I. The Law Governing Lawyers—sources and enforcement
A. Rules –
1. Most states have adopted model rules or some variation thereof
B. Concepts
1. Lawyers are subject to ordinary criminal and civil law
2. Specialized enforcement mechanisms
a. Highest court in state can discipline
b. Recently Law firms have been disciplined, not just individuals
c. Litigation sanctions
d. Malpractice suits
e. ABA discipline
II. general Law Governing Lawyers
A. Rules
a. 1.2 –Scope of representation
· (d) Lawyer cannot counsel or assist a client to engage or assist in conduct the lawyer knows is criminal or fraudulent conduct. 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
· -(e) When lawyer knows the client wants him to engage in conduct not permitted by the rules, the lawyer must consult with the client and explain the lawyer’s limitations.
b. 5.5 – Unauthorized Practice of Law
c. 8.4 – Misconduct
· (b) lawyer shall not commit a criminal act that reflects badly on the lawyers honesty and trustworthiness
· (c) lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
d. 8.5(a) – Lawyer is subject to discipline in the jurisdiction in which he is admitted regardless of where the conduct occurs. He may also be subject to discipline in another jurisdiction.
B. Concepts
C. Cases
1. Benjamin – stock fraud case. Lawyer was held criminally liable as principal for actions undertaken in his role as a lawyer.
2. National Student Marketing – laywers held liable for aiding and abetting in securities fraud case, for NOT speaking up and stopping something.
3. Klein v Boyd
4. Birbrower – high water mark for state protectionism against lawyers from out of state –“unauthorized practice” case
5. Granewich v Harding (s) – broad liability of lawyers holding
III. Conpetence, diligence communications, zeal
A. rules
a. 1.1 Competence (= legal knowledge, skill, thoroughness, and preparation necessary for representation)
b. 1.3 Diligence –lawyer must act with reasonable diligence and promptness
c. 1.4 Communication
· (a) keep client reasonably informed and respond promptly to reasonable requests for information
· (b) explain matter to the extent reasonably necessary so that client can make an informed decision.
B. concepts
C. cases
1. Strickland v Washington – lawyer was incompetent but Sup Ct didn’t overturn the conviction. “hopeless” Lawyer didn’t look for exculpatory witnesses
IV. confidentiality
A. rules
a. 1.2(d) Lawyer cannot counsel or assist a client to engage or assist in conduct the lawyer knows is criminal or fraudulent conduct. 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
b. 1.6 – Confidentiality of Information
· (a) can’t reveal information relating to representation of a client unless client consents after consultation
· 2 exceptions. Lawyer can reveal information
(1) to prevent client from committing a criminal act that lawyer believes is likely to result in imminent death or substantial bodily harm
(2) to establish a claim or defense in lawsuit with client or to respond to allegations in any proceeding concerning the lawyer’s representation of the client
c. 1.8(b) – Conflict of interest: Prohibited transactions
· (b) can’t use information relating to the representation of a client to the disadvantage of the client, unless the client consents after consultation (unless permitted under exceptions in 1.6 or required by 3.3—candor before a tribunal)
d. 1.9(c) – Conflict of Interest: Former Client
· (c) restrictions on revealing and using information about former clients is subject to the same restrictions as for current clients (see above)
e. 3.3 – Candor Toward the Tribunal
· can’t knowingly make false statements of material fact or law to a tribunal
· can’t fail to disclose material fact to a tribunal when such disclosure is necessary to avoid assisting a criminal or fraudulent act by the client
· can’t fail to disclose material fact known to be directly adverse to the client but not disclosed by opposing counsel
· can’t offer evidence know is false. If later find out evidence was false need to take reasonable steps to remedy.
· These duties trump 1.6 confidentiality duties
· Can refuse to offer false testimony
· Applies to ex parte proceedings
B. concept
C. cases
1. OPM –checklist p.308 – Naïve Lawyer closed his eyes to egregious fraud
2. Fentress – About when you can disclose info. Client said he was about to commit suicide
3. Nix v Whiteside
V. identification of Client: loyalty
A. Rules
a. 1.2 – Scope of Representation
· (a) –must abide by client’s decisions concerning the objectives of representation. Shall consult with client regarding the means by which objectives are pursued. Shall abide by client’s decision about a settlement, plea bargain, whether to waive jury trial, whether client is to testify.
· (b) – representation does not equal endorsement
b. 1.7 –Conflict of Interest: General Rule
· (a) Can’t represent a client if will be directly adverse to another client unless
(1) Lawyer reasonable believes representation will not adversely affect the relationship with the other client; AND
(2) EACH client consents after consultation
· (b) –can’t represent a client if representation may be materially limited by responsibilities to another client or to a third party unless
(1) Lawyer reasonable believes representation will not adversely affect the relationship with the other client; AND
(2) EACH client consents after consultation. Where relevant lawyer must inform partied of risks of common representation of multiple parites
c. 1.8(f) – can’t accept compensation from someone other than the client unless
· you get consent after consultation,
· there is no interference with lawyer’s independent professonal judgement,
· protect 1.6 confidentiality.
d. 1.13 – Organization as Client
· (a) Lawyer retained by an organization represents the organization
· (b) What to do if lawyer knows someone in the company is doing or going to do something not in the best legal interests of the orgqanizaiton.(DETAILED See rule p.40-41)
· (c) Lawyer can resign in accordance with 1.16 if efforts to stop bad action are to no avail
· (d)in dealings with members of the organization lawyer must make it clear that he represents the organization.
· May also represent directors, officers, s/hs, employees, and other constituents
e. 5.4(c) – Professional Independence of a Lawyer
· (c) shall not permit someone who recommends, employs, or pays the lawyer for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
f. 6.4- Law Reform Activities Affecting Client Interests
· lawyer can do it
· must disclose if clients will benefit but need not name clients.
B. concepts
C. cases
1. Meehan v Hopps-illustrates difficult issues of ID-ing the client
2. Lincoln Savings and Loan -- Should lawyers take action against an officer who is harming the corporation?
3. Donnelley v Sprint Publishing & Advertising (S) – Issue is whether client is corporation of corporate family. I think appellate court says yes, while lower court says no
VI. Conflicts—concurrent representation
A. rules
a. 1.7–Conflict of Interest: General Rule
· (a) Can’t represent a client if will be directly adverse to another client unless
(1) Lawyer reasonable believes representation will not adversely affect the relationship with the other client; AND
(2) EACH client consents after consultation
· (b) –can’t represent a client if representation may be materially limited by responsibilities to another client or to a third party unless
(1) Lawyer reasonable believes representation will not adversely affect the relationship with the other client; AND
(2) EACH client consents after consultation. Where relevant lawyer must inform parties of risks of common representation of multiple parties.
b. 1.8 Conflict of Interest: Prohibited Transactions
· (g) – if representing 2 or more clients must get consent after consultation after informing all clients as to what all other clients are getting in an aggregated settlement, aggregated plea agreements before accepting agreement.
c. 6.3 Membership in Legal Services Organizaiton – can participate in legal service organizations even when organizations serve clients that are directly adverse t a client of the lawyer BUT
· (a) can’t knowingly participate in a decision that generates a 1.7 conflict of interest problem with another client
· (b) can’t participate when decision could have a material adverse affect on the legal services organization’s client who is adverse to the lawyer’s client. (basically can’t undermine LSO’s client either)
B. concepts
C. cases
1. Westinghouse – cano be directly adverse to a current client
2. Cuyler v Sullivan – Lawyer representing multiple defendants. Material limitations issue. Was the lawyer pulling his punches
3. GATX (S) – question in complicated transaction about when conflict arises. Illustrates the different ways a conflict can arise
4. SWS Financial v Salomon Bros (S) – when you ask for consent, indicates that you still consider the party a client. Points out the importance of stating whether a client is a current or former client
5. Worldspan v Sabre (S) –Prospective conflict waiver thrown out. Waiver too old and did not mention magic words “litgation”
VII. Conflicts—successive representation
A. rules
a. 1.9 – Conflict of Interest: Former Client
· (a) can’t represent a client in the same or substantially related matter for which the lawyer formerly represented another client, when the interests are directly adverse. Unless you get the former client’s consent after consultation.
· (b) If the lawyer’s former firm represented a client in the same or substantially related matter, the lawyer can’t represent the new client if (1) the interests are materially adverse AND (2) the lawyer acquired confidential 1.6 and 1.9(c) information about the former client.
· (c) restrictions on revealing information about former clients is subject to the same restrictions as for current clients. Can’t reveal or use information to the disadvantage to a former client.
B. concepts
C. cases
1. Brennan’s Inc v Brennan’s Restaurants – Lawyer disqualified. Substantial relation of matter found. Even though clients knew all of eachother’s “confidential information” still not allowed
2. Schwartz v Cotelloni (S) Present and former client conflict issues. Question is whether the matter is substantially related. Court found not substantially related
VIII. conflicts—imputation: which lawyers are affected
A. rules
a. 1.8 – Conflict of Interest: Prohibited Transaction
· (i) Can’t represent a client who you know is directly adverse to a person represented by a lawyer who is your parent, child, sibling, or spouse unless you get consent from the client after consultation regarding the relationship.
b. 1.10 – Imputed Disqualififcation: General Rule
· (a) Basically all lawyers in a firm are treated as one lawyer for the purpose of conflicts. If one has a conflict onder 1.7 (general conflicts) , 1.8(c) (drafting gifts from clients to lawyer or his relatives), 1.9 (former client conflicts), or 2.2 (intermediary). They all do.
· (b) When a lawyer terminates his relationship with a firm, the firm MAY represent a client that is materially adverse to a client represented by the formerly affiliated lawyer as long as
· The firm doesn’t still represent the adverse client (obviously); or
·The matter is the same or substantially related AND
·other lawyers in the firm have confidential (1.6 and 1.9(c)) information that is material in the matter
c. 1.11 – Successive Government and Private Employment
· (a) a lawyer who formerly worked for the government cannot represent a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee, UNLESS the gov’t agency consents after consulatation. No lawyer in the firm with which the lawyer is associated may knowingly represent a private client in the matter UNLESS
(1) The disqualified lawyer is screened AND receives no part of the fee; AND
(2) written notice is promptly given to the gov;t agency so they can ascertain compliance with this rule
· (b) Same requirements as above for a former government lawyer who has information acquired as a gov’t lawyer about a person that will materially disadvantage that person. Can’t represent someone with adverse interests to that person. Lawyers firm must screen him. NOTE: no provision for consent waiver. (refers to ACTUAL knowledge not imputed knowledge)
· (c) (1) government lawyer who use to be in private practice cannot participate in a matter in which the lawyer participated personally and substantially while in private practice – unless no one else can be lawfully delegated to do the job
(2) a gov’t lawyer can’t negotiate for private employment with party (or attorney of a party) who is involved in a matter that the lawyer is participating in personally and substantially, EXCEPTION for law clerks who follow 1.12(b)- Basically can’t use your abuse your position in gov’t to get a good private job.
· (d) “matter” means any judicial proceeding, contract, investigation, arrest, etc. (see rule p. 37) or anything the gov’t agency says it means.
· (e) “confidential information” means any information the lawyer obtained while in gov’t service which the gov’t is prohibited by law from disclosing OR has the legal privilege not to disclose, and which is not publicly available. (Time for determining is the at the time this rule is applied)
d. 1.12 – Former Judge or Arbitrator
· (a) former judge (or law clerk) cannot represent a private party in which he participated in unless he gets consent after consulation from ALL parties involved.
· (b) Former judge cannot negotiate for employment with any party he presided over (No escape clause) . Law Clerks can negotiate for employment after they have notified their judge.
· (c) Any lawyer in the disqualified former judge’s firm cannot knowingly represent the conflicted client unless the disqualified judge is screened (no fee) AND prompt written notice to tribunal is given.
· (d) partisan in multi-panel arbitration panel (see the rule p.39)
B. concepts
C. cases
1. Nemours Foundation v Gilbane
IX. conflicts and related issues arising from lawyer’s interests
A. rules
a. 1.8 – Conflict of Interest: Prohibited Transactions (long rule see p. 27)
· (a) business transactions with clients prohibited UNLESS terms are fair, written disclosure, client can seek independent counsel, client consents in writing.
· (b) can’t use information to disadvantage of client
· (c) can’t draft gifts from clients to self or relatives unless you are related to the client
· (d) can’t get media rights to a story from a current client
· (e) can’t pay clients for litigation. But contingency fees are OK. Court costs and litigation expenses for indigent clients OK.
· (f) can’t let someone else pay for client and run the show