(1)Intro. Assn. 1-5; P. 1-60. R. Preamble & scope; 1.1, 1.3. 1.4, 8.1. ...............................3 Recurring policy choices..................................................................................................................3 Bright-line Rules vs. Discretionary Standards. Default Rules vs. Immutable Rules. Self Determination vs. Paternalism/Variable Capacity. Ex Ante vs. Ex Post Facto Perspectives. Precedential vs. Dispositional Focus. Rule 8.1. Bar Admission & Disciplinary Matters. .........................................................................4 Sanctions & Procedures for Violating Rules....................................................................................4 Complaint reported. Bar counsel evaluates complaint. Bar counsel proposes all rules it believes atty violated. Grievance committee hears the case. If GC finds atty violated RPC, it imposes sanctions it deems appropriate. Duty of Competence.........................................................................................................................4 Rule 1.1. Duty of Competence. Legal Knowledge & Skill. Cmt. . Thoroughness & Preparation. Cmt. . Maintaining Competence. Malpractice Elements of Malpractice Claim. Who may sue: Ineffective Assistance of Counsel; Strickland Test. Elements: Policy rationales: (2)Attorney Client Relationship. Assn. 6-9; P. 87-166; R. 1.2, 1.13, 1.14, 1.16.................7 Entering ACR...................................................................................................................................7 Test for attorney-client relationship. The Accidental Client: Client’s Reasonable Reliance May Be Enough to Create ACR. ACR may be implied when: Reasonable Client Standard. May be implied through actions of atty’s staff. Rule 1.13 Organization As Client. Insurer and Insured Ending ACR.....................................................................................................................................8 Rule 1.16 Declining/Terminating Representation. Ethical Rules Concerning Withdrawal Accepting retainer may be an implicit agreement to prosecute the matter to a conclusion. Defaulting on duty can result in contempt of court; once pending in court, judge's permission is required for withdrawal. Fees on Termination by Client. (Competing) Policy concerns: Three theories (Rosenberg v. Levin) Resisting Termination. Elements required for c/a for retaliatory discharge: Minority rule: No c/a. C/a exists where atty discharged insisting firm comply with PR-reporting rules. Allocating Decision-Making Authority..........................................................................................10 Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer. Balancing. Models of the Relationship Agency law; may bind client via apparent authority. Criminal Cases Rule 1.14. Client with diminished capacity.
(3)Duty to Protect Information. Assn 10-12; pgs. 168-227. Rules: 1.6, 1.8(b), 1.9(c), 1.18 (b), 4.1(b). .............12 Policy..............................................................................................................................................12 Rule 1.6. Confidentiality of Information.......................................................................................12 Defining the duty: Exceptions to the duty: Informed consent Impliedly authorized Permissive disclosure adverse to client: Bodily Harm or Injury. Client’s Crime or Fraud in Which Client is Using or Has Used Atty’s Services. Lawyer Protection. Confidential Info vs Physical Evidence. Other rules. Attorney-Client Privilege. ..............................................................................................................14 Formation of the Privilege Elements: Corporate privilege: Work product doctrine. Defeating the Privilege. Client owns the privilege. Waiver of the Privilege. Testamentary Crime/Fraud (4) Conflicts of Interest. 13-16 Pp. 230-302. MRPC 1.7-1.10, 1.18 .................................15 Concurrent Conflicts of Interest ....................................................................................................15 Rule 1.7. Conflicts of Interest: Current Clients Is there a “concurrent conflict of interest”? Is the conflict consentable? Informed consent. Screening for conflicts. Cmt . Resolving conflicts. Cmt. . Cmt. . Interest of Person paying for a Lawyer’s Service. Cmt. . Common Representation & Duty of Confidentiality. Conflicts of Interest in the Criminal Case Personal Interest Conflicts: Rule 1.8..............................................................................................17 Business Transactions With a Client Use of Info Related to Representation Financial Assistance Person Paying for a Lawyer’s Services Sex with Clients Consecutive Conflicts & Imputed Disqualification .......................................................................19 Consecutive Conflicts Analysis Rule 1.9. Duties to Former Clients. Present or Former Client? Hot Potato Client - Can’t dump a client so that representation won’t create a COI prohibiting representation of a more lucrative/desired client. Ongoing Attorney-Client Relationships: Existence of relationship largely dependent upon client’s reasonable but subjective understanding. Rule 1.18. Duties to Prospective Clients Rule 1.10. Imputation of COI: General Rule. Lawyer Mobility Conflict Hypos. (5)Fees & Fiduciary Duties. Assn. 17-18; pgs. 318-355. Rule: 1.15 ................................22 Rule 1.5. Fees................................................................................................................................22 Policy Considerations. 2
(a) Fees must be reasonable. Fee Rate & Terms of Payment (d) Prohibited Contingent Fees. (e) Division of Fees. Impermissible fees. Fiduciary Obligations: Taking Care of Other People’s Money .....................................................24 Rule 1.15. Safekeeping Property. Trust Accounts (6)Duties to the Court, Profession, and Public......................................................................25 Duties to the Court: Client Perjury.................................................................................................25 Rule 3.1. Meritorious Claims & Contentions. Rule 3.3. Candor Twd the Tribunal. Before the Client Testifies: The Duty to Remonstrate. Deciding to Offer Testimony. After the Client Testifies: The Duty to Take 'Reasonable Remedial Measures" “Perjury trilemma.” Duties to the Court: Lawyer Honesty.............................................................................................27 Rule 3.4 Fairness to Opposing Party and Counsel. Preserve evidence. Do not assist in false testimony-- no coaching. No personal opinion/knowledge-- no vouching. Do not mislead the court! Duties to Co-Professionals: Advertising & Solicitation.................................................................28 Rule 5.5. Unauthorized practice of law; multi-jurisdictional practice of law. Rule 7.1. Communication concerning a lawyer's services. Rule 7.2. Advertising. Rule 7.3. Direct contact with prospective clients. Rule 7.4. Communication of fields of practice and specialization. Duties to the System. .....................................................................................................................29 Rule 6.1. Voluntary pro bono public service. Rule 8.3. Duty to Report Misconduct. Rule 8.4. Misconduct.
ASSN. 1-5; P. 1-60. R. PREAMBLE &
1.1, 1.3. 1.4, 8.1.
Recurring policy choices. Bright-line Rules vs. Discretionary Standards.
• Bright-line: Predictable but less adaptable. • Discretion: Precedent not useful; individual circumstances--adaptable.
Default Rules vs. Immutable Rules.
• Default rules: Can be contracted around. E.g., COI (some). • Immutable rules: Cannot be contracted around. E.g., competency.
Self Determination vs. Paternalism/Variable Capacity.
• Tension b/w goals of professionalism & • allowing client to shape representation • maybe, b/c of education & experience, atty knows more • but the more the atty decides, the less the client does. • market forces-- e.g., client wants to pay tons of $$$$$ for an atty but RPC limit how & how much an atty can get paid.
Ex Ante vs. Ex Post Facto Perspectives.
• E.g., TX tobacco law suit; prior to the litigation, 30% contingency fee seemed reasonable [that’s the std. rate]--but outcome of case made that 30%=billionszzz of $$. This was challenged, claiming that the # of hrs the attys actually spent on the case weren’t worth that much.
Precedential vs. Dispositional Focus.
• Consider facts & circumstances of case at hand or impact decision will have upon future decisions? • In regards to admission to the bar or lawyer discipline a lawyer shall not: • (a) knowingly make a false statement of material fact. • (b) fail to disclose a fact necessary to correct a misapprehension known by the person… or knowingly fail to respond to a lawful demand for information … unless such disclosure would violate 1.6. Cmt. . Specifically references 5th amendment, you need to cite to the 5th amendment if you are • going to use it. • Steps:
Rule 8.1. Bar Admission & Disciplinary Matters.
Sanctions & Procedures for Violating Rules.
• Anyone can file a complaint; attys must report certain violations by other attys.
Bar counsel evaluates complaint. Bar counsel proposes all rules it believes atty violated. Grievance committee hears the case. • Who? Usually state bar assn. Whole thing is separate from criminal/civil justice systems! • Standard of proof. Lower standard of proof than criminal/civil cases. Majority rule:
Preponderance of the Evidence; some states use C&C Evidence • So, could be acquitted of, or never even charged w/, a crime/legal violation, but can still be disbarred for it. E.g., Clinton’s statements insufficient for criminal perjury but misleading enough that license suspended. • If criminally convicted, it’s moral turpitude per se; GC can/will find, by default, atty violated the rules , since atty met a burden of proof higher than that required by GC. E.g., Scooter Libby had merely a summary lawyer disciplinary hearing after criminal conviction. • Behavior during investigation & proceedings. Cooperation & deference to Bar essential; it’s possible for the GC to find underlying disciplinary complaint unfounded, but still impose sanctions on atty for failing to adequately cooperate during disciplinary process.
If GC finds atty violated RPC, it imposes sanctions it deems appropriate.
• Note: Grievance committee has great discretion; no sentencing guidelines. • Common sanctions, in order of severity: • Private reprimand • Public reprimand • Fine/restitution (controversial b/c some believe fines should be left to the civil system) • Suspension for a term (months, years, etc.) • Permanent disbarment
Duty of Competence. Rule 1.1. Duty of Competence.
• Atty must provide client w/ competent representation. • Competent representation = legal knowledge, skill, thoroughness, & preparation reasonably necessary for the representation. • Charging a client for case-specific research, or familiarization with a unique issue involved in a case is OK, but charging for general education or background research is not OK. • Docking. Atty w/ no prior felony-trial exp. represented 3 Korean Ds in felony trial despite COI; ct. found atty lacked req’d competence. Should have associated w/ a more experienced atty & should have had an interpreter @ all meetings. • Concurrence. That he lacked experience wasn’t dispositive-- rather, that he didn’t take proper steps to meet req’d level of competence-- here, it would have been to consult w/ exp’d atty.
Legal Knowledge & Skill. • Cmt. . What constitutes LK&S. Typically, required proficiency = that of a general
practitioner but sometimes expertise in a particular field is necessary, depending on the circumstances. • Relevant factors: • Relative complexity & specialized nature of the matter • Atty’s general experience • Atty’s training & experience in the field in question • Preparation & study atty is able to give the matter • Feasibility of associating/consulting w/ or referring issue to an atty of established competence in the field in question. • Cmt. . Special training/exp. not essential. Special training or prior experience not necessarily req’d; brand new atty can be just as competent as a seasoned atty. • Atty can provide adequate representation in a wholly novel field via necessary study. • Atty can associate w/ an atty who’s competent in the particular field. • Competency essentially requires general legal skills [i.e., ability to analyze precedent, evidence, etc.]. • Most important legal skill = determining what kind of legal problems a situation involves. • Cmt. . Emergency circumstances. Atty may advise/assist when he does not have req’d skill when referral/consultation w/ another atty is impractical-- but limit assistance to what is reasonably necessary under the circumstances.
Cmt. . Thoroughness & Preparation.
• Req’d attention & preparation varies. Consider: • factual & legal elements • methods, etc. of competent attys • what’s at stake • agreement b/w atty and client; might limit scope of representation
Cmt. . Maintaining Competence.
• Keep up w/ changes in the law; continue study & education; CLEs
Elements of Malpractice Claim.
• Treated as a tort claim; ordinary negligence. • (1) Duty. • Reasonable atty standard. [So malpractice lawsuit requires expert testimony.] (2) Breach of duty. (act or omission) • • Prima facie negligence to misadvise a client on settled point of law verifiable by ordinary research. Lopez. • Often established via expert testimony. • Merely violating RPC ≠ breach of duty.
• (3) Proximate causation. • Case w/in the case. Must re-try the underlying case to see if client would now be in a different position if atty had acted like a reasonable atty. • Not superseded in Lopez (failure to explain SOL) by another atty that “did not undertake any representation” of the client. • Liable atty = atty #1 who gave wrong info upon declining representation. • Atty #2 (who client consulted after atty #1) not liable even though he didn’t correct atty #1’s mistake because he gave no info & thus, did not establish ACR--so no duty. • (4) Damages. • Difference b/w what client would have gotten had atty acted reasonably, & what client actually received. Generally, no punitive damages & no recovery of atty fees. • When malpractice deprives client of c/a: • Damages = what client would have gotten if c/a preserved. • Proof of damages = proof client would have won suit. • In criminal case, must prove innocence in fact; acquittal not enough. Ang. • Preponderance standard for client to establish innocence. • PROBLEM: atty’s job isn’t limited to getting client acquitted-- atty is there to protect client’s rights & to make sure that client receives fair treatment, etc., esp. re: sentencing. Client might be “guilty” but not deserve the harshest sentence, etc.
Who may sue: • Clients? YES. • Intended beneficiaries of Ks/wills? usually YES. • Majority rule: YES. If atty’s duty is exclusively to dead client, atty exempt from any
liability for conduct in creating & executing wills. Must consider the foreseeability of harm-- & who will experience the injury---in a will situation, it’s obvious that the beneficiaries will be affected. • Weird TX rule: NO. • Barcelo v. Elliot; duty strictly to client; since no duty to beneficiaries, negligence claim fails. • People routinely promise to put people in their wills/allocate certain stuff to them, etc. but then intentionally not follow through. • Hard to determine a dead person’s actual intent when drafting will. • Co-counsel? NO; they may not sue each other for loss of expected fees. Mazon. • COI b/w client and co-counsel. • E.g., In the client’s best interest to settle/drop the suit, but one of the attys is responsible for just the litigation aspect, and thus wouldn’t get paid (or paid as much); would pit atty interests against client. • Discretionary & tactical decisions could become basis for suit • Would erode public confidence in the legal system • Co-counsel should back each other up; don’t want to create atmosphere of distrust b/w them
Ineffective Assistance of Counsel; Strickland Test.
Elements: • (1) Deficient performance; judged ex ante. • (2) Prejudice; substantially undermined trial result.
• But for atty’s errors, trial result would differ. • Prejudice is presumed when: • Denial of counsel of choice, regardless of quality of representation. • Gonzalez Lopez. Ct. didn’t let him use his privately-retained atty; SCOTUS held that, if no legit reason to deny counsel of choice, 6th amendment right violated.
• COI. • Atty conduct so bad that it was as if client had no atty at all.
• Fear of flood of litigation. • Hindsight bias. • Defer to atty creativity.
• Goodman. Apply Strickland by assessing the totality of the circumstances rather than
individual factors; consider atty’s deficiencies in their totality.
(2)ATTORNEY CLIENT RELATIONSHIP.
ASSN. 6-9; P. 87-166; R. 1.2, 1.13, 1.14, 1.16
Entering ACR. Test for attorney-client relationship.
• (1) attorney rendered legal advice ; and • (2) reasonable & foreseeable reliance on that advice
The Accidental Client: Client’s Reasonable Reliance May Be Enough to Create ACR.
ACR may be implied when:
• (1) A person seeks advice or assistance from an attorney • (2) Which pertains to matters w/in atty’s professional competence • & (3) Atty expressly or impliedly agrees to give or gives the advice/assistance.
Reasonable Client Standard.
• Reasonable person in client’s position. • Togstad. “I don’ think you have a case” + wrong SOL. Held: P sought and received legal advice from atty, under circumstances which made it reasonably foreseeable to atty that Pwould be injured if the advice were negligently given.” • Note: Attorney should have: Sent a non-engagement letter & Said nothing that could possibly be construed as legal advice Individual’s subjective expectation ≠ create ACR. Manion v. Nagin. •
May be implied through actions of atty’s staff. • Apparent authority. Conduct by attorney causing reasonably to believe that the staff
person has authority to enter into relationship on behalf of attorney. • DeVaux. Sec’y had apparent authority to enter ACR so sec’y knowledge of case imputed to atty. C told sec’y about case; sec’y told C to do some stuff (e.g. medical exam), but then sec’y misfiled C’s info, so atty didn’t see it until after SOL ran. Held that sec’s actions were demonstrative of actual or apparent authority to enter ACR, so sec’y knowledge of C’s request was imputed to the atty, & atty did nothing to negate C’s detrimental reliance on the ACR C believed had been created.
Rule 1.13 Organization As Client.
• (a) A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents. • Attorney has duty to make clear from the outset who the client is: whether he represents the individual or the business. • Attorney hired to help an individual to form an entity & entity is formed --> attorney retroactively deemed to have represented the entity. Manion v. Nagin. (b) Duty to report up the chain of command in the corporation •
• (c)(2) If the reporting up doesn't fix the problem, there is an exception to confidentiality to the
extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. Note: permissive; may inform outside organization, but not required to do so.
Insurer and Insured
• The client is the insured party, not the insurer. True even though insurer might have chosen
the attorney. • Insurer may become the client if: (1) Insured is consulted (2) Insured gives informed consent (3) No conflict between insurer and insured. Pine Island Farmers Coop v. Erstad & Riemer (MN 2002). • Dissent: Bright-line rule is unhelpful when interests of insurer and insured are aligned; effect is a "shield of immunity" for counsel; e.g., insured may have payed $10K deductible whereas insurer pays $1 mil on claim, but insurer has no standing.
Ending ACR. Rule 1.16 Declining/Terminating Representation.
• (a) an Attorney MUST terminate the relationship if:
• Representation will result in a violation of the Rules or other law • Lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client • Lawyer is Discharged • (b) an Attorney MAY withdraw from Representation if: • Can be done without material adverse effect on the interests of the client • Client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent. • Client has used the lawyer’s services to perpetrate a crime or fraud • Client insists upon taking action that the lawyer considers repugnant/has a fundamental disagreement with • Client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services w/ reasonable warning • Will result in an unreasonable financial burden on the lawyer/has been rendered unreasonably difficult by the client. • CATCH ALL: Other good cause exists • May need court approval to withdraw (if in litigation etc…). Court can also order lawyer to represent a client. If the lawyer must tell the Court why he is withdrawing and it is because of misconduct etc… on the client’s part then the statement that “professional considerations require termination of the representation” should be accepted as sufficient See Comment . • Cmt. . Even if atty has been unfairly discharged, atty must take all reasonable steps to mitigate consequences to client.
Ethical Rules Concerning Withdrawal
Accepting retainer may be an implicit agreement to prosecute the matter to a conclusion. • Kriegsman.
• Cannot withdraw just because • Case becomes more complicated • Work becomes more "arduous" • Retainer becomes less profitable than expected • "The profession is a branch of the administration of justice and not mere money-getting trade."
Defaulting on duty can result in contempt of court; once pending in court, judge's 8
permission is required for withdrawal.
• This is an immutable rule; can't be 'contracted-around.' • Allison. Attorney took case through trial, took fee for appeal, perfected appeal, then told client to retain someone else. No agreement reached, so the attorney did nothing; didn't file in court for withdrawal. --> $100 contempt fine. • Note: Under the facts, court would probably have allowed the attorney to withdraw. Attorney would likely rather pay $100 than remain on case; avoid incentive to accept fine by making punishment for contempt harsher.
Fees on Termination by Client.
(Competing) Policy concerns:
• Clients' right have confidence in his attorney's integrity and ability, and therefore, must have the ability to discharge his attorney when he loss that necessary confidence in the attorney. • Attorney's right to adequate compensation for work performed.
Three theories (Rosenberg v. Levin) • 1) Contract rule. Damages = full K price
• Rationale: rational measure of damages; prevents client from profiting from his own breach; avoids issue of putting value on partially completed legal work • Problem: Both the discharged attorney and the second attorney may receive a substantial percentage of the client's final recovery • 2) Quantum merit rule. Damages = reasonable value of services at time of discharge • Rationale: Client does not breach by discharging attorney; allows client greater freedom in choice of counsel; promotes public confidence in legal profession • Problem: Possible for the attorney to receive a fee greater than he bargained for under the terms of his K • 3) Quantum merit limited by contract price. Damages = the lower of value of services rendered or contract price • Rationale: Further freedom of choice for client w/o economic penalty; public confidence in the profession; otherwise a client's right to discharge an attorney may be illusory, & client could be penalized for exercising right to discharge. • Rosenberg. An attorney discharged w/o cause by his client after he has performed substantial legal services under a valid employment K is (1) entitled to the reasonable value of his services on the basis of quantum meruit, but (2) recovery is limited to the maximum fee set in the contract entered into for those services.
• Note! Courts differ on whether to allow c/a for retaliatory discharge of attorney.
Elements required for c/a for retaliatory discharge:
• (1) Discharge is in retaliation for employee's activities • (2) Discharge contravenes a clearly mandated public policy.
Minority rule: No c/a.
• Generally, no c/a for retaliatory discharge even if under any other employment relationship, the employee would have a cause of action. • Balla v. Gambro (Ill. 1992) (122). In-house counsel Balla advised employer Gambro to reject a shipment of irregular dialyzers b/c they violated FDA regulations. Gambro persisted; Balla said he'd do whatever necessary. Gambro fired him. Balla informed FDA of shipment, which they found isn't violate regulations. Held: Attorney could not file suit for retaliatory charge. • Rule 1.6(b) of the Rules of Professional Conduct mandates that an attorney has an ethical duty to disclose dangerous public policy violations once he becomes aware of them. This ethical safeguard implies that an attorney working as in-house counsel has no claim in tort against an employer for retaliatory discharge.
• But see dissent-- majority's decision "simply ignores reality"-- attorney threaded with losing his job for doing the "right thing" doesn't have much incentive to blow whistle; must also consider threat of stigma of being a discharged whistle-blower in-house counsel.
C/a exists where atty discharged insisting firm comply with PR-reporting rules. • 1.2(c). a lawyer can limit the scope of representation if reasonable and client gives informed
consent. See Comment 6 & 7. • The client may prefer this arrangement because it reduces costs etc… • Comment 6: lawyers can “exclude actions the client thinks are too costly” or the lawyer things is repugnant or imprudent. • Wieder v. Skala (NY 1992) (131). "Insisting that as an associate ... must act unethically and in violation of one of the primary professional rules amounted to nothing less than a frustration of the only legitimate purpose of the employment relationship."
Allocating Decision-Making Authority. Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
• (a) Client decides • objectives of representation • whether to settle • in criminal cases: • whether to enter plea • whether to waive jury trial • whether client will testify • (b) Representation ≠ endorsement of client's views • (c) Attorney may limit scope of representation if reasonable under the circumstances & client
gives informed consent.
• (d) Atty shall not counsel a counsel to engage or assist a client in conduct that atty knows is
criminal or fraudulent. • But, attorney may • Discuss legal consequences of course of conduct • Assist a client in determining validity, scope, meaning, or application of the law. • Cmt. . There is a crititican distinction b/w presenting an analysis of legal aspects of questionable conduct & recommending the means by which a crime/fraud might be committed w/ impunity. • Cmt. . May not continue assisting a client in conduct the atty originally thought was legal but then learns is criminal/fraudulent; atty must withdraw from the representation of the client in the matter. • In some cases, withdrawal alone insufficient; atty might also have to give notice of the fact of withdrawal & to disaffirm any opinion, document, affirmation, etc. See Rule 4.1. Cmt. . Applies whehter or not the victimized/defrauded party is party to the actual • transaction. Cmt . When disagreements about the means to accomplish client’s objectives: • • Clients normally defer to atty’s judgment • Attys normally defer to clients re: expenses & concern for 3d parties • B/c conflicts b/w attys & clients widely vary, Rule 1.2 doesn’t prescribe how to resolve; should consult other laws if applicable • Atty should consult w/ client & try to reach a mutually acceptable resolution-- but • if atty has a fundamental disagreement w/ client, atty may withdraw, as per Rule 1.16(b) (4). • client may discharge atty, as per Rule 1.16(a)(3).
Models of the Relationship • Empowered & educated client. Client more likely to be in primary control. • Disempowered & intimidated client. Client more likely to defer to atty. • Client-centered approach.
Focus solely on client’s needs & interests. Client must be fully informed & collaboratively involved in strategic decision-making. Client should be the ultimate decision maker re: means & ends. Encourages lawyer neutrality--belief that if atty shares views w/ client, client will feel compelled to defer to atty. • Justice-centered approach. • Atty's role to advance broader concerns of justice--not just the client's desires. • More active role for atty; attys don’t just follow client’s lead. • Atty should consider other people affected by decisions & decide based on public’s best interest. • • • •
Agency law; may bind client via apparent authority.
• Atty has presumptive authority to settle. Challenger has burden of rebutting or showing restrictions on authority. • Atty gets apparent authority by announcing settlement agreements in open court when client stays silent. Conway v. Brooklyn Union Gas Co. (EDNY 2002) pg. 141
• Atty has no duty to raise all legal arguments that client suggests. • Atty’s job is to whittle down arguments & argue the best ones; need not bring forth every colorable client b/c atty has a superior ability to examine the record, research the law, and decide how best to present the case. Jones v. Barnes. • Dissent: Atty is supposed to assist the client, not dictate how to present the client’s case. • Note: In this case, client had appointed counsel; court basically saying if you have appointed counsel, you have to just go along w/ atty as opposed to people who can afford to pay for an atty, and thus can fire an atty they don’t like.
Rule 1.14. Client with diminished capacity.
• **Goal: let client make as many decisions as reasonably possible.** • (a) Atty should try to maintain a normal relationship w/ client. • Cmt. . “Client w/ diminished capacity” refers to: minors, individuals who suffer from diminished mental capacity. Even if all aspects of a typical ACR are not possible [e.g. minors can’t make legally binding decisions], must engage client to fullest extent possible. E.g., little kids are often capable of having opinions re: representation, so these opinions should be respected-- especially on things like custody matters. • (b) If atty reasonably believes client: • (1) has diminished capacity • (2) is at risk of substantial harm • (3) cannot act in own interest • then atty may take “reasonably necessary protective action”, e.g.: • consultation w/ those who can protect client • seeking appt of GAL, conservator, guardian • When taking protection under (b), can disclose to extent reasonably necessary. (c) Info re: diminished capacity protected by Rule 1.6. See Cmt. . • • Different roles of the atty in this situation: • Counsel: is the client’s attorney and works for his stated interests • Guardian ad litem: this allows the lawyer to act in the clients best interest even if it is against the clients stated wishes (it is hard for a lawyer to act both as counsel and guardian ad litem)
• Conservator: has financial control and some other control over the disabled person • Guardian: has complete control over the disabled person, the guardian acts on behalf of their ward • The Court will try to use the least restrictive role while also ensuring the disabled person is represented/taken care of properly • Whether to make mental-state defense is not w/in client’s exclusive control. • Kaczynski. K argued he was coerced into pleading guilty by atty’s insistence on a mentalstate defense. Held that giving K the choice of (1) representing himself or (2) deferring to counsel was unconstitutional. • Court held that the choice of whether to present this sort of evidence is not like the decisions exclusively reserved to the client in Rule 1.2. • Request to self-represent was untimely & in bad faith; K had declined before; court said now it was just to delay trial. • Dissent: Court found bad faith b/c that was the only way to keep K from turning the case into a circus & almost certainly being executed, given that K had been found mentally competent.
• • • • Having clear confidentiality rules makes client more trusting. Clients more likely to tell full story. Atty advice & representation improve. System functions better.
Rule 1.6. Confidentiality of Information. Defining the duty:
• (a) Atty shall not reveal info 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 ¶(b). • Cmt. . Contributes to trust--the hallmark of ACR. • Cmt. . Protects all info re: representation (not just communication)--whatever its source. • Cmt. . Also applies to info that, alone doesn’t reveal protected info, but that could reasonably lead to the discovery of such info by a 3d person. Atty may use hypotheticals to talk about the representation, as long as no reasonable likelihood listener will be able to figure out client’s identity or the situation.
Exceptions to the duty:
Informed consent Impliedly authorized • Cmt. .
• When appropriate in carrying out the representation. • to disclose to other attys in firm [unless client says no]
Permissive disclosure adverse to client: • Rule 1.6(b) May reveal, to extent atty believes is reasonably necessary: 12
Bodily Harm or Injury.
• (1) to prevent reasonably certain death or substantial bodily harm • Cmt. . Harm is reasonably certain to occur if it will be suffered imminently or if
there is a present & substantial threat that a person will suffer such harm @ a later date if atty fails to take action necessary to eliminate the threat.
Client’s Crime or Fraud in Which Client is Using or Has Used Atty’s Services.
• (2) to prevent 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 client has used/is using atty’s services. • (3) to prevent/mitigate/rectify what could have been prevented in (2). • Cmt. . Does NOT apply if the atty has been hired after the client committed the crime or fraud. Lawyer Protection.
• (4) to secure legal advice about atty’s compliance w/ Rules • (5) to establish:
• a claim or defense for the atty in a dispute with the client • a defense to a criminal charge or a civil claim against the atty based on client conduct • or to respond to allegations in a proceeding re: the representation • Meyerhofer. Atty allowed to reveal confidential info after being named as a D who willfully violated securities laws. • (6) to comply w/ other law or a court order.
Confidential Info vs Physical Evidence.
• Destroying prosecutor’s ability to discover evidence by moving or altering evidence WAIVES PRIVILEGE. • Communication b/w atty and client about an object = privileged • Atty observes an object but doesn’t disturb = privileged • AC priv. does not protect facts observed as a direct result of confidential communication if the defense removed or altered evidence preventing the prosecution from discovering the evidence. Meredith. Metadata-->Data concealed w/in data files; e.g. who prepared the document, when, etc. • • Disclosure of metadata created by atty re: the case = breach (for case-related documents) • Disclosure of metadata in client documents could be sought via discovery!!!! • Should warn clients about this and have them "scrub" documents before called in for discovery. • Scrubbing/altering client documents could constitute improper tampering w/ evidence.
• Rule 1.8(b). Using current client’s info. Atty shall not use info re: representation unless:
• client gives informed consent • disclosure otherwise permitted or req’d. Rule 1.9(c). Using former client’s info. After representation terminated, atty shall not: • • (1) use info re: representation to the disadvantage of the former client unless: • Rules permit or require • Information has become generally known. • (2) reveal info except as rules permit or require. Rule 1.13/Sarbox. Entity client reporting up/out. • • Rule 1.18(b). Using prospective client’s info. Only as permitted under R.1.9(c).
• Rule 4.1(b). Necessary disclosure. Shall not knowingly fail to disclose a material fact when
disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure prohibited by R. 1.6. • Privilege is narrowly construed. • Upholding the privilege subverts the quest for truth. • Communications protected by the A-C privilege are a small subset of the communications made confidential under Rule 1.6.
Formation of the Privilege
• (1) Communication • does not protect underlying facts (2) In confidence • • may be waived by voluntary disclosure or consent to disclosure • (3) B/w privileged persons • Extends to communications b/w corporate employees and corporate counsel • at the direction of corporate superiors • for the purpose of securing legal advice, • especially when corporate superiors took particular measures to control information and ensure awareness of purpose and confidentiality. Upjohn. • Multiple parties must have aligned interests for privilege to attach between them. Lynch v. Hamrick. • (4) For the purpose of seeking legal advice • Disclosures made during social visits not included. Must be consultation w/ atty in his professional capacity. Branham.
• For many years A/C privilege only applied to corporation’s attorney and high level employees • After Upjohn v. U.S. in federal cases lawyers can speak to lower level employees and still be covered by A/C privilege if they are collecting information for legal purposes • Subject matter test: (affirmed by SCOTUS in Upjohn) Privilege should depend on the subject matter of the communication, not on who was doing the communicating • Control Group Test: (still used in some states) limits the privilege to communications from persons in the organization who have authority to mold organizational policy or to take action in accordance with the lawyer’s advice.
Work product doctrine. • Protects documents/other tangible items that atty prepares “in anticipation of litigation”
from discovery in retrial civil proceedings. But work-product doctrine is not absolute • Core work product: work product that memorializes the lawyers strategy, notes and thoughts, this gets stronger protections • Ordinary work product: anything written not the lawyers thought. • Note: doc can be work product & protected by privilege. Upjohn.
Defeating the Privilege.
Client owns the privilege.
• Corporate clients can choose to waive even when unfavorable to individual employees. • Individual client can choose to waive even when unfavorable to atty. • Martha Stewart -- “I got bad advice from my lawyers”
• But if client does not explicitly waive, atty has a duty to claim. 1.6 cmt 13 Atty can inadvertently waive, if actual or apparent authority to act on bhealf of the client. • Waiver of the Privilege. • If statements made in front of 3rd parties
• If questions are asked and attorney doesn’t object A/C waived • If information is revealed to 3rd parties (even if not there at the time conversation took place) • ****Whether A/C applies is based on the client’s subjective intent.**** • Voluntary disclosure/consent to disclosure. • Lynch v. Hamrick. Lynch claimed privilege but had previously consented to disclosure during earlier testimony @ trial. Majority rule: No “selective waiver;” cannot waive prigilege for disclosure to govt. agencies • while retaining privilege for ther purposes. Qwest.
• Implicit waiver of privilege if disclosure would further testamentary intent.
• Client who seeks legal advice to further a continuing or future crime waives the privilege. • Based on client’s intent & knowledge, not atty’s. • Only applies to affected or relevant communications.
13-16 PP. 230-302. MRPC 1.7-1.10, 1.18
Rule 1.7. Conflicts of Interest: Current Clients
Is there a “concurrent conflict of interest”? • (a) No representing a client if it involves a conflict of interest, except as allowed under (b).
A concurrent conflict of interest exists if:
• (1) the representation of one client will be directly adverse to another • OR (2) there is a significant risk that the representation of ≥1 clients will be materially
limited by the atty’s responsibilities to another client or former client, or a personal interest of the attorney.
• Cannot favor one client over another. • Cmt . Material limitation. Consider the likelihood of a difference of interest & if yes, if it
will materially interfere w/ lawyer’s independent professional judgement in considering options that should be pursued on behalf of client.
• Cmts. ,. Conflict arising during representation. If conflict arises during representation,
atty must w/draw unless consent obtained under Rule 1.7(b).
Is the conflict consentable? • (b) May represent despite COI if: • (1) the atty reasonably believes s/he will be able to provide competent and diligent
representation to each affected client • Note: Really an OBJECTIVE standard; would a REASONABLE atty reasonably believe? Don’t want to do anything where a REASONABLE atty would think a conflict likely to happen-- don’t want to put yourself into a situation where reasonable atty might think there’d be a COI.
• E.g., “atty of the day” program; ∃ material limitation b/c atty’s incentive is to get D to
plead guilty, since atty wouldn’t get paid otherwise. Judged from an objective std-would expect a random atty to be influenced by financial incentive, thus not reasonable to believe atty could provide C&D representation. Doesn’t matter if particular atty is super honest
• (2) the representation not prohibited by law • (3) not related to claim where clients are directly against each other in same
litigation/proceeding • E.g. zero-sum gains of co-Ds or Ps never consentable--can never negotiate price b/w seller & buyer-- one party wins only if other party loses.
• (4) each affected client gives written informed consent.
• E.g. conflicts where you can’t get informed consent from 1 client b/c you would have to disclose another client’s confidential info to obtain it never consentable.
Informed consent. • Cmt. . Affected client should be made aware of the relevant circumstances and of the
material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of the client.
• Atty must do more than simply warn clients. Clauss. Atty represented debtor & creditor.
Letter to clients asked only for them to “waive any conflict” w/o discussing any specifics. Aggravating factor = atty recovered $ for debtor in other ongoing matters, but lender did not get any. Lic. suspended.
• Atty must explain how COI could harm clients. Unnamed Atty v. KY Bar Assn. Atty for H
& W to investigate death of W’s ex. Atty mentioned possible COI but not that any info he found would be freely available to both clients. Atty found info implicating 1 of them and had to w/draw. Held that atty’s explanation of the conflict was inadequate.
• Cmt. . Must discuss risks, possible advantages, reasonably available alternatives.
Writing meant to underscore seriousness of consenting to a conflict.
• Cmt. . Client may revoke consent. • Cmt. . Consent to future conflicts? Consent to future conflicts may be void, depending
on factors including (1) the general or specific nature of the consent and (2) the sophistication of the client.
• See also Rule 1.0(e) & cmts. , . Screening for conflicts. Cmt .
• Lawyer should adopt reasonable procedures, as appropriate for the type & size of firm, to determine both in litigation and non-litigation matters the persons & issues involved. Ignorance caused by failure to institute these procedures is not an excuse for violating this rule.
Resolving conflicts. Cmt. .
• (1) Identify the client • (2) Determine existence of COI • (3) Determine whether conflict is consentable • (4) Consult client & obtain written informed consent.
Cmt. . Interest of Person paying for a Lawyer’s Service.
• May be paid by someone other than the client, including a coclient if: • client is informed & consents
• arrangement does not compromise atty’s duty of loyalty or independent judgment to the client • e.g. payer tells atty she’ll pay a bonus if atty accomplishes X-- atty has financial incentive to comply w/ payer’s interests which may not align w/ client’s. • If atty feels that accepting payment from a particular source presents a significant risk that atty’s representation of client wil be materially limited by atty’s own interest in accommodating payer or b/c of atty’s responsibilities to the co-client payer, must determine if consentable under ¶(b).
Cmt. . Common Representation & Duty of Confidentiality.
• Continued common representation almost always no good if 1 client asks atty not to disclose something relevant to the common representation to the other client--> b/c atty has loyalty to each client, & each client is entitled to info bearing on the representation that could affect client’s interests, & is entitled to expect atty to share such info. • Atty should advise each client @ outset that any info will be shared. • Some flexibility as far as w/holding info-- e.g., might be reasonable for atty to think it’s ok not to disclose one client’s trade secrets to the other, & to continue representation--so long as the info will not adversely affect representation & agree to keep the info confidential, w/ informed consent of both clients.
• See Unnamed Atty v. KY Bar, supra.
Conflicts of Interest in the Criminal Case
• Any multiple representation raises possible conflicts; but duty is on atty to raise if needed.
Otherwise, court assumes consent or no conflict. There are countervailing benefits to multiple representation, but see Rule 1.7 cmt..
• Cuyler v. Sullivan. In trial of ∆1, atty rested case without presenting any evidence, possibly
in part because this would have exposed witnesses for ∆2 and ∆3, whom atty was also representing. • A COI is not cured by another atty in a firm conducting the cross examination of another client because assumption is that attys in a firm share info.
• Watson. Atty represented D and a witness against D. Conflict burdened pretrial
investigation for D b/c atty couldn’t use any info gained from witness against the witness. Burdened ability to cross examine b/c couldn’t use impeaching info. Having another atty in the firm actually perform the cross exam didn’t alleviate the situation.
• Rule 1.7, cmt. . “The potential for conflict of interest in representing multiple defendants in
a criminal case is so grave that ordinarily a lawyer should decline to represent ≥1 codefendant.”
PERSONAL INTEREST CONFLICTS: RULE 1.8
• Rule 1.8. Specific Rules. • (k) all prohibitions in this rule are imputed to other attys in firm.
Business Transactions With a Client
• (a) No business transactions/business interest w/ client unless: • (1) transaction created via terms that are
• fair & reasonable to client • fully disclosed to client • transmitted in writing to client • easily understood by client
• (2) client is advised in writing of the benefit of seeking independent counsel, & is given a
reasonable opportunity to do so [see Cmt.  re: stuff to tell client]
• (3) client gives informed consent, in writing • Cmt. . Policy = In certain situations, atty’s legal background & b/c of power structure of A-C
relationship, atty would have an unfair advantage over the client. • Applies: • Even when the transaction is not closely related to the representation. • To attys selling goods/services related to practice of law, e.g. title insurance or investment services. • To attys buying property from estates they represent. • Does not apply to:
• Ordinary fee arrangements governed by R. 1.5. • Standard commercial transactions b/w atty and client for products/services the client
generally markets to others. • Policy: In such transactions, atty has no advantage.
• Cmt. . When client is independently represented, generally doesn’t apply.
Use of Info Related to Representation
• (b) a lawyer shall not use info relating to rep. of client to the disadvantage of the client unless
the client gives informed consent/allowed by the rules.
• Cmt. . Policy: lawyer’s duty of loyalty.
• Applies when info is used to benefit either the atty or a 3d person (e.g another client or atty’s business partner). • E.g. If atty learns that a client intends to buy & develop several parcels of land, the atty may not use that info to purchase one of the parcels in competition w/ the client or recommend that another client make such a purchase.
• Does not prohibit uses of info that do not disadvantage the client.
• E.g. Atty who learns a govt. agency’s interpretation of trade legislation during the representation of 1 client may use that info to benefit other clients.
• But does prohibit disadvantageous use of client info, unless client gives informed consent.
• (e) atty can’t provide financial assistance for current/pending proceedings, except may
advance court costs & other litigation expenses when:
• (1) repayment contingent upon outcome • or (2) representing an indigent client. • Cmt. . Policy: Otherwise, would encourage clients to pursue lawsuits they wouldn’t
otherwise bring, and b/c it would give the atty too much of a financial stake in the litigation.
Person Paying for a Lawyer’s Services
• (f) a lawyer shall not accept compensation for representing a client from one other than the
• (1) The client gives informed consent • (2) There is no interference with the lawyer’s independence of professional judgment or with
the client-lawyer relationship; and
• (3) info relating to representation of a client is protected as required by Rule 1.6 • See also Rule 1.7, Cmt. .
Sex with Clients
• (j) No sex w/ client unless consensual sex relationship existed b/w them when the A-C
• Cmt. . Policy:
• A-C relationship is fiduciary, thus A-C relationship usually unequal, so sex could be an unfair exploitation of atty’s fiduciary role. • If atty becomes too emotionally attached, might not be able to exercise independent discretion.
Rule 1.9. Duties to Former Clients.
• (a) no representation of a person whose interests are materially adverse to the interests of a
former client, in the same or substantially related matter as the prior representation, unless the former client gives written informed consent.
• Cmt. . “Matter.” Question of degree-• when lawyer has been directly involved in a specific transaction, subsequent
representation of other client w/ materially adverse interests in that transaction is clearly prohibited. • lawyer who recurrently handled a particular type of problem for a former client can later represent someone adverse to the former client, if it is for a problem factually distinct from what you did for old guy.
• Cmt. . “Substantially related matter.” if they involve the same transaction or legal
dispute or if there … is a substantial risk that confidential factual information … obtained in the prior representation would materially advance the client’s position in the subsequent matter. Time and changes in the law are things to consider when determining if it is a substantially related matter. • Must always consider the relatedness of seemingly unrelated representation-- Is there any confidential info that might normally be considered that would be relevant to both parties? • Not an actual knowledge standard-- it doesn’t matter if relevant info/etc. ACTUALLY known, etc.-- it’s just if this is the kind of case where a confict via “substantially related matter” would likely occur. • E.g. Divorce case on heels of business litigation; while might seem different at first, substantial issue arises b/c in any divorce case you’d expect atty to examine spouse’s financial profile, which would include health of business. • Santacroce. While atty represented gf in her business affairs, etc., representation still objectively related to will matter-- gf wants to claim that she gave up her sources of income, etc. in reliance on rich guy supporting her, including after death-- but atty might have info that her business was failing regardless, or that she made a lot of $ from selling the business, etc.
• (b) unless former client gives written informed consent, may not knowingly represent a person
in the same or substantially related matter in which lawyer’s former firm had previously represented a client
• (1) whose interests are materially adverse to the person • and (2) about whom the lawyer acquired info protected by Rules 1.6 and 1.9(c) that is
material to the matter;
• (c) a lawyer who has formerly represented a client in a manner OR whose present or former
firm has formerly represented a client in a matter shall not thereafter
• (1) use info re: representation to the disadvantage of the former client, except • as Rules permit or require • or when info has become generally known • or (2) reveal info re: representation except as Rules permit or require w/ respect to a client.
• ***NOTE: Under MPRC, NO SCREEInING for this rule-- only for Rule 1.11. But a couple of states including OH do allow for screening of former clients. • All conflicts arising from prior representation are consentable. Need only informed consent from former client--not current. • Why more permissive? • Doing otherwise would overburden atty’s ability to act as counsel and find new clients. • Former client’s interests already served; directly and currently competing interests not at stake.
Present or Former Client?
Hot Potato Client - Can’t dump a client so that representation won’t create a COI prohibiting representation of a more lucrative/desired client.
• Santacroce. Rich guy was longtime client of atty; rich guy pays atty to do some stuff for his gf; rich guy dies, continues doing work for gf--but since rich guy not paying, gf owed some legal fees--also, didn’t put gf in will; atty wanted to represent estate so he dumped gf. Held that atty couldn’t do this-- that it was “a transparent attempt to represent the extraordinarily more remunerative client.”
Ongoing Attorney-Client Relationships: Existence of relationship largely dependent upon client’s reasonable but subjective understanding.
• Oxford Systems. C1 had reasonable belief of ongoing A-C relationship w/ atty b/c it had 13-yr relationship w/ A, C1 exclusively used A for local matters, & A worked on a case for C w/in past year. Thus, A disqualified from representing C2, who posed a COI to A-C1 relationship.
Rule 1.18. Duties to Prospective Clients
• (a) Prospective client = person who discusses w/ an atty the possibility of forming an atty-client
• (b) Even if no relationship created, no use or revealing info except as permitted under Rule 1.9. • (c) If prospective client gives atty info that could be “significantly harmful” to a current client in
the same or substantially related matter, must stop representing current client except under (d). Disqualification imputed to atty’s firm except as provided in (d).
• (d) Representation OK if: • (1) both affected parties give written informed consent
• (2) atty who received info took “reasonable measures to avoid exposure to more
disqualifying info than was reasonably necessary to determine whether to represent the prospective client”
• and (i) disqualified atty is timely screened & gets no $$ from representation • (ii) written notice promptly given to prospective client. • Cmt. . Not everyone who communicates info to a lawyer is protected this Rule. Someone
who communicates info unilaterally to atty, w/o any reasonable expectation that the atty is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of ¶(a).
• Cmt. . A lawyer may condition conversations with a prospective client on the persons’
informed consent that no info disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. But must get informed consent.
Rule 1.10. Imputation of COI: General Rule.
• (a) No atty in a firm may represent a client that another firm atty could not represent under
Rules 1.7 or 1.9 unless
• (1) the prohibition is based on a personal interest of the prohibited atty, and no significant
risk of materially limiting the representation.
• and (2) prohibition based on Rule 1.9(a) or (b) and arises out of disqualified atty’s
association w/ prior firm from matter
• and (i) disqualified atty is timely screened from any participation in matter and gets no $ • (ii) written notice to any affected former client [w/ relevant info about implications, etc.-see rule for reqts.]
• (iii) former client provided w/ certifications of compliance, at reasonable times, if former
client requests it in writing.
• Note: (b)(2) is NEW. Added b/c: economy sucks & lots of mergers in past 10 years • Cmt. . Doesn’t apply if conflict is due to a nonlawyer (e.g. paralegal, secretary), nor if
due to stuff before atty became an atty (e.g. as a law school intern) but these people should still be screened.
• See also Watson, supra. Under 1.10(a), doesn’t matter who did the cross exam. • (b) When atty leaves firm, old firm may represent a person w/ interests materially adverse to
those of a client represented by the formerly associated atty and not currently represented by the firm, unless:
• (1) matter is same or substantially related to that in which the formerly associated atty
represented the client
• AND (2) remaining lawyers have confidential info, material to the matter. • (c) Disqualification may be waived by client as under Rule 1.7. • (d) For former/current govt. attys--> Rule 1.11.
Lawyer Mobility Conflict Hypos.
• #1. Atty never worked on case, knows nothing, moves to new firm. What happens at new firm? • B/c atty has no confidential info, no worres. 1.9(b)(1,2) • Even tho it was “going around” the old office, atty never “caught the flu.” • Note: Info has to be material to matter for Rule 1.9 to apply. • #2. Atty did work on case, moves to new firm. What happens @ new firm?
• Rule 1.10; screening. • The firm can still be hired/accept case/client, but atty must be disqualified, have no part in the case, & accept no part of the fee. • #3. Atty did work on case, moves to new firm. What happens @ old firm? • Conflict leaves the firm ONLY IF everyone who ever worked on the case leaves the firm.
(5)Fees & Fiduciary Duties. ←
Assn. 17-18; pgs. 318-355. Rule: 1.15
Rule 1.5. Fees. Policy Considerations.
• Autonomy vs. Paternalism. • a.k.a. self determination vs. variable capacity • some clients are well informed & able to protect their own interests; others may be less informed or unable to maximize their preferences • Brightline Rules vs. Standards. • brightline rules offer predictability & thus cut down on litigation • standards offer flexibility, but less predictability • rules offer standards--- makes it vague • Immutable Rules vs. Default Rules • default rules apply if the parties do not specify another choice • immutable rules apply to all, and may not be avoided even if the parties wish to contract around them Ex Ante vs. Ex Post Facto. • • TX tobacco litigation: Ex Ante, 25% contingency fee seems reasonable, but ex post facto, 25%=$2 mil; less reasonable. Dan Morales
(a) Fees must be reasonable.
• Factors: <--Note: rule is vague; these are things to consider but rule doesn’t say what’s
reasonable in a particular situation; also, these aren’t exclusive • (1) time & labor, novelty & difficulty of Qs, required skill • (2) likelihood that a matter will preclude other employment by atty • (3) fees customarily charged in the locality for such services • (4) amount involved and results obtained • (5) time limitations imposed by client or circumstances • (6) nature & length of professional relationship with client • (7) experience, reputation, & ability of attys • (8) whether fee is fixed or contingent • “Reasonableness” often depends on the client; an individual client, unfamiliar w/ the legal system, etc is more likely to be taken advantage of than a big corporation with in-house counsel. • Brobeck. Atty wasn’t taking advantage of client by imposing a$1 mil contingency fee. Client was a large company w/ in-house counsel, and had a sophisticated understanding of how legal fees, etc. worked. • Also-- court focused on value not just hours per se.
• . Expenses charged to client must also be reasonable; should reasonably reflect costs
incurred by atty.
Fee Rate & Terms of Payment
• Fee types: • Hourly fees • Can’t double bill in most jdxs • Corporate Flat fees • • Typical private criminal defense work (not for bernie madoff or OJ); pre-trial divorce work • Proportionate fees • Just a percentage • Contingent fees • paid upon certain event • 1/3 often considered reasonable • gross v. net • often include a provision stating what happens if representation ends • NOTE: distinguish b/w proportionate and contingent fees-- they’re often found together but do’t have to be. • Fee shifting (fees paid by losing party) • No fees • Statutory fees • (b) Scope of representation & fee to be communicated to client “within a reasonable time after commencing the representation” • preferably in writing • changes must be communicated to client • exception: for regularly represented client & same basis/rate • . Req’d advance payment of fee ok but atty must return any unearned portion. • . Property as payment? (e.g. ownership in an enterprise) • OK , but be mindful of Rule 1.8(i). • Might be subject to Rule 1.8(a) b/c such fees often have the same qualities as a business transaction w/ client. (c) Contingent fees • • may be prohibited for certain matters • must be in writing • method of payment • percentages • in event of settlement, trial, or appeal • deductible expenses • whether deducted before or after contingent fee calculated • specify costs for which client is responsible • when matter concludes: • must communicate the outcome to client in writing • if recovery, state remittance to client & method of determination • Why have contingency fees? • Serve the system by allowing people to bring claims when a lack of resources would otherwise be prohibitive. • Still justified when time input is low relative to value of settlement • @ time of representation, atty’s risk is high (no guarantee of any recovery) & actual course of litigation is unknown.
(d) Prohibited Contingent Fees.
• No arrangements, charges, or collections for:
• Contingent fees in criminal cases • Sometimes it could be in client’s best interest to plead guilty, etc. instead of fighting for acquittal. Any fees in a domestic-relations matter, when payment is contingent upon: • • securing a divorce • Allow for possibility of reconciliation • Things at stake other than just $; e.g., client might be willing to accept less $ in exchange for child custody; atty & client would have misaligned interests. • the amount of alimony or support • but can collect fee if amt of alimony is already settled • . can collect for legal representation in connection w. recovery of post-judgment amts due under alimony/etc. property settlement • • Disallowed when there’s really no contingency & thus no risk. • E.g. seeking payment on a life insurance policy when company’s obligation to pay is clear
(e) Division of Fees.
• May be made between lawyers not in the same firm only if: • (1) division is in proportion to services performed or each lawyer assumes joint responsibility for representation • (2) client agrees in writing to the arrangement • (3) total fee is reasonable
• True retainer • not payment for services • advance fee to secure services • compensation for loss of oppty to take other clients • “Special retainer” = advance fees • to be drawn from as fees are earned, expenses incurred, etc. • most common type • Cluck. Atty took “retainer” from client; agreement stated hourly fees would be billed against it. When client discharged atty, atty refused to return balance. • Atty committed professional misconduct b/c • he took another “retainer” after already being retained & before first had been exhausted • he deposited fees directly into his operating acct • “A fee is not earned simply b/c it is designated as nonrefundable”
Fiduciary Obligations: Taking Care of Other People’s Money Rule 1.15. Safekeeping Property.
• (a) Clients’ & 3d persons’ property must be kept separately.
• Funds must be: • kept in separate acct • earmarked • maintained in state where atty’s office is (or, w/ consent, somewhere else) • Other property (not $$) must be IDd & appropriately safeguarded. • Complete records must be kept & retained for 5 yrs • . Some situations where atty must keep different clients’ funds separate; e.g. when administering estate $ or similar fiduciary role. • (b) Atty may put own funds in client trust acct solely to pay bank svc charges
• (c) Fees paid in advance --> client trust acct
• to be w/drawn only as fees earned or expenses incurred • (d) If atty receives funds for client or 3d party --> promptly notify • promptly deliver if client/3d party entitled • promptly render full acct, if requested • (e) if atty holds property that becomes the subject of a dispute, property must be held separate by atty until dispute resolved. • promptly distribute portions abt which there is no dispute.
• Pooled Account • Includes IOLTA accts • nominal interest, short term, etc. • interest pays for legal services for indigent • using clients’ interest like that is NOT a taking-- client wouldn’t be able to claim/use the interest, so client doesn’t experience an loss, & thus no compensation req’d; benefit to 3dp ≠ loss to client. Brown v. Legal Found of Wash (SCOTUS). • Separate Accounts
Analyzing Potential Rule Violations. • Carefully parse the text of the rule and comments.-->See 3.3(a)(1). what does "material" apply to? • Understand that courts can broadly (or narrowly) interpret rules for policy reasons • 3.3(a)(3). says "offer evidence," but courts interpreted it to also apply to pretrial activities. • Comment  now specifies that it also applies to depositions. • Understand court authority beyond the rules.-->E.g. Sotomayor contempt hearing; disqualification not limited to conflict rules. • Be aware of "catchall" rules--->E.g., Rule 8.4
Duties to the Court: Client Perjury. Rule 3.1. Meritorious Claims & Contentions.
• may not bring or defend a claim unless it has a non-frivolous basis in law and in fact, including a good faith argument to apply/modify/reverse existing law. • defense attys in criminal & other proceedings that could result in incarceration, may represent client by requiring prosecutor establish every element of the case.
Rule 3.3. Candor Twd the Tribunal.
• Bright-line rule. • . Attys have duties "as officers of the court to avoid conduct that undermines the integrity of the adjudicative process."
Before the Client Testifies: The Duty to Remonstrate. • (a). Atty shall not knowingly: • Can’t lie to/mislead court. (1) make false statement of fact/law to tribunal OR fail to
correct a false statement of material fact/law atty previously made to tribunal
• Duty to disclose adverse legal authority. (2) fail to disclose adverse legal authority to
the tribunal controlling, when other side doesn't
• (3) offer evidence it knows is false <--Ex Ante • if atty, atty’s client, or atty’s witness offers material evidence that atty later learns
is false, atty must take reasonable remedial measures, including disclosure to tribunal.
• atty may refuse to offer evidence other than a criminal D’s testimony, that atty
reasonably believes is false. • See Midgett, infra.  Also applies to depositions. • • Note: courts vary in interpreting “offer evidence;” may apply broadly or narrowly. • . (a)(3) only prohibits atty from offering evidence atty KNOWS is false, and PERMITS atty to refuse to offer testimony/etc that atty REASONABLY believes is false. Generally, atty probably should err on the side in caution. BUT. In CRIMINAL DEFENSE-- looser standard. In criminal defense, unless atty KNOWS testimony will be false, atty must honor client’s decision to testify
Deciding to Offer Testimony. • (b) If atty, representing a client in adjudication, knows someone intends to engage, or is
engaging, or has engaged, in criminal or fraudulent conduct related to the proceeding, atty must take reasonable remedial measures, including, if necessary, disclosure to tribunal. . Atty should persuade client not to falsely testify . Atty should resolve all doubts in client’s favor, but cannot ignore obvious falsehood. Note: • • Just because a statement or “evidence” is inconsistent or contradictory to other evidence, does not mean it has to be false. When refusal is justified. • Nix v. Whiteside (1986). When refusal is not justified. • “Private conjecture” re: seemingly far fetched story uncorroborated by other evidence & testimony likely insufficient to prevent client testimony. Midgett. Client claimed a 3d person committed crime while he was in a drugged-sleep in the back of van, but atty didn’t believe him. Atty refused to permit client to testify re: mystery man; atty sought to w/draw but court gave client option of using atty, or going pro se; client chose to stick with atty, didn’t testify, & was convicted. Held that even though the other evidence/testimony didn’t support client’s story, atty’s “private conjectures” weren’t enough; client was consistent w/ his claim about a 3d person.
After the Client Testifies: The Duty to Take 'Reasonable Remedial Measures" • (c). Duties in 3.3(a) and (b) continue to the conclusion of the proceeding. <-- Post hoc • ***. If false testimony comes from atty’s client, atty should:
• first, approach client • remonstrate confidentially w/ client • advise client of atty’s duty of candor • seek client cooperation w/ respect to the w/drawal or correction of false statements/evidence. • if that fails.... • withdraw from representation • if that’s not permitted or won’t undo the harm, atty must disclose to the tribunal what’s reasonably necessary to remedy the situation--- even if doing so reqs atty to reveal info otherwise protected by Rule 1.6!!!!
• 3 competing ethical obligations • Competence; to seek the client’s trust and to find out everything the client knows about the case. • Confidentiality; to keep their clients’ confidences.
• Candor; to act with candor, to refrain from presenting evidence known to be false and
(sometimes) to disclose client’s frauds. • . Disclosing client’s false testimony (etc.) really sucks for client-- breaches trust, cause client to lose, &/or get client convicted of perjury. BUT- the alternative-- atty participate in deceiving the court-- which is worse. • NOTE: A lot of attys solve this “trilemma” by telling client up front not to disclose everything. But, remaining willfully blind ≠ good!!!!
Duties to the Court: Lawyer Honesty. Rule 3.4 Fairness to Opposing Party and Counsel.
Preserve evidence. • (a) Cannot unlawfully obstruct another party's access to evidence; or
• unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. • Shall not counsel or assist another person to do any of these • . The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. • E.g., when Enron atty held a shredding party, s/he violated this rule. ö
Do not assist in false testimony-- no coaching. • (b) Cannot falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law. • (f) Cannot request a person other than a client to refrain from voluntarily giving relevant info to another party unless • (1) the person is a relative or an employee or other agent of a client, and • (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such info. • But, it’s okay to tell client not to voluntarily speak to anyone about the case, so long as it doesn’t cause harm. • It’s ok to rehearse testimony, tell witness the legal effects of doing xyz, etc. In The Practice video clip, attys should have told the client the legal effects of lying.
No personal opinion/knowledge-- no vouching. • (e) Cannot, in trial, allude to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused • E.g., if Nancy Grace was atty in Casey Anthony case, she would have violated this rule. • E.g., can’t say, “I’ve been working with Client 20 yrs; I’ve always known him to be kind & honest.”
Do not mislead the court! • (c) Cannot knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists • (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party • Wilka. Torn off drug test results. • Sotomayer. Had a guy who looked like client testify at traffic proceeding. “[C]onduct which is calculated to embarrass, hinder or obstruct a court . . . or derogate from its authority or
dignity, thereby bringing the administration of law into disrepute.” Prof. doesn’t think this was an ethical violation.
Duties to Co-Professionals: Advertising & Solicitation. Rule 5.5. Unauthorized practice of law; multijurisdictional practice of law.
• (a) can’t practice/assist someone else in practicing in violation of a jdx’s rules • (b) if not admitted to a jdx, cannot: • (1) set up an office, etc./continuous presence in the jdx • (2) present yourself as admitted to practice • (c) if admitted & not disbarred in another jdx, may temporarily practice if • (1) done in assoc. w/ an atty who is licensed, & that atty actively participates • (2) if involved in a proceeding for which the court says it’s ok-- or, if actively assisting
another atty, who is licensed • (3) the jdx is, or is reasonably related to, pending arbitration/mediation/other ADR proceeding in this or another jdx. • (4) are not w/in (c)(2) or (c)(3) and arise out of/reasonably related to the lawyer's practice in a jdx in which the lawyer is admitted to practice. • (d) a lawyer admitted in another jdx, not disbarred/suspended, may provide legal services in this jdx that: • (1) are provided to the lawyer's employer/organization affiliates and are not services for which the forum requires pro hic vice admission; or • (2) are services that the lawyer is authorized to provide by federal law or other law of the jdx.
Rule 7.1. Communication concerning a lawyer's services.
• No false or misleading communications about lawyer or lawyer's services. • Communication = false or misleading if it contains • a material misrepresentation of law or fact; or • omits a fact necessary to make statement whole not materially misleading. • . Misleading communication = • omits a fact necessary to make statement whole; • a truthful statement could also be misleading. • TEST: Would statement lead a reasonable person to have an unrealistic expectation? • . Covers all communications re: lawyer's services, including ads permitted by 7.2; whatever means are used to make known a lawyer's srvcs, statements about srvcs must be truthful. • . Re: advertising-- talking about past outcomes may be misleading; esp. misleading to ensure similar outcomes; may be misleading to compare to other attys' services • Past client testimonials w/ $amts$ on LinkedIn? • NO-- if the amts not representative of atty’s typical outcomes. • OK-- if atty posted a clear disclaimer that results aren’t typical. • [Even though other people are writing the comments, atty has control over his Linkedin page; could delete them.]
Rule 7.2. Advertising.
• (a) may advertise via written, recorded or electronic communication, including public media. • (b) $ for recommendation prohibited, but
• OK to pay reasonable ad costs • OK to pay usual charges for a qualified lawyer referral service • OK to have a referral agreement w/ an atty or other kind of professional, as long as clients know about the agreement, and as long as it’s not exclusive. • (c) Any communication made shall include the name and office address of ≥ 1 lawyer or law firm responsible for its content.
• . the need to get info out and make legal services widely available trumps the need of the
legal profession to be bound to tradition. • . “question of effectiveness and taste in advertising are matters of speculation and subjective judgment.”
Rule 7.3. Direct contact with prospective clients.
• (a) A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit
professional employment from a prospective client when a significant motive is the lawyer’s pecuniary gain UNLESS the person contacted is: • (1) a lawyer OR • (2) has a family, close personal, or prior professional relationship with the lawyer • (the rule is there because of concern of abuse inherent in these types of meetings. See . (b) The lawyer shall not solicit employment from a client (in any way) if: • (1) The prospective client has made known it doesn’t want to be solicited by the lawyer • (2) the solicitation involves coercion, duress or harassment (c) Written/recorded or electronic communication soliciting employment shall include the words “Advertising Material” on the outside on the envelope, at the beginning and end of a recorded/electronic communication (d) BUT a lawyer may participate with a prepaid or group legal service plan no owned or direct by the lawyer that solicits from persons who are not known to need legal services E.g. Could atty send FB message to “friends” [HS acquaintances from 20 yrs ago], seeking to offer legal services? • Close, personal relationship w/ these people? • Yes.---> YES. • No. • Message labeled as ad material? • Yes. ---> YES. • No. ---> NO.
Rule 7.4. Communication of fields of practice and specialization.
• (a) A lawyer may communicate the fact that s/he does or does not practice in particular fields
of law • (b) a lawyer who has passed the patent bar may use the designation “Patent Attorney” • (c) A lawyer engaged in admiralty law may use the designation “Admiralty” or “proctor in Admiralty” • (d) A lawyer shall not state that s/he is certified as a specialist unless: • (1) the lawyer has been certified as a specialist by an organization that has been approved by the appropriate state/ or accredited by the ABA AND • (2) the name of the certifying organization is clearly identified in the communication
Duties to the System. Rule 6.1. Voluntary pro bono public service.
• SHOULD provide ≥ 50 hours/year, w/o fee for the needy. Not req’d in any state. • (a) Provide a substantial majority of the 50 hours of service to: • (1) persons of ltd means • (2) charitable, religious, civic, community, governmental, and educational orgs in matters
that are designed primarily to address the needs of people of limited means; and • lobbing congress to give $ to Legal Aid is ok • (b) provide any addle services through:
• (1) delivery of legal services at no fee/substantially reduced fees; groups seking protections
of civil rts or the same organizations above, where paying standard legal fees would replete the org's economic resources • (2) substantially reduced fees to persons of ltd means; or • (3) participation in activities for improving the law, the legal system, or the profession. . If infeasible/atty doesn’t have time to donate services: • • Can donate $ to Legal Aid-type places instead. Should be roughly = to value of services. • Can rely on other attys in firm to do extra hours. (E.g., have 1st year associates do all of the firm’s pro bono projects.) • . Should also contrib $ to orgs that provide legal services to people of ltd means in add’n to pro bono work/ $ when pro bono service infeasible.
Rule 8.3. Duty to Report Misconduct.
• (a) Must report to appropriate authority; applies to: • a lawyer • who knows a lawyer has committed a violation of the rules • that raises a substantial Q as to that lawyer’s honesty, trustworthiness, or fitness. (b) Same duty to report if atty knows a judge has done the above. • • (c). doesn’t req an atty to disclose confidential info under R. 1.6. • . atty should encourage client to disclose. • . atty assisting an atty in an approved assistance program is not req’d to report. • Not every violation creates a substantial question, so not every violation must be
disclosed...the knowledge that reporting atty has must be more than a mere suspicion that misconduct has occurred.
Rule 8.4. Misconduct.
• It is professional misconduct to: • (a) Attempt to or violate the Rules Professional Conduct or knowingly assist or induce another to do so or do so through the acts of another • . does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. • (b) Commit a criminal act that reflects adversely on a lawyer’s fitness as a lawyer • . Failing to file an income tax report of fraud meets this requirement • But adultery or other moral laws do not count • (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation • Bosse. Atty, acting as real-estate agent, uploaded a real-estate listing for a client and signed his name to an exclusive listing agreement, knowing he lacked consent to do so. Despite apparent lack of harm to any party, this “single episode of deceit” was enough to merit a two-year suspension. • (d) Engage in conduct prejudicial to the administration of justice • . if you discriminate you have engaged in conduct prejudicial to the administration of justice (e) to bribe or say that you can bribe (“ability to influence improperly”) a government official • • e.g. not good to say at a job interview, you should hire me b/c I went to HS w/ the judge. • (f) knowingly assist a judge that is in violation of the judicial rules of professional conduct. • . although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice • doesn’t have to actually be related to law practice; not OK to embezzle $ from church, even if not church atty, etc. • . requirements for lawyers in special roles. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is trust of lawyers acting as trustee,
executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.