Professional Documents
Culture Documents
Professional Responsibility Outline PDF
Professional Responsibility Outline PDF
Table of Contents
Course Goals..........................................................................................................................................................................4
Introduction – The Idea of a Profession ..............................................................................................................................5
Rule 1.0 Terminology ....................................................................................................................................................... 5
A. What is “Professional Responsibility”? ...................................................................................................................5
1. Two kinds of professional responsibility ..........................................................................................................5
B. What is “legal ethics”? ............................................................................................................................................5
1. Ethics v. Law ..................................................................................................................................................5
C. ABA Model Rules - 8 Main Sections .......................................................................................................................5
ABA MR Scope ....................................................................................................................................................6
1. Client-Lawyer Relationship 1.1 – 1.18.............................................................................................................6
2. Counselor 2.1 – 2.4 .........................................................................................................................................6
3. Advocate 3.1 – 3.9 ...........................................................................................................................................6
4. Transactions with Persons other than Clients 4.1 – 4.4 ..................................................................................6
5. Law Firms and Associations 5.1 – 5.7 .............................................................................................................6
6. Public Service 6.1 – 6.5 ...................................................................................................................................6
7. Information about Legal Services 7.1 – 7.6 .....................................................................................................6
8. Maintaining the Integrity of the Profession 8.1 – 8.5 .......................................................................................6
D. Profession– per ABA (RLC 36) ...............................................................................................................................6
E. Introductory Problem ...............................................................................................................................................6
Images of the Lawyer’s Role................................................................................................................................................. 8
ABA MR Scope (pp. 7-8) ................................................................................................................................................. 8
A. Film: To Defend A Killer ...........................................................................................................................................8
1. Themes Discussed ..........................................................................................................................................8
2. Three Perspectives on Role of Ethics .............................................................................................................8
3. Agency ethics ..................................................................................................................................................8
4. Client loyalty ....................................................................................................................................................8
Neutral Partisanship and the Lawyer’s Role ....................................................................................................................... 9
ABA MR Preamble, ABA MR 1.2, 1.3, 1.4 ....................................................................................................................... 9
A. Lawyer’s Roles ........................................................................................................................................................9
B. Neutral Partisanship ................................................................................................................................................9
C. Jurisdiction and Choice of Law - Determining Which State’s Rules Apply ............................................................10
How to Determine Which State(s) Rules of Professional Responsibility Apply .................................................10
D. Accidental Document Discovery ...........................................................................................................................10
The Legal Framework of Lawyers’ Ethics & Discipline .................................................................................................... 12
ABA MR 8.3, 8.4 & 8.5A ................................................................................................................................................ 12
A. Historical Background of Ethical Codes ................................................................................................................12
B. What is a Code of Ethics For? ..............................................................................................................................12
C. Disciplinary Authority .............................................................................................................................................13
D. Duty to Report Misconduct ....................................................................................................................................13
E. Sanctions ..............................................................................................................................................................14
Adversarial Ethics................................................................................................................................................................15
ABA MR 3.1, 3.2 ............................................................................................................................................................15
A. Justifying the Adversarial System .........................................................................................................................15
B. Limiting the Adversarial System: Rules 3.1 &3.2, and Fed.R.Civ.Pro 11 ..............................................................15
1. Sanctions under Rule 11 ...............................................................................................................................15
D. Zealous representation or Harassment? ...............................................................................................................16
Alternatives to Neutral Partisanship - I.............................................................................................................................. 17
A. Introduction ...........................................................................................................................................................17
B. DOMA Case ..........................................................................................................................................................17
Representation and “Group Identity” .................................................................................................................17
C. Rule 1.16 Declining Or Terminating Representation .............................................................................................17
Alternatives to Neutral Partisanship - II............................................................................................................................. 19
A. Discrimination in Client Selection ..........................................................................................................................19
B. Current ABA Rule 8.4 ............................................................................................................................................19
C. Proposed ABA Rule 8.4 Amendment ....................................................................................................................19
Ethics and Organizations.................................................................................................................................................... 21
ABA MR 1.6, 1.13, 5.1 ...................................................................................................................................................21
A. Clash between Ethics and Ethics of Corporate Management ...............................................................................21
B. Organizational Clients ...........................................................................................................................................21
C. Supervisory and Subordinary Lawyers .................................................................................................................22
1. Rule 5.1 Responsibilities of a Partner or Supervising Lawyer.......................................................................22
2. Rule 5.2 Responsibilities Of A Subordinate Lawyer ......................................................................................22
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Behavioral Ethics – I Bystanding and Upstanding ........................................................................................................... 24
A. Models of Ethical Collapse ....................................................................................................................................24
B. Subordinate and Supervising Attorneys ................................................................................................................25
1. Rule 5.1 Responsibilities of a Partner or Supervising Lawyer.......................................................................25
2. Rule 5.2 Responsibilities Of A Subordinate Lawyer ......................................................................................25
C. Bystanders and Upstanders..................................................................................................................................26
Prosecutorial Ethics ............................................................................................................................................................28
ABA Model Rule 3.8 .......................................................................................................................................................28
Criminal Defense.................................................................................................................................................................. 30
A. Justifications for defense attorney’s zealous advocacy ........................................................................................30
B. Defense of Adversarial System .............................................................................................................................30
C. Representing Someone you Believe is Guilty .......................................................................................................30
D. Podcast - McCracken Poston’s defense of Alvin Ridley .......................................................................................30
E. Perjury trilemma ....................................................................................................................................................30
F. Rule 3.3 Candor Toward the Tribunal ...................................................................................................................30
Confidentiality and the Attorney-Client Privilege (I) .........................................................................................................32
ABA MR 1.2, 1.6, 1.16, 3.3, 3.4 .....................................................................................................................................32
A. Confidentiality........................................................................................................................................................32
Rule 1.6: Confidentiality of Information ...............................................................................................................32
PA Confidentiality Exceptions ....................................................................................................................................32
B. Confidentiality vs. Attorney Client Privilege ...........................................................................................................33
C. Additional Rule Sections .......................................................................................................................................33
D. Attorney-Client Privilege ........................................................................................................................................33
Rest. Section 68: ...............................................................................................................................................33
Confidentiality and the Attorney-Client Privilege (II) ........................................................................................................ 35
A. Confidentiality........................................................................................................................................................35
Rule 1.6: Confidentiality of Information ...............................................................................................................35
PA Confidentiality Exceptions ............................................................................................................................35
B. Privilege ................................................................................................................................................................35
1. Crime Fraud Exception to Privilege ...............................................................................................................36
Confidentiality and the Attorney-Client Privilege (III) ....................................................................................................... 37
ABA MR 1.6, 3.3, 4.1, 1.16 ............................................................................................................................................ 37
A. Organizational Privilege ........................................................................................................................................37
Upjohn Test .......................................................................................................................................................37
B. Confidentiality and Client Fraud ............................................................................................................................37
1. Crime-fraud and lawyer’s duties of loyalty to client .......................................................................................37
Confidentiality and the Attorney-Client Privilege (IV) ......................................................................................................39
Behavioral Ethics II – Identifying and Countering Implicit Bias..................................................................................... 41
A. Implicit Bias ...........................................................................................................................................................41
B. Confirmation Bias ..................................................................................................................................................41
C. Giving Voice to Values Handout - how you get yourself to behave how you want to in a situation ......................41
The Counseling Function.................................................................................................................................................... 42
ABA MR 1.2, 1.4, 1.13, 1.16, 2.1 ................................................................................................................................... 42
A. Lawyer as Counselor vs. as Adversarial Advocate ...............................................................................................42
B. Government Lawyer vs. Private Counsel ..............................................................................................................42
C. The “Torture Memos” ............................................................................................................................................42
D. The Drone Memo - "Independent professional judgment and Candid Advice?” ...................................................43
Conflict of Interest (Criminal Defense) .............................................................................................................................. 44
ABA MR 1.7 ................................................................................................................................................................... 44
A. Introduction to Conflicts .........................................................................................................................................44
1. Three (typical) kinds of conflict situations ......................................................................................................44
2. Model Rules ..................................................................................................................................................44
3. Civil Litigation Disqualification .......................................................................................................................44
4. Criminal Litigation Disqualification .................................................................................................................44
B. Concurrent Conflicts and Criminal Defense Strategy ...........................................................................................45
1. Habeas Challenge to Criminal Conviction .....................................................................................................45
Concurrent Conflicts in Civil Cases................................................................................................................................... 47
ABA MR 1.7 ................................................................................................................................................................... 47
A. Introduction ...........................................................................................................................................................47
1. Definition of Concurrent Conflict....................................................................................................................47
2. Two duties to Current Clients ........................................................................................................................47
3. One duty to Former Clients ...........................................................................................................................47
B. Problems ...............................................................................................................................................................47
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Conflict of Interest (Former Client Conflicts & Imputed Disqualification)......................................................................49
ABA MR 1.7, 1.9, 1.10, 1.16, 1.18 .................................................................................................................................49
A. Successive vs. Concurrent Conflicts .....................................................................................................................49
B. Conflicts that Potentially Harm Former Clients .....................................................................................................49
1. “Substantial Relation” Test ............................................................................................................................50
2. Problem 4 - page 588 ...................................................................................................................................50
C. Imputed Disqualification ........................................................................................................................................51
1. Rule 1.10 Imputation of Conflicts of Interest: General Rule ..........................................................................51
2. Screening ......................................................................................................................................................51
Other Conflicts of Interest ...................................................................................................................................................52
ABA MR 1.5, 1.7, 1.8, 1.9, 1.10, 1.18 ............................................................................................................................52
A. Positional Conflicts ................................................................................................................................................52
B. Client-Lawyer Conflicts .........................................................................................................................................53
1. Business Conflicts: ........................................................................................................................................53
2. Family and Personal Relationship Conflicts ..................................................................................................54
Lawyer-Client Decision-making (I) .....................................................................................................................................55
ABA MR 1.2, 1.14, 2.1 ...................................................................................................................................................55
A. The Client-Centered Approach ..............................................................................................................................55
B. Client with Diminished Capacity ............................................................................................................................55
C. Problem 1a, page 663...........................................................................................................................................55
D. The Plea ................................................................................................................................................................56
Lawyer-Client Decision-making (II) ....................................................................................................................................57
ABA MR 1.2, 1.14, 2.1 ...................................................................................................................................................57
A. Article by Richard Wasserstrom, “Lawyers as Professionals: Some Moral Issues” ..............................................57
B. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer .................................57
C. Client with Diminished Capacity ............................................................................................................................57
Rule 1.14 Client With Diminished Capacity .......................................................................................................57
Advertising & Solicitation ...................................................................................................................................................59
ABA MR 7.1, 7.2, 7.3, 7.4, 7.5 ....................................................................................................................................... 59
A. ABA Rule Basics ...................................................................................................................................................59
B. Advertising.............................................................................................................................................................59
1. History ...........................................................................................................................................................59
2. In Re RMJ: (US 1982) Standard and Rationales ..........................................................................................59
3. How potentially misleading does the info need to be to ban ad? ..................................................................60
4. Examples of Ads ............................................................................................................................................60
5. PA Advertising Rule .......................................................................................................................................60
C. Solicitation.............................................................................................................................................................61
1. Definition .......................................................................................................................................................61
2. Ohralik v. Ohio State Bar (US 1978) ............................................................................................................61
2. Auerback essay (pages 739-40)....................................................................................................................61
3. In re Primus (US 1978) ..................................................................................................................................61
D. Takeaways ............................................................................................................................................................61
Negotiation Review.............................................................................................................................................................. 62
ABA MR 4.1, 1.6, 8.4(c) ................................................................................................................................................. 62
A. Common ethical issues in negotiation ..................................................................................................................62
B. Sources of ethical norms in negotiation ................................................................................................................62
C. Valdez v. Ace Ethical Issues .................................................................................................................................62
1. Lying/nondisclosure .......................................................................................................................................62
2. Coercion ........................................................................................................................................................63
3. Communication/Consulting w/clients .............................................................................................................64
4. May/must Ace use Plaintiff negligence as leverage ......................................................................................64
D. Cooperative v. Competitive bargaining styles – ....................................................................................................65
E. Settlement and Client’s Authority & Interests ........................................................................................................65
Behavioral Ethics –III Legal Education ............................................................................................................................. 66
A. Introduction................................................................................................................................................ 66
B. Inequality and the Law School’s Responsibility for that Inequality ............................................................ 66
C. Proposed Rule Change to 8.4:.................................................................................................................. 66
D. Dr. Claude Steel - Stereotype Threat ........................................................................................................ 67
Legal Ethics and Access to Justice ................................................................................................................................... 68
ABA MR 6.1, 6.2 ............................................................................................................................................................68
A. The Ethical Problem ..............................................................................................................................................68
B. The Solution ..........................................................................................................................................................68
1. Constitutional Right to Counsel? ...................................................................................................................68
i. Criminal - YES .......................................................................................................................................68
ii. Civil - Not so much .................................................................................................................................68
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Course Goals
There are four main legal-education goals in this course:
1. Become familiar with norms, sources of authority, principles and rules governing lawyers’
professional conduct and that help to shape lawyers’ roles:
You should come out of this class with an understanding of two different bodies of law
that fit together: (1) state defined and administered professional codes that are tied to bar licensing and
(2) general law that applies to lawyers’ conduct, e.g., tort, contract and agency doctrines and statutes.
You should be able to research and articulate the professional norms and tensions that are
generating and/or relevant to an ethical problem; you should know where to look in legal authorities for
rules, principles and doctrines that address the problem.
After this class, you should be able to recognize some perennial ethical conflicts and issues when
they come up in new settings.
You should recognize situations in which certain types of legal-ethical problems and conflicts are
likely to arise.
In this class you should begin to create professional habits that you will continue developing in
practice. You will practice considering, analyzing, and deciding what to do in ethically challenging
situations, such as recognizing and managing conflicts of interest and balancing the duty to advance
clients’ goals with the duty to advise clients candidly about problems with those goals.
You should finish the course with an awareness of some ways in which the structures of the legal
system and professional legal practice create potential ethical problems.
For instance, you should be able to articulate ways in which bar association rules protect clients
and ways those rules protect lawyers’ elite status. You should be able to articulate arguments for and
against imposing a requirement that lawyers, and/or law students perform some pro bono representation
every year.
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Introduction – The Idea of a Profession
Rhode, Luban & Cummings (RLC), Chapter 1, pp. 35-47
Rule 1.0 Terminology
Learning Objectives
• Become familiar with sources of authority, doctrine, legal cultural norms
• Learn to recognize perennial legal-ethical problems
• Develop professional habits for how to deal with an ethically challenging situation
• Sharpen critical insight into received views about professional ethics
• Prepare for MPRE
1. Ethics v. Law
• Ethical rules are no more or less complex and indeterminate (squishy) than legal rules
• There might be no right answers . . .
• but there are better and worse ways of analyzing the questions,
• better and worse ways of deciding what to do in a difficult situation
• better and worse reasons for what you decide to do
• Casebook:
- “There is always the question whether to comply with the law or to engage in conscientious disobedience.”
R&L, p. 8
- “When disobedience is justified can be controversial, but that disobedience is sometimes the right thing to do
can hardly be denied.” Id.
- Do you agree? Why or why not?
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ABA MR Scope
[14] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the
purposes of legal representation and of the law itself. . . . .
[16] . . . . The Rules do not . . . Exhaust the moral and ethical considerations that should inform a lawyer, for no
worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for
the ethical practice of law.
“The biggest problem, is that ordinary citizens cannot afford to hire a lawyer.”
-- Fred Ury, former pres. CT Bar Assn.
“In CT, 80-85% of divorces have a self-represented party because most families can’t afford to hire one lawyer, let alone
two. Nearly 90% of criminal cases are self-represented or by a public defender because families can’t scrape together a
retainer.”
E. Introductory Problem
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Client-Lawyer Relationship
Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(a) . . . a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by
Rule 1.4, shall consult with the client as to the means by which they are to be pursued.
(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's
belief may be inferred from circumstances.
(b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is
given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed
consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at
the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or
other association authorized to practice law; or lawyers employed in a legal services organization or the legal department
of a corporation or other organization.
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the applicable
jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has
communicated adequate information and explanation about the material risks of and reasonably available alternatives to
the proposed course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be
inferred from circumstances.
(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a
member of an association authorized to practice law.
(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably
prudent and competent lawyer.
(i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes
the matter in question and that the circumstances are such that the belief is reasonable.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and
competence would ascertain the matter in question.
(k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of
procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated
lawyer is obligated to protect under these Rules or other law.
(l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative
agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an
adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will
render a binding legal judgment directly affecting a party's interests in a particular matter.
(n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including
handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. A "signed" writing
includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted
by a person with the intent to sign the writing.
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Images of the Lawyer’s Role
Film: Ethics in America: To Defend a Killer
ABA MR Scope (pp. 7-8)
1. Themes Discussed
• Ethical Duty as Attorney vs. Personal Beliefs on Morality
• Money is always a factor
• Norm of Attorney’s Taking Cases - selection up to attorney
- unless you are only lawyer in town - then you have ethical conflicts
- ex. lawyers in clinic are only lawyers client can afford
• A Separate Ethical World
- turning guy in is not moral thing to do
3. Agency ethics
• “Lawyers are amoral agents” (Steve Gillers, law professor)
• “[T]he lawyer is the fiduciary of his client, whom he must therefore treat as he would himself rather than as he
would treat the other party to a normal arms length contract.”
• But, isn’t there a point at which one man has to be willing to step outside . . . ? (Anna Quindlen)
4. Client loyalty
“If they don’t like the case they can walk away. Once they take the case, their autonomy is out the window. Then
they know only one person in the world, and that person is their client, and regardless of how repulsive the case
might be to them as human beings, as lawyers they have to be loyal to an infinite degree.”
-- Steve Gillers
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Neutral Partisanship and the Lawyer’s Role
RLC, Chapter 4 Sections A & B
ABA MR Preamble, ABA MR 1.2, 1.3, 1.4
A. Lawyer’s Roles
ABA MR Preamble
Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as
substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation
of professional peers.
Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal
system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.
[9] “[M]any difficult issues of professional discretion . . . . must be resolved through the exercise of sensitive
professional and moral judgment guided by the basic principles underlying the Rules.”
ABA MR - Scope
[16]. . . . The Rules do not . . . Exhaust the moral and ethical considerations that should inform a lawyer, for no
worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework . . . .
MR 1.3 A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment: [1] . . . . A lawyer must also act with commitment and dedication to the interests of the client and
with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage
that might be realized for a client. . . .
B. Neutral Partisanship
Neutral Partisanship - lawyer remains detached from client’s ends, but must also work aggressively to advance his
clients ends even if they themselves and society find them counterproductive
• Neutrality = detached from the client’s ends
• Partisanship = work aggressively for client’s ends
• emphasis on extremity of situation
• lawyer is separated from the client’s goal - may not go about same issue the same way their client wants
Justification
- Role Morality - overall there is a belief that system of justice is a higher good, and that lawyer’s role within it
requires things society wouldn’t justify but actions are OK b/c are inside the system
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C. Jurisdiction and Choice of Law - Determining Which State’s Rules Apply
1. Jurisdiction = “disciplinary authority,” i.e., power to bring to court; what state’s court has power to decide
whether lawyer has violated professional responsibility and to set the choice of law rule?
ABA MR 8.5(a)
Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer
not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the
lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be
subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the
same conduct.
2. Choice of law =substantive law that applies; what state’s rules of professional conduct will be used to
decide whether lawyer’s conduct was right or wrong?
ABA MR 8.5(b)
Choice of Law. In any exercise of . . . disciplinary authority . . . the rules of professional conduct
to be applied shall be as follows:
(1) For conduct in connection with a matter pending before a tribunal, the rules of the
jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred,
or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that
jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the
lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes
the predominant effect of the lawyer’s conduct will occur.
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Rule 1.3
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.3
COMMENT [1] . . . . A lawyer must . . . act with commitment and dedication to the interests of the client and
with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every
advantage that might be realized for a client. . . . The lawyer’s duty to act with reasonable diligence does not
require the use of offensive tactics or preclude the treating of all persons involved in the legal process with
courtesy and respect.
Pennsylvania
Rule 4.4. Respect for Rights of Third Persons.
(b) A lawyer who receives a document, including electronically stored information, relating to the
representation of the lawyer’s client and knows or reasonably should know that the document, including
electronically stored information, was inadvertently sent shall promptly notify the sender.
Rule 8.5
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary
authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this
jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to
provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this
jurisdiction and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional
conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in
which the tribunal sits shall be applied, unless the rules of the tribunal provide otherwise; and
North Carolina
Rule 4.4 Respect for Rights of Third Persons
(b) A lawyer who receives a writing relating to the representation of the lawyer’s client and knows or
reasonably should know that the writing was inadvertently sent shall promptly notify the sender.
RPC 252. Opinion rules that a lawyer in receipt of materials that appear on their face to be subject to the attorney-
client privilege or otherwise confidential, which were inadvertently sent to the lawyer by the opposing party or
opposing counsel, should refrain from examining the materials and return them to the sender.
Rule 8.5
(a) Disciplinary Authority. A lawyer admitted to practice in North Carolina is subject to the disciplinary
authority of North Carolina, regardless of where the lawyer's conduct occurs. A lawyer not admitted in North
Carolina is also subject to the disciplinary authority of North Carolina if the lawyer renders or offers to render
any legal services in North Carolina. A lawyer may be subject to the disciplinary authority of both North
Carolina and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of North Carolina, the rules of professional
conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in
which the tribunal sits, unless the rules of the tribunal provide otherwise; and . . .
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The Legal Framework of Lawyers’ Ethics & Discipline
RLC, Chapter 3, Section B, pp. 110-114 & 119-121; Chapter 15, Section A; Section B pp. 931-935; Section C pp.
944-950 (not including questions on p. 950)
ABA MR 8.3, 8.4 & 8.5A
TAKEAWAYS
- Model rules don’t control
- Every state has its own set of rules regulating lawyers’ conduct (and fed courts have different ones)
- Because lawyers practice in lots of states and for people who live in different places, and on matters that affect people in lots
of states, issues of jurisdiction and C of L arise
- Rule 8.5(a) covers jurisdiction (which state has authority to discipline? Could be more than one)
- Rule 8.5(b) covers C of L (Whose rules apply?)
- Lawyers’ disciplinary self regulation includes duty to report other lawyers – Rule 8.3
- Bar sanctions are intended not to punish lawyers or retribute wrongs but to protect the public – clients and administration of
justice- and lawyers’ professional reputation
- Disciplinary enforcement is spotty and irrational
History
- Progression of Rules
• Canons of Professional Ethics
• Code of Professional Responsibility
• Model Rules of Professional Responsibility
EC 2-27 History is replete with instances of distinguished and sacrificial service by lawyers who have
represented unpopular clients and causes. Regardless of his personal feelings, a lawyer should not decline
representation because a client or a cause is unpopular or community reaction is adverse.
EC 2-28 The personal preference of a layer to avoid adversary alignment against judges, other lawyers,
public officials, or influential members of the community does not justify his rejection of tendered
employment
ABA MR 6.2: A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for
good cause.
Comment: A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards
as repugnant.
C. Disciplinary Authority
- Jurisdiction = “disciplinary authority,” i.e., power to bring to court; what state’s court has power to decide
whether lawyer has violated professional responsibility?
• about Jurisdiction - state bar where lawyer is licensed to practice, and generally a state where you are practicing
whether or not you are barred there
(1) relates back to Choice of Law discussion from last week
ABA MR 8.5(a)
Disciplinary authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary
authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this
jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to
provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both
this jurisdiction and another jurisdiction for the same conduct.
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that
raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects,
shall inform the appropriate professional authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained
by a lawyer or judge while participating in an approved lawyers assistance program.
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E. Sanctions
1. ABA Standards
• see Rule 11 under next section
“The purpose of lawyer discipline and disability proceedings is to maintain appropriate standards of
professional conduct in order to protect the public and the administration of justice from lawyers who have
demonstrated by their conduct that they are unable or are likely to be unable to properly discharge their
professional duties.”
2. Problems - point is if you are serious about protecting the public, the bar sanctions don’t reflect that but
instead reflect importance of protecting reputation and elite standing of lawyers from public view
a) Holloway - held subject to discipline b/c he deceived clients, failed to promptly deliver unearned fees
and other funds rightfully belonging to client, neglected clients’ case and abused clients’ trust
(1) Result: 45 day suspension
b) Moore - subject to discipline b/c knew marijuana growing on his premises and failed to destroy the
plants
(1) Result: disbarment - was acting illegally
c) Perkins and Fortenberry: - Perkins was partner and to avoid turning over documents during discovery
liked he destroyed them. Fortenberry was present at depo, he remained Perkins docs weren’t
destroyed but remained silent when partner
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Adversarial Ethics
RLC, Chapter 4, Section D pp. 154-159; Section F pp. 201-214; 228-233
ABA MR 3.1, 3.2
A. Justifying the Adversarial System
• search for truth
• protect rights
• public ritual of legitimacy
“The advocate plays his role well when zeal for his client’s cause promotes a wise and informed decision of the case. He
plays his role badly . . . when his desire to win leads him to muddy the headwaters of decision, when, instead of lending
a needed perspective to the controversy, he distorts and obscures its true nature.”
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(ii) not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the
needs of the case, prior discovery in the case, the amount in controversy, and the
importance of the issues at stake in the action.
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Alternatives to Neutral Partisanship - I
RLC, Chapter 4, Section E pp. Sect. E pp.177-182, 191-201
A. Introduction
Neutral Partisanship - detached from the client’s ends and work aggressively for client’s ends
- Representation -- in representing someone else, some people think that who the lawyer is should/does "go away”
• Transparent representation -- the idea of the amoral lawyer (doesn't really exists)
• If you represent a person whose morality you find disturbing, you do it by finding another reason why representing him
is ethically acceptable
3 ways of representing clients
(1) The amoral lawyer -- lawyer has no moral responsibility whatsoever for representing a particular client or for the
lawful means used or the ends achieved for the client
(2) Moral control of the client - lawyer can impose his moral views on client by controlling both the goals pursued
and the means used during the representation
(3) Choice of client as a moral decision - client is entitled to make important decisions about client’s goals and
lawful means to pursue them
- lawyer has broadest power - ethically and in practice - to decide which clients to represent
- lawyer’s decision to accept or reject a particular client is a moral decision, and one which lawyer can properly
be held morally accountable for
B. DOMA Case
- Solicitor general has jurisdictional power to decide if the govt will appeal a case when it loses somewhere in the court
system
- Solicitor general is appointed by president, confirmed by senate, and they must defend against constitutional challenges
to federal statutes
- Vary rarely, the govt will acquiesce and not defend the constitutionality of the statute, and the DOMA statute was one
such time
• DOMA -- govt didn't recognize state same-sex marriages.
- Obama administration's SG didn't defend the statute, so republican members of congress went to private firms to get a
lawyer to defend the statute. The firm agrees to defend the statute
- Poor publicity for the firm, the firm withdraws, and the selected attorney resigns
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(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes
is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer
has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has
been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered
unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a
representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good
cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect
a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel,
surrendering papers and property to which the client is entitled and refunding any advance . . . .
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Alternatives to Neutral Partisanship - II
Gabriel Chin, Do You Really Want a Lawyer Who Doesn’t Want You? TWEN;
Chris K. Iijima, When Fiction Intrudes Upon Reality: A Brief Reply to Professor Chin, TWEN;
Memo of the ABA Standing Committee on Ethics and Professional Responsibility: Draft Proposal to Amend Model
Rule 8.4, TWEN
A. Discrimination in Client Selection
• example: lawyer that refused to represent man, known for and only wanted to represent women in divorce
proceedings
- was found to violate law that prohibits discriminating on basis of gender in public services
Chin Article: Do You Really Want a Lawyer Who Doesn’t Want You?
Lawyers should be permitted to reject clients based on race, gender etc. because:
1. No intelligent client wants a lawyer that doesn’t want him
2. The relationship between a client and lawyer is special – privileged, confidential, fiduciary – demands single-
minded loyalty
3. Lawyers aren’t “public accomodations” like lunch counters or bowling alleys.
- public accommodations law - civil rights laws that affect how private property owners can exclude others
from their property
4. Rules forbidding such discrimination violate lawyers’ first amendment rights. “Lawyers should have the right
to use their lives for their private interests. . . . People should have the right to choose to become political
lawyers.”
5. issues with zealous representation if person does not want to represent you
6. lawyer could turn away client for non-biased reason
7. A rule that lawyers cannot decline to represent clients based on race or gender “will have paradoxical
consequences.”
“Every lawyer has friends or classmates who went to law school because they wanted to help people who have
historically been subordinated by law or who have had unequal access to the legal system . . . . Lawyers and
public interest law firms dedicated to the needs of women, members of particular races, or natives of particular
countries . . . Will be sitting ducks for prosecution.”
Iijima Response to Chin: When Fiction Intrudes Upon Reality: A Brief Reply to Professor Chin
3. Pragmatic Point - Chin’s article rests a lot on idea that if lawyer rejects you that you can get another lawyer
a) assumes everyone has access to a lot of lawyers, if you can afford one you can afford another
b) if you are in a small town or isolated area, maybe not so easy to go get another lawyer
c) lawyers part of agencies have no choice
4. Hypocrisy Point
a) after all, lawyers often credit themselves with legal eradication of racial discrimination
b) an institution and profession that would enforce society’s decision to ban invidious discrimination but
consciously exempt itself from that ban neither fosters nor deserves the public trust
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Proposed ABA Rule 8.4 Amendment (July report)
It is professional misconduct for a lawyer to:
***
(g) knowingly harass or discriminate against persons, on the basis of race, sex, religion, national origin, ethnicity,
disability, age, sexual orientation, gender identity, marital status or socioeconomic status, while engaged [in
conduct related to] [in] the practice of law.
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Ethics and Organizations
RLC, Chapter 7, Section C pp. 412-418; Section A pp. 385-394,Section C pp. 426-432
ABA MR 1.6, 1.13, 5.1
B. Organizational Clients
b) if Rule 1.13 does not prevail, then you can violate Rule 1.6 Confidentiality
Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client
gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
i) to prevent reasonably certain death or substantial bodily harm;
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ii) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
iii) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission
of a crime or fraud in furtherance of which the client has used the lawyer's services;
iv) to secure legal advice about the lawyer's compliance with these Rules;
• states differ on triggers for confidentiality to be broken
- some states change may from Federal Rule to a must
- ABA MRs - allocation of responsibility b/w supervisors and subordinates in Rule 5.1 ‘Responsibilities of
Partner or Supervisory Lawyer’ and Rule 5.2 “Responsibilities of a Subordinate Lawyer
• 5.1(c) - supervisory lawyers accountable for subordinates’ disciplinary violations either when:
- supervisory lawyer orders or ratifies conduct, or
- when supervisory lawyer knows of conduct but fails to take reasonable remedial action
• 5.1(b) - supervisory lawyer should make reasonable efforts to ensure subordinates conform to rules of
professional conduct
- COMMENTS
- i.e. up to partner to ensure you act ethically
- setting of this rule reinforces the authority hierarchy
• 5.1(a) - partners in law firm responsible for ensuring firm's policies give 'reasonable assurance all lawyers in firm
conform to rules of professional conduct’
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GM Spares Its Top Lawyer but Not Those Below Him (NYT 6/5/2014)
NEW YORK — Lawyers at General Motors Co came under withering criticism in an internal company report on Thursday
and at least two of them were fired, but the company’s general counsel, a key adviser to CEO Mary Barra, was expressly
asked by the board to keep his post.
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Behavioral Ethics – I Bystanding and Upstanding
RLC, Chapter 7, Section C pp. 434-444; Martha Minow, Upstanders, Whistle-Blowers, and Rescuers, TWEN
A. Models of Ethical Collapse
• authority
- in all three essays, the settings involve a ‘looking up’ to a person and being ethically challenged
- doing something according to authority is the make or break moment to be included or be outcasted
C.S. Lewis, “The Inner Ring” in They Asked for a Paper: Papers and Addresses (1962)
c) almost certain at least 2 or 3 of us before we die will become something like a scoundrel - unscrupulous,
treacherous, ruthless egotists
d) choice which can lead to scoundrelism will not initially present itself in any dramatic way
(1) bad men almost certainly won’t appear
(2) it’ll happen over some routine interaction, you’ll get the hint of something not in accordance with
technical rules of fair play, which which the public wouldn’t understand
(a) something even outsiders in your own profession will fuss about
(b) will be phrased as something ‘we always do’
(c) you’ll get drawn in b/c you want to be accepted into this inner circle and not be cast into the cold outer
world
i) you don’t want to disappoint the person you look up to and be rejected by them
(3) if you are drawn in, next week it will be something a little further from the rules, then next year something
further still but still in a friendly spirit
e) it may end in a crash or millions or an award from our old school, but you will still be a scoundrel
f) TAKEAWAY
(1) you can either listen to your own internal voice, or after ignoring it for awhile you stop to hear it
(2) cause of ethical collapse - desire for connection instead of feeling of alienation
(a) creates vulnerability to making choices in order for you to “make the connection”
(b) becomes more important than abstract rule you read
Patrick J. Schiltz, “On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy,
and Unethical Profession” (1999)
a) you’ll start acting unethically with your time sheets
b) it will become easier and easier to take little loans against future work
(1) after awhile, you’ll stop paying back the little loans
c) you’ll then pad more and more - continuing to rationalize your dishonesty to yourself until one day you don’t
even do that
(1) before long you will be stealing from your clients almost every day, and you won’t even notice it
d) after a couple of years, you won’t even notice you are lying and cheating and stealing every day that you
practice law
(1) you will be making dozens of quick, instinctive decisions, but instead of reflecting notions of right and wrong by
which you conduct your personal life, will reflect the set of values you conduct your professional life - values
that embody what is profitable and what you can get away with
e) TAKEAWAY
(1) fast paced thinking - now you don't really think about, but down the road you regret it
(2) slow thinking - involves more of a rational thought choice
(3) cause of ethical collapse - slippery slope (once you do this, easier to do that)
(4) tone sort of annoying, kinda preachy
David Luban, “The Ethics of Wrongful Obedience” in Ethics in Practice: Lawyers’ Roles,
Responsibilities and Regulation (Deborah L. Rhode, ed) (2001)
a) best example of wrongful obedience by lawyers was Berkey-Kodak antitrust litigation in 1977
(1) Perkins an admired senior litigator, lost it - lied to conceal documents from discovery and then perjured himself
to cover up the lie
(a) he eventually owned up and resigned from firm and went to prison for a month
(2) Fortenberry, the associate working for Perkins, knew he perjured himself but kept silent
(a) kept thinking must be a reason guy lied - he was his boss and a great guy
b) range of explanations here - p. 436
(1) appeal to hierarchy - guy was his boss
(2) personal loyalty - guy was great guy
(3) helplessness - no clue what to do
(4) couldn’t believe it - kept thinking there must be a reason
(5) like cognitive dissonance - Fortenberry's own ethical judgment was undermined by the situation he
found himself in
(a) what’s likely to cave is your own judgment about right and wrong
(b) more likely to rationalize behavior of someone you respect than say that the person you respect is acting
wrong
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c) neither attorney received explicit order to break rules, but sometimes lawyers do
(1) 5.2(a) - denies defense of superior orders to subordinate lawyer ordered to behave unethically
(2) 5.2(b) subordinate may defer to ‘supervisory lawyers reasonable resolution of arguable question of professional
duty’
(3) problem - pressures on subordinate lawyers may lead them to misjudge when a question of professional duty
is arguable and when the supervisor’s resolution of it is reasonable
(a) nothing reasonable about perjury
d) what we can learn from wrongful obedience from Milgram’s experiments at Yale
(1) Experiment shows:
(a) in right circumstances we are prone to destructive obedience
(b) we don’t believe this about ourselves or about our neighbors - nor do we condone it
(c) we believe three things about ourselves:
i) we disapprove of destructive obedience
ii) we think we would never engage in it
iii) we are wrong to think we would never engage in it
(2) places moral norms in conflict
(a) performance principle: norm of obeying authority, coupled with norm of doing your job
(b) no-harm principle: prohibition on torturing, harming and killing innocent people
(c) what we think in abstract is dead wrong
(3) slippery slope character of electrical shocks
(a) to conclude administering 330 volt shock would be wrong is to admit that the 315 volt shock was probably
wrong, and perhaps all shocks were wrong
(4) cognitive dissonance theory - when our actions conflict with our self-concept, our beliefs and attitudes
change until conflict is removed
(a) what’s likely to cave is your own judgment about right and wrong
(b) more likely to rationalize behavior of someone you respect than say that the person you respect is acting
wrong
(5) moral decision making requires good judgment - knowing which actions violates a moral principles and
which do not
(a) knowing rule of law and being able to apply it to particular cases
(b) need good judgment to know at what point electrical shocks violate no-harm principle
e) corruption of judgment explanation of Milgram experiments
(1) every litigation associate goes through rite of passage
(a) after awhile, line between zealous advocacy and deception becomes blurred
(b) like any other piece of elastic, the no-deception principle loses its grip if it is stretched too far
- ABA MRs - allocation of responsibility b/w supervisors and subordinates in Rule 5.1 ‘Responsibilities of
Partner or Supervisory Lawyer’ and Rule 5.2 “Responsibilities of a Subordinate Lawyer
• 5.1(c) - supervisory lawyers accountable for subordinates’ disciplinary violations either when:
- supervisory lawyer orders or ratifies conduct, or
- when supervisory lawyer knows of conduct but fails to take reasonable remedial action
• 5.1(b) - supervisory lawyer should make reasonable efforts to ensure subordinates conform to rules of
professional conduct
- COMMENTS
- i.e. up to partner to ensure you act ethically
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- setting of this rule reinforces the authority hierarchy
• 5.1(a) - partners in law firm responsible for ensuring firm's policies give 'reasonable assurance all lawyers in firm
conform to rules of professional conduct’
TAKEAWAYS
• by naming something, is step towards creating it
• need to create culture for people to come forward and foster upstanding rather than bystanding
Summary
• Bystander: person who is near but does not take part in what is happening
- BUT lack English word for opposite of a bystander
• Upstander - recognition and approval to people who stand up for their beliefs, even if they are alone, i.e. not
being a bystanders
- maybe by naming opposite of bystander, concept can become a practice
Upstanders May
• speak publicly against injustice
• be a whiten-blower who exposes wrongdoing w/ hope of stopping it
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• resit temptation of silence and passivity by expressing and offering support to victims of injustice
• rescue individuals who are in danger - through secret or overt actions
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Prosecutorial Ethics
RLC, Chapter 6, Section D, pp. 345-355 (omit Problem 7), 365-367;
Rules and Articles at links posted on TWEN
ABA Model Rule 3.8
A. Introduction
1. prosecutor’s have duty to seek justice
2. under ABA model rules, section F deals with comments to the press
a) Comment to Rule
(1) prosecutor is administrator of justice and not just an advocate
b) Preamble stresses zealous advocacy for client
C. Grand Juries
1. Basic Grand Jury Facts
a) very one-sided
b) prosecution tells their story
(1) can subpoena documents and witnesses to appear
c) no defense lawyers challenging evidence or credibility
2. Articles
a) Prosecutor in Ferguson GJ knew some witnesses were lying
(1) let some witnesses testify even though their testimony was not accurate
(a) one lied, was not present, and known to make racist comments in past
(2) should he have corrected her if he knew her statement was false?
(3) what if the witness was offering exculpatory evidence that would help the ∆ out, does prosecutor
have to make that info available?
b) Ferguson: Shadow Trial
(1) special prosecutor used his release of material as shield to say he was doing the right thing
c) California article
(1) governor said state will ban use of GJ’s in police deadly force cases
(2) ethical issue:
(a) who are we seeking justice for? the defendant? the victim? or larger justice system?
D. Race in Prosecutions
1. Problem on page 354
a) Issue
(1) person comes to DA and says controller has given people a pass where he should have called
attention to financial misdealing
(2) former employee says by the way, the guy is a big cocaine user
(a) says reason he is telling DA is controller blocked promotion
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(3) after investigation, you believe that the controller has knowingly ignored financial improprieties, but
no direct evidence he did it in exchange for campaign money
(4) controller is african american, and is first high elected minority in your community
(5) junior prosecutors say case involves discretion to prosecute, but said would make him look bad
b) Question - you are deciding whether or not to file charges, should prosecutor consider racial undertones
as reason not to go ahead
2. Kathleen Kane example of prosecutor determining whether to pursue charges with race as a factor
a) Facts
(1) office decided to not bring changes
(2) told press case flawed, but one reasons was b/c investigation was racially motivated - all officials
are african americans
(3) Philly DA’s office said they would take case
(a) DA is black man and moved forward with prosecution, got several guilty pleas off bat
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Criminal Defense
RLC, Chapter 6, pp. 300-305, 307-315
Listen to NPR podcast: Snap Judgment, Snap #630 Dirty Work – The Writing Is on the Wall
http://www.wnyc.org/story/writing-wall-snap-630-dirty-work/
(27 min)
A. Justifications for defense attorney’s zealous advocacy
3. truth - need to protect those who are factually and legally innocent
4. rights - right to affective assistance, and right to fair trail and representation
a) 5th and 6th Am
5. humanitarian aspect - in providing zealous defense of criminally accused, you protect the humanity of an
individual in society who would otherwise likely be dehumanized
E. Perjury trilemma
A lawyer should:
1. Zealously advocate for her client (which requires her to learn the facts)
2. Keep client confidences
3. Expose perjury (to be truthful in the court)
Rule 3.3
• What is the standard of knowledge?
• What does “knows” mean?
• Is the standard the same for all kinds of evidence – for client testimony and other witnesses? For physical
evidence?
Rule 1.0
(f) “Knowingly” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s
knowledge may be inferred from circumstances.”
Three Questions
What must I do?
What may I do?
What should I do?
A. Facts:
1. you represent ∆ accused of robbery
2. client claims was elsewhere on evening in question
a) first, indicates he was shopping at mall with two friends
(1) investigation reveals his friends were at sports event that night
b) then, client remembers he was at a part
(1) but alleged host does not recall having party
c) finally, recalls he was at movies with his sister
(1) sister confirms the story, but unable to provide further corroboration
3. case goes to trial
a) prosecution establishes robbery could have taken place after the movie
b) on cross, your client states that after the movie he went to the party that your previous investigation failed to confirm
(1) explains his failure to disclose this info during direct examination on group that party involved drugs and he did
not want to implicate his friends in criminal activities
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Confidentiality and the Attorney-Client Privilege (I)
RLC, Chapter 5, Problem 1 pp. 235-236, Notes, pp. 237-238, Section A pp. 239-244 (exclude Problem 2)
ABA MR 1.2, 1.6, 1.16, 3.3, 3.4
A. Confidentiality
• Under Model Rule 1.6 duty of confidentiality protects all “information relating to representation of a client” – i.e., not
only information communicated by the client, but information from any source
• Confidentiality is an ethical duty under the Model Rules
• Confidentiality is BROAD
• Under Rule 1.6, disclosure of confidential material is never mandatory
- Note that these are only model rules, so in some states disclosure IS mandatory
- very few jx have mandatory exceptions.
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably
believes necessary:
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of which the client has used or is
using the lawyer's services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interest or property of another that is
reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance
of which the client has used the lawyer’s services
PA Confidentiality Exceptions
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial
injury to the financial interests or property of another;
(3) to prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of
which the lawyer’s services are being or had been used; or
(4) to establish a claim or defense on behalf of the lawyer in a controversy . . . .
(5) to secure legal advice about the lawyer’s compliance with these Rules; or
(6) to effectuate the sale of a law practice consistent with Rule 1.17; or
(7) to detect and resolve conflicts of interest. . . .
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B. Confidentiality vs. Attorney Client Privilege
• Under Model Rule 1.6 duty of confidentiality protects all “information relating to representation of a client” – i.e., not
only information communicated by the client, but information from any source.
• The attorney-client privilege protects only confidential communications from a client, and only from disclosure to a
tribunal.
• Confidentiality is an ethical duty under the Model Rules
• Privilege is a rule of evidence
• Confidentiality is BROAD
• Privilege is NARROW
Comment 14: "The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to
the purposes of legal representation and of the law itself. "
Comment 16: "…The Rules do not, however, exhaust the moral and ethical considerations that should inform a
lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a
framework for the ethical practice of law."
1.2(d) “A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or
fraudulent”
1.16 (a) (1) a lawyer . . . shall withdraw . . . if: (1) the representation will result in violation of the rules of professional
conduct or other law
D. Attorney-Client Privilege
• The attorney-client privilege protects only confidential communications from a client, and only from disclosure to a
tribunal.
• Privilege is a rule of evidence
• Privilege is NARROW
“Communication”
Can be in any form – including non-verbal (e.g., pointing, facial expressions, holding up fingers, photos, etc.)
But only the communication is covered – not the knowledge or information in the
communication if it is available elsewhere—e.g., in preexisting documents.
“Privileged persons”
When is a third party an unprivileged stranger and when is she a client’s “agent for communication”?
E.g., translator, friend client sends to lawyer with message
“In Confidence”
“A communication is in confidence . . . if, at the time and in the circumstances of the communication, the
communicating person reasonably believes that no one will learn the contents of the communication except
a privileged person . . . .”
Rest. Section 71
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Confidentiality and the Attorney-Client Privilege (II)
RLC, Chapter 5, Sections C 1 & 2 pp. 250-257, & Section E pp. 273-280
A. Confidentiality
- Under Model Rule 1.6 duty of confidentiality protects all “information relating to representation of a client” – i.e., not
only information communicated by the client, but information from any source.
- Confidentiality is an ethical duty under the Model Rules
- Confidentiality is BROAD
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably
believes necessary:
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of which the client has used or is
using the lawyer's services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interest or property of another that is
reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance
of which the client has used the lawyer’s services
PA Confidentiality Exceptions
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial
injury to the financial interests or property of another;
(3) to prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of
which the lawyer’s services are being or had been used; or
(4) to establish a claim or defense on behalf of the lawyer in a controversy . . . .
(5) to secure legal advice about the lawyer’s compliance with these Rules; or
(6) to effectuate the sale of a law practice consistent with Rule 1.17; or
(7) to detect and resolve conflicts of interest. . . .
(1) also relevant - Rule 3.3: (b) A lawyer who represents a client in an adjudicative proceeding and who
knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent
conduct related to the proceeding shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal.
c) Takeaway
B. Privilege
• Privilege
- The attorney-client privilege protects only confidential communications from a client, and only from disclosure to a
tribunal.
- Privilege is a rule of evidence
- Privilege is NARROW
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1. Crime Fraud Exception to Privilege
- Client’s intent to commit act creates exception – even if client doesn’t believe act is crime/fraud or decides
after asking advice to commit
- Client’s intent counts, not lawyer’s – exception even if lawyer has no knowledge
- Exception applies only to communications in furtherance of crime/fraud: discussion of ongoing or future
crimes/frauds typically unprotected, talk about past misconduct usually protected
- Baseline is time of communication, not time when privilege asserted
Rest Section 82: The attorney-client privilege does not apply to a communication occurring when a
client:
(a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime
or fraud . . .or
(b) Regardless of the client’s purpose at the time of consultation, uses the lawyer’s advise or other
services to engage in or assist a crime or fraud
Bersani v. Bersani
- Facts: divorce action, wife got temp custody, but she fled to Spain. Divorce went present w/o her. Ct
gave custody to father, but wife refused to return children from Spain. The wife’s attorney knew where
she was but argued privilege applied
- Court: found privilege did not apply
- reasoning: attorney’s refusal to disclose location constituted fraud on the court
- failure to disclose - attorney knows something and holding it back
Problem 3
- argument for info not being privileged
- client doesn’t need formed intent to use info, can develop intent after discussion
- assert privilege
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Confidentiality and the Attorney-Client Privilege (III)
RLC, Chapter 5, Section D pp. 260-266, Section F 280-291; Section G
ABA MR 1.6, 3.3, 4.1, 1.16
A. Organizational Privilege
Upjohn Test
case by case approach (page 264)
if:
i) the communications were made by Upjohn employees,
ii) to counsel for Upjohn action as such,
iii) at the direction of corporate superiors in order to secure legal advice from counsel
then these communications must be protected [by the attorney client privilege] against compelled disclosure
Corporation has the burden of showing that the communication in issue meets all of the requirements
Upjohn v. US (1981)
(1) Facts: two foreign officials are bribing gov’s overseas to get them shares and market contracts (illegal). IRS is
investigating, Upjohn Co lawyer is investigating as well (in house investigation to figure out what is going on).
Questionnaires were filled out by employees to gather info. Upjohn Co asserts attorney-client privilege.
(2) Issue: what is the scope of the attorney-client privilege in the corporate context?
(3) Approaches to question prior to Upjohn
(a) Control Group Test: only the higher-up officials like senior management had the privilege
(b) what the lower court used
(c) rationale - they are who would seek legal advice for corporation
(d) con - if you are getting information from someone who is not in control group it is not privileged
(e) Subject Matter Test - does not spell out, but Upjohn approach is a variation of
(4) Holding: questionnaires are privileged
(5) Rationale: if they were not privileged, it would be difficult for counsel to give sound results
Rule 1.2 (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is
criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with
a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or
application of the law.
Rule 1.16
. . . A lawyer . . . shall withdraw from the representation of a client if:
the representation will result in violation of the Rules of Professional Conduct or other law;
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using the fraudulent leases. The lawyers do not know the leases are forged. OPM accountant blows the
whistle to an attorney in the firm.
b) Question from class: at point attorney’s hear from accountant, is that privileged?
(a) under Crime-Fraud exception, seems like they could reveal this and it is not privileged
c) NY Code in force for OPM
(1) DR4-101(C)(3): ’a lawyer may reveal the intention of his client to commit a crime and the
information necessary to prevent the crime’
(a) lawyers at time argued this only applied to future crimes
(b) also was just a ‘may’
(2) DR&-102(B)(1): ’a layer who receives info clearly establishing his client has in course of his
representation, perpetrated a fraud upon a person…shall promptly call upon his client to rectify the
same, and if his client refuses…he shall reveal the fraud to the affected person….except when the
information is protected as a privilege communication
(a) here - lawyer's must no reveal what they know
2. Problem 4
a) You are senior partner under circumstances described in OPM.
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of
a crime or fraud in furtherance of which the client has used the lawyer's services;
c) Q: since OPM is 60% of Singer’s billings and they want to maintain that relationship, even if lawyer
does not reveal, you may still be subject to criminal liability for being part of conspiracy if there was
intent or knowledge
(1) Must you tell?
(a) if you know client is using your services to commit fraud you must tell
i) if you are going off of accountants view, you don’t necessarily need to tell
(2) Should you tell?
(a) depends on your moral compass
(b) no affirmative duty to investigate whenever you hear something, but here you probably should
investigate
i) if this triggers duty to tell, then you are effectively policing your clients which would
impact your clientele and result in people not wanting you to represent them
d) TAKEAWAY: while you may not have professional duty to investigate under circumstances, once it
raises to point where you are turning blind eye to conduct you know is illegal that your are helping to
advance through your representation, you will be criminally liable and privilege will not protect you
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Confidentiality and the Attorney-Client Privilege (IV)
Written Assignment Due by Class Time.
Confidentiality/Privilege Problem 5
May I?
Must I?
Should I?
Problem 5
You could structure your answer several different ways and be successful
-- Track the problem’s questions
-- Discuss different levels/sources of authority – rules, cases, principles
-- Begin with conclusion and unfold argument
-- Describe how you would proceed in real life
Track the Problem’s structure
Question 1 asks what your obligations are under the state’s Child Abuse and Neglect Reporting Act
Or – in the words of the CANRA – do you have “reason to believe that a child has been subjected to abuse
or neglect”?
Per statute, child neglect is a “knowing failure to provide ordinary and proper care and attention.”
Threshold question: Are three phone calls finding the mother gone and a 10-year-old in charge enough to create
Knowledge that a four year old was scalded in the bath but not knowing whether the mother was in fact
there?
Is the information a ‘matter communicated in confidence by a client to the client’s attorney or other
information relating to the representation of the client?’
Depends
Interpret statutory exception with reference to state rule of confidentiality (and its exceptions)?
or
Interpret statutory exception independently?
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ABA MR 4.1
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
ABA MR 3.3
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to
be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness
called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter,
that the lawyer reasonably believes is false.
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Behavioral Ethics II – Identifying and Countering Implicit Bias
Matthew Hutson, Book Review-- Blind Spot: Hidden Biases of Good People, Washington Post
Project Implicit FAQs https://implicit.harvard.edu/implicit/faqs.html#faq13
Project Implicit – Take a Test https://implicit.harvard.edu/implicit/takeatest.html
David McRaney, Confirmation Bias http://youarenotsosmart.com/2010/06/23/confirmation-bias/
Robert Wright, How Confirmation Bias Can Lead to War,Atlantic Monthly http://www.theatlantic.com/international/
archive/2012/07/how-confirmation-bias-can-lead-to-war/260347/
Johanna Wald, Can “De-Biasing” Strategies Help To Reduce Racial Disparities in School Discipline?
A. Implicit Bias
3. Definition: how unconscious responses and attitudes might be generated from stereotypes
4. Implicit Association Test
a) tests are picking up something real about imply bias
b) dropped curtain in symphonies - blind auditions that resulted in more equal representation of women in orchestras
c) if you have implicit biases about your client, you may not choose them or zealously represent them
5. Strategies for De-Biasing - by Wald
a) intention (acknowledgment -accept fact bias excepts)
b) attention - pay attention to bias situation
c) time- take time to break out of biased habit
(1) practice can strengthen ability to behave how you want to
(2) idea of ritual
d) Prejudice Habit Breaking Strategy
(1) Stereotype replacement - An individual recognizes that he or she is responding to a situation or person in a
stereotypical fashion. (S)he considers the reasons and actively replaces this biased response with an unbiased
one.
(2) Counter-stereotypic Imagining - gathering very specific information about a person’s background, tastes,
hobbies, and family, so that one’s judgments will be based on the particulars of that person, rather than on
group characteristics.
(3) Individuating - stepping into the shoes of a stereotyped person.
(4) Perspective-taking - stepping into the shoes of a stereotyped person.
(5) Increasing Opportunity for Positive Contact - actively seek out situations where one is likely to be exposed to
positive examples of African Americans or others subject to stereotypes
B. Confirmation Bias
1. Definition: when you purposefully seek out information that confirms your beliefs
2. you may think you really know a lot about something, but really you are just reinforcing what you already believe
3. Why it is important for lawyers to know about confirmation bias - inhibits your ability to advocate zealously for your client
without you even consciously being aware of doing so
a) seek out information that already confirms what legal arguments you are making, leaves counterarguments
unaddressed and this weakens the strength of your overall legal position
C. Giving Voice to Values Handout - how you get yourself to behave how you want to in a situation
1. values - know and appeal to short list of widely shared values (honesty, respect, responsibility, fairness, compassion)
2. choice - believe you have choice about voicing values by examining own track record
a) know what has enabled and disabled you in past
3. normality - expect value conflicts and approach them calmly and competently
4. purpose - define your personal and professional purpose broadly before conflicts arise
5. self-knowledge, self-image and alignment - generate a self-story about voicing and acting on values that is consistent with
who you are and builds on your strengths
6. voice - practice voicing your values in front of respected peers
7. reasons and rationalizations - anticipate typical rationalizations given for ethically questionable behavior and identify your
counter arguments
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The Counseling Function
RLC, Chapter 9, Section E pp. 532-542
ABA MR 1.2, 1.4, 1.13, 1.16, 2.1
A. Lawyer as Counselor vs. as Adversarial Advocate
• just you and client when you are counselor
• often involve longstanding on-going relationship with client
Rule 1.2
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of
representation
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement
of the client's political, economic, social or moral views or activities.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and
may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of
the law.
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D. The Drone Memo - "Independent professional judgment and Candid Advice?”
• insufficiently describes/applies holding in Hamdi – a right of some due process even in cases of a captured
“terrorist”.
• Is the lawyer advising the client “the government aka the people” correctly? Or is he catering to the wants/needs of
the individual gov’t members he is counseling.
- Is this more a defensive piece than a counseling piece, considering that there have already been 400 drone
strikes
• Mathews test for due process
1. individual’s private interest that is affected by the action
2. government’s interest and burden to provide greater process
3. governments risk of error - wrong person, taking more than they should take
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Conflict of Interest (Criminal Defense)
RLC, Chapter 10, Sections A & B, pp 543 - 565
ABA MR 1.7
A. Introduction to Conflicts
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited
by the lawyer's responsibilities to another client, a former client or a third person or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and
2. Model Rules
a) 1.7 Current clients [mostly about litigation conflicts among clients]
b) 1.8 Current clients – Specific Rules [mostly about transactional/business interests and lawyer-client
conflicts]
c) 1.9 Duties to former clients
d) 1.10 Imputation of conflicts
e) 1.11 Special conflicts for government lawyers
f) 1.12 Former judge, arbitrator, mediator or other 3rd party neutral
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B. Concurrent Conflicts and Criminal Defense Strategy
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Concurrent Conflicts in Civil Cases
RLC, Chapter 10, Section C pp. 565-579
ABA MR 1.7
A. Introduction
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the
lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the
lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and
B. Problems
1. Unwanted will- husband and wife are both clients, husband says they want parallel wills where money goes to the
other and then to their children, if not alive goes to spouse or to children. Husband executes the will, wife is alone with
attorney before she executes it and tells attorney that if her husband didn’t know she’d make changes but will execute it
as is to keep the peace but its not what she wants. He can’t execute a will that he knows in not testators intent but
cannot execute a different will without telling husband because this would violate loyalty to him but also cannot tell the
husband about wife’s intent because it would violate confidence to wife.
2. Insurance- insurance company pays to defend the driver, who is being sued by his wife the passenger. Driver tells
attorney that he was driving carefully, but testifies that he was distracted. Attorney suspects that this is to get his wife
more money. Can you/must you impeach the defendant? Is there really a conflicts problem between client and person
employing you?
Answer: Can’t impeach, but must prevent the fraud before you request to withdraw
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1.4 Communication
(a) A lawyer shall
....
(2) Reasonably consult with the client about the means by which the client’s objectives are to be
accomplished;
....
(5) Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows
that the client expect assistance not permitted by the rules of Professional Conduct or other law.
Montanez v. Irizarry-Rodriguez
641 A.2d 1079 (N.J. Super. Ct. App. Div. 1994)
“Permitting insurance counsel to impeach the credibility of an insured places counsel in a position of
representing conflicting interests, and actually permits counsel to elevate the insurer's interest over the
insured's. Such practice cannot be condoned.”
Defense counsel's reliance upon R.P.C. 1.6(b) and R.P.C. 3.3(a)(2) and (4) [rules on confidentiality and
candor before the court] is misplaced. While either rule may permit the lawyer to reveal information gained
through the lawyer's representation of the client in certain circumstances, neither rule requires or permits
the attorney to represent a conflicting interest hostile to the client's position.
“The remedy for an attorney in such situations is to disclose the information the attorney believes is required
by R.P.C. 1.6(b) and R.P.C. 3.3 to the court, and request permission to withdraw from the litigation pursuant
to R.P.C. 1.16.”
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Conflict of Interest (Former Client Conflicts & Imputed Disqualification)
RLC, Chapter 10, Section D (excluding Problem 4), pp 589-600; Section E, Kirk v. First American pp. 600-609
ABA MR 1.7, 1.9, 1.10, 1.16, 1.18
A. Successive vs. Concurrent Conflicts
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited
by the lawyer's responsibilities to another client, a former client or a third person or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and
But when concern is risk to former client, look to: Rule 1.9 Duties To Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person's interests are materially
adverse to the interests of the former client unless the former client gives informed consent,
confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a
firm with which the lawyer formerly was associated had previously represented a client,
(2) about whom the lawyer has acquired information protected by Rule 1.6 and 1.9(c) that is material to
the matter; unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as
these Rules would permit or require with respect to a client, or when the information has become
generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with
respect to a client.
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1. “Substantial Relation” Test
Test: “[W]hether there is a substantial relationship turns on the possibility, or appearance thereof, that
confidential information might have been given to the attorney in relation to the subsequent matter in which
disqualification is sought.” p. 591
• i.e. whether or not there is a likelihood that damaging confidential information from the prior
representation could have passed to the current situation
- if yes - then should decline representation b/c conflict of interest
- if no - then you can represent
Comment [3] Matters are "substantially related" for purposes of this Rule 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 obtained in the prior representation would materially
advance the client's position in the subsequent matter.
2 issues
1. “Whether there is a sufficient relationship between matters presented by the pending
litigation and matters which the lawyers in question worked on in behalf of the party now
seeking disqualification”
“Here it could reasonably be said that during the former representation the attorneys
might have acquired information related to the subject matter of the subsequent
representation . . . . therefore there was clearly a substantial relationship between
the two representations.” p. 592
2. “whether the party seeking disqualification has given legally sufficient consent to the dual
representation.”
“It is impossible to conclude that a client could ever have any reason to desire that
information disclosed in confidence should be utilized against him.” p. 593
• Gulf signed waiver that was prospective (if something comes up in future, we
waive the conflict)
- rule 1.9 comments says that the more informed and more specific and
retrospective the informed consent is, the more likely it is going to hold up
- but general prospective waivers almost never bind the person who signed
them
C. Imputed Disqualification
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter
representing a person with interests materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer
represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to
the matter.
(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions
stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is
governed by Rule 1.11.
2. Screening
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Other Conflicts of Interest
RLC, Chapter 10, Section C, pp. 584-587; Section E, pp. 651 - 660
ABA MR 1.5, 1.7, 1.8, 1.9, 1.10, 1.18
A. Positional Conflicts
1. Positional Conflicts: when a lawyer advocates a position on behalf of one client that is contrary to a position
being urged by the lawyer or the lawyer’s firm on behalf of another client in an unrelated matter
- can involve factual and legal questions
- a conflict does exist if a conflict with one client will adversely impact the other client - such as creating
precedent that will limit another client
- if there is a significant risk of material limitation, then absent informed consent of the affected clients,
the lawyer must refuse one of the representations or withdraw from one or both matters
b) Examples
(1) conflict could create bad precedent for one client
(2) idealogical conflict - one client may not like you are representing another on idealogical grounds
they disagree with
(a) ex. representing NRA on one matter, and an anti-NRA group on another
(3) representing people before the same judge and taking different sides for different clients
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
Charles Lamb
“He is no lawyer who cannot argue both sides of a case.”
(But just because you can doesn’t mean you should – or may.)
In Bradwell v. Illinois, Hale argued for a broad intepretation of “privileges and immunities”:
If the legislature may, under pretence of fixing qualifications, declare that no female citizen shall be
permitted to practice law, it may as well declare that no colored citizen shall practice law; for the only
provision in the Constitution of the United States which secures to colored male citizens the privilege of
admission to the bar, or the pursuit of the other ordinary avocations of life, is the provision that ‘no State
shall make or enforce any law which shall abridge the privileges or immunities of a citizen.’
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In Slaughterhouse Cases Hale argued for, and won, a narrow interpretation:
[T]he privileges and immunities relied on in the argument are those which belong to citizens of
the States as such, and . . . they are left to the State governments for security and protection,
and not by this article placed under the special care of the Federal government . . . .
The opinion just delivered in the Slaughter-House Cases renders elaborate argument in the present
case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those
cases are decided, the right to control and regulate the granting of license to practice law in the courts
of a State is one of those powers which are not transferred for its protection to the Federal government .
. . . It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is
sufficient to say they are conclusive of the present case.
B. Client-Lawyer Conflicts
Client-Lawyer Conflicts (Personal Conflicts): when the lawyer's own interests might be in conflict with the client's
interest
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable
to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably
understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity
to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the
transaction and the lawyer's role in the transaction, including whether the lawyer is representing the
client in the transaction.
1. Business Conflicts:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
Problem 12
(1) Fees - Rule 1.5: whether shares are ‘unreasonable’
(a) generally would be OK - has been accepted starting in the 1990s
(2) Fair Market value
(a) overarching concern - you don’t have a clear market value and valuing the shares is where the
conflict arises
(b) fair thing would be to offer the par value - the basic value based on number of shares, assets
and liabilities on the books
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(c) your valuation could conflict with what would be best valuation for the company
(3) unlikely to be able to render independent legal judgment - stand to get rich or lose your job
(a) no simple answer here
(b) 1.8(a)(2) - would need to figure out share and discuss potential conflicts with the clients and
they decide whether or not they consent or not
(4) can you draft ‘golden parachute’ provisions for yourself?
(a) still would have to be approved by board of directors
(b) but see 1.8(c) - could try and distinguish - severance package not a gift
MR 1.8(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship
existed between them when the client-lawyer relationship commenced.
- can represent your partner in court, but can’t commence relationship after you took someone on as a
client
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Lawyer-Client Decision-making (I)
No assigned reading. We will discuss video clips in class
ABA MR 1.2, 1.14, 2.1
A. The Client-Centered Approach
• lawyers are counselors
- can’t just toss options at client
- must talk through options with them and discuss potential non-legal implications
Rule 1.2. Scope of Representation and Authority between a Client and Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of
representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be
pursued. . .
. . . . A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide
by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and
whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of
the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client
gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Rule 1.14 [comment 6]. Factors to balance and consider in determining extent of diminished capacity:
- the client's ability to articulate reasoning leading to a decision,
- variability of state of mind and ability to appreciate consequences of a decision;
- the substantive fairness of a decision; (does decision person is making seem fair)
- the consistency of a decision with the known long-term commitments and values of the client.
In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.
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You represent an elderly client of limited means. Under pressure from his ex-wife, he signed a promissory note secured by
his house for his stepson’s new business. Fraudulent misrepresentations were made about the business inducing him to
sign the note. Now the business is bankrupt, the note has come due, and he will lose his house unless he takes action.
Your client doesn’t want to sue because he’s embarrassed about being cheated and because he doesn’t want the family
conflict.
Are you free to disregard your client’s short-term instruction not to file suit in favor of his long-term value of keeping his
house? What should you do?
• walk through options with client - get him to articulate reasoning
• reflect what client has said to you in the past
Rule 1.14 [comment 6]. Factors to balance and consider in determining extent of diminished capacity:
- the client's ability to articulate reasoning leading to a decision,
- variability of state of mind and ability to appreciate consequences of a decision;
- the substantive fairness of a decision; (does decision person is making seem fair)
- the consistency of a decision with the known long-term commitments and values of the client.
In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.
D. The Plea
Rule 1.2
• In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea
to be entered, whether to waive jury trial and whether the client will testify.
• A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent
Kelly (client): I love Abbe and Claudia, but in my heart it’s just not the right thing for me to do.
Bruce (ethicist): Well, in the end of the day, in this case, evidently the client has certain values that she places
above liberty.
Claudia (lawyer): I accepted her decision, and I left. . . . and I regret it every day of my life, every day of my life. I
could have insisted . . . I should have reached across the table and grabbed her by the throat . . . and these last 20
years she would have been with us, instead of buried in there.
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Lawyer-Client Decision-making (II)
RLC, Chapter 11, Section A pp. 663-668; Section C pp. 702-711; Review NPR podcast: Snap Judgment, Snap #630
Dirty Work – The Writing Is on the Wall http://www.wnyc.org/story/writing-wall-snap-630-dirty-work/
ABA MR 1.2, 1.14, 2.1
- but not necessarily against morality or wrong when decision maker has a decision to make that will greatly impact
their life
• but sometimes client begs you to tell them what they should do
- professionals taught to see themselves as superior (not everyone can do what we do)
• you feel like you went through the school, put in the time, and have the knowledge to know what decision is best for
the client
B. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
(a) . . . a lawyer shall abide by a client's decisions concerning the objectives of representation and, as
required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take
such action on behalf of the client as is impliedly authorized to carry out the representation. . . .
A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide
by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial
and whether the client will testify.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent . . . .
(a) When a client's capacity to make adequately considered decisions in connection with a representation is
diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as
far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot adequately act in the client's own interest, the
lawyer may take reasonably necessary protective action, including consulting with individuals or entities that
have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When
taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to
reveal information about the client, but only to the extent reasonably necessary to protect the client's
interests.
COMMENT 6
[6] In determining the extent of the client's diminished capacity, the lawyer should consider
and balance such factors as:
- the client's ability to articulate reasoning leading to a decision,
- variability of state of mind and ability to appreciate consequences of a decision;
- the substantive fairness of a decision; (does decision person is making seem fair)
- the consistency of a decision with the known long-term commitments and values of the
client.
In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.
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“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the
accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the
nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be
accorded ‘compulsory process for obtaining witnesses in his favor.’”
“The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools
guaranteed by the Amendment, shall be an aid to a willing defendant-not an organ of the State interposed
between an unwilling defendant and his right to defend himself personally.”
United States v. Kaczynski (2001)(Kozinski, J., dissenting from denial of en banc review)
“Weird and misguided though his ideas may be, Kaczynski is entitled to insist that he win or lose on the merits, rather
than present to the jury what he considers to be a lie . . . . To deny him the right to make that decision – ostensibly for
his own good – may soothe our collective consciences, but it treats Kaczynski as something less than a full, adult,
sane human being.”
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Advertising & Solicitation
RLC, Chapter 12, Section A pp. 724-731; notes 6-7, pp. 736-737; Section B pp 738-752 (excluding problem 2).
ABA MR 7.1, 7.2, 7.3, 7.4, 7.5
A. ABA Rule Basics
Default Rules
2. legal default for advertising is go for it unless there is something specifically wrong
3. legal default for solicitation is don’t do it unless there are necessary circumstances
4. for both - no misleading communication is allowed
a) a state can punish
B. Advertising
1. History
• dates back hundreds of years
• historical argument against advertising
- would blend the profession into a trade
- clients should seek out lawyers, lawyers should not seek out clients
- advertising cast in negative light by same bar disciplinary codes that were meant to protect the elite
- codes meant to prohibit the newbies (immigrants)
- would erode professionalism
- would invite deception
Truthful advertising related to lawful activities is entitled to the protections of the First Amendment . .. .
Misleading advertising may be prohibited entirely. But the State may not place an absolute prohibition
on certain types of potentially misleading information, e.g., a listing of areas of practice . . .
Even when communication is not misleading, the State retains some authority to regulate. But the State must
assert a substantial interest and the interference with speech must be in proportion to the interest
served . . . . Restrictions must be narrowly drawn . . . .
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3. How potentially misleading does the info need to be to ban ad?
• Example: PA Rule 7.2 Advertising Rule: (a) subject to requirements of Rule 7.1, a lawyer may advertise
through written, recorded or electronic communications including public media, not within purview of Rule 7.3,
(d) no advertisement or public communication shall contain an endorsement by a celebrity or public figure
- Is this too much regulation? (really no right answer, just discussion problem on where the line may be
drawn)
- seems acceptable because banning all celebrity endorsements
- celebrities are inherently misleading
- fact that you got a celebrity to do is endorsing based on being a celebrity, not actual knowledge
- person doing endorsement doesn’t really know about what they are endorsing
• What other interests might states claim are ‘substantial’ enough to justify prohibiting ads that violate
them?
- public trust in the legal system?
- professional dignity?
4. Examples of Ads
• Edgar Snyder: ‘There’s never a fee unless we get money for you!”
- consider PA rule: can’t say this if he charges any costs, but presumably he doesn't
• ‘Get a divorce. Life is Short’ with pic of guys abs and half naked girl
- tasteless, but is this a reason to prohibit it?
• 9/11 responder saying firm took care of him
- also says ‘If you were there call us’
- may be misleading
- again, tasteless
• for video ads
- concerns about being too flashy and dramatic, first insulted former client (criminal ∆’s), misleading
(guarantees will get you out of charges)
- distinction b/w celebrity ads and lawyer ads depicting themselves in dramatic way - materiality (ad doesn’t
change what lawyer can do for you, celebrity may create impression services aren’t what they actually are)
5. PA Advertising Rule
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C. Solicitation
1. Definition
The substantive evils of solicitation have been stated over the years in sweeping terms: stirring up litigation,
assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client
Unlike a public advertisement, which simply provides information and leaves the recipient free to act
upon it or not, in-person solicitation may exert pressure and often demands an immediate response.
The efficacy of the state’s effort to prevent such harm to prospective clients would be substantially diminished if,
having proved a solicitation in circumstances like those of this case, the State were required in addition to prove
actual injury.
Marshall, J. (dissenting):
I find somewhat disturbing the Court’s suggestion . . . that in-person solicitation of businesses, though
entitled to some degree of constitutional protection as “commercial speech,” is entitled to less protection
under the First Amendment than is ‘the kind of advertising approved in Bates’.
- wants to point out that personal speech is protected by 1st Amendment
- thinks there is pro to allowing solicitation - letting them know about legal rights and remedies
D. Takeaways
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Negotiation Review
RLC Chapter 8, Sections A, B & C
ABA MR 4.1, 1.6, 8.4(c)
- Settlement range
• 56 Negotiation pairs
• 24 greater/= $200,000
• 16 between $100, 000 and $200,000
• 12 less than/= $100,000
• 1 outside client authorized range
• 3 no settlement
- This is the work
• Most lawyers spend much more time negotiating for their clients than fighting for them
• Many lawyers spend most or all of their time doing transactional work
• Even litigators negotiate all the time
- In fed court, less than 2% of cases filed go to trial
- Even during litigation one negotiates – schedules, extensions, witnesses, discovery disputes etc.
1. Lying/nondisclosure
• Mr. Valdez may have lied in deposition re braking problems; In any case he has changed his story
• Mrs. Valdez says he was driving too fast
• Ace counsel thinks Valdez counsel doesn’t know about shift to comparative neg
• Candor to the tribunal (if settlement has to be ratified)
Class Comments
- I was honest with my partner but used some legal manipulation to ease around some unfavorable facts
. . . when the topic came up of the seatbelt, I made a comment about not knowing for certain whether
Rickie actually wearing his seatbelt would have prevented his death. Even though I knew that the
family doctor opined th[at] neither death nor serious injury likely would have occurred . . . .
- I also wrestled with whether not saying we are a comparative negligence state was unethical. In the
end I decided it’s not my job to make sure opposing counsel is competent.
- I will reveal that the laws have changed and that we are now in a comparative negligence jurisdiction.
Hopefully this will persuade the opposing counsel to settle, because now it isn’t a take it or leave it and
they won’t have to litigate as vigorously that the Valdezes weren’t negligent.
- Ace attorney responding to Valdez attorney’s assertion that damages awarded by a trial jury could be
very high, given the horrific nature of the accident: “That would be true if the jury does not find your
client contributorily negligent.”
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falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure
to the tribunal.
Disclosure is required when necessary to correct a previous assertion that is erroneous or when
the fact in question concerns a basic assumption of the negotiation and nondisclosure would violate
“good faith and . . . reasonable standards of fair dealing”
(Casebook at page 468 )
A person's non-disclosure of a fact known to him is equivalent to an assertion that the fact does
not exist in the following cases only:
. . . .
(b) where he knows that disclosure of the fact would correct a mistake of the other party
as to a basic assumption on which that party is making the contract and if non-
disclosure of the fact amounts to a failure to act in good faith and in accordance with
reasonable standards of fair dealing.
[ or is required when necessary to correct a previous assertion that is erroneous.]
ABA MR 4.1
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule
1.6.
May lawyer enter into settlement without disclosing false deposition testimony?
• Only 39% of litigators say yes
2. Coercion
• May/must/ should Ace attorney leverage Valdez immigration status in negotiation with (perhaps implied) threat
to report it to immigration authorities?
- I was on the fence about threatening to disclose the Valdezes’ illegal status, as that feels unethical or
pretty extreme.
- I never intended to include this knowledge in my negotiation because I felt that it amounted to
blackmailing the Valdezes to settle or risk being deported.
- I struggled with how their immigration status played into the situation. It felt wrong to use that as
leverage, so I tried to phrase it as more that I would have to tell my client and they would report them
and it would be out of my hands.
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- I planned to reveal the information from the investigator that the Valdezes were undocumented. This
would be effective to downplay any sympathy the jury may have for them. I also believed my opposing
counsel may not be aware of it and should know that before committing himself to trial.
- I told opposing counsel that I would find a way to reveal their illegal status if the case went to trial. . . .
This was my trump card, so to speak, so I felt that I must use it in order to obtain the best possible
settlement. . . . I believe that I had a duty on behalf of my client to use this information in a way that was
most advantageous to them.
- I held back the information about the Valdezes’ immigration status from my client. I did this because I
believe that the requirements of disclosure under the Model Rules are that I disclose all information
relating to my client’s representation. In my opiion the immigration status of the opposing party has no
play in the present representation of my client, rather using such information against them in the present
case would be a violation of the ethical standard set out in the Rules. I actually believe it will be
unethical to intimidate someone out of a negotiation . . ., especially when the information does not relate
to the present case.
- Although the ABA Ethics Committee Op 92-363 concludes that a lawyer may use the possibility of
pressing legal charges against an opposing party in a private civil matter to gain relief for the client, here,
it is the undocumented status is NOT related to the current claim . . . .
- However, there is no rule in the MR that addresses this, because the drafters considered it unrealistic to
expect lawyers to refrain from discussing potential criminal liability in negotiations of civil claims. I’m glad
I didn’t have to cross that bridge.
(3) expose any secret tending to subject any person to hatred, contempt or ridicule;
(4) take or withhold action as an official, or cause an official to take or withhold action;
...
(6) testify or provide information or withhold testimony or information with respect to the legal
claim or defense of another
• Generally threat to assert legal right is not duress, BUT the old Model Code prohibited a lawyer from
threatening to file criminal charges to gain an advantage in a civil matter
- Nothing in the ABA Model Rules forbids this specific conduct, but some jurisdictions adopt rules
against such threats; CA has rule against administrative threats
3. Communication/Consulting w/clients
• following clients’ instructions – staying w/in bargaining limits
• telling ACE exec about the Valdez’s immigration status
• Valdez atty wants settlement to conserve cost outlay;
- concerned with professional reputation as fair and honest negotiator
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D. Cooperative v. Competitive bargaining styles –
• Is one better in certain circumstances?
• If competitive is better for one time use; is going to coop style a conflict?
I . . . think you can be both competitive and cooperative. Rather than focusing on which approach to take, the better
question is how will an attorney maintain control of the negotiation.
I could see the benefit of building a sense of reciprocity and trust with the opposing counsel, particularly in situations
where I thought there would be an ongoing relationship. I could imagine the difficulty in real life of balancing long-
term gains of cooperative bargaining with the one-time advantage of competitive bargaining. However, ethically, I
would want to put my present client’s interests aove those long-term considerations.
Ace Attorney: Another ethical issue I came to was whether I should settle for a higher number despite my feelings that
my client’s case was strong. It started an internal conflict of whether settling or going to trial was the best option. In
assessing the internal conflict I was caught emotionally feeling like I could win the case at trial which place[d] more of an
emphasis on my feelings than my client.
Valdez Attorney: [Re client’s satisfaction with $100K settlement] I think they should be very happy considering they didn’t
see it important to put their five year old in a seatbelt!
I wouldn’t have taken this case as is probably obvious from my hostility toward this client . . . . Who doesn’t put their kid in
a seatbelt . . . .
“ I was . . . operating from a position of weakness. . . With all the facts out on the table, it was clear that I was coming to
Ace for a handout.”
“I think that if I was working for a large firm on behalf of a company, like Ace Auto, I would have been much more tough
during the settlement.”
“I mean they knew all my client’s dirt and my side was basically a dead loser at trial. I probably would’ve taken ten
bucks.’”
Defendant’s Attorney
This seemed like a legitimate case against the company at least to some degree so I wanted to reach a fair result. That is
we likely owed something to the plaintiff, but not to the degree they wanted.
I think that because Ace is such a substantial and large corporation, that the outcome would be the same [in a real case].
Big companies typically prefer to settle instead of going to trial.
[M]y client would probably appreciate avoiding a trial and keeping all information about the accident confidential, and thus
avoiding negative publicity. My client most likely understands that the amount of money saved by defending a good
name of the company is incomparably higher than the amount of the settlement. The economic value of the Ace Auto
Repair brand name should not be underestimated in this case scenario.
. . . Based on a similar case with similar facts, this settlement [$250,000] is half of the ‘average’ award in this type of case.
A five-year-old son with an emotional mother would surely appeal to the jury’s sympathy, and the lack of credibility on
behalf o our chief witness would also risk a verdict against us.
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Behavioral Ethics –III Legal Education
Martha Minow & Robert Post, Trust in the Legal System Must Be
Regained, Boston Globe, TWEN; Gary Peller, Legal Education and the Legitimation of Racial Power (edited) TWEN
A. Introduction
• What do the three have to do with each other?
- Justice
- Ethics
- Professional Responsibility
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• 1906 ABA Report - regulation is needed to contain ‘the shyster, the barratrously inclined, the ambulance chaser, the
member of the Bar with a system of runners’
• I keep coming back to the question you raise about why lawyers should be treated differently from hairdressers.
- And I guess my answer boils down to the basic fact that lawyers’s work is law work. That is, when lawyers provide
service to clients, they are engaging in legal interpretation. And fundamental to that task is that lawyers themselves - as
professionals - decide how to interpret the law. They control their own work. So it’s not a First amendment issue in my
mind - it’s more basic than that since it goes to the heart of what it is to be a lawyer.
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Legal Ethics and Access to Justice
RLC, Chapter 13, Section B pp. 831-836; Section C pp. 836-842; Section D pp. 842-844; Michelle Alexander, Go to
Trial Crash the Justice System TWEN
ABA MR 6.1, 6.2
A. The Ethical Problem
- if the foundation of the system we are professional responsible for includes a guarantee of equal access and justice, and having a
lawyer is necessary to fulfill that guarantee, then if a large part of the population is cut out from those services there is no equal justice
B. The Solution
i. Criminal - YES
(1) Amendment VI - ‘in all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of
Counsel for his defence’
(a) originally enacted not with notion of gov providing free attorneys, but under English Common Law felony
prosecution you were not allowed lawyer
(2) 1942 - Betts v. Brady - case by case due process inquiry - does ‘fundamtenal fairness’ requires?
(3) 1963 - Gideon v. Wainwright - indigent ∆ in state felony proceeding entitled to an attorney (later, misdemeanors if
risk of incarceration)
• The Numbers
- Multi-state study shows less than one in five legal problems of low-income people receives the attention of a private or legal-aid
lawyer
- Nationally, number of attorneys providing assistance in civil matters to the general public is 15 times that of legal aid attorneys
serving the poor
- 1/429 atty/gen pop
- 1/6,415 legal aid atty/poor
- Update
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• The 2009 Justice Gap Report also included new data showing that state courts, especially . . . such specialized courts as
housing and family courts, are facing significantly increased numbers of unrepresented litigants.
• “Even if precise specification of equal justice under law eludes us, we know what equal justice is not. Creating legal institutions that
can be navigated only by people with lawyers violates any meaningful interpretation of “equal justice under law” if large segments of
the population cannot obtain a lawyer.” (David Luban, p. 842)
D. Responses
1. Reduce the need for legal assistance (no-fault insurance, forms for wills)
2. Reduce cost of legal assistance (hotlines, websites, court house facilitators, nonlawyer help– UK “Tesco law” and non-lawyer
specialists
3. Subsidize legal assistance (LSC/legal aid, public interest orgs, pro bono)—UK spends $76/capita; US $13/capita
• www.qualitysolicitors.com
- In securing an exclusive partnership deal with online legal services provider, LegalZoom, QualitySolicitors is again showing
it is one step ahead of the competition. The beauty of the tie up with QualitySolicitors is that individual consumers and
small businesses will be able to access a wide range of online documents they can personalise but, and here comes the
good bit, with local QS firms able to help, review, provide face-to-face advice or even representation where necessary.
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