Professional ResponsibilityMurphy

Oxford 20021

  1. General Relationship of Law, Lawyers, and Ethics
  2. Legal ethics are not the morals of Plato; they are more binding than the idea of law and more general than morals
  1. Ethics rules are derived from deliberation about what a lawyer ought to do when given a certain situation, but their enforcement is generally less formal than that of law.
  1. Ethics are a problem because we have legal duties to the court and the client, which may conflict
  2. In England, there is a higher duty to the court than the client;
  3. They are not as adversarial as the US
  4. UK has a bifurcated legal system—barristers and solicitors
  5. Barristers—Highest level
  6. Originally only ones allowed to advocate
  7. “Rights of Audience”
  8. Wigs and robes
  9. Independent
  10. No direct contact with client, just other solicitors
  11. 1 : 10 :: barrister : solicitor
  12. Solicitors
  13. Less education
  14. Originally did land transactions, etc while barristers did court
  15. Give clients who need court representation to barristers, negotiate fees, etc, unless
  16. “Solicitor advocate”
  17. UK—Parliament has power over judiciary, including sanctions, etc
  18. US—State Supreme courts have inherent authority to regulate state lawyers
  19. May delegate power to state bar ass’ns
  1. Four major problems:
  2. Prohibited Assistance
  3. Competence
  4. Confidentiality
  5. Conflicts of Interest
  1. Spaulding v. Zimmerman—MN 1962—Gallagher—D’s lawyer knew that P had aorta aneurysm, but still settled for considerably less than the injury was worth. P’s lawyer reasonably didn’t know about the aneurysm.
  2. Judge allowed settlement to be revoked, but only because P was a minor.
  3. D lawyer had no affirmativeduty to reveal knowledge, but had he done so, it would be considered a “privileged violation of the rules”
  4. In UK, if the knowledge would endanger life, there may be an affirmative duty
  5. Questionable whether D’s lawyer was ethical in his denial to the tribunal of all necessary facts of the case
  6. Q—was the D’s duty to the insurance company or the insured?
  7. Prior to Rule 26, which requires more disclosure in discovery.
  8. Concept of “non-accountability” – the lawyer’s duty to the client removes any responsibility he might have for damage caused to the other party within the proper scope of his legal actions.
  1. Moral Issues of lawyering—Richard Wasserstrom:
  2. Is a lawyer’s indifference to generally accepted norms of morality acceptable in light of the adversarial nature of the system?
  3. If so, what does that say about the system?
  4. S
  5. Attributes of a Profession—create the unequal relationship between a lawyer and a client
  6. Technical body of knowledge—shows the client lacks perspective and skill to work in his own best interests
  7. Advanced, difficult course of study—acculturates and initiates
  8. Complicated language—creates and affirms the membership
  1. EXAM:
  2. In a pre-sentencing hearing, should the judge ask the defense counsel whether D has any prior convictions, and D knows P doesn’t know, and D knows D has prior convictions, and the only way this bit of adverse information will get into the record is if he goes against his client’s interests and says so, what does he say?
  3. Yes—contrary to client’s interests, truthful
  4. No—Perjury
  5. I’m sorry, your Honor, that is not a proper question
  1. The “Standard Conception” of Lawyer’s Role
  2. Samuel Johnson—A lawyer must do all that his client might fairly do for himself, if he had his lawyer’s knowledge and skill. If the lawyer has an advantage over his adversary, due to intelligence, skill, attention, etc, then it is an advantage to which he is entitled.
  3. Partisanship—A lawyer must, within the bounds of the law, maximize the chances that his client’s objectives will be obtained
  4. Nonaccountability—When representing a client, the lawyer is not legally, professionally, or morally accountable for the means used or the ends achieved.
  5. Monroe Freedman supports this idea;
  6. It serves client autonomy,
  7. Allows a better range of potential moral outcomes if the lawyers are just advocates, and not paternalistic statesmen, and
  8. It is justified by the legitimate expectations of clients
  1. Holmes and “The Bad Man”
  2. If you want to know the law and nothing else, you must look at it from the perspective of the bad man, who seeks only material consequences
  1. Relational Feminism and Carol Gilligan
  2. Men look to getting the best value, women look to hurting the fewest number of relationships, and as women become more educated, they look more to screwing relationships and getting the best economic value.
  1. Commonwealth v. Stenach—PA 1986—Hester—Stenach brothers were PD, their client gave them the murder weapon along with a cock-and-bull story, they kept the murder weapon in their office for months, didn’t tell P or cops about it, didn’t consult ethics advisors. Claimed it was privileged, and disclosure was legally and ethically prohibited.
  2. If given something like this, a lawyer may keep it for a reasonable time, but must not keep it; you have to turn it over after you’ve tested it or whatnot.
  3. By keeping the rifle butt, D hindered P’s ability to find the evidence.
  4. You can’t keep possession of the fruits or instrumentalities of a crime
  5. Restatement @ 119—Fruits or Instrumentalities of a Crime—If you take possession of it, then you have to turn it over and stipulate as to the chain of evidence; if you don’t take possession, then you can leave it (think the Dead Bodies case)
  6. Ultimately, the Stenach brothers got off because the statute under which they were charged was unconstitutionally overbroad, when applied to attorneys representing criminal defendants.
  7. Some evidence, which a lawyer could take and reasonably believe was could be kept, like narratives, were possibly within the breadth of the statute.
  1. Incriminating Evidence
  2. Lawyers must turn over incriminating physical evidence, although
  3. The fact that something privileged (like a letter from the client to the lawyer) is in a physical form does not mean that it must be turned over.
  4. Questionable whether the lawyer must turn over incriminating physical evidence (e.g., documents from a corporation) when that evidence and those documents are those that are produced in the ordinary course of business.
  1. Dead Bodies Case—Two lawyers representing a psychopath (Garrow) for murder were told where two of his victims were. They went, took pictures, but no physical evidence, and left the bodies for others to find, months later.
  2. Rule:Professional morality =/= ordinary morality
  1. Conformity to the Law
  2. United States v. Benjamin—2nd 1964—Friendly—Where a lawyer writes an untruthful opinion letter, the plaintiff must show that the lawyer wilfully/knowingly/intentionally/deliberately lied, or was wilfully blind.
  1. MR 1.2 (d)—a lawyer may not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent.
  1. Actus reus—a lawyer may not aid and abet a client’s unlawful activity and may result in professional discipline as well as criminal liability.
  1. Obstruction of Justice
  2. Attempting to alter or prevent the testimony of a witness
  3. Interfering with a grand jury investigation
  4. Destroying evidence sought by a court or grand jury
  5. Legal means can still obstruct justice if employed with a corrupt motive
  1. Mail Fraud—18 USC @ 1341, 1343
  2. Prohibit the use of mail or electronic transmissions to execute any scheme to defraud, or to obtain money or property by false or fraudulent purposes
  3. If you send insider trading info through the mail, you’re fucked.
  4. Can apply to schemes to deprive people of £ $, or even things like civil rights.
  5. Allows protection of elections
  1. Conspiracy—An agreement to do something unlawful
  2. Forms a separate criminal offense
  3. May also be a tort
  1. RICO—Racketeer Influenced and Corrupt Organizations Act
  2. Racketeering—murder, kidnapping, mail, wire, securities fraud
  3. Intended to get the mob, but also gets lawyers. HA!
  4. PROHIBITS, in any enterprise affecting interstate commerce:
  5. Investing income derived from a pattern of racketeering
  6. Acquiring or maintaining an interest through a pattern of racketeering
  7. Participating in the enterprise’s affairs through a pattern of racketeering
  8. Conspiring to engage in any of these activities
  1. If a lawyer is paid through the proceeds of crime, she is committing a crime of receiving stolen property or contraband.
  2. Cases usually rule the lawyer lacks the requisite scienter.
  1. Greycas, Inc. v. Proud—7th 1987—Posner—Lawyer accepted his brother-in-law’s statements regarding liens on farm equipment and wrote an opinion letter as to the fact that there were no prior liens. In reality, there were, and the lender got screwed.
  2. Issue of privity, because the lawyer was Proud’s client but Greycas is the party who got screwed.
  3. Court decided that for a third party to succeed in a negligence action against a lawyer, he has to prove that the primary purpose and intent of the attorney client relationship itself was to benefit or influence the third party.
  4. Greycas sued in tort of negligence rather than in intentional tort because they knew the lawyer’s insurancepolicy wouldn’t cover intentional acts.
  1. Restatement @ 51 (73 draft) noted three privity issues:
  2. Inviting reliance of non-clients
  3. Think negligently researched opinion letter
  4. Non-client enforcing duties to client
  5. Think negligently drafted will
  6. Breach of fiduciary duty owed by a client-fiduciary to a beneficiary
  7. Where the client is a trustee to a third party, and the lawyer doesn’t stop him from screwing up the trust.
  1. Competence
  2. Model Rule 1.1—legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation is competence.
  1. Lucas v. Hamm—CA 1961—Gibson—A lawyer drafted a will with a trust that accidentally violated the RAP. The court said that this inadvertent oopsy was so easy to make and so common that he wasn’t guilty of malpractice.
  1. Traditional rule is that absent fraud, collusion, or privity of contract, an attorney is not liable to a non-client third person for professional malpractice.
  1. Malpractice—while relatively rare, the threat is probably the most significant deterrent of bad behaviour.
  2. Rarely successful by a convicted criminal defendant
  1. Elements for Legal Malpractice:
  2. Duty
  3. Breach of that duty
  4. Proximate cause
  5. Actual cause
  6. Often successful defense, because it requires a “trial within a trial”
  7. But for the lawyer’s actions, would the plaintiff have won?
  8. Smith v. Lewis—CA 1975—Mosk—Defendant lawyer negligently failed to properly advise a woman about her rights to her husband’s retirement benefits in a divorce.
  9. The lawyer negligently failed to conduct any reasonable research into the matter before advising her.
  10. Dissent argued the causation factor was insufficient
  11. Actual harm—proved damages
  1. Standards of Care
  2. Negotiations—most j hold negotiated settlements are final, absent fraud, coercion, or duress, but some now will hold a lawyer liable for failure to have complete and accurate information from his client.
  3. Standards set by professional custom—Is this action the same action a reasonable lawyer would take?
  4. In a malpractice suit, the Plaintiff has to produce expert testimony that the lawyer failed to reach the standard of care.
  5. Rough issue because it forces lawyers to testify against each other.
  6. Unnecessary where the lawyer’s conduct is so bad that it would be negligent according to plain old common knowledge.
  7. National v. Local Standards—should a lawyer be held to higher, more expensive standards of DC when he practices in Podunksville?
  8. Related:Where a GP gets a case that he should refer to a specialist, and he doesn’t and instead takes the case on his own, he is still held to the higher level of care of the specialist in a malpractice action.
  1. Ethical Rules and Malpractice—Courts generally state that a violation of the ethics rules does not create a civil action or constitute negligence per se. But, violation of the rules can be evidence of a rebuttable presumption of negligence.
  1. Youcan’t make your client sign a release of malpractice claims.
  1. Malpractice Insurance
  2. Occurrence Insurance—covers the lawyer for acts or omissions made during the term of the policy, regardless of when the claim is filed.
  3. More expensive but safer
  4. Claims Made Insurance—Covers only claims made during the policy term, regardless of when the act or omission took place.
  5. Oregon is the only state with mandatory malpractice insurance
  6. LLP’s tend to have insurance problems because they can cut the damage to just those people directly involved in the malpractice
  1. Effective Assistance of Counsel—Strickland v. Washington—US 1984—O’Connor—Criminal defendant’s counsel didn’t really believe D was innocent, D went against his advice, pled guilty to everything, received the death penalty when counsel failed to present mitigating factors, partially because there weren’t really any, and partially because he didn’t think there were any aggravating factors.
  2. To reverse a conviction, must show:
  3. Counsel’s performance was deficient—gross deviation from accepted standards of conduct
  4. Deficient performance prejudiced the defense—reasonable probability that but for the deficiency, the result would be different
  5. In non-capital cases, this essentially means the defendant must prove innocence.
  6. Sixth Amendment only guarantees effective assistance of counsel, not a win at trial.
  7. Strong presumption that counsel’s actions are within an extremely wide spectrum of competence.
  8. The attorney’s duty is to do everything ethically proper to ensure the most favourable outcome for his client.
  9. Prejudice presumed occasionally:
  10. Failure to file an Anders brief
  11. Anders v. California created the Anders brief, which is a brief that refers to anything in the record that might arguably support an appeal
  12. When the defendant is prevented form conferring with her counsel for any significant amount of time
  1. Confidentiality
  2. Combination of agency law and evidence law.
  1. The attorney-client privilege extends only to information transmitted directly between the client and lawyer in seeking legal advice.
  2. Restatement @ 118: To show a privilege:
  3. Communication
  4. NOT observation, etc.
  5. Communication must relate to the legal matter
  6. Made between privileged persons
  7. Joint clients have no privilege against each other—the “co-client rule.”
  8. When a communication is from client => lawyer, it is privileged
  9. When a communication is from lawyer => client, it may be privileged.
  10. Some courts hold it privileged
  11. Others only hold it privileged if it reveals the substance of a client confidence.
  12. In confidence
  13. Third parties break the privilege
  14. Except co-client rule, and where the parties have common interest privilege, which allows parties with common interests to coordinate without destroying privilege.
  15. Client may waive privilege
  16. Agents of the lawyer or those necessary to protect the interests of the client do not break the privilege.
  17. For the purpose of obtaining or providing legal services to the client
  18. Look to the intent of the client
  1. Purpose:
  2. Encourage open and honest communication
  3. Ensure effective representation
  1. Protects documents prepared on advice of counsel, but not documents prepared prior to consultation
  1. Exceptions (Restatement @131-134B; p. 209 text)
  2. A dispute regarding a decedent’s disposition of property
  3. Client crime or fraud
  4. Lawyer self-protection
  5. Disputes in which a trustee or other fiduciary is charged with a breach of fiduciary duty by a beneficiary
  6. Disputes between representatives of an organizational client and constituents of the organization
  1. Upjohn v. United States—US 1981—Rhenquist—p. 209—Upjohn gathered a lot of financial information relating to an internal investigation of bribery and fraud. The IRS sought all of it. Issue:In a corporation, who and what is protected by the attorney-client privilege?
  2. All—Everyone, from CEO to janitor.
  3. Rejected because creates too broad a zone of silence
  4. Control Group—Just those employees who are essentially synonyms for the company—CEO, COO, CFO, etc. (3rd Circuit took this approach)
  5. Control Group + Relevant Underlings—SCt took this approach here—Where a lower employee provides information necessary to formulate legal advice, and that employee knows that is the purpose of the communication, and it is within the scope of his corporate duties, then his communication is privileged.
  6. Applies to current and former employees
  1. The Crime Fraud Exception—In Re Sealed Case (Lewinsky)—District of Columbia 1998—Randolph—Monica got a lawyer to prepare her affidavit for Jones v. Clinton, in which she lied. Her lawyer got subpoenaed for the documents, unless they would violate her 5th Amendment rights, because no attorney-client privilege existed because the affidavit was prepared to do a crime.
  2. Anything the lawyer does in furtherance of a crime is under the “crime-fraud exception” and has no attorney-client privilege.
  3. You can’t retain a lawyer to try to get around the law
  4. Tobacco created the Center for Tobacco Research and ran it under their lawyers, so they could only release any possible good studies.
  5. Judge Sarokin saw it as a violation of the privilege and under the crime fraud exception.
  1. Waiver—May be voluntarily waived by client, but once waived, you can’t go back.
  2. ACP continues indefinitely unless waived—even after death.
  3. Waiver by putting-at-issue—When the client places the lawyer’s actions or conduct at issue, he waives the privilege, so the lawyer can defend himself.
  4. Privilege may be waived expressly or through conduct inconsistent with maintaining the privilege.
  1. Client Identity and Fee Arrangements—Technically, not usually privileged. It does not usually provide information relating to the communications from the client.
  2. Baltes—1988—Client showed up at lawyer’s office, gave his name and said he’d just killed a pedestrian in a hit-and-run. He wanted to negotiate a settlement without using his identity. P tried to get client’s name, but FL ruled that it was protected by the ACP.
  3. This is because the crime wasn’t ongoing; he’d already done the hit-and-run.
  1. If your client pays you more that $10,000 cash, you have to report it under the Tax Reform Act of 1984.
  1. Professional duty of confidentiality protects all information the attorney learns about his client, regardless of the source.
  2. “Confidences” are those things protected by the ACP under applicable law
  3. “Secrets” refer to other information gathered in the scope of professional relationship that the client has requested be held inviolate or that would be embarrassing or detrimental to the client if disclosed.
  4. Covers non-privileged info gathered during relationship, but not info gathered before or after it.
  1. MR 1.6—key provision on confidentiality—protects all information relating to the representation, before, during or after. Applies regardless of whether it will embarrass the client. Lawyer can’t do it negligently or otherwise.
  2. While it says nothing about using client info for yourself, that is prohibited by the law of agency.
  3. Applies whether or not the info is publicly known.
  1. Exceptions:
  2. Self-Defense Exception—Lawyers may protect themselves when threatened by a claim or charge brought by the client or a third person
  3. When a client charges lawyer with wrongdoing
  4. Client waives it by putting performance at issue
  5. When the lawyer seeks to enforce some duty from the client
  6. Lawyer has to prove he did whatever to be owed a duty
  7. When a third party charges the lawyer with wrongdoing in the course of representing a client
  8. Meyerhofer v. Empire Fire and Marine Ins. Co.—2nd 1974—Moore—Lawyer has right to reveal proposed client fraud.
  9. Protection of Innocent Third Parties who are or who may be victimized by the client
  10. Prevention or Rectification of Fraud on the Tribunal
  1. Client Fraud
  2. Destroys duty of confidentiality because lawyer is prohibited from counselling or assisting in crime.
  3. Lawyer may withdraw from representation, noisily to send up red flag to other lawyers, when her services have inadvertently been used in fraud.
  4. Restatement @ 117B allows a lawyer to disclose to prevent client fraud, but also agrees with the minority that allows disclosure to rectify past client fraud.
  5. Klein v. Boyd—3rd 1998—Mansmann—Where a lawyer participates in the drafting of a statement that is materially misleading, he can be liable for reliance on that statement, even lacking his signature. (p. 296)
  1. O.P.M.Lessons:
  2. Rely on instincts, feelings, knowledge about other people in deciding whether to rep them
  3. Don’t pretend to be invulnerable
  4. Be fussy about the details
  5. Take disclaimers seriously, in opinion letters, etc
  6. Look at the law, not just the law codes
  7. Learn about the business and ask about sudden changes
  8. Inquire about a client’s termination of long-term advisors
  9. Don’t become dependant on a single client if possible
  10. Don’t assume work product and ACP will protect you
  1. Limits
  2. People v. Fentress—Duchess County Ct 1980—Rosenblatt—Where the client shows an intent to commit serious bodily injury, the lawyer may breach confidentiality. 4-101(c)(3).
  3. Here, the lawyer’s friend killed a kid and was just insane, he wanted the lawyer, the lawyer was far away and sent his mom, the question was whether the mom was the lawyer’s agent (and therefore privileged) or whether she was just a friend. She was the latter.
  4. Not every communication made to the lawyer in his professional capacity if confidential, nor is it intended to be so.
  5. Hawkins v. King County—Ct App WA 1979—Swanson—Lawyer’s client wanted out, the lawyer got him out against the advice and pleas of client’s mother and psychiatrist, client then assaulted mother and attempted suicide
  6. Issue: Does the lawyer have a duty to protect the client from himself when he has some information that indicates the client may not be safe?
  7. No, the lawyer’s duty is to the client’s wishes, and the client appeared sane and competent.

duty of confidentiality