted to do
what was proper but also wanted to continue representing OPM
- Ethics people suggested 1) that the frauds were in the past prohibited Hunter and
Singer from reporting them, 2) that they had no direct knowledge of the frauds and
therefore did not have to stop representing them, and 3) Singer Hunter could
continue to close OPM lease dealings as long as Goodman provided a letter stating
the legitimacy of each new transaction
- Goodman told Singer hunter of the fraud in 1980, and the firm gradually withdrew
support and did not disclose OPMS ongoing frauds
- Singer Hutner dissolved as a result of the case and paid $10 million in malpractice
fees
o If all you know is the ethics rules, you do not know enough
o You have not factored in the illegal/fraudulent conduct and that
makes the lawyer an aider and abetter
o This must be figured out first before confidentiality/privilege
o CANNOT just focus on the ethics rules
Exceptions for Client-Fraud
-
A lawyer may reveal [confidential] information to the extent the lawyer reasonably
believes necessary:
o To prevent the client from committing a criminal or fraudulent act that the
lawyer reasonably believes is likely to result in . . . substantial injury to the
financial interests or property of another; [or]
o To rectify the consequences of a clients criminal or fraudulent act in the
furtherance of which the lawyers services had been used
24
25
26
Eternalness of Confidentiality
- Swidler
o Foster killed himself
o Firm (Swidler v Berlin) went to his lawyers and wanted all the info Foster had
told them
o Claim: When the client is dead, confidentiality ceases when it comes to
national security
o Court: No the duty of confidentiality is eternal regardless of the
situation
Model Rule 1.16 Withdrawal of a lawyer (DISCUSSED IN CLASS)
(b) May withdraw for other circumstances
- One is a client failing to live up to its obligations
OR may withdraw if it is financially burdensome
Statute of limitations in most jurisdictions will govern how long that you have to sue but
there are reasons why you would not want to withdraw
- Malpractice statute of limitations is 2 years in Michigan can still countersue for
malpractice if past the 2 year limitation, but damages are limited
- Contract statute of limitations is 6 years in Michigan
Professional Rules Governing Conflicts of Interest
Model Rule 1.7 Concurrent Conflicts
- You need consent + something else (covered by (b))
- 1.7(b) is informed consent in writing
Model Rule 1.8 Conflicts between a clients interests and the lawyers interests
Model Rule 1.9 Successive Conflicts
- Any consent from a client cures
Model Rule 1.10 Imputation
Other rules address conflicts problems for specific types of lawyers, such as former
government lawyers (M.R. 1.11), former judges or arbitrators (M.R. 1.12), problems for
specific types of clients, such as organizations (M.R. 1.13(f), (g)) or prospective clients (M.R.
1.18), or conflicts arising in particular situations, such as opinion letters (M.R. 2.3), and
lawyers acting as transactional intermediaries (M.R. 2.2 eliminated)
Concurrent Representation in Litigation
Professional Rules on Concurrent Representation
- Model Rule 1.7 identifies two different types of concurrent conflicts in litigation, either
of which disqualifies the lawyer from representing both clients
27
28
Holding
Reasoni
ng
Comme
nts
- who is the client not defined in the ABA and covers broader spectrum than specific person
paying bills
Rule 1.7 Comment 6:
Loyalty to a current client prohibits undertaking representation directly adverse
to that client without that client's informed consent. Thus, absent consent, a
lawyer may not act as an advocate in one matter against a person the lawyer
represents in some other matter, even when the matters are wholly unrelated.
29
Exampl
e
Fiandaca v. Cunningham
Facts
NHLA represented female prisoners looking for equity in prisons (wanted same
privileges as men). NHLA also represented mentally challenged people in
Garrity. Prisoners were looking for new facilities to be built and got offered a
place at Laconia State School (where the people in the Garrity litigation reside.
NHLA did not want to make a deal that was against the interests of Garrity so
they rejected the offer, even though it was in the interest of the female
prisoners. The state countered by wanting to disqualify NHLA as class counsel
because of unresolveable conflict, but this was denied due to the case already
being going on for 3 years. Court decided to go through with the LSS location so
NHLA withdraws. The settlement agreement the court wanted didnt end up
going through so NHLA wanted to be reinstated as counsel but court denied this
motion on the grounds that necessity of participation by NHLA no longer
existed because issue had been tried to conclusion. Female prisoners are now
appealing NHLAs ability to represent them after the settlement fell through.
Issue
Should NHLA be disqualified from this litigation due to the inherent
conflict of interest that arises from representing these two parties?
Holding
Yes. The district court mistakenly ignored the serious conflict of interests
presented in this case. Although this conflict probably didnt seriously affect the
trial proceedings, it undoubtedly affected NHLAs actions in the remedial stage.
As such, the district courts remedial order is vacated and the case is remanded
for a new trial to determine the proper remedy for the prisoners Constitutional
deprivation.
Reasoni
- NHLA had an ethical duty to prevent its loyalties to other client
ng
from coloring its representation of the plaintiffs in this action
and from infringing upon the exercise of its professional
judgment and responsibilities (could have solved the whole
matter if LSS wasnt NHLAs client as well)
- NHLA also has to fairly represent LSS who do not want prisoners on their
facility
Theory:
- If you are a lawyer in a position to violate the rules of professional
conduct, you are violating public policy
- If you are violating public policy, anybody can stand up and say this is
wrong
- Argument: Law firm has a non-waivable conflict of interest
- Under the current 1.7 analysis there at least a material limitation
meaning they cannot serve one side as zealously than the other (1.7(2)).
There may even be direct adversity.
30
Curing a Simultaneous Conflict: The Hot Potato Doctrine vs. Thrust-Upon Conflict
- Picker International, Inc. c. Varian Associates, Inc.
o Jones Day firm merged with smaller firm and one of Jones Days long-time
client was about to sue one of its new clients which the smaller firm had
previously been representing on unrelated matters
o Concurrent conflict could not be cured by withdrawing from representing the
new client, especially if it is in order to keep the more lucrative client (should
have withdrawn from the client prior to the merger)
Hot Potato Doctrine
- An existing client and a new client comes in and they are going to be adverse to each
other, and you drop the first client to retain the second client
- Dropping the less-desirable Client
- Changes from a concurrent conflict to a successive conflict
- The issue is that you do not want to allow a law firm to create a successive
representation consideration of a conflicts issue when the real issue should have
been concurrent representation
[m1] A v B A is your client
[m2] C v D C is your client
[m3] comes along C v A in order to take on A, you drop C
o C can say even if there is no confidential info from any case which is
at all relevant to the others, because of the direct adversity, C can
say you cannot represent A against me
- If a law firm has two clients and the conflict is there and it fires one of those clients,
then when client C makes its disqualification motion the law firm will argue that the
firm owes it only confidentiality and not loyalty; the client will get the benefit of the
doubt related to loyalty
o Use a 1.7 analysis
Idea that you have a situation where: you are trying to drop an
existing client in order to make that person or entity into a
former client for conflicts purposes (trying to get a different
test which would apply to you, so as to not violate any rules)
o prohibited from even taking the second party as a client
under 1.7(a)
Thrust-Upon Doctrine
- Competing doctrine to the hot potato doctrine
- Somebody has set you up to have a conflict; therefore, you can avoid it
[m1] A v B - you rep A
[m2] C v D you rep C
- C buys B
- But for Cs purchase of B, you can drop C
- Had they dropped A and represented C (the new B) this would be hot potato
-
The analysis can be a 1.9 analysis because you cannot have the loyalty issues
created from the outside and the loyalty issues thrust upon you like that
o Protection from 1.7
31
32
- The attorneys felt that they didnt need to; they thought they had the winning
case
- The states are not covered by FRE 44(c), case law does. Holloway Cant
ignore the issue, the court must inquire
Issues of Joint Representation in Criminal Matters: RULEs from Cuyler, Holloway,
Wheat, Flannighan, etc.
1. If the jointly represented Ds or their lawyers do not raise the issue of
conflict of interest, the trial judge need not make an inquiry (respecting
client consent) (Cuyler)
2. If the question is raised, the judge must inquire and may take appropriate
action (Holloway)
3. If the judge does inquire, either on her own motion or bc the matter is
raised by a party, the judge had broad discretion to order separate
representation (Wheat)
4. A disqualification order is not immediately appealable but may be
considered only with an appeal of conviction (Flannigan)
5. To upset the conviction on a collateral attack, the convicted D must show
an actual conflict of interest that affected the decision (Cuyler)
Mickens v. Taylor
o What happens if the trial court knows or reasonably should know that a
particular conflict exists, but the trial court fails to initiate an inquiry into the
conflict?
o Counsel for a defendant convicted of capital murder had represented the
murder victim for ten days preceding his death in assault charges brought
against the victim by his mother is this a conflict of interest?
33
Defence counsel did not believe he had any continuing duties to former
client, and so did not inform the defendant of the prior representation
Defense counsel instead represented the client in a manner that
showed he was still partially loyal to former client (did not pursue the
argument that the occurrence was consensual; did not put forward
character evidence about the victim)
Lightened the standard to show (prejudice is presumed), when it is concurrent,
it will be applied
34
transaction (this is what the BAR in Kansas goes after Callahan for)
Comme
nts
WHAT IF
- All of these terms were explained to Mrs. Fulton and she was a
sophisticated businessperson?
- They told her you are only getting a promissory note, not a
mortgage?
- There is rick with all joint representation
- Assuming all risks and issues were disclosed could Fulton still go forward?
o She could but it should also be disclosed that this is a bad deal.
This is a responsibility of Callahan to make sure she knows this is a
bad deal. A reasonable lawyer would have indicated this to their
client and likely would have tried to prevent their client from going
forward.
- Court says that as long as Fulton suffers as a result of this deal, Callahan
is responsible for that.
- Considering Callahans knowledge of Lygrisses financial state and the
confidentiality that binds Callahans representation, Callahan cannot fully
represent Mrs. Fulton in this matter because he cannot provide her with
the best service possible. (without Lygrisses consent, he cannot disclose
the information about Lygrisses past financial state with Fulton due to
confidentiality, that is why he cannot fairly represent Fulton)
- (1) didnt disclose financial partnership
- (2) Didnt disclose the risks associated with joint representation
- (3) Didnt disclose and describe the special risk of the terms being so onesided
- Any time you have a 1.7 problem, chances are really good that
you have not designed means to the representation that are
appropriate to the goals your client had
35
Collaborative lawyering each party is separately represented, but the lawyers and
the parties all agree to resolving the dispute by negotiation, without filing a lawsuit
o The parties agree that if litigation is necessary, the lawyers will withdraw from
the representation and the parties will obtain substitute counsel
- To avoid disputes when arranging a pre-nup, it is better to bring in another lawyer to
represent the other party
Estate Planning
- Joint representation is common with the preparation of wills, trust instruments, and
other estate planning documents for a husband and wife who want to plan jointly for
the distribution of their assets after their death
Joint Representation in the Formation of a Business
- Individuals each pay a part of the lawyers fee and establish a personal lawyer-client
relationship on the common matter
Aggregate Settlement Rule
Model Rule 1.8(g) provides that a lawyer participating in the aggregate settlement of clients
claims must obtain the informed consent of each client in writing signed by the client
- Disclosure shall include the existence and nature of all the claims or please involved
and of the participation of each person in the settlement
NOTE: Any time you are taking confirmation from the client (especially in reference to
consent for conflict of interest), IT MUST BE CONFIRMED IN WRITING!
Also: keep in mind that the reasonable lawyer test will always occur in hindsight
Successive Representation
- General rule (found in Model Rule 1.9(a)):
o A lawyer who has formerly represented a client in a matter shall not represent
another person in the same or a substantially related matter in which that
persons interests are materially adverse to the interests of the former client
unless the former client gives informed consent, confirmed in writing
Need consent because the concern is that the lawyer may be tempted
to reveal or use confidential information from the former
representation in the current representation
TEST:
o Is there someone who qualifies as a former client?
o Are the interest materially adverse?
o Are the matters substantially related?
o Is there consent after consultation?
o Where there is disqualification, is that disqualification
imputed to the rest of the firm?
Model Rule 1.9(c) is a reminder that the lawyer has a continuing duty of confidentiality to a
former client even with consent provided under 1.9(a) this duty of confidentiality continues
Model Rule 1.11(a) lawyers whose former client is the government are governed by this
rule
Successive Representation of Joint Clients
Brennans Inc. v. Brennans Restaurants, Inc.
Facts
- Attorney Edward Wegmann was retained as general counsel for the Brennan
familys New Orleans restaurant chain and assisted them in obtaining a
federally registered trademark.
- When a management dispute forced the corporation to split into two
separate businesses, Wegmann was kept on by the Defendants to defend
36
Issue
Holding
Reasoni
ng
Commen
ts
37
L incorporates restaurant, negotiates and reviews terms of the lease, works out
credit arrangements with the bank and helps A get a registered trade name for the
restaurant
Six months after Ls work is done and L has been paid for her services, L is consulted
by B. B wants to start a competing restaurant across the street from As restaurant.
o May L represent B?
If it is only starting a new restaurant, then L can do this
A and B are merely economically adverse so there is no conflict.
Former client may feel wronged, but there is no rule of
professional conduct.
If A consulted you as to where to place the restaurant, and then B
came to you, this would be different, and a conflict of interest would
exist
A meat supplier, C, comes to L and wants to bring an action against A for not paying
the bills. As defense in the matter is that some of the meat was defective.
o May L represent C?
A is a former client. There are materially adverse interests. The
relationship between the two matters is NOT the same or substantially
the same.
You can sue the former client, but there are some matters you are not
allowed to take on this is probably one you CAN take on
i.e. say it was an eviction for breach of the covenant against
excessive noise and C was the landlord L would not be able to
represent C in evicting A because the relationships between the
two matters IS the same or substantially the same (because L
negotiated that lease with the landlord)
L- AB [Car Accident] Cant represent A or B together if they have cause of action against
each other. Rule 1.7(a) & 1.7 (b)
Ballet Dance wants to be represented by L for contract negotiations. At same time, New York
City Ballet, who the contact negotiations are with, wants L to represent in real estate deal
- You know that New York City Ballet is moving, can use it to negotiate with contract
- Debatable. There is no direct conflict
- If conflict, case law states that he would have to drop both clients
Other Successive Representation Issues
Substantially Related Matters
- Re American Airlines
o To be substantially related, the prior representation need only be akin to the
present action in a way reasonable persons would understand as important to
the issues involved
- Analytica, Inc. v. NPD Research, Inc.
o A matter is substantially related if the lawyer could have obtained confidential
information in the first representation that would be relevant to the second
- Government of India v. Cook Industries, Inc.
o To count as substantially related, the relationship between the two matters
must be patently clear, the issues identical or essentially the same
Model Rule 1.9 [comment 3]
- Matters are substantially related if they involve the same transaction or legal dispute
or if there otherwise is a substantial risk that confidential factual information as
would normally have been contained in the prior representation would materially
advance the clients position in the subsequent matter
38
A lawyer who recurrently handled a type of problem for a former client is not
precluded from later representing another client in a factually distinct problem of that
type
- In the case of an organizational client, general knowledge of the clients policies and
practices ordinarily will not preclude a subsequent representation
Competition as an Adverse Interest
- Model Rule 1.7 [comment 6]
o Simultaneous representation in unrelated matters of clients whose interests
are only economically adverse, such as representation of competing economic
enterprises in unrelated litigation, does not ordinarily constitute a conflict of
interest and thus may not require consent of the respective clients
- Whether a law firm can later represent competitors of its former client is a matter
that must be decided from case to case and depends on a number of factors.
o One factor is the extent to which the fiduciary was involved in its clients
affairs
Imputation and Lawyers Not in the Same Firm
Model Rule 1.10 only applies to lawyers in firms
- Must present themselves to the public in a way that suggests that they are a firm or
conduct themselves as a firm
Taint Shopping and Duties to Prospective Clients
- Taint shopping refers to the problem of a potential client contacting a lawyer and
revealing confidential information to the lawyer, but then not hiring the lawyer, solely
for the purpose of ensuring that the lawyer will not be available to represent the
potential clients adversary
o This happened in Westinghouse, but the court held that the defendant had
never been a client of the firm, only of the lawyer consulted therefore no
passing of information to his partners
Model Rule 1.18 addresses the problem of duties to prospective clients
- If a person discusses with a lawyer the possibility of representation, that person is a
prospective client entitled to the protections of the rule
- The lawyer who consults with the prospective client is disqualified if the substantial
relationship test is met and also If the information received by the lawyer could be
significantly harmful to the prospective client (higher burden on client to show this)
Imputed Disqualification and the Migratory Lawyer
Rules and Problems
Model Rule 1.10(a) if any lawyer in a firm is disqualified from representing a client or being
involved in a case, all the lawyers in the firm are disqualified
- Rationale for this rule:
o Lawyers who practice together talk to one another about their cases, and in
doing so share client confidences
o Lawyers who practice together share professional and financial interests,
which may tempt them to share information about one client for the benefit of
another
o Regardless of whether lawyers actually share particular information
improperly, that prospect could cause clients and the public to lose confidence
in lawyers generally
Model Rule 1.9 [comment 5] if a lawyer while with one firm acquired no knowledge or
information relating to a particular client of the firm, and that lawyer later joined another
firm, neither the lawyer individually nor the second firm is disqualified from representing
another client in the same or a related matter even though the interests of the two clients
39
conflict.
Reasoni
ng
Commen
40
ts
The lawyer must have had an attorney-client relationship with the former
client
The present clients matter must either be the same as the matter the
lawyer worked on for the first client, or a substantially related matter
The interests of the second client must be materially adverse to the
interests of the former client
The former client must not have consented to the representation after
consultation
41
Individual or Enterprise
- A lawyer is required to communicate and confer with a client, to keep the client
secrets and to abide by the clients decision on whether to accept a settlement offer
- But what about when the lawyer is representing a corporation? Who is considered to
be the client then?
Rule 1.13(a) A lawyer employed or retained by an organization represents the
organization acting through its duly authorized constituents
o You represent the corporation as a whole (not the individual constituents)
Meehan v Hops
361 Pacific 2nd 10
- Corporation Meehan used to work for sued Meehan for breach of duties
- He claimed conflict of interest because his own lawyers were coming after him
- Ps claimed Meehan as the constituent was not the client, the corporation was not
- Therefore, he could be sued
EF Hutton & Co Brown
- Distinguished from the above case
- The lawyers had made an affirmative statement that they were Browns lawyers I
am representing Mr. Brown at the stand
- This gave a reasonable implication/belief that Mr. Brown was represented individually,
and not just the corporation
42
43
Commen
ts
44
o
o
When conflicts erupt, lawyers frequently err by assuming that they owe duties to
constituents when in fact they should be acting solely in the interests of their
organization client
45
Issue
Holding
Reasoni
ng
Commen
ts
was not allowed as per prior agreement made between Lopez and
St.Marys by Epstein that plaintiff was never aware of
- Plaintiff states that: defendant had represented both Lopez individually
and the professional corporation without disclosing to him this dual
representation
What duties, if any, does an attorney representing a closely held corporation
have to a 50% owner of the entity, individually?
- Defendant did not have obligation to divulge the existence or contents of
the Lopez-St.Marys contract to plaintiff because Defendants knowledge
of this arose out of a confidential attorney-client relationship between it
and Dr. Lopez
- With respect to communications defendant had with Dr.Lopez while
representing the corporation, as opposed to Lopez personally, plaintiff, as
a member of the control group, is equally entitled to this information
- The attorneys client is the corporation and not the shareholders
- Although no attorney-client relationship exists between plaintiff
and defendant, this does not necessarily mean that defendant
had no fiduciary duty to plaintiff plaintiff was unaware of dual
representation
Garner Doctrine: Good Cause standard: Restatement s.85
- The corporate version of the client-fraud exception
- In a proceeding involving a dispute between an organizational client and
its shareholders, members, or other constituentstoward whom the
directors, officers, or similar personsbear fiduciary responsibilities, the
attorney-client privilege of the organization may be withheldif the
tribunal finds that:
(a) those managing the organization are charged with breach of their
obligations to the shareholders, members or other constituents or
toward the organization itself
(b) the communication occurred prior to the assertion of the charges
and relates directly to those charges; and
(c) the need of the requesting party to discoveris sufficiently
compelling and the threat to confidentiality sufficiently confined to
justify setting the privilege aside
46
In closely held corporations where the operator of the corporation either owns or
controls the stock in such a manner that it is reasonable to assume that there is no
real reason for him to differentiate in his mind between his own and corporate
interests, the lawyer for the corporate owes that person the same duty not to
represent conflicting interests that she would owe a client
Partnerships
- A lawyer representing a limited partnership, upon discovering that a general partner
has committed acts adversely affecting the interests of limited partners, may disclose
those facts to the limited partners so that they will be able to take steps to protect
their interests
Representing a Fiduciary
Fickett v. Superior Court of Pima County
Facts
- Schwager was appointed guardian of Mrs. Styers estate and sold most of
her common stock to make a building for his benefit
- This proceeding was brought against the law firm which had represented
Shwager as guardian
- Claim that petitioner was negligent in failing to discover that the conservator
had been engaged in an ongoing scheme to defraud the estate. Petitioner
argues that, absent a showing of fraud or collusion, he had no duty to the
conservators ward. The lower court rejected this argument, and Petitioner
now appeals.
Issue
Holding
Ratio
Reasoni
ng
Commen
ts
47
harm to him, the degree of certainty that plaintiff would suffer injury, the
connection between defendants conduct and plaintiffs injuries suffered,
and the policy of preventing future harm.
When an attorney represents the guardian of an incompetent, he
assumes a relationship not only with the guardian, but also with the
ward.
Model Rule 1.14 Diminished capacity
Ward
-
Second type: involves a third party who owed fiduciary duties to the lawyers
client, and the third party rather than the client is the one with whom the
lawyer deals ordinarily
o i.e. a lawyer who represents a corporation but who, in the ordinary course of
professional service, deals with the corporations officers, directors, and other
employees.
Corporation
Lawyer Corporation Officer
Lawye
r
Other:
Officer
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49
CHAPTER 7 LITIGATION
Client Perjury
- A lawyer who lies to a third party while facilitating a fraudulent transaction may be
liable under civil or criminal law for fraud
- The lawyer who acts recklessly in handling a transaction may also be liable for
criminal or civil fraud, and one who acts carelessly may be liable for negligent
misrepresentation
o In the civil context, client perjury cannot be done (cannot advise or allow); in
the criminal context, there are unique aspects (narrative approach), but
generally you cant do it as well
o Witness perjury again there is no issue here whether civil or criminal
o The rule with regard to perjury issues is MODEL RULE 3.3 (READ ALL
especially Comment 6, 10)
o The four Rs
Remonstrate
Talk with the client, if necessary asking for a recess in the
proceedings, in order to do so you give the advice that the
comment is perjury (tell client it cannot be done, as it is illegal)
Rectify
Rectify the perjury by advising the client correct the false
statement/record
Resign/Remove
Resignation from the representation if the client refuses to
rectify (if possible)
When you file your appearance in a matter, there is a rule that
says that you are the attorney of record in the case and it says
you cannot get out of the case unless and until the court
provides an order allowing you to resign this is why it is resign
IF POSSIBLE this is only a request because there is always
the chance the court will not allow you to resign
Remove the statement
Reveal
Even if you are allowed to resign, you may still have the duty to
reveal difficulty comes if you are not allowed to resign as
issues of confidentiality may occur
If you are able to resign then by revealing, you are not being
disloyal but you are not usually supposed to break the loyalty
of current clients
Reveal the falsity to the court and counsel
Perjury and the Model Rules
- A lawyer who knows a witness is lying has both prospective duties, to prevent the
client or non-client witness from testifying falsely, and retrospective duties, to take
remedial measures if the lawyer learns later that the testimony was false
- Actual knowledge (M.R. 1.0(f)) applies but it may be inferred from circumstances,
and courts are often unwilling to believe lawyers who say that they could not possibly
have known that a patently unbelievable story was false. (Can be found through the
use of circumstantial evidenceto what degree though is not known).
-
50
Rule 3.3
o A lawyer must disclose to the court all facts that would otherwise assist a fraudulent act
o Sets up two categories:
Retrospective: a lawyer shall not knowingly fail to correct a false statement or fact of
law
Prospective: shall not make a false statement or fact of law to a tribunal
Model Rule 3.3(a)(3) prohibits a lawyer from offering evidence that the lawyer knows to
be false if concerning evidence that is material [likely to impact the outcome of
the proceeding, per 3.3(a)(1)].
- Lawyer must take reasonable remedial measures up to and including disclosure of
the perjury to the tribunal (if they are surprised by perjury on the stand or later
become aware of it)
Model Rule 3.3(a)(1) requires disclosure of false statements of material facts
Model Rule 3.3(b) requires the lawyer to take reasonable remedial measure if they have
the knowledge that someone has or is engaged in any sort of criminal or fraudulent conduct
related to the proceeding such as bribery, jury tampering, or destruction or concealment of
documents or evidence
Model Rule 3.3(c) limited to where the lawyer learns of the falsity prior to the conclusions
of the proceeding (once the case is over it does not need to be divulged)
Model Rule 4.1 fraud on non-tribunal third parties (it requires lawyers to disclose material
facts where necessary to avoid assisting in criminal or fraudulent act by a client, UNLESS the
information is covered by M.R. 1.6
Model Rule 5.2(b) A subordinate lawyer may, however, act in accordance with his or her
supervising lawyers reasonable resolution of an arguable question of professional duty,
If a lawyer is surprised by perjury, or subsequently comes to learn that a witness
testimony was false, the lawyer is required to correct the record
o Process
Remonstrate the Client Confidentially
Advise Them to Correct the Record
Seeking Withdrawal from Representation (M.R. 1.16(c)
tribunal may not permit)
o If the less drastic measures do not work, the lawyer must disclose the perjury
if it is the only means of rectifying the perjury, even if the information would
otherwise be protected by 1.6 (duty of confidentiality)
51
Issue
Holding
Reasoni
ng
52
Commen
ts
memos.
They also violated Rule 3.4(a), by obstructing Schaffers' access to
information via discovery (bad faith between opposing counsel).
The general duty of candor includes that of informing the Court
of any development within the case that may conceivably affect
the outcome of the litigationduty broader than 3.3 owed as
officers of the court.
KNOW:
- Perjury comes up in civil cases, not just criminal
- There is a difference between retrospective and prospective
- Courts will look at these issues in ways that dont just have to do
with zealous advocacy
In this case, the having seen the gun was a false statement
This was not the finding of the Supreme Court (trial court)
o The Supreme Court was only dealing with the situation that the
53
Commen
ts
The Supreme Court of Iowa affirmed the conviction and held that the
right to have counsel present all appropriate defenses does not
extend to perjury, an attorneys duty to a client does not extend to
assisting a client in committing perjury, and the attorneys actions in the
instance were required.
The court reasoned that an intent to commit perjury when communicated
to counsel does not alter a defendants right to effective assistance of
counsel.
Thus, the attorneys admonition to Whiteside constituted a threat to
violate the attorneys duty to preserve client privilege. Therefore, the
Court of Appeals found that the threatened violation of client confidences
breaches the standards of effective representation laid out in Strickland
v. Washington. They say this was a conflict of interest as he was more
concerned with his own situation than the clients situation.
Mistrial issues are extremely worrisome as there is no double jeopardy
allowed as a constitutional right. The disclosure or withdrawal request
may create an extreme issue in terms of avenues for mistrials.
54
55
Model Rule 3.3(a) shall not knowinglyfail to discloseoffer evidence the lawyer knows to
be false
- You can put the client up, and ask them questions, cannot presume they will perjure
themselvesthe rules are not triggered until the testimony comes out you cannot have
the necessary knowledge, the duty does kick in once it does come out and you know.
- Have to ask for a break somehow to allow from remonstrating, and rectification
May a Defense Lawyer Inform the Trial Judge that the Defendant Has Committed Perjury?
- The intent to commit a crime is not a protected confidence or secret [DR 4-101(C)(3)]
and could be revealed to the trial judge in order to prevent the clients intended
perjury (People v. DePallo)
Monroe H. Freedman Perjury: The Lawyers Trilemma
Is it ever proper for a lawyer to present perjured testimony?
o The three conflicting obligations of the lawyer in the adversary
system are:
(1) To learn everything the client knows about the case (know they lie
they might tell);
(2) To hold in strictest confidence what the client reveals
(Confidentiality = cannot disclose it); and
(3) To act with candor toward the tribunal (Candor = must disclose it)
(4) Campbell: duty to not violate the law it is still a crime to
commit perjury; thus the lawyer is making himself part of a
crime; thus, even if the Rules somehow permit what Freedman
is talking about, the law does not (the first three would ensure
that you would recognize perjury and so it would be aiding and
abetting in a criminal act)
56
Commen
ts
deceive Gellene claims he did not have the intent to defraud (which is
different)
To deceive is to cause to believe the false or to mislead; to defraud is to
deprive of some right, interest or property by deceit this is not accepted
by the court
Also Gellene claimed he was a member of the New York bar, and
deceived people for nine years which added evidence to the
governments argument that Gellene did have the intent to deceive
(allowed to use such bad acts, as Gellene argued that he did not have the
required intent for fraud)
M1: Bacyrus v. South Street
M2: South Street v. Trustee
South Street purchased the equipment owned by Bacyrus pursuant to a
leaseback agreement in order to help them out
Model Rule 1.7(a)(2) this is an issue of a conflict of interest with a current
client, and an argument of direct diversity (between the current clients)
but it would be hard to release the money however could argue that the
Trustee wants to evenly distribute the money, if it was Model Rule 1.9
(former client) may be easier to get around as there is no longer loyalty
to the client.
Conflicts issue:
- Rule 1.7
- What is the conflict of interest?
o When you are representing a bankruptcy filing for one company
and the companys creditors
o There is a duty to treat all creditors fairly
- Who raises the conflict issue?
o JNL a creditor of the company
- Gellene could have disclosed everything and probably still could have
been the attorney for the bankruptcy
- How would Gellene avoid the conflict of interest?
o Consent from the client
1.7(2)
1.7(B)
See if he can get a knowing and informed waiver in writing
o Why didnt he do this?
NOW, lets look at this case from the criminal side
o Gellenes false statements
o He had a history of lying
- Gellene had a higher duty of candour than the other case
o He was submitting affidavits because he wanted to be the
attorney for the trustee
- WHAT GELLENE DOES WRONG:
o He acts as an advocate on his own behalf while filling out these
forms
o He takes an approach toward the information that it not consistent
with the idea that he is going to be neutral and fair to all parties
involved in the bankruptcy
o He has become more of a partisan than an adjudicator
-
A trustee with full knowledge would realize it would cost more to bring
someone else they would have waived HAD HE DISCLOSED; but he
57
didnt
-
Milbank firm had to forfeit their fees they were hired on the basis of
fraud
58
59
Fees
-
Michigan uses clearly excessive and is defined as unreasonable, and the ABA is
unreasonable fees
Understand what the abas view is on fees good question for part 1-2 of exam
o BASIC RULE: There are only two types of money in this world: (1) earned and
(2) unearned
Unearned money HAS to be held in trust the vehicle for that in
almost every state is IOLTA account (interest on lawyer trust account)
This is not taxable money because it is not the lawyers actual
money, but the clients until it has become transferred into
earned funds it is pretty much a client-trust account
A separate account from any of the lawyers controlled interests
or assets
Earned money, with very few exceptions, can never be in an IOLTA
if you keep any earned money in an IOLTA, or put earned money
inside this is co-mingling of funds and is a violation (also
considered as tax evasion)
60
Conversion (converting money) is taking money out of the IOLTA for a reason
other than representation. Converting somebodys money or misappropriating
it is also a violation.
Cardinal sin to misusing money and abusing the trust of the client in
taking money that should not have been taken
Make sure that all money that comes into your possession as a lawyer is either
specified as earned or unearned; this must be understood by you and by the client
o Once the fee is earned, then you have to promptly take that money out of the
IOLTA account (reasonable period of time is allowed)
o In a true IOLTA any interest that is accrued goes to whoever is named as the
beneficiary in the court rules (usually this is the Bar)
With regard to fees, there is such a thing as an advanced fee which is unearned
money this must go into the trust account
There is another type of fee called earned advanced fees (earned on receipt): (2
types)
o Classic retainer:
The client says I will pay you x amount of dollars just to be able to call
on you to be my lawyer at another time;
Buying the right to have the lawyer do work at some later time and will
pay the lawyer later to do this actual work as well
There are two reasons to do this: makes somebody available to
your side; makes someone unavailable for the other side (due
to conflict of interest [Rule 1.7]).
o Non-refundable retainer or minimum fee (more controversial and differs
by jurisdiction)
The State of New York prohibits the use of the word non-refundable in a
fee agreement between a client and lawyer
All fee agreements must be in writing because if you want to
collect on the fee agreement you have to sue your client on an
unpaid bill and you cannot do this unless you have a written
agreement
Michigan has taken the opposite view: non-refundable is a way
of saying that money is earned upon receipt
It is a word that HAS to be in all agreements if it is nonrefundable that means it is being earned by the lawyer upon
receiptit should be bold and in all CAPS
There is no one theory that explains how you will have a nonrefundable fee
Advanced payment is presumed to be a special retainer (a deposit against future
services) unless the client and lawyer otherwise agree
When a fee agreement is ambiguous, courts construe the agreement against the
lawyer who drafted it (contra preferentum)
According to professor: earned and unearned is DIFFERENT than
refundable/non-refundable
Lawyer-client relationships is basically a contractual relationship of fee for service
o The lawyers primary obligation is to provide competent representation to
advance the clients lawful goals and the clients primary obligation is to pay
the lawyers fee
o
61
o
o
o
(2) an hourly rate fee (e.g. $300 per hour for work on a particular matter
times the number of hours)
(3) a proportional fee (e.g. handling a real estate transaction for a percentage
of the purchase price)
(4) a contingent fee (e.g. a fee of $10000 to be paid if a particular result is
obtained)
Issue
Holding
Ratio
Reasoni
The Bar Counsel charged Mr. Fordham for charging an excessive fee from his
client under Disciplinary Rule 2-106. The hearing committee after going through
the hearing, concluded that the fee charged by Mr. Fordham was not
substantially in excess of a reasonable fee and this opinion was further accepted
by the board of overseers. The Bar counsel appealed to the Supreme Judicial
Court of Massachusetts requesting the court to affirm that the fee charged by
Mr. Fordham is excessive.
- Was Respondents fee in this matter clearly excessive?
Yes
- Yes. Although it was reasonable of Respondent in this case to take the
case even if he was not experienced in the relevant law, it was not
reasonable of him to expect the client to pay for his education in this
field of law and then charge him nearly ten times more than an
experienced attorney would have charged.
- Although the client consented to the terms presented by Respondent,
Respondent never gave him a proper estimate of how much the case
might cost and he had no reason to believe that the total bill would be
anything approaching $50,000-especially since the average case in this
area bills about 30 hours.
- His work was not novel enough even though it was creative to file a
motion to dismiss the breathalyzer tests that ultimately seemed to have
led to the win.
-
62
ng
-
Commen
ts
63
64
Various federal and state statutes limit the fees a lawyer can charge in particular
types of legal work
Fee Disputes
- Either a lawyer or client can bring a lawsuit to enforce or challenge a fee agreement
Fee Arbitration
- Lawyers and clients may agree to binding fee arbitration in their retainer agreement
o Clients are not required to arbitrate a fee dispute but a lawyer is required to if
the client requests it (M.R. 1.5)
Client Confidentiality in Fee Disputes
- A lawyer may reveal client confidences to collect a fee or establish a defense in a
dispute with the client over the fee, but only to the extent necessary to support the
lawyers claim or defense (M.R. 1.6(b)(5))
Contingent Fees
- In a contingent fee arrangement, the fee amount is contingent on the result the
lawyer obtains (i.e. personal injury case: lawyer receives a percentage of plaintiff
clients recovery)
65
Some firms engaged in transactional work charge a fee contingent entirely or in part
on the transaction closing
Reverse contingency fee the contingency is the amount of money saved by the
client
66
Quantum Meruit Recoveries by Contingent Fee Lawyers who withdraw or Are Discharged
-
Old Rule: A discharge without cause was treated as a breach of the contingent fee
contract; therefore, the discharged lawyer could recover the agreed upon fee if the
client subsequently received an award
Modern Rule: recovery in quantum meruit should replace recovery on the contract in
case of discharge
o Under the rule of quantum meruit, the client is protected since the discharge
of an attorney is not always caused by a clients dissatisfaction with the
quality of service rendered but, rather, may result from the clients lack of
faith and trust or confidence in the attorney
o An attorney who substantially performs may be entitled to the full price of the
contract but it would be inequitable to force a client who has received no
service from the discharged attorney to pay the full price of the contract
Model Rule 1.8(i)(1) permits a lawyer to acquire a lien authorized by law to secure the
lawyers fee or expenses
Model Rule 1.15 will determine how fees are held (unearned vs earned monies)
Lawyer-Client Transactions
Transactions with Clients
Model Rule 1.8 covers a variety of lawyer-client transactions
- Business transactions 1.8(a)
- Media rights in the clients story 1.8(d)
- Gifts 1.8(c)
- Sexual relations 1.8(j)
Business Transactions
- M.R. 1.8(a) attempts to address the problems of lawyer overreaching and undue
favoring of her own interests at the expense of the clients interests
- Under Common Law, a lawyer in a transaction with a client is treated as a fiduciary.
As a fiduciary, the lawyer has the burden of proving that the transaction is fair and
equitable to the client. Remedies include rescission of a transaction and civil liability.
IMPUTATION RULE 1.10
-
No ethics rules that discipline a firm; only ethics rules that discipline individual
lawyers
- Sometimes this individual lawyers discipline can be traced to a firm
o If they wanted to disqualify the firm they could have but there is still the
idea of imputation
Committee On Professional Ethics and Conduct of Iowa State Bar Association v.
Mershon
stranger rule the lawyer who enters into a business transaction with a client
must give the client the same legal advice and guidance as would be given by a
lawyer who is a stranger to the transaction
Facts
Respondent, Iowa attorney Mershon, served as personal attorney to local farmer
Leonard Miller for 19 years. Miller wished to develop some of his farmland, but
would not be able to pay for Respondents services or the services of the
engineer he wished to help him develop it. In lieu of such fees, the three men
67
Issue
Holding
Reasoni
ng
Commen
ts
Passante
Facts
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The lawyer must maintain records that adequately identify the share of each person
Billable Hours
- This has become an important aspect of many law firms
- Examples of Non-Billable Activities
o reading advance sheets, newspaper, checking email, eating, bathroom breaks,
coffee, chatting with office neighbours, non-billable projects, training
sessions, CLEs, pro bono cases, organization of the office, submitting time
sheets, recruiting efforts
- Being able to bill accordingly is a part of being practice ready
Model Rule 1.5 requires it to be a reasonable fee
Model Rule 1.5(b) (c) and (e) are what you could have billed if you werent a lawyer
- Cannot split fees with nonlawyers as a general rule
- May pay a referral fee
Model Rule 1.8(f) third parties may pay your fee but you have to make sure that certain
circumstances exist
- Have to make sure professional independence is not jeopardized
- Client must say that it is okay (give consent)
- Must obtain clients consent confirmed in writing
Model Rule 4.1 if there is a third-party paying the fee, you may have a duty to make sure the
information you give is materially correct and that you dont admit anything under 4.1(b)
Model Rule 8.4
Scope of Lawyers Authority
- The client, with more at stake but in a position of vulnerability, has the right to decide
the objectives of representation
o Subject to Model Rule 1.2(c), which allows the lawyer, by agreement with the
client, to limit the scope of the representation if the limitation is reasonable
under the circumstances and the client gives informed consent
- The lawyer, with the greater technical knowledge and expertise, has the right to
choose the means by which they are to be pursued
o This is limited by the clients right to receive information as provided in Model
Rule 1.4 and the lawyers obligation under Model Rule 1.4(a)(2) to reasonably
consult with the client about the means by which the clients objectives are to
be accomplished
Things to KNOW:
1. A lawyers act or omission will bind a client when:
a. A lawyer has actual authority to make the decision Actual authority
can exist in:
i. Implied form (to take certain actions on behalf of the client without
asking the clients permission in advance, including matters of
professional courtesy and spot decisions made during trial)
ii. Express form
b. The client has lead a 3rd person to believe, reasonably, that the lawyer has
the necessary authority apparent authority
2. Generally speaking, the law governing lawyers vests the authority of making
decisions on the lawyer when the matters involve:
i. The means
ii. The procedures
iii. The tactics, and
iv. The strategies
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3. When the decision involves objectives and goals of the representation, the
decision making authority vests in the client
4. By law, there are some decisions that are reserved only to the client.
a. EX: a guilty plea in a criminal case
b. EX: settlement in a civil case
Actual and Apparent Authority
- Actual Authority: May be either express, implied or inherent
o Actual authority exists when the principal (the client) through words
(express) or deeds (implied) causes the agent reasonably to believe that she
has the authority to act
o Implied authority can be based on the lawyers reasonable interpretation of
express instructions given by the client in light of circumstances faced by the
lawyer, or from the customary allocations of responsibility between lawyer
and client in particular situations
o Inherent authority flows from legal rules delegating authority on some
matter to the lawyer independently or client counsel
- Apparent Authority: Exists when the principal (i.e. the client) through words or deeds
causes a third party reasonably to believe that the agent has the principals authority
to act
o Courts generally require a showing of reliance and good faith on the part of
the third party
- Implied, apparent, and express authority need to be known Telemeter is a
good case for that
Rules to know:
o If a law vests a decision in a lawyer (see above), the lawyers implied
authority binds the client even in the face of a contrary view by the
client
o If the law vests decision making authority in the client, the lawyer
may bind the client if the lawyer has express authority or as to some
matters, the lawyer may also bind the client if the lawyer has
apparent authority
The exception to this is when it comes to settlements in a civil case
some circumstances where the court relies on apparent authority (but
more cases where they do not)
Model Rule 2.1 important consideration (while my representation of a client is not
necessarily a representation of a clients point of view, I am permitted to bring my own point
of view this of course, with the clients permission)
- Rendering advice to a client can take other things into account other than law itself
moral, economic, social and political factors that may be relevant to the clients
situation. Advocacy is not limited.
Model Rule 1.2(c) balance this rule with 1.8(h)
- Limitation of the scope if it is reasonable under the circumstances and the client
gives informed consent. The rule itself does not tell you how to (the limitations) or
the protections for the lawyer in those circumstances
Model Rule 1.4(a)(2) reasonably consult with the client on how to represent them (does not
say the lawyer is responsible for the means)
Attorney Judgment Rule
If a lawyer uses the exercise of judgment in pursuing a case (Whether it is the issue of what
expert am I going to call? What question am I going to ask that expert? How will I argue this
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motion before the court? Etc.) there is a level of judgment a lawyers judgment will be
protected
- This is an issue of LAW not an issue of fact
Therefore, there is SOME decisions that lawyer can make; must keep client informed but can
make few decisions by themselves!
Cannot sue your lawyer for this if they made a judgement that was reserved for the lawyer
(they had authority) such as questions to ask witness, motions to bring pre-trial, how to
structure opening and closing statementssince these have to do with the lawyers training
they have the best knowledge of what is allowed.
Smith v. Lewiswhile judgments are protected, you need to make a judgement and cannot
rely on things being fortuitous without knowing anythingignorance of the law.
Model Rule 1.2 Means of achieving the objectives are usually reserved to the lawyer, but the
objectives of the representation are reserved for the client.
Keep client reasonably informed, consult with the client 1.2(d).
Allocation of Decision-Making Authority in Civil Litigation
International Telemeter Corp. v. Teleprompter Corp.
Facts
Case arose out of a patent infringement suit that ITC had brought against
Teleprompter. Principals of the two companies had participated in extended
negotiations and agreed on basic terms of settlement. Bresnan, Teleprompters
president, had signed off on the final documents but when Teleprompters
management changed, the new management refused to deliver the settlement
documents. Kirsch contacted the other lawyer and tried to withdraw from the
settlement deal
Issue
Whether there was sufficient evidence to support the trial courts conclusion that
Kirsch, Teleprompters lawyer, had either actual or apparent authority to bind
Teleprompter to a settlement
Holding
The decision made by the trial court forcing the defendant to honor the
agreement was correct because the defendants attorney had acted within his
authority and the plaintiffs reliance on the same was right as long as it did not
believe he was ever exceeding his authority.
Ratio
- In this case, the judge upholds the settlement based on the lawyers
apparent authority to bind Telepromptor
o Note the reference to actual authority as well
Reasoni
o This is not just a break down between attorney and client
o This is a break down for the client itself
ng
o Lawyers work for a purpose - The court will not hold that the entity no longer
holds liability bc of a change of management
o There is a point at which the clients will will push the lawyer too far
The lawyer then needs to be concerned with zealous advocacy
o Rule 1.2 scope of representation
Look at this rule when questioning whether a lawyer and/or client had
the authority to do something
Commen
- 2 different opinions that agree on the result but disagree as to how it is
you get to that result
ts
o Majority believed it was implied by the status of the case at the
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o
o
o
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ts
reasonable
Lewis v. Smith Ignorance is not an excuse. Negligent
If Miller didnt want to take her case, he should have written a letter.
Anything which is unambiguous
Court says, he should have told her about the Statue of limitations
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The lawyers duty under criminal and civil law to refrain from assisting a client
in conduct that is illegal. A lawyer violates that duty if:
1. The client is engaged in a course of conduct that violates the criminal law or is an
intentional violation of a civil obligation, other than failure to perform a contract or
failure to sustain a good faith claim to property
2. The lawyer has knowledge of the facts sufficient to reasonably discern that the
clients course of conduct is such a violation; and
3. The lawyer facilitates the clients course of conduct either by giving advice that
encourages the client to pursue the conduct or indicates how to reduce the risks of
detection, or by performing an act that substantially furthers the course of conduct
Professional Malpractice
- Standard of care determined by the skill, knowledge, prudence, and diligence,
brought together on similar matters by a lawyer of ordinary competence
Tort of Malpractice is made up of the following elements:
1. A duty (usually established by attorney-client privilege)
2. A breach of a duty
3. Causation
4. Harm
Intentional Torts
- Generally, the law grants lawyers no privilege to commit (or assist clients in
committing) intentional torts against third parties.
- Intentional tort that poses the greatest threat to lawyers is fraud because a large part
of what lawyers do is communicate with others on behalf of their clients with the aim
of getting those others to give up their property or money in reliance on what the
lawyer says
Fraud and the Recklessness Standard of Intent
- The basic elements of the intentional tort of fraud are:
o (1) a material false statement,
o (2) made with an intent to deceive,
o (3) which is reasonably relied on by a person to whom it is made
o (4) to that persons detriment
- Fraudulent intent may be shown by a reckless disregard for the truth or falsity of the
proposition asserted
Breach of Fiduciary Duty
- Lawyers are fiduciaries for their clients and thus may be liable for this tort or sued for
constructive fraud (i.e. for failing to disclose something important or material to the
beneficiary or client)
Exceptions and Qualifications
- Lawyers representing clients in litigation have a virtually absolute privilege to make
defamatory statements about non-clients in court (whether those statements are oral
or in writing) or in settings that are reasonably related to pending or contemplated
litigation
o As well as fiduciaries, a lawyer has a qualified privilege to make statements
intended to protect the interests of others
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Although lawyers are not immune from suits for malicious prosecution or abuse of
process, these torts are notoriously difficult to plead and prosecute successfully
Lawyers are generally not liable for intentional interference with contractual relations
simply for advising clients to breach a contract
Parties to business transactions often seek legal reassurance on certain issues from
opposing parties counsel as part of due diligence in completing a transaction
known as third-party legal opinion
o Typically takes the form of a formal letters (sometimes called a comfort letter)
- Opinions often deal with such matters as legal authority to engage in a transaction,
valid incorporation, the enforceability of the transaction contracts, and compliance
with particular laws, such as securities laws
Model Rule 2.3 set forth the lawyers ethical responsibilities in writing opinion letters
Assisting a Client in Tortious or Illegal Conduct
- Lawyers can be held liable not only for primary violations but also for secondary
violations, usually referred to as aiding and abetting or conspiracy
Hazard: How Far May a Layer Go in Assisting a Client in Unlawful Conduct?
- How far may a lawyer lawfully go in providing assistance to a client that might enable
the client to carry out an act that is to some degree illegal?
- Spectrum where at one end the lawyer can provide advice (without specific aid or
encouragement to the client) and on the other end is pure instrumentalism a
lawyers physical execution of a purpose that the client would like to realize but
cannot or will not actually execute himself (i.e. lawyer who serves as bagman in an
illegal payoff)
o Law clearly permits conduct at one end of the spectrum and prohibits conduct
at the other
- The dimensions of the lawyers duty under criminal and civil law to refrain from
assisting a client in conduct that is illegal. A lawyer violates that duty if:
o (1) The client is engaged in a course of conduct that violates the criminal law
or is an intentional violation of a civil obligation, other than failure to perform
a contract or failure to sustain a good faith claim to property;
o (2) The lawyer has knowledge of the facts sufficient to reasonably discern that
the clients course of conduct is such a violation; and
o (3) The lawyer facilitates the clients course of conduct either by giving advice
that encourages the client to pursue the conduct or indicates how to reduce
the risks of detection, or by performing an act that substantially furthers the
course of conduct
Model Rule 3.4(e) mandates that a lawyer shall not . . . allude to any matter that the
lawyer does not reasonably believe is relevant or that will not be supported by
substantial evidence . . .
Model Rule 3.4(e) prohibits a lawyer from asserting personal knowledge of facts in
issue except when testifying as a witness, or stating a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a civil litigant or the
guilt or innocence of an accused
Model Rule 3.6 Test for a Lawyers Pre-Trial Speech (Publicity)
Lawyers are held to a different standard, they do not have the intent and are subject
to the objective standard unlike general citizens
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CHAPTER 9 COMPETENCE
Checks on Incompetence
-
Preventative measures to ensure that clients receive competent legal services begin
with bar admission requirements attendance at law school and passing the bar
exam
Has been made mandatory in most states but there is no quality control of the
content of courses
Peer Review
-
Theory behind this is that lawyers may maintain and improve their competence by
submitting their practice methods to the scrutiny of knowledgeable colleagues for
comment and constructive criticism
Reputation and the Market
-
Reputation is established partly through the opinion of clients, but at least equally
through the opinion of other lawyers
Malpractice
- Theoretically available to any client who is harmed by a lawyers departure from
standards of ordinary care but usually not fought unless harm is significant and
there is a good chance of winning
Overview of the Tort of Malpractice
EXAM: What are the elements to the tort of malpractice?
- Duty
o A duty of care that is arising from the attorney-client relationship, or, in those
jurisdictions with exceptions to privity of contract, some other showing that a
duty is owed to the plaintiff
- Breach of duty
o A failure by the lawyer to exercise the care that reasonably competent lawyers
exercise under similar circumstances (knowledge, skill, prudence and
diligence)
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Causation
o Have to show the conduct of the lawyer actually caused the harm in fact
(have to retry the initial case, which could have been won)
Actual and proximate cause of the plaintiffs injury
o Creates a circumstance of a case within a case
Harm
o Usually purely economic harm and not emotional/physical harm (would have
achieved a different and more advantageous result in the transaction or
litigation but for the lawyers conduct)
o Legally cognizable harm must have been cause by the lawyers act or omission
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Commen
ts
Standard of Care
- Lawyer must know the principles of law that are either commonly known to attorneys
or which may be discovered through standard research techniques
Professional Custom Sets the Standard
- Professional malpractice differs from ordinary negligence in that the standard of care
is determined by the skill, knowledge, prudence and diligence normally exercised by
lawyers in similar circumstances
Expert Testimony
- Plaintiff in a malpractice action generally must produce expert testimony to establish
both the level of care owed by the attorney under the circumstances and the failure
to conform to that level of care
Causation of Harm
- If a lawyers breach of duty to a client occurs in the handling of litigation and the
harm suffered is the loss of a recoverable claim, the client will usually be required to
prove that the underlying case would have succeeded if it had been property brought
or litigated
- Proving causation is even more difficult in malpractice cases arising out of
transactional representation:
o Former client alleging malpractice in a transactional matter must prove that
the client would have gotten a better deal but for the attorneys errors
Other Issues
Violation of Ethical Rules as a Basis for Malpractice
-
Violation of an ethics rule does not create a civil cause of action or constitute
negligence per se. but the courts view ethics rules as relevant and admissible
evidence when relevant to the standard of care
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o
o
(1) Occurrence insurance covers the lawyer for acts or omissions during the
policy term, regardless of when the claim is asserted; and
(2) Claims made insurance covers only claims made during the policy term,
regardless of when the act or omission took place
Legal malpractice insurers may be able to provide loss prevention services more
cheaply and effectively than individual lawyers or law firms
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All three murders were especially heinous, atrocious and cruel and
involved repeated stabbings
- All involved robbery, so were for pecuniary gain
- All murders were committed to avoid arrest for the accompanying crimes
Although respondent tried to claim counsel had rendered ineffective assistance
at the sentencing proceeding, the court found that the aggravating
circumstances proved to be completely overwhelming, and there was no chance
that the outcome would have been any different.
Court of appeal: punishment that a defendant faces is merely one of
the circumstances to be considered in determining whether counsel
was reasonably effective
STRICKLAND 2 PRONG TEST:
- Found the main question to be: the benchmark for judging any
claim of ineffectiveness must be whether counsels conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.
-
Commen
ts
If you can prove conflict of interest, you only need to prove the first
prong, not the second
**UNDERSTAND THIS YOU WILL SEE SOMETHING ON THE EXAM RELATED TO
STRICKLAND and ALSO ABOUT MALPRACTICE ABOVE**
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Holding
Commen
ts
hand
Wanted to kill this baby because of the influence of a constituent of the abuse
and neglect court, which is the hospital
- Wanted some relief of its burden in relation to these kids
- The lawyer never had a clue that this was even going on
- They wanted to become the guardian of the child so that they could take
away the feeding and care of the baby to reduce their burden (hospital)
-
Rule 1.1 competence is tied to how much time you have to get ready
Baby was moved from Oakwood to DMConly neonatal high risk facility
in the areaDMC wanted the order because it cost a lot of money from
folks they never collect money from so they went to get an order to not
have to take care of the baby
DMC withdrew all feeding before the order was even ordered
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The dissent in this case disliked the phrase about legal precedent
o Instead should look for a clear and present danger
o 1.7
o 3.6
o 8.4d
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Rule 3.6
- (a) A lawyer who is participating or has participated in the investigation
or litigation of a matter shall not make an extrajudicial statement that the
lawyer knows or reasonably should know will be disseminated by means
of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter
-
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Issue
Holding
Ratio
Reasoni
ng
Commen
ts
and actively preached hatred against Jews, Muslims, and nearly every other
racial, religious, and ethnic group. Although it claimed to advocate non-violence,
several of its members were involved in notorious hate crimes throughout its
existence. Respondent attended the University of Illinois Law School and passed
the Illinois bar exam in 1998. His character and fitness to serve as an attorney in
Illinois was called into question by his beliefs, however, and they are examined
here. Although Hale said he would support the US Constitution and the
Constitution of the State of Illinois in good conscious, he said it was his first
amendment right to speak up about his beliefs regarding racism.
Does Respondent have the moral character and fitness to practice law in
Illinois?
No. The board found that Hales extremist beliefs represented a gross
deficiency in moral character that left him unsuitable to practice law in Illinois.
His commitment to extreme racial hatred and discrimination would put him on a
collision course with the states Rules of Professional Conduct.
- It is not unconstitutional
-
In re Himmel
Facts
Motorcycle accident victim Tammy Forsbergs prior attorney, John Casey, had
wrongfully withheld a portion of her settlement check. She retained Respondent,
James Himmel, to recover the remaining amount. Respondent did so by reaching
a negotiated agreement with Casey, which he later breached. Respondent then
brought suit to enforce the agreement and eventually recovered so little that he
did not receive a fee for his work. Casey was later disbarred for an unrelated
matter, and a complaint was filed against Respondent for failing to disclose
Caseys misconduct in the Forsberg case.
Issue
May a lawyer be disclipined solely for failing to report the misconduct of another
lawyer?
Holding
Yes. Respondents choice to settle rather than report Caseys misconduct was
ill-advised and he should be held responsible for it. One-year suspension.
Reasoni
This is the first case in which a lawyer was disciplined solely for failing to report
ng
the misconduct of another attorney. While this may seem unusual enough on its
face, it is further complicated by the fact that the settlement was actually the
best thing for his client-and was actually instigated by her request-and that
reporting might have actually interfered with her ability to recover from Casey.
Racist and Sexist Conduct
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Covered by M.R. 4.3 (harassment) and M.R. 8.4(d) (conduct prejudicial to the
administration of justice) comment 3 added to 8.4 (applies to racism in the course
of representing a client)
RULE
o
o
o
Gambro
o
o
o
o
o
o
o
o
An Illinois case
Whistleblowing
Lawyer worked for the EPA he learned of the misconduct within the EPA
The EPA became aware of certain seepages into the ground
The whistleblower became aware of this he was a lawyer within the EPA he
tried to disclose this and get damages for it
The court rules that he could not do so because he was a lawyer
He had a duty to report misconduct by the other EPA lawyers under 8.3(a)
Because he had this duty to report, the whistleblower statute is made for
people who would not otherwise whistle blow to do so, because he was
required to do so anyway, he was not able to get monetary damages for doing
so
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Hypotheticals
1. C is a long-time client, they deliver a case of expensive wine to your house each Canada
Day. Is this permissible? And where do we go if any limitations apply? (remember it isnt
a fee, it is a gift; so what are the limitations on gifts?)
- 1.8(c) shall not solicit any substantial gift from a client, including a testamentary gift.
- As it is unsolicited it is okay.
2. A Corp. was in a hostile takeover that has taken over 3 months, they celebrate the
victorious end of the takeover for a lavish all-expense paid trip to a Caribbean resort in
thanks for those who were on the legal team and their spouses. (There was no
solicitation by the lawyers).
- Not an ethics issue, as it was not solicitedeven though the spouse benefits.
3. A Corp. asks you to prepare a gift instrument of 10 shares of A Corp. to each of the
lawyers working on the takeover described above which you were a part. No solicitation.
- You cannot solicit or prepare the gift on behalf of the client, and so as the lawyers are
not related to the client this cannot be done if it is a substantial gift. So it depends on
if this is substantial or notneed to know the value of the shares then to answer this
question.
- If in fact 10 shares represents a significant interest in the corporation then there is a
problem, but if it doesnt represent a lot, then it is not a problem
- The general standards of fairness are what really have to be met
4. We all worked on the matter for the client, and B did not. If they asked B to prepare the
10 shares (and B will not receive them) is that okay?
- Assuming this is a lot (substantial gift), it is not allowed too because of fears of
overreaching and influencing the client wronglyas the action is still within the firm.
- Imputation1.10 (the firm)
o No ethics rules that discipline a firm, only lawyers. But sometimes that lawyers
discipline can be traced through the firm association.
5. You are a young associate in a law firm and one of the partners comes to you and gives
you this task: a client who is facing the potential of federal fraud and banking related
charges has asked for a list of the countries that would be most favorable to her if she
did not want to be extradited back to the United States. Your partner gives you three
nations: Chile, Venezuela and Bolivia. And tells you to research which of these three
would be the safest for your client to go. Is this a problem for you as a lawyer? And if so,
why and how?
- Yes it is a problem. Although you are not directly helping them to commit a crime,
you are providing information that would help them in committing a crime indirectly
1.2(d) as you are giving them the information to encourage the process to commit a
crime
- You will be seen as an aider and abetter if the purpose is to run away with the money,
the chances are you will be liable, and seen as a part of the conspiracy to defraud the
US and others
6. There is a group of protestors that are protesting manufacturers of parts for missiles of
nuclear warfare, and they have been charged with trespassing as civil disobedience
multiple times in the past. What if the group comes to you before their next outing and
says their plan is to trespass and get arrested in order to make their point. They want
you to represent them at the hearing and basically give you the bail money and tell you
to hold it for them until they get arrested and then pay their bail money and represent
them.
- This is the same idea as above. You cannot do this as per Rule 1.2(c).
7. You are a lawyer who specializes in estate planning. You are aware that under Medicaid
now if you have over a certain amount of money you have to pay that money as part of
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your care if you end up in a nursing home. Until you deplete your savings below a certain
amount, you pay. You are a lawyer and the client is about to go into the home and they
have a million dollars, and come to you for advice, and you say they can spend down in
their savings to get to that line so the government does not get it for Medicaid.
Purchases that are legal exemptionsex. caskets.
- This is allowed. Originally these were violations as they ultimately were to evade the
payment. Then it was determined to be lawyering that was good advice. Careful
about how much you know about why they wanted the info. Although it results in
harm to the US it is considered to be good lawyering.
8. Seller has contracted with Buyer to deliver 1000 widgets per month for an agreed upon
price. Because of dramatic and unanticipated changes in the cost of materials, Seller
faces enormous losses. Seller consults Lawyer who advises Seller that Seller is bound by
contract but that in this circumstance it will be cheaper for Seller to pay contract
damages than to fulfill the contract. Seller breaches contract. Was Lawyer's conduct
proper? Did Lawyer violate any MRPC?
- Does the seller now have a cause of action against the lawyer?
o Seller is not getting the benefit of the bargain
o The lawyer facilitates the clients conductas it was his direct advice to
breach
o Lawyer is in violation tells client to intentionally breach the contract
o This is an intentional violation of a civil obligation, however
Hazard: Other than failure to perform a contract, or failure to
sustain a good faith claim to property; these are not the types
of claims that lawyers are held responsible for
- What if instead of a contract circumstance it was in a property circumstances?
Legitimate claim between two neighbours and both of them claim Blackacre. The one
approaches the lawyer asking for advice, and the reply is that there is a 70% chance
that a claim would not succeed. The client then takes possession of the property, and
invites the lawyer over. Trees are cut down by the client. The other neighbour then
files a claim and wins.
9. Lawyer is outside counsel for company that manufactures truck bodies. The company's
truck body design does not include a bumper or bar that would prevent cars from going
under the rear of the truck body. The bumper or bar would cost about $400 per truck
body but would prevent hundreds of fatalities each year. A California trial court has
already upheld a jury verdict imposing liability on the grounds that the absence of a
preventative device constitutes a design defect. The company anticipates further
litigation of the matter and expects to lose some of the cases, but believes the cost of
the vigorous defense and some losses will be lower than the cost of including the
preventative device, which is not currently required by the federal safety regulations.
Lawyer reviews the situation with company officials and agrees to defend it in lawsuits as
they arise. Is Lawyer's conduct proper? Did Lawyer's conduct violate any MRPC?
- The lawyer hasnt done anything to actually undermine the laws; theres no statutory
requirement for the company to install this device so the lawyer is simply ensuring
that no further lawsuits are brought to the company. No real issue on the ethics side.
10. Lawyer represents a tampon manufacturer in a toxic shock syndrome case. During the
course of the litigation brought by a woman who is severely harmed by an infection
caused by the tampon, Lawyer engages in the following conduct: (1) At the pretrial
depositions Lawyer questions the Plaintiff at great length and in great detail about her
sexual behavior before and during marriage; (2) at trial, Lawyer seeks to cross examine
the Plaintiff about the same matters, and, after the trial judge rules that the identity
of sexual partners is irrelevant, Lawyer loudly and falsely says, in the hearing of the jury,
"But, your honor, this woman has been sleeping around with scores of men;" (3) during
closing argument Lawyer refers to the "promiscuity" and "bad moral character" of the
Plaintiff.
- There is a litigation immunity/privilege that lawyers and parties alike enjoy
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There are some rare and very extreme examples where that privilege does not cover
you as a lawyer, but for the most part, the lawyer is going to be protected by that
privilege
Anything that is said outside of the court also has some protection available
RULE 4.4(a), 8.4(c), 3.5
Can still be disciplined for violating the rules, as the privilege is to protect against
civil action only
o 8.4(a), 3.4(e) no evidence in the record of promiscuity as the questions were
not answered
o 4.4(a) while you could argue that discovery is broad and that there was a
theory in place with these questions, you are still answerable to the rules for
this behaviour
o 8.4(c), 3.5(d) would almost be applicable (falsely stated)[Michigans rule is
much more broad and is for discourteous conduct towards the tribunal]
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