Professional Responsibility

INTRODUCTION AND BACKGROUND Theories Behind the Rules

Protect the rights and honor the autonomy of the client concerning the law Lawyers Deserve Autonomy Bad Clients Conflicts of interests Competence Justice and Fairness The Protection of lawyers

Underlying Policies: Loyalty to the Client Professionalism Attorneys “occupy a unique position of trust and confidence” creating a need for more regulation.

Tweed Hadley v. Boon DEFINING THE PARAMETERS OF THE ATTORNEY CLIENT RELATIONSHIP

Relevant Model Rules Rule 1.1 Competence

• L shall provide competent rep to a C requiring legal knowledge, skill, thoroughness, & preparation reasonably necessary for the rep.

• Comment 1.1 ♦ Basic skills all that is necessary: understanding of use of precedent, ability to identify issues,

legal research skills, & writing and drafting skills • Policy

♦ To ensure an acceptable level of performance by Ls generally for pub protection Rule 1.2 Allocation of Authority btwn L and C

• 1.2a Comment ♦ C sets goals/ends of the rep while L are empowered to determine the best means to achieve

those ends Rule 1.3 Diligence

• A L shall act w reasonable diligence and promptness in representing a C ♦ Illness without remedial measures, animosity towards C, delays by employees, and

“overwork” are no excuse Rule 1.4 Communication

• (a) L must keep C informed of the status of the matter and respond to C’s reasonable requests for info

• (b) L must explain matter to C sufficiently to allow C to make informed decisions Rule 1.5 Fees (See relevant section) Rule 1.6 Revealing Confidential Information

• (a) L shall not reveal info relating to representation UNLESS(1 of the following): ♦ Informed Consent ♦ Disclosure is impliedly authorized

C wants a defense regarding extenuating circs, L talks abt C being a V of child abuse ♦ Disclosure is permitted by (b)

• (b) L may reveal info relating to rep to the extent L reasonably believes necessary to: ♦ (1) prevent reasonably certain death/substantial bodily harm

Some states require reporting for this ♦ (2) prevent C from committing crime/fraud reasonably certain to result in substantial injury

to fin. interests/property of another and in furtherance of whatever C has obtained L for

♦ (3) prevent/mitigate/rectify substantial injury to another’s fin interests/ property reasonably certain to result/has resulted from C’s crime/fraud in furtherance of whatever C obtained L for

♦ (4) secure legal advice about L’s compliance w rules ♦ (5) est a legal claim/defense in a proceeding btwn L anc C ♦ (6) to comply w other law or a ct order

• 1.6 Comment 14 ♦ L may engage in a “noisy w/drawal” and implicitly reveal protected C info

“May w/draw or disaffirm any opinion, document, affirmation, or the like” Ex. Letter to bank (P) noting w/drawal as D’s L and any previous letters sent by L

because D’s collateral statements were incorrect Rule 1.14 Client with Diminished Capacity

• (a) When C’s capacity is diminished for some reason, L shall, as far as reasonably possible, maintain a normal LC relationship

• (b) L may take reasonably necessary protective action in speaking w various pros and potentially seeking apptmt of a guardian when L reasonably believes: ♦ C has diminished capacity ♦ Is at risk of substantial physical, financial, or other harm ♦ UNLESS action has been taken or L can’t act for C

• (c) When taking protective action L is implicitly authorized under 1.6(a) to reveal info to extent necessary to protect C’s interests

Rule 1.15 Safekeeping Property • (a) L may not commingle assets and must keep property preserved for at least 5 yrs following the

termination of representation • (b) L may deposit his own funds in trust acct only to the extent they cover bank service charges • (c) L shall deposit trust acct legal fees to be withdrawn only to pay fees earned or expenses

incurred • (d) Upon receiving deposits of funds to trust, L must notify C or 3rd person, deliver prompty, and

upon request render a full accounting of such property • (e) When L holds property of disputing parties he must keep separately until dispute is resolved

and promptly distribute appropriate sum once dispute is resolved Rule 1.16 Declining or Terminating Representation

• After ending relationship w C, confidentiality and conflict-avoidance duties continue to exist • (a) Mandatory Withdrawal w/out which subj L to discipline

♦ (1) Cont’d rep will violate ethical duties or other law ♦ (2) Inadequate mental or physical health ♦ (3) Discharge of L reqs w/drawal

• (b)(1) Permissive Withdrawal w/out breaching duty of cont’d representation ♦ (b)(1) If it can be done w/out material adverse effect to the C

Causes that will excuse some material harm: (b)(2) Ls reasonable belief that C is acting criminally or fraudulently (b)(3) L learns that past use of Ls services was used to perpetrate a crime/fraud

• Even if it doesn’t appear that current services are being used as such (b)(4) C actions that are repugnant or imprudent (b)(5) C failure to meet obligations w/ notice of w/drawal (ie not paying fee) (b)(6) Unreasonable financial burden on L or C Unreasonably Difficult to work w (b)(7) Other good cause

• 1.16(c) Ct may order L to cont rep even where good cause is shown Rule 1.17 Sale of Law Practice

• L may purchase a firm or area of law if the following are satisfied: ♦ (a) Seller ceases to engage in private practice of law or the practice area that has been sold (in

the particular jd)

♦ (b) The entire practice or area sold to one or more Ls ♦ (c) Seller gives written notice to his Cs regarding:

Proposed sell Cs right to retain other counsel/ take possession of the file The fact that C’s consent to the xfer will be presumed if no action is taken w/in 90 days

of receipt of notice If C cant be given notice, ct must order xfer- seller may disclose some info for xfer

♦ (d) Fees shall not be increased by reason of the sale Rule 2.1 Advisor

• Must render candid advise & in rendering such advice, L may refer to the law & to other considerations such as moral, economic, social, and political factors relevant to C’s situation

Rule 2.3 Evaluation For Use by 3rd Persons • (a) L may evaluate a matter affecting a C, for use by a 3rd party if L reasonably believes that

making it would be compatible with the AC relationship • (b) L shall not provide evaluation unless C gives informed consent if the L knows or reasonably

believes that the eval is likely to materially and adversely affect C’s interests • (c) Eval is protected by 1.6 except to extent disclosure is authorized

What Duties Do Lawyers Owe Their Clients? Confidentiality

• L barred from revealing info “relating to the representation” of C (even if info is public) • Duty of Confidentiality includes:

♦ Lawyer observations ♦ Communications to/from 3rd parties ♦ Work Product ♦ Privilege Communications

Privilege: 1. Intentional communication between L or L’s Agent and C or C’s Agent 2. For facilitating legal advice 3. Kept private between L and C

• No third parties may be in the presence (except for a paralegal etc) there must exist a desire for confidentiality ♦ Taking “reasonable precautions” to keep confidentiality is sufficient to keep

the privilege when an eavesdropper overhears conversation. ♦ Incidental reception to the communication is not enough to waive the

privilege, there must be more • Overcoming confidentiality

♦ Qualified Materials Trial prep materials/ work product generally cannot be overcome unless L has info that

the other side cannot obtain If overcome, opinion/ defense strategy will be redacted from that info bc its “super

qualified” ♦ Unqualified Materials

Privileged communications can be overcome by 1.6 • Existence of an Attorney Client Relationship

♦ Perez v. Kirk & Carrigan (school bus driver kills kids) For the purposes of confidentiality, an A-C relationship may be implied from the conduct

of the parties Communication falls under A-C privilege when C reasonably believed Ls rep’d him

No fee is necessary- services may be rendered gratuitously Policy:

The existence of this relationship gives rise to a client’s trust in the L which creates a corresponding duty not to violate that position of trust

• Lawyer’s Observations, Real Evidence, and AC Privilege ♦ In Re Ryder

The A/C priv doesn’t extend to physical evidence L finds as a result of confidential communications w/ C when L moves the evidence

L may not move evidence ever nor may L try to convert it to privileged material even if the C has not been arrested yet

Mitigating factors reviewed to determine sanction for this violation ♦ People v. Meredith

The AC privilege is not limited to communications but also protects observations made as a consequence of protected communications EXCEPTION: when L removes or alters evidence the privilege does not bar

testimony abt orig. location/cond of evidence in question • Entity Clients and Constituents (In House Counsel)

♦ Upjohn v. US (Broad Subject Matter Test)(marked “confidential” questionnaires from Ls) Under Federal law, the scope of privilege protection applies to communications with all

employees initiated to provide legal advice concerning the entity Look at the nature and purpose of the communication and not merely the person’s

identity (rebukes the control group test) Policy: to protect clients and to enable Ls to give sound, well-informed advice

Restatement: similar to this case- also it does not matter who initiates the convo, but that the content concerns legal liability to the entity

♦ Samaritan v. Goldfarb (Narrow Subject Matter Test) (no longer good law for civil cases)(nurses give statements to Ls aft surgery gone wrong) When an employee seeks the advice of counsel, concerning his duties, from corporate

counsel, it is protected If the employee is not the party whose conduct gives rise to potential corp liability, then

the employee is a witness not a client (not protected communication) Agency (Ls are C’s agents and owe them duties while acting for them)

• Types of Authority ♦ Express

A’s authority is ltd to what is specifically noted in retainer agrmt ♦ Implied

The mere fact L is employed by C allows L to do anything in regards to the legal issue ♦ Apparent

Nonclients may rely on Ls apparent authority when L reps to nonclient that C has agreed to do something, and C has not (and this is something in D’s sole authority to decide)

• Reach of Agency Powers/ Binding C from A’s failures ♦ R.1.2(a)

A shall consult w C in the following circumstances: 1. Whether to settle 2. Whether to plea 3. Whether to waive jury trial 4. Whether client will testify 5. Whether to appeal?

♦ 1.2(d) L prohibited from counseling or assisting Cs in commission of crimes/fraud ♦ Taylor v. Illinois

Facts: L does not disclose W prior to trial and, as a result, Ct wont allow W to take stand C must accept A’s tactical decisions absent a finding of ineffective assistance (even if

conduct is negligent/willful) L won’t always be able to consult w C before making strategic decisions

♦ SEC v. McNulty (C fails to answer complaint and blames his A)

Based on C’s failure to discuss the complaint w L for a yr & C being a sophisticated businessman, willfulness may be imputed upon C

Fiduciary • General

♦ Putting C’s interest above your own ♦ Reqt of good faith and fair dealing ♦ Arises after the formation of the A-C privilege

• Policy ♦ Cs are vulnerable to an Ls overreaching

A can acquire info abt C giving him an unfair advantage in dealings • Duty of Loyalty (subset of fiduciary)

♦ Requires L to pursue C’s objectives unfettering by conflicting responsibilities/ interests • Duty of Diligence (subset of fiduciary)

♦ Pursue C’s interests w/out undue delay The Duty to Inform and Advise

• Nichols v. Keller ♦ Facts: Ls help with work comp case and don’t tell C about potential civil tort claims, then

SOL runs out ♦ If retainer is limited, L owes C a duty of care to inform C that:

There may be other remedies that he (L) will not investigate Other counsel should be consulted in such matters OR If legal issue is readily apparent, L must alert C of its existence

Autonomy of Lawyers and Clients Lawyer’s Autonomy: Lawyer can decide the “means”

• Rule 1.2(a) ♦ Follow Cs objectives but L free to determine how to reach objectives

• Jones v. Barnes (criminal context) ♦ Facts: B sends pro se appeal to his L with nonfrivolous issues but L thought they were

unpersuasive and chose only to include a few ♦ There is no duty to raise all non-frivolous claims even when C requests this specifically

Policy Such a rule would “seriously undermine the ability of Ls to present a case in accord w

his own professional eval. “ ♦ Dissent: 6th A gives accused rt to have assistance of counsel- if C wants L to raise an issue, L

must do so even if contrary to his own advice Client’s Autonomy: Client can decide the ends

• Olfe v. Gordon (civil context) ♦ L may be liable for all losses resulting from his failure to follow, w reasonable promptness

and care, the explicit instructions of C Even if L honestly believes such instructions are not in C’s best interest, it is not a viable

defense to malpractice • Nicolet v. Lindquist & Vennum

♦ “Failure to obey a C’s lawful instruction in a negotiation is an... actionable form [of legal malpractice].”

PROTECTING THE ATTORNEY-CLIENT RELATIONSHIP AGAINST OUTSIDE INFLUENCES Communicating with Another Lawyer’s Clients: The No Contact Rule

Relevant Model Rules: • 4.2 No Contact Rule

♦ L shall not communicate abt subj of rep w a person L knows to be rep’d by L1 in the matter Policies:

• 1. To prevent opposing Ls from driving a wedge btwn L & C • 2. To prevent Ls from contriving new ways of questioning that pushes a C into admission

• Exceptions to No Contact Rule (rest of 4.2) ♦ L shall not communicate w a party L knows to be repd by L1 unless:

1. Consent by L1 2. Authorized by the law to do so 3. The Court orders such communication

♦ Mere observation does not reach a R.4.2 violation. Ex L goes to DQ and see DQ selling dove bars-violating franchise agreement. L might

even ask if the bars are for sale. Civil Matters- Entity Clients and Constituents

• Niesig v. Team I ♦ Any employee may be interviewed except for:

Employees whose actions or omissions will bind the corp, be imputed on the corp, or the employee seeks advice of outside counsel, they may not be informally interviewed

• Palmer v. Pioneer Hotel ♦ Laid out tests to determine which employees are included within the scope of the no contact

rule- In order of most protective to least protective:

Blanket Test • Prohibits contact with current and former employees of an organizational client • Advantage

♦ Clarity and protection for the organization • Disadvantage

♦ Virtually eliminates all prior contact to investigate whether to even file a claim

Party Opponent Admission Test • Any statement that would be admissible under this exception to hearsay • “Those who can injure or bind an org with a statement with respect to the matter

at hand are covered ♦ Items not w/in the scope of employment (off-duty) are not covered

(distinction from Blanket Rule) • Advantage

♦ High org protection • Disadvantage

♦ Covers almost all employees like the blanket test; unclear whether this properly balances competing parties

Subject Matter Test (see above) Niesig Test/ New York Test

• Rejects reliance on pre-2002 comments and tracks the language of post-2002 commentary

• Permits access to employees who were mere witnesses to an event which is being litigated

• Advantage: ♦ Protects the org while recognizes the need for informal investigation

• Disadvantage: ♦ May be unpredictable as to what employees have sufficient authority to bind

the organization Managing-Speaking Test (followed by the Ct here)

• Restricts contact with even low level employees who have speaking authority for the org-who have legal authority to bind the org, but not where statements can be imputed ♦ This is determined on case by case basis

• Determination of a “speaker:”

♦ Party opponent admission evid. Rule • Disadvantage

♦ Lacks predictability Control Group Test

• Only high level management covered who have responsibility for making final decisions and such a decision would not normally be made without that employee’s advice or opinion

• Disadvantages: ♦ Disfavored after the broad Upjohn rule and lacks predictability

Case by Case (varies on the spectrum of protectiveness) • Whether the contact was appropriate in light of the client’s particular needs

♦ Hasn’t been used in an after the fact assessment of a violation of this rule. • Disadvantages:

♦ Not a feasible universal std. Criminal Matters

• US v. Hammad ♦ Govt gets informant to wear a wire & present a fake subpoena to elicit a confession from Ds ♦ Where the govt uses informants to elicit info from a suspect who has retained counsel

pertaining to the Subjmatter, prior to an indictment and absent any misconduct (which was present here bc of the fake subpoena), this will be allowed

♦ Policy Broad use of no contact rule will curtail legitimate investigatory practices

Improper or Accidental Acquisition of Confidential Information Rico v. Mitsubishi Motors (Opposing L “accidentally” got ahold of Ls confidential document,

distributed it to co-counsel and experts, and used it in a depo of an adverse witness) • Inadvertent disclosure does not waive the A-C privilege • L must read only what is req’d to realize the info is privileged and thereafter, return the docs

immediately or ask the ct for guidance • Cts should consider whether:

♦ Reasonably competent counsel, knowing the circs of lit would have concluded the materials were privileged, how much review was necessary to draw that conclusion and when the examination should have ended

• Policy ♦ Discovering all inadequacies of one’s case will be hindered if opposing Ls can

“inadvertently” use your work against you Aerojet

• Memo w witnesses names on it, inadvertently sent to opposing L, not sanctionable bc not privileged info under work product doctrine

Lawyers, Money and the Ethics of Legal Fees Relevant Model Rules:

1.5- A L’s fee must be reasonable: • (a) Factors:

♦ (1) Time & Labor ♦ (1) Novelty ♦ (1) Skill ♦ (2) Preclusion of other employment

Because of time & energy needed or conflicts that may arise ♦ (3) Going Rate

Other Ls in community for similar services ♦ (4) The amt involved and the results obtained “value billing”

What interests at stake? Economic or other interests considered ♦ (5) Time restrictions on either party

♦ (6) Professional Relationship w the C ♦ (7) Lawyer Quality (seasoned L may get more than me )

Experience, ability and reputation ♦ (8) Nature of the fee arrangement- fixed, contingent, hourly, prepaid

Determination of “Excessive” Fees Brobeck, Phleger & Harrison v. Telex Corp (hired to prepare a writ, parties settled before filed and

the agreement allowed for $1mil fee) • To determine unconscionability:

♦ Whether “no man in his senses and not under delusion would make [the k] on the one hand, and as no honest and fair man would accept on the other.”

♦ Consider: Unequal bargaining power Disguised unfair terms One party taking advantage of another’s ignorance

• Note: retainer agreement is established prior to an A-C relationship and thus, L does not owe C a fiduciary duty

Unethical Fees In re Fordham

• When L, in good faith and diligence, uses excessive hrs to educate himself, he is not shielded just bc his hourly fee is not excessive.

• Consent to unreasonable, excessive fee does not create safe harbor • To determine whether fees are excessive consider:

♦ The novelty/ difficulty of questions involved & skill needed to perform the legal service properly Educating oneself on a new area of law cannot be at the expense of the client

♦ Compare “the fee customarily charged in the locality for similar legal services.” Nonrefundable Fees & Liquidated Damage Clauses in Retainers

• In Re Cooperman ♦ Per se against public policy to include even a reasonable nonrefundable fee in a “special”

retainer agreement because C is highly discouraged from firing even an incompetent L ♦ However, L generally entitled to quantum meruit when fees are found to be excessive

• McQueen, Rains & Tresch v. Citgo Petroleum (MRT was in house counsel to Citgo, Citgo moves & retains MRT- newly independent- for fixed fee) ♦ Liquidated damages are not per se unenforceable even though they are nonrefundable ♦ Other jds have upheld these fees when:

Reasonable K negotiated w a sophisticated C K in writing w consequences clearly noted OR When L has changed positions or incurred fees @ expense of agreement Reliance, opportunity costs, “retooling”

Contingency Fees • Requirements: 1.5c

♦ Disclosure ♦ Consent ♦ Writing

• Prohibited Case Types ♦ Domestic Relations (1.5d1) ♦ Criminal matters (1.5d2)

Minimum Fee Schedules • Goldfarb v. Virginia State Bar

♦ Lawyers can’t price fix (w/in the ambit of the Sherman Act) Court Awarded Fees/ Fee-Shifting

• General ♦ Civil Rights type cases (§1988 provides a remedy for L fees) ♦ Cts are willing to award Ls much higher amts than the amt obtained in judgment so long as L

is successful • Policy Behind Limits on Fee-Shifting

♦ The C does not police his L’s work (hrs & rate) when he would do so in normal circumstances leading to less efficient work product

• Evans v. Jeff D(L waives fee of class action bc settlement was favorable to the kids but he requested that the ct include fees in the settlement) ♦ The court need not reject a settlement that waives the L’s fee ♦ Instead, L should have included a no-waiver provision in retainer or a provision like

contingency/ 1988 fees (Venegas v. Mitchell) • Riverside v. Rivera (SCt)

♦ Affirms a 245k fee on a $13,300 recovery ♦ The focus should be on whether the rate/hrs are reasonable, not the ratio btwn fee/award

Fee Splitting Among Lawyers in Different Firms • 1.5(e)

♦ Proportion to services or joint responsibility ♦ Client agreement ♦ Total fee must be reasonable

• Biggest concern is that C is aware of the split & has consented CONCURRENT CONFLICTS OF INTEREST

Rule 1.7 (a) Except as provided in paragraph (b), L shall not rep C if the rep involves a concurrent conflict of

interest- existing if: • (1) rep of one C directly adverse to another client; or • (2) sigfig risk that the rep of one or more Cs will be materially limited by the Ls

responsibilities to another C, a former C or a 3rd person or by a personal interest of the L. (b) Even if (a)(1) or (a)(2) exist, a lawyer may represent a client if: (Waiveable Conflict)

• (1) L reasonably believes that L will be able to provide competent and diligent representation to each affected C;

• (2) rep not prohibited by law; • (3) rep does not involve the assertion of a claim by one C against another C rep’d by the L in

the same proceeding before a tribunal; and • (4) each affected C gives informed consent, confirmed in writing

Client-Lawyer Conflicts Business Interests

• Rule 1.8 ♦ (a) L shall not enter into a business transaction with C or knowingly acquire an ownership,

possessory, security or other pecuniary interest adverse to C unless: (1) The transaction and terms are:

Fair and reasonable to C Fully disclosed and Transmitted in writing in a manner that can be reasonably understood by C

(2) C is advised in writing of the desirability of seeking another L and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) C gives informed consent, in a writing signed by C, to the essential terms of the transaction and L’s role, including whether L is representing C in the transaction.

• In Re Neville (unfair xaction btwn C, L, & 3rd party)(majority stance)

♦ Full disclosure = much more than disclosure of nonrepresentation but also disclosure of the risks and disadvantages flowing from the agreement (he must act as if he is the lawyer to the transaction)

♦ Policy Concerns: Cs expect their L will be trustworthy and protect them from unfair dealings even in

xactions btwn C & L Related Lawyers, Significant Others, and Friends

• Gellman v. Hilal (H was L for Ps and W was L for Ds in prior related axn) ♦ Ct must assume that Ls abide by the code of conduct, thus, a spousal relationship that is

adverse to a prior client does not lead to automatic disqualification even when there exists a financial incentive to disclose and a potential for inadvertent disclosure

A Lawyer’s Legal Exposure?????? Client-Client Conflicts

Criminal Cases • 6th Amendment and Conflicts

♦ Cuyler v. Sullivan To demonstrate 6th A violation of right to effective counsel, where D did not object at

trial, D must establish actual conflict affected his lawyer’s performance The mere possibility of conflict, in mult rep, is not sufficient to cast doubt on a

criminal conviction • Disqualification of Defense Counsel

♦ Wheat v. US When a ct justifiably finds a conflict of interest, it may decline a waiver and insist Ds be

separately rep’d Although Ct must recognize a presumption in favor of counsel of choice, presumption

may be overcome by either a showing of actual conflict or a showing of serious potential for conflict

• Prosecutors in Criminal Cases ♦ Young v. US ex rel Vuitton

L who represented a party that is the beneficiary of a court order may not act as prosecutor in a contempt action alleging violation of that order

Civil Cases • Fiandace v. Cunningham (Cs:women prisoners C2s: School that was the potential site for new

women’s prison) ♦ An atty may not represent 2 clients in separate matters w/adverse interests, regardless of

when the conflict may arise. • Malpractice Based on Conflicts

♦ Simpson v. James Rep’g B and S in a sales xaction may constitute atty malpractice Duty owed (1st req for malpractice) is duty to have no conflicts

The Insurance Triangle • Pub Service Mutual Insurance v. Goldfarb (professional liability coverage of negligent acts but

not intentional acts) ♦ When an insurer has a duty to defend an insured, separate counsel is req’d if there is a

conflict of interest b/t the insured & insurer Conflict exists when L’s obligation to insured reqs defeat of liability on any grounds,

whereas duty to insurance reqs defeat of liability only on grounds rendering the insurer liable

• Insurance Notes ♦ 1.8f allows insurer to become 3rd party payor ♦ NV: 2 C model state, giving primary allegiance to the policy holder ♦ Half states disagree w NV and make only the insured the client

SUCCESSIVE CONFLICTS OF INTEREST (FORMER CLIENTS) Rule 1.9 Duties to Former Clients

(a) Lawyer represented former Client • L shall not rep a new C:

♦ In the Same or Substantially Related Matter ♦ When New C’s interests are materially adverse to former C’s interests UNLESS:

Former C gives informed consent in writing (b) Firm that Lawyer was formerly associated with rep’d adverse client

• L shall not knowingly rep new C • In the same or substantially related matter • Whose interests are materially adverse to former firm C • When L has acquired info protected by 1.6 and 1.9c that is material to the matter (A-C

privilege) ♦ Westinghouse v. Kerr-McGee: even former clients of different regional firms can cause

disqualification of counsel (Chicago firm formerly rep’d a subsidiary of Kerr and same DC firm then rep’d Westinghouse)

(c) When (prereq for (a) or (b)), L shall not: • Use info relating to that rep to disadvantage former C, except as rules would permit/req or when

info has become generally known • Reveal info relating to the rep except as rules would permit/req

Private Practice & Direct Conflict with Former Client Analytica v. NPD Research

• Information concerning business profitability, sales prospects, etc are substantially related to an anti-trust claim

• When a firm switches sides, “substantial relationship” presumption of shared confidences is irrebuttable (in most jds but see below)(i) if substantial relationship test applies, not appropriate for the court to inquire whether actual confidences were disclosed, unless the screening exception when a lawyer switches firms applies

• Policy ♦ Avoid an appearance of impropriety

Imputed Disqualification and Attorneys in New Firms with Adverse Clients Rule 1.12 Former Judge, Arbitrator, Mediator or Other 3rd Party Neurtal (Collectively, “X”)

• (a) Except as provided in (d), L shall not rep a party in connection w a matter L previously participated in personally or substantially as a X or law clerk unless informed consent in writing

• (b) When L is participating personally or substantially as an X in a matter, L shall not negotiate with any party or L for that party for employment ♦ Except: Law Clerk after notifying judge or other adjudicative officer

• (c) (a) applies to all FLs who knowingly undertake or continue rep UNLESS: ♦ 1. Disqualified L is screened from the matter and receives no part of the fee ♦ 2. Written notice given to parties and tribunal to determine how to comply w the law

• (d) An arbitrator selected as a partisan party in a mult-member arb panel not prohibited from subsequent rep of that party

• Comment [1] “personally” and “substantially” does not bar a former judge who presided in the same court but not over the particular matter- even if he was chief judge

Cromley v. Bd. Of Education (L reps P then moves to firm that reps D) • L did not switch sides of the litigation but rather withdrew as counsel and then became employed

at adverse firm (distinct from Analytica) • Presumption of Shared Confidences can be rebutted by:

♦ L was not privy to confidential info in prior relationship OR ♦ New firm has a screening procedure to prevent disclosure of confidential info, done at time

of disqualifying event- Types of screening procedures:

Instructions given to all employees banning communication w new employee about this info

Prohibited or locked case files Prohibited profit sharing derived from lit at issue

Screening • Cromley is distinguishable from 1.10a (and predates it) which says nothing abt screening and

disqualifies firm if L is disqualified ♦ Rule 1.10 Imputation of Conflicts of Interest: General Rule

(a) While Ls are associated in a firm, no Ls shall knowingly rep a C who another L in the firm would be barred from doing in 1.7 or 1.9 unless the reason is a personal interest and there isn’t a risk of materially limiting the rep

(b) L leaves a firm, the firm’s Ls(FLs) may represent an adverse client of L’s UNLESS: (1) The matter is the same or substantially similar to the past rep (2) Any FL remaining in the firm has material info protected by 1.6 and 1.9c

(c) Disqualification may be waived by affected C under conditions of 1.7 (d) Gov’t issues dealt w in R. 1.11

• Policy debate: ♦ Prohibiting the use of screening restricts L’s mobility but the adverse C has a concern that

confidential info will be inadvertently, at the very least, relinquished. • Kasis: sometimes screening should be allowed but the ct will look to the info acquired and

whether it is significant/material ♦ NV rule focuses on L’s “substantial” involvement in the case

Government Service Rule 1.11

• A prior govt official: ♦ (a)(2) shall not rep a C in connection with a matter in which the lawyer participated

personally & substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. And neither shall his firm unless

L has been screened out of participation & no fee-sharing AND Written notice has been given to the govt agency

Armstrong v. McAlpin • Under old std, the appearance of impropriety, a govt official w info that would be readily given

to opposing counsel does not create a conflict when he joins that firm • Policy for more lax standards than private practice:

♦ Strong public interest in avoiding limited movement of attys where most officials are not in this field for a long time

ETHICS IN ADVOCACY Rule 3.1- good faith belief L is making only meritorious claims (must be a basis in law/fact for bringing

a claim) Comment 3: This rule is subordinate to the constitutional guarantees entitling assistance of counsel

in presenting a defense to a criminal defendant Rule 3.2-reasonable efforts to expedite litigation consistent w C’s interests Rule 3.3- Candor w Ct

(a) L shall not knowingly: • (1) Make false statement of fact/law or fail to correct a previous 1 • (2) Fail to disclose controlling adverse authority, known to L, that opposing counsel has failed to • (3) Offer false evidence; if knowledge comes aft offering such evidence, L must take “reasonable

remedial measures” including, if necessary, disclosure to the tribunal

(b) L who know a person intends to or has engaged in criminal or fraudulent conduct, relating to proceeding must take “reasonable remedial measures” including, if necessary, disclosure to the tribunal

(c) (a) and (b) apply all till the end of the proceeding & req disclosure of info protected under 1.6 (d) Ex parte proceeding L shall inform tribunal of all material and adverse facts

Rule 3.4 Fairness to Opposing Counsel L shall not:

• (a) Unlawfully obstruct another party’s access to evidence, nor counsel or assist another in so doing

• (b) Falsify evidence, or counsel or assist another to give false testimony, or offer inducement to a witness that’s prohibited by law

• (c) Knowingly disobey obligation under tribunal’s rules, except for open refusal based on assertion no obligation exists

• (d) Pretrial, shall not make frivolous discovery request or fail to make reasonably diligent effort to comply with legally proper discovery request by opposing party

• (e) In trial, allude to any matter doesn’t reasonably believe is relevant or that won’t be supported by admissible evidence, assert personal knowledge of facts in issue (except when testifying as a witness), or state personal opinion as to justness of cause, credibility of witness, culpability of civil litigant or guilt/innocence of accused; or

• (f) Request person other than client to refrain from voluntarily giving relevant info to another party, unless: ♦ (1) Person is a relative or employee or other agent of client, and ♦ (2) Lawyer reasonably believes the person’s interests will not be adversely affected by

refraining from giving such information Rule 3.5 Decorum

No communication w jurors and don’t disrupt tribunal or try to influence judge/jury by anything prohibited by law

Rule 3.6- Trial Publicity (a) L participating or has participated in investigation or litigation of a matter shall not make an

extrajudicial statement L knows/ reasonably should know will be public and have a substantial likelihood of materially prejudicing a proceeding in the matter

(b) A L may state: • (1) Claim, defense, and identity (when not unlawful to do so) • (2) Info contained in public record • (3) Investigation is in progress • (4) Scheduling or result of any step in litigation • (5) Request for assistance in obtaining information/ evidence necessary • (6) Warning of danger of conduct of person when there is reason to believe likelihood of

substantial harm to person & public • (7) In criminal cases, L may also state:

♦ (i) Identity, residence, occupation, family status of accused ♦ (ii) Info necessary to apprehend accused ♦ (iii) Fact, time, and place of arrest ♦ (iv) ID of investigating officers/length of investigation

(c) In response to adverse publicity, L may make a statement a reasonable L1 would believe is req’d to protect against a substantial, undue prejudicial effect of recent publicity not initiated by L or C- limited to extent necessary to mitigate against the recent adverse publicity (Gentile Rule)

(d) Imputed on FLs and Ls of the same government agencies Rule 3.7- L as a witness

(a) can’t act as advocate if likely to be necessary witness in that trial, unless: • (i) testimony relates to uncontested issue • (ii) testimony relates to nature and value of legal services rendered in the case, or

• (iii) dq’ing lawyer would work substantial hardship on client (b) may act as advocate at trial where another lawyer in same firm is likely to be called as a witness

unless precluded by 1.7 or 1.9 Rule 3.8 Special Responsibilities of a Prosecutor

(As a prosecutor, you still have duties to the public not to convict an innocent person) Criminal prosecutor shall

• (a) Not prosecute charge he knows isn’t supported by probable cause • (b) Reasonable efforts to assure accused is advised of right to counsel and how to obtain such

counsel, and has reasonable opportunity to do so • (c) Not seek waiver from unrepresented accused of important pretrial rights (like a preliminary

hearing) • (d) Timely disclose to defense all evidence and info beneficial to the defense’s case, including

during sentencing, unless prosecutor is relieved from doing so by protective order • (e) Not subpeona a lawyer in grand jury/other crim proceeding to present evidence about

past/present client unless prosecutor reasonably believes ♦ (i) Info isn’t protected by an applicable privilege ♦ (ii) Evidence is essential to successful completion of ongoing investigation/prosecution, and ♦ (iii) No other feasible alternative to obtain the info

• (f) Similar to 3.6(a), no statements with substantial likelihood of furthering public condemnation of the accused, with exceptions for statements necessary to inform the public of the nature & extent of prosecutor’s action and that serve legit law enforcement purpose; exercise reasonable care in keeping others from uttering statements prosecutor couldn’t utter under 3.6 or this Rule

Rule 3.9 Advocate in Nonadjudicative Proceedings Lawyer representing client in such proceeding must disclose that the appearance is in a

representative capacity, and must conform to Rule 3.3(a)-(c), 3.4(a)-(c), and 3.5 Truth and Confidences

Nix v. Whiteside • D not denied effective assistance when L prohibited D from testifying aft D changed his story to

satisfy a defense theory, leading L to believe he would commit perjury, as a reasonable L would do the same as L

• Strickland test??? Do we need to know?? ♦ 1. Counsel made errors so serious that L was not functioning as counsel guaranteed by 6th

amendment ♦ 2. Showing of prejudice- counsel’s deficient performance rendered trial unfair so as to

undermine the confidence of the outcome Hardball and Inclivity

Mullaney v. Aude- Gender bias unacceptable in judicial systm; L sanctiond Obligation to Reveal Adverse Legal Authority

Matter of Thornert • L failed to tell C and Ct about adverse authority that he actually participated in (clear showing of

knowledge), thus violating 3.3a2 SPECIAL ISSUES IN LITIGATION

Lawyer’s EDiscovery Obligations Zublake v. UBS

• Informing all parties of hold not enough, L must take affirmative steps • The primary inquiry is whether the counsel is taking “reasonable” steps to ensure that info is

being preserved for litigation: ♦ Issue a litigation hold and periodically reissue it to inform new employees of its existence

and that it is refreshed in the minds of old employees ♦ Communicate directly and regularly with the key players in the litigation and ensure they are

aware of the litigation hold

♦ Request that all employees keep backups of all relevant and active files to ensure that none are inadvertantly disposed

Issues Concerning Prosecutors: Public comments that deny a fair trial Jovanovic v. City of New York

• To prevail on a fair trial claim bc of prejudicial publicity must show: ♦ Improper leaks to press ♦ P had in fact been denied a fair trial ♦ Remedies not avail or used to no avail to prevent effects of leaks

NEGOTIATION AND TRANSACTIONAL MATTERS Model Rules

Rule 4.1 Truthfulness in Statements to Others • L shall not knowingly:

♦ (a) Make a false statement of material fact/ law to a 3rd person OR ♦ (b) Fail to disclose a material fact to a 3rd person when disclosure is necessary to avoid

assisting a criminal/fraudulent act by a C, unless disclosure is prohibited by 1.6 Rule 4.3 Dealing with Unrepresented Person (UP)

• L shall not state/imply that he is disinterest • When L knows/reasonably should know that UP misunderstands Ls role, L shall make a

reasonable effort to correct the misunderstanding • L shall not give legal advice to UP other than to secure counsel if L knows/reasonably should

know that UP’s interest have a reasonable possibility of being in conflict with C Rule 4.4 Respect for Rights of Third Persons

• (a) L shall not use means w/ no substantial purpose other than to embarrass, delay, or burden a 3rd person or obtain evidence by means which violate that person’s legal rights

• (b) If L receives a document relating to C’s case, and knows/reasonably should know that it was sent inadvertently, L must promptly notify sender

Fire Insurance Exchange v. Bell Ls are reqd to offer only true and honest representations of material info & opposing counsel/C may

reasonably rely on such statements Policy:

• L reps are accorded an expectation of honesty and trustworthiness • If all Ls began lying abt material info, it would lead to an increase in litigation and discovery

costs which diminish the effectiveness of the administration of justice Hoyt Properties v. Production Resources Group (can we pierce the corp veil?)

While there is no duty to respond to opposing counsel regarding possible claims they can raise, if L does respond it must be honest (try: “Im not P’s L, you are”)

Virzi v. Grand Trunk Warehouse L has ethical obligation to reveal death of his C to the Ct and opposing L, especially when C being

alive was a determinative factor (C taking stand) Florida Bar v. Belleville

When terms are unfair and adversary does not have L, opposing L must disclose the detrimental effects of terms & that his loyalty lies w his C • Fair terms but no counsel= no duty to disclose • Unfair terms but w counsel= no duty to disclose

LAWYERS FOR COMPANIES AND OTHER ORGANIZATIONS Model Rules

Rule 1.13 Organizational Clients • (b) When a constituent’s unlawful conduct (or violation of a legal obligation) is likely to cause

substantial injury to the organization, L must proceed as reasonably necessary to act in the best interests of the organization even if it results in harm to a constituent

• Shall refer matter to higher authority to act on behalf of the entity • (c) Except as provided in (d)

♦ if highest authority adequately doesn’t fix conduct, AND L reasonably certain to result in substantial injury, L may reveal info relating to rep regardless of R1.6 allowances only to extent reasonably necessary to prevent injury

• (d) above inapplicable when L assigned to represent or investigate that very conduct • (e) If L is discharged as a result of b or c, L must take reasonably necessary action to inform

highest authority • (f) L must inform constituents of his duties to the organization, not the constituents, when L

believes constituents interests are adverse to that of the organization • (g) If L dually reps employee and org, informed consent must be given

Closely Held Entities: Conflicts and Confidentiality in Entity Representations Murphy & Demory v. Murphy

• L rep’ing company owes a fudiciary duty to the company, not the constituents; One partner trying to set up his own competing firm is surely against the company’s interests

Whistleblowing and Retaliatory Discharge Crews v. Buckman Labs

• In house counsel may bring common-law action for retaliatory discharge resulting from counsel’s compliance w/a provision of the Code of Professional Responsibility that represents a clear and definitive statement of public policy.

• Test for Retaliatory Discharge Claim ♦ 1. Employment at will existed ♦ 2. Employee was discharged ♦ 3. Reason for discharge was that employee attempted to exercise a stat or const rt or any

other reason that violates pub policy ♦ 4. A substantial factor (need not be sole factor) in the employer’s discharge decision was

that employee engaged in above #3 REGULATION OF JUDGES

Conflicts and Disqualification Model Rules:

• 28 § U.S.C. 455 Disqualification of a Judge ♦ (a) Waivable (e) Disqualification:

J shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned

♦ (b) Mandatory Disqualifications (non-waivable (e)) (1) Personal knowledge of disputed facts or personal bias/prejudice concerning a party (2) Served as a L in the matter, a L1 who he previously worked w served as a L1 in the

matter while they worked together, or J or L1 has been a material witness in the matter (3) Same as above in govt context or J has expressed opinion abt the matter in particular (4) J knows that J or immediate family of J has a financial interest or other interest that

could be substantially affected by the outcome of the proceeding Single share of stock enough for disqualification

(5) – Person within third degree of relationship of J or spouse or spouse of such a person: Is a party, lawyer, has an interest substantially affected by the outcome, likely to be a

material witness ♦ (c) J shall make reasonable efforts uncover all fin interests he and his immediate family have ♦ (e) Waiver of (a) must contain full disclosure, on the record, of grounds for disqualification ♦ (f) If proceeding has gone forward and judge discovers he/immediate family/fiduciary have a

financial interest (one not substantially affected by the outcome), J may continue proceeding if he divests himself of such interest

• Rule 2.11 Disqualification ♦ (A) J shall disqualify himself whenever his impartiality might reasonably be questioned

included, but not limited to: Same as everything above plus below

(5) While a J or candidate J made a public statement that commits or appears to commit J to reach a particular result in the proceeding at issue- regardless of the facts

• Note: judges are barred from becoming members of restrictive clubs (w the exception of religious orgs)

Liljeberg v. Health Services Acquisition (J on board of trustees for Loyala which had a stake in the outcome of the case) • Proper inquiry: would the reasonable person, when viewing the facts, conclude that there was an

appearance of impropriety, even if judge is not conscious of this information? • Constructive knowledge will lend weight to this impropriety finding (J received info abt the

connection w/in 10 days of proceeding) Caperton v. Massey Coal

• Proper inquiry not whether the J is actually biased but whther the avg J in his position likely to be neutral- if not potential for DP violation ♦ Temporal proximity can be a critical determinative factor if it was reasonable foreseeable for

the conflict to occur bc of time?? Judicial Gender, Racial, or other Bias

In Re Marriage of Iverson: gender motivated decisions have no place in the judiciary Matter of Bourisseau: Racial stereotypes call into question a judges impartiality and expose the

judicial system to contempt and ridicule CONTROL OF QUALITY: REDUCING THE LIKELIHOOD OF PROFESSIONAL FAILURE

Relevant Model Rules Rule 8.1 Bar Admission and Disciplinary Matter

• Applicant or L in connection w a disciplinary matter shall not: ♦ (a) Make a false statement of material fact ♦ (b) Fail to disclose a fact necessary to correct a mistake or knowingly fail to respond to the

bar for information except for info protect by 1.6 Rule 8.2 Judicial and Legal Officials

• (a) L shall not make a false or reckless statement concerning the quals or integrity of a J etc or candidate or appointee for judicial office

Rule 8.3 Reporting Professional Misconduct • L who knows L1 violated a rule that creates a subst question to L1’s honesty, trustworthiness,

and fitness as a lawyer must inform professional authorities Rule 8.4 Misconduct

• Profession misconduct includes: ♦ (a) Violation/attempt 2 violate rules, assisting another to do so, or acting thro another to do so ♦ (b) Commit a criminal act adversely reflecting on L’s honesty, trustworthiness, and fitness ♦ (c) Engage in deceptive conduct ♦ (d) Engage in conduct prejud. to admin of justice ♦ (e) State/imply an ability to improperly influence govt/govt official ♦ (f) Knowingly assist a judge in violation of rules of judicial conduct or other law

Rule 8.5 Disciplinary Authority/ Choice of Law • (a) L practicing in NV subj to NV’s disciplinary authority even if not admitted to the bar in NV

but providing legal advice here • (b) Rules to be applied will be those in the jd in which the proceeding is held unless the conduct

predominantly occurred in another jd, and if so, those rules shall apply Rule 6.1 Voluntary Pro Bono

• Ls have the responisibility to contribute 50 hrs of service each year w/out a fee or w a substantially reduced fee to those w limited means, for civil rights cases, or charitable/ religious/ educational/etc orgs, participate in activities to improe the law, and contribute financial support to orgs that provide legal services to those w limited means

Rule 6.2 Accepting Appointments • L shall not seek to avoid appointment by the ct except for good cause

Rule 6.3 Membership in Legal Services Organization • A lawyer may serve as a member of a legal services org and participate, so long as such

participation does not conflict with his clients’ interests Rule 6.4 Law Reform Activities Affecting Client Interests

• Regardless of a reform’s adverse affects on a C’s interests, the L may participate; If the reform will materially benefit a C, L must disclose that fact but need not ID the C

Admission to the Bar Geographical Exclusion/Restriction Education and Examination Character Inquiries

• In Re Mustafa ♦ In order to gain admission to the bar, applicant must demonstrate clear and convincing

evidence that he possesses good moral character & general fitness to practice law Must be more time btwn bad act & admission app to show this

♦ Policy Character inquiries serve to protect the public from Ls who are given full trust and as a

result take a ton of $$ Transient Lawyers and Multijurisidictional Firms

Services other than Litigation • Birbrower et al v. Superior Court

♦ L not licensed in CA cannot recover fees for work performed in CA ♦ Practice of law:

Doing and performing services in a ct of justice in any matter depending therein throughout its various stages and in conformity w the adopted rules of procedure- incl legal advice, legal analysis and legal instrument preparation

♦ UPL violation may lead to surrender of all fees UPL

• Professional Adjusters, Inc. v. Tandon ♦ K that calls for illegal practice of law w/o license will be void as against public policy; pub

adjusters engage in UPL ♦ Policy behind UPL: protect the public (not necessarily the C or else there would be a req’t of

harm) ♦ Possible Policy reasons why this does not apply to private adjtrs:

Public adjusters represent consumers, who need more protection than the insurers Insurance costs go up if insurers need to rely on attys for this Keep disputes out of the courts – protect the system, keep courts running smoothly

♦ Note: Private adjusters don’t need to abide by atty rules: no contact rule and no solicitation are both inapplicable

• In Re Lerner ♦ Practice of Law: application of legal knowledge to a particular circumstance- ABA stds

Examples: Prep of pleadings Managing Proceedings Legal advice and counsel Appearing for C in alternative forums

Public necessity exception (Pioneer Title) Things that are so routine in nature (filing in the blanks of a legal document)

CONTROL OF QUALITY: REMEDIES FOR PROFESSIONAL FAILURE Malpractice and Breach of Fiduciary Duty

Liability to Clients • Togstad v. Vesely, Otto, Miller & Keefe

♦ Missing the SOL is practically per se causation (easiest to win); much more difficult to show “but for” in bad cross-ex, bad pleadings, etc

♦ Legal Malpractice Elements: 1. A-C relationship existed 2. L acted negligently or in breach of K

Std of care: lawyer of minimum competence • If L specializes in a field, he must meet the stds of knowledge and skill within that

field (ie medmal law) 3. Such acts were the proximate cause of the loss of Cs damages

C must win his prior case within his malpractice case 4. But for Ls conduct, C would have been successful in claim (damages)

♦ Case led to Togstad letters – (i) note saying you’re not reresenting them, not taking their case, and didn’t give them legal advice (ii) they’re a c.y.a. measure (iii) should these “disclaimer” letters be sent certified mail/return receipt to ensure person can’t say “I never got it?”

Proving Malpractice Use of Ethical Rules and Expert Testimony

• Smith v. Haynsworth ♦ Violation of a rule of ethics is not negligence per se, but is evidence of negligence. ♦ Only applicable when the rule is intended to protect person in P’s position or be addressed to

a particular harm Helpful when determining the legal duty of L

• Ethical Violations as Basis for Reduction or Denial of Fees ♦ Hendry v. Pelland

If a client receives disloyal legal service, he may force the atty to forfeit/disgorge (give back what’s been received) some/all legal fees, by proving the L breached his duty of loyalty (misconduct)

Causation an Defenses • Viner v. Sweet

♦ “But-for” causation reqt applies to transactional work as well • Ruminations for the “But-For” Causation Req’t in Criminal Cases

♦ Peeler v. Hughs & Luce Criminal Cs must prove (BOP of C) actual innocence to prevail on a legal malpractice

claim in addition to all other evidence C who has been exonerated meets this, but C who merely had her case dropped or

plead out, must prove innocence Policy:

Public policy prohibits letting convicts benefit from their illegal conduct Dissent

Would make a criminal rule: but for the L’s negligence, there would not have been a conviction

Beyond Malpractice: Other Grounds for L Liability to 3rd Parties and Cs Duty of Care to Nonclients

• Trask v. Butler ♦ Six factors re atty’s duty to non-client ♦ (i) Extent to which the transaction was intended to benefit C ♦ (ii) Foreseeability of harm to C ♦ (iii) Degree of certainty that suffered injury ♦ (iv) Closeness of connection betwn L’s conduct and the injury to C ♦ (v) Policy of preventing future harm ♦ (vi) Extent to which profession would be unduly burdened by a finding of liability

• Petrillo v. Bachenberg (perc reports shown to C) ♦ Nonclients are owed a duty to use care when and to the extent the L or the L’s C invites the

non-C to rely on L’s opinion or provision of other legal services; if declarations are erred, L is liable Invites: If nonclient in question could reasonably rely, or the L knew that a reasonable

person would rely on Ls statements Even if L gives false info to C and C passes this on to NC, factored fulfilled bc it is

foreseeable that that info would be passed on. (must be clearly from L- ie on letterhead)

♦ Not a standard of disclosure, but rather a std of honesty ♦ This std varies across jds concerning what is “reasonable reliance”

Acts Justifying Discipline Dishonest and Unlawful Conduct

• In re Warthaftig (trust acct for L fees) ♦ Violation of loyalty & trust, and bc it was a trust, there is a breached fiduciary obligation. L

got a public reprimand. ♦ Most jds would be much worse

• In re Austern (NSF ck used as a deposit on escrow) ♦ Regardless of Cs assurance that he would “make good”, L cannot assist in illegal conduct

(fraud) while undergoing negotiations ♦ L gets censured

Sexual Relations with Client • Tante v. Herring

♦ Breach of fiduciary duty to take advantage of Cs trust by L using his knowledge of Cs mental and emotional instability to engage in a sexual relationship

• Matter of Tsoutsouris ♦ It is professional misconduct for a L to engage in sexual relations w a current client, unless

the relationship commenced before rep ♦ Policy

1. L is in a position to be “predatory” 2. Clouded judgment of the L when in a sexual relationship

Racist and Sexist Conduct • Matter of Schiff

♦ L who direct dirty, discriminatory, gutter language at opposing counsel to harass counsel on the basis of gender will be subject to sanctions for violation of the pro ethics rules

CONTROL OF QUALITY: LAY PARTICIPATION IN LAW BUSINESS Relevant Model Rules

Rule 5.1 Responsibilities of Partners, Managers and Supervisory Lawyers • (a) partner and other lawyers with comparable managerial authority in a firm shall make

reasonable efforts to ensure the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules

• (b) lawyer w/direct supervisory authority over another lawyer shall make reasonable efforts to ensure the other lawyer conforms to the Rules

• (c) shall be responsible for for another lawyer’s violation of the Rules if: ♦ (1) lawyer orders, or with knowledge of the specific conduct, ratifies the conduct involved,

or ♦ (2) has managerial/supervisory authority and knows of the conduct at a time when its

consequences can be avoided or mitigated but fails to take reasonable remedial action Rule 5.2 Responsibilities of a Subordinate Lawyer

• (a) bound by the Rules notwithstanding that you acted at the direction of another person • (b) subordinate doesn’t violate the Rules if acts in accordance with supervisory lawyer’s

reasonable resolution of an arguable question of professional duty

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants • With respect to nonL employed, retained by or associated with a lawyer: just like 5.1 (a) – (c)

Rule 5.4 Professional Independence of a Lawyer • (a) can’t share legal fees w/nonlawyer, except that:

♦ (1) can pay someone in event of lawyer’s death (estate or some other specified person) ♦ (2) if purchases practice of dead, disabled or disappeared lawyer, can pay fee to nonlawyer

pursuant to 1.17 ♦ (3) can include nonlawyers in compensation or retirement plans even if based on profit-

sharing, and ♦ (4) can share court awarded legal fees with non-profit org that employed, retained or

recommended employment of the lawyer in the matter • (b) can’t form partnership with nonlawyer if any activities of the partnership consist of practice

of law • (c) lawyer shall not permit a person who recommends, employs or pays the lawyer to render

legal services for another to interfere with the lawyer’s professional judgment in rendering such legal services

• (d) can’t practice with or in form of professional corp or association authorized to practice law for profit if: ♦ (1) nonlawyer owns any interest therein (except for fiduciary rep. of a lawyer’s estate holding

stock or interest therein for reasonable time) ♦ (2) nonlawyer is a corp director or officer thereof or occupies position of similar

responsibility or ♦ (3) nonlawyer has right to direct or control professional judgment of a lawyer

Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law • (a) lawyer can’t practice law in a jd in violation of regulation of the legal profession in that

jurisdiction or assist another in doing so • (b) if not admitted to practice in the jurisdiction, can’t:

♦ (1) establish office/continuous presence in the jurisdiction for practice of law or ♦ (2) hold out to the public or otherwise represent the lawyer is admitted to practice law in the

jurisdiction • (c) if admitted in another US jurisdiction, and not disbarred or suspended in any jurisdiction,

may provide legal services on temporary basis in another jurisdiction that: ♦ (1) are undertaken in association with lawyer admitted to practice in the jurisdiction and who

actively participates in the matter ♦ (2) are in or reasonably related to pending/potential proceeding in the jurisdiction if the

lawyer or the person he’s assisting is authorized or reasonably expects to be authorized to appear in the proceeding

♦ (3) are in or reasonably related to pending adr proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction he’s admitted to practice and are not services for which the forum requires pro hac vice admission, or

♦ (4) are not within (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice

• (d) if admitted in another US jurisdiction and not disbarred or suspended in any jurisdiction, may provide legal services in this jurisdiction that: ♦ (1) are provided to lawyer’s employer or organizational affiliates and are not services for

which the forum requires pro hac vice admission, or ♦ (2) are services lawyer is authorized by federal or other law to provide in the jurisdiction

• (comment 14) – Lawyers desiring to provide pro bono services on temporary basis in jurisdiction affected by major disaster but is not otherwised authorized to practice in, as well as lawyers in the affected jurisdiction who wish to practice elsewhere on temporary basis but are not otherwise authorized to practice in, should consult the [Model Court Rule on Provision of Legal Services

Following Determination of Major Disaster] re Pro Hac Vice admission – in all states, courts have authority to admit out-of-state lawyers to practice before the court “for a particular matter.” Typically, need to licensed in another state (sometimes even foreign country is ok) and associated with and on motion of active member of that state’s bar who appears of record in the matter; courts reserve right to revoke the permission at any time for misconduct. In DC, can’t do more than 5 in a calendar year absent “exception cause,” and must swear in good standing and associated w/DC lawyer in the matter. Also, some states charge a fee to out-of-state attys apearing pro hac vice (federal courts do not charge a similar fee)

Rule 5.6 Restrictions on Right to Practice • Shall not participate in offering or making:

♦ (a) partnership, shareholders, operating, employment, or other similar type of agreement that restricts right of a lawyer to practice after termination of the relationship, except agreement concerning benefits upon retirement, or

♦ (b) agreement where restriction of lawyer’s right to practice is part of settlement of a client controversy

Rule 5.7 Responsibilities Regarding Law-Related Services • (a) shall be subject to Rules with respect to provision of law-related services, as defined in (b), if

the services are provided: ♦ (1) in circumstances not distinct from lawyer’s provision of legal services to clients or ♦ (2) in other circumstances by entity controlled by lawyer alone or with others if lawyer fails

to take reasonable measures to assure a person obtaining law-related services knows the services are not legal services and the protections of the client-lawyer relationship don’t exist

• (b) law-related services denotes services that might reasonably be performed in conjunction with & in substance are related to provision of legal services, and that aren’t prohibited as unauthorized practice of law when provided by a nonlawyer

FIRST AMENDMENT RIGHTS OF LAWYERS AND JUDICIAL CANDIDATES

Advertising & Advising Clients Milavetz v. US (BK code include Ls in “debt relief agencies”)

• Ls may not advise Cs, in anticipation of BK, how to incur more debt • Disclosure that all debt relief agencies disclose their connection to bks apply to Ls bc the reqs

were reasonably related to a govt interest in diminishing consumer deception • Dissent Policy concern: These regulations on Ls could have a “chilling effect” on L conduct.

Public Comment About Pending Case Gentile v. State Bar of Nevada

• Ls get some 1st A. protections, but, diff from normal citizens, they may be reg’d to some extent • Policy Concern

♦ Public comment must not create a substantial likelihood of material prejudice- balance btwn Ls 1st A and Cs right to a fair trial

• R.3.6 was later amended to conform to this opinion; L may rebut state’s comments if they are prejudicial to his C

Public Comments About Judges and Court In re Holtzman

• False/ disrespectful comments about judges could lead to a censoring because it is considered disrespectful to the legal system as a whole

Judicial Campaign Speech Repub Party of Minnesota v. White

• The First Amendment bars states from prohibiting judicial candidates from expressing their views on disputed legal and political issues

MARKETING & LEGAL SERVICES Relevant Rules

Nevada Rule 7.1 Communications Concerning a Lawyer’s Services • Shall not make false or misleading communication about the lawyer or his services. • (a) Communication is false or misleading if contains material misrepresentation of fact or law, or

omits a fact necessary to make statement considered as a whole not materially misleading • (b) false or misleading if likely to create an “unreasonable” expectation about results the lawyer

“can or has achieved, which shall be considered inherently misleading for purposes of this Rule; • (d) false or misleading if “contains” a testimonial or endorsement that violates any portion of this

Rule; • (e) – every ad indicating a contingent fee must contain the following disclaimer – “You may

have to pay the opposing party’s atty fees and costs in the event of a loss” • Rule 7.2 Advertising

♦ (a) subject to 7.1 & 7.3, lawyer may advertise services through written, recorded or electronic communication, including public media.

♦ (b) shall not give anything of value to person for recommending lawyer’s services, except lawyer may (1) pay reasonable costs of ads or communications permitted by this Rule (2) pay usual charges of legal services plan or not-for-profit or qualified laywer referral

service (a qualified lawyer referral service is one that’s been approved by an appropriate regulatory authority

(3) pay for a law practice in accordance with 1.17, and (4) refer clients to another lawyer or nonlawyer professional pursuant to agreement not

otherwise prohibited under these Rules that provides for the person to refer clients or customers to the lawyer, if (i) reciprocal referral agreement isn’t exclusive, and (ii) client is informed of the existence & nature of the agreement

♦ (c) any communication made pursuant to this rule shall include name & office address of at least one lawyer or firm responsible for its content

• Nevada Rule 7.2(b) – if appear as lawyer in ad for legal services, must be member of NV bar & be lawyer who will actually perform the services advertised or be associated with the law firm advertising; if employee, must be noted; if actor in role not prohibited by Rules, ad must disclose the person is an actor

• NV 7.2(g) – can advertise statements describing or characterizing quality of services, but such statements are subject to proof of verification, to be provided at request of state bar or client or prospective client; ♦ NV 7.2A – requires lawyer to file all ads w/State Bar within 15 days of first dissemination; ♦ NV 7.2B

(a) commands State Bar to create “Standing Lawyer Advertising Advisory Committees” to review filings under 7.2A and to respond to written requests from advertising lawyers or firm voluntarily seeking advance opinion regarding compliance with the advertising rules;

(c) – permits lawyer or firm to file written request with state bar seeking advance opinion on whether proposed ad complies with the Rules

• Rule 7.3 Direct Contact with Prospective Clients ♦ (a) can’t by in-person, live phone or real-time electronic contact solicit professional

employment from prospective client when significant motive for doing so is lawyer’s pecuniary (relating to money) gain, unless person contacted (1) is a lawyer or (2) has family, close personal or prior professional relationship with the lawyer

♦ (b) can’t solicit professional employment from prospective client by written, recorded or electronic communication or by in-person, phone or real-time electronic communication even if not otherwise prohibited by (a) if:

(1) prospective client made known to lawyer a desire not to be solicited by the lawyer, or (2) solicitation involves coercion, duress or harassment

♦ (c) every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside of the envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient is specified in (a)(1) or (a)(2)

♦ (d) notwithstanding prohibitions in (a), lawyer may participate with prepaid or group legal service plan operated by org not owned or directed by the lawyer using in-person or phone contact to solicit memberships or subscriptions for the plan from persons not known to need legal services in a particular matter covered by the plan

• Nevada Rule 7.3 ♦ (a) defines solicit to include “contact in person, by phone, telegraph of fax, by letter or other

writing, or by other communication directed to a specific recipient” ♦ (d) – written communication directed to a specific prospective client who may need legal

services due to a particular transaction or occurrence is prohibited in NV within 45 days of the transaction or occurrence giving rise to the communication

• Rule 7.4 Communication of Fields of Practice and Specialization ♦ (a) may communicate fact that lawyer does or doesn’t practice in particular fields of law ♦ (b) lawyer admitted to engage in patent practice before the USPTO may use designation

“Patent Attorney” or substantially similar designation ♦ (c) lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in

Admiralty,” or a substantially similar designation ♦ (d) shall not state or imply certification as a specialist in a particular field, unless:

(1) has been certified as specialist by org approved by appropriate state authority or that’s been accredited by the ABA, and

(2) name of the certifying org is clearly identified in the communication • Nevada Rule 7.4

♦ (a) – may communicate that the lawyer is a specialist or expert or that he or she practices in particular fields of law, provided that the lawyer complies with this Rule;

♦ (d)(2)(iii) – requires any lawyer claiming to be a specialist shall carry a minimum $500k in professionaly liability insurance, with the exception of lawyers who practice exclusively in public law;

♦ A – establishes procedures for State Bar Board of Governors to approve orgs that certify specialists

• Rule 7.5 Firm Names and Letterheads ♦ (a) shall not use firm name, letterhead or other professional designation that violates 7.1. a

trade name may be used by lawyer in private practice if it doesn’t imply connection with a gov’t agency or with a public or charitable legal services org and is not otherwise in violation of 7.1

♦ (b) firm with offices in more than one jurisdiction may use same name or other professional designation in each jurisdiction, but identification of lawyers in an office of the firm shall indicate the jurisdictional limitations on those licensed to practice in the jurisdiction where the office is located

♦ (c) name of lawyer holding public office can’t be used in name of a firm or its communications during any substantial period in which the lawyer is not actively and regularly practicing with the firm

♦ (d) lawyers may state or imply they practice in a partnership or other org only when that is the fact

• Nevada Rule 7.5 ♦ (b) firm with offices in more than one jurisdiction that has registered with the State Bar of

NV under NV 7.5A may use same name in each jurisdiction;

♦ A(a) all law firms with office in NV and in one or more other jurisdictions shall register with the State Bar of NV and shall pay annual fee of $500 for such registration; requires info such as names & addresses of all lawyers employed by the firm, jurisdictions each lawyer is licensed to practice in, and verification of good standing for each in those jurisdictions;

♦ (c) provision doesn’t apply to lawyer who takes brief hiatus from practice to serve as an elected member of the NV State Legislature when the legislature is in session

Ohralik v. Ohio State Bar Assn The Constitution allows a state to discipline L for soliciting Cs in person for pecuniary gain, under

the circumstances likely to pose dangers that the state has a right to prevent, thereby banning personal solicitation (no ambulance chasers)

Zauderer v. Office of Disciplinary Counsel Commercial speech which is not false or deceptive, and does not concern unlawful activities, may be

restricted only in the service of a substantial gov’t interest, and only through means that directly advance that interest

Targeted ads are ok Shapero v. KY Bar Assn

State may not categorically prohibit Ls from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.

Targeted mail is ok Led to rewrite of 7.3 to allow for targeted direct mail to potential clients

In re Primus State may not punish L who advises a lay person of her legal rights and discloses in a subsequent

letter that free legal assistance is available from a nonprofit org with which the L & her associates are affiliated.

Primus was ACLU lawyer (i) advised patients of a clinic they had rights re sterilization procedure undergone so could keep getting Medicaid assistance (ii) ACLU advised appellant willing to represent her for free

Efficacy of litigation to advance civil liberties often depends on ability to make legal assistance available to suitable litigants

Dissent – state may reasonably fear a lawyer’s desire to resolve substantial civil liberties questions may occasionally take precedence over his duty to advance interests of his client