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How To Pretend I Am Ethical Kaitlin Campanini Dean Gross – Spring 2022 Grade: A KEY TERMINOLOGY...

How To Pretend I Am Ethical Kaitlin Campanini Dean Gross – Spring 2022 Grade: A KEY TERMINOLOGY 4 BAR ADMISSION 5 Rule 8.1: Bar Admission & Disciplinary Matters 5 REGULATING CONDUCT BY LAWYERS 5 Rule 8.4 Misconduct 5 Rule 1.2(d): Scope of Representation 6 Rule 4.1: Truthfulness in Statements to Others 7 Rule 8.5: Disciplinary Authority; Choice of Law 7 Rule 8.3: Reporting Professional Misconduct 8 Rule 5.1: Responsibilities or a Partner or Supervisory Lawyer 8 Rule 5.3: Responsibilities Regarding Nonlawyer Assistance 9 Rule 5.2: Responsibility of a Subordinate Lawyer 9 RELATIONSHIPS BETWEEN LAWYERS AND CLIENTS 10 Formation of the Lawyer Client Relationship 10 Rule 1.18: Duties to Prospective Clients 10 Rule 1.1: Competence 10 Rule 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer 11 Rule 1.3: Diligence 13 Rule 1.4: Communication 13 Rule 2.1: Advisor 15 Rule 1.14: Client With Diminished Capacity 15 Rule 1.16: Declining or Terminating Representation 16 THE DUTY TO PROTECT CLIENT CONFIDENCES 18 Rule 1.6: Confidentiality of Information 18 1. Is It Protected Information? 20 2. Is there Informed Consent or Implied Authorization? 20 3. Is There an Exception That Allows You to Disclose the Information? 21 ATTORNEY-CLIENT PRIVILEGE & WORK PRODUCT DOCTRINE 23 Attorney Client Privilege 24 Elements of A/C Privilege 24 Asserting the Privilege 24 Exception to the Privilege 25 Work Product Doctrine 25 CONFLICTS OF INTEREST BETWEEN CLIENTS 26 Rule 1.7: Conflict of Interest: Current Clients 26 Representing Both Parties to a Transaction 29 Rule 1.9: Duties to Former Clients 30 Rule 1.9(a) Representing Someone Adverse to a Former Client 31 1  1.9(b) Prior Firm Conflicts 32 1.9(c) Using or Revealing a Former Client’s Confidences 33 Rule 1.10: Imputation of Conflicts of Interest 33 Rule 1.18 Duties to Prospective Client 35 COMMON SCENARIOS FOR 1.9 & 1.10 36 Rule 1.13: Organization as Client 37 Do Lawyers Representing an Organization Also Represent Affiliated Organizations? 38 Lawyer of Organization Also Member of Board of Directors 39 CONFLICTS OF INTEREST BETWEEN LAWYERS AND CLIENTS 39 Rule 1.5: Fees 39 Fee Must be Reasonable 39 Communication of Fee Arrangements 40 Contingent Fees 40 Referral Fees 41 Rule 5.4(a): Professional Independence of a Lawyer (Sharing Fees with Non-Lawyers) 41 Rule 1.15: Safekeeping Property 42 Rule 1.8: Current Clients – Specific Rules 42 Business Transactions with Clients 43 Using Client Info to Disadvantage Client 43 Soliciting Gifts from Clients 43 Literary Rights 44 Financial Assistance to Client 44 When Someone Other than Client is Paying the Bill 45 Aggregate Settlement 46 Agreements with Client’s that They Won’t Sue For Malpractice 46 Acquiring a Lien on Client 47 Fucking Your Clients 47 Imputation 47 CONFLICT ISSUES FOR GOVERNMENT LAWYERS AND JUDGES 47 Rule 1.11: Special Conflicts of Interest for Former & Current Government Officers and Employees 47 Conflicts of Former Government Lawyers in Private Practice 48 Screening of Former Government Lawyers 48 Confidential Government Information 48 Conflicts of Gov’t Lawyers who FORMERLY Worked Outside Gov’t 49 What is a Matter? 49 Rule 1.12: Former Judge, Arbitrator, Mediator or Other Third-Party Neutral 50 LAWYERS’ DUTIES TO COURTS, ADVERSARIES, & THIRD-PARTIES 50 Rule 3.1: Meritorious Claims & Contentions 50 Rule 3.2: Expediting Litigation 51 Rule 3.3: Candor Toward the Tribunal 51 Rule 3.4: Lawyers’ Duties of Truthfulness in Preparing Witnesses to Testify 53 Rule 3.5: Impartiality & Decorum of the Tribunal 54 Rule 3.6: Trial Publicity 54 Rule 3.7: Lawyer as Witness 55 2  Rule 3.8: Special Responsibilities of a Prosecutor 55 Rule 3.9: Advocate in non Adjudicative Proceedings 56 Rule 4.1 Truthfulness in Statements to Others 57 Rule 4.2: Communication with Person Represented by Counsel 57 Rule 4.3: Dealing with Unrepresented Persons 58 Rule 4.4: Respect for Rights of Third Persons 58 REGULATORY RESTRICTIONS ON LAW PRACTICE 58 Rule 5.4: Professional Independence of a Lawyer 58 Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law 59 Rule 5.6: Restrictions on Rights to Practice 60 3  KEY TERMINOLOGY RULE 1.0 Terminology (a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances. (b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. (c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. (d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. (e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. (i) Objective and subjective standard. They can have actual knowledge or knowledge that can be inferred from circumstances ⇒ reckless disregard of the truth; pretending not to know is sufficient. (g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. (h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. (i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. (j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. (k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. (l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance. (m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter. (n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing. 4  BAR ADMISSION Rule 8.1: Bar Admission & Disciplinary Matters ➔ Candidate for admission must be honest with bar admissions authorities even if it delays the application process. ➔ This rule includes speaking about a candidate's mental health if asked on the application. Rule 8.1 Bar Admission & Disciplinary Matters An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. ⇒ 8.1 applies to both persons seeking admission and admitted lawyers. ⇒ This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. ⇒ knowingly denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. ⇒ Mere conviction of any crime is not sufficient to deny admission of an applicant to practice law. To cause disqualification of an applicant, the crimine in question must involve moral turpitude. REGULATING CONDUCT BY LAWYERS Every lawyer is responsible to help maintain the high standard of professional misconduct for himself and to report serious misconduct by others. Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (i) Lawyers are liable for the acts of agents too. (ii) Comment: Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (i) Gives basis for criminal acts that don’t nec. violate the ethics code, but adversely reflect on a lawyer’s fitness to practice. (ii) Comment: Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. 5  Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (i) This is a catchall provision: you can’t lie, be dishonest, or deceive whether or not it is in the practice of law. (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. (i) Must be conduct related to the practice of the law – not in one’s personal life – for it to fall under 8.4(g). Covers conduct even outside the representation of clients or beyond the confines of a courtroom, if related to the practice of law. (1) Comment: Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations. (ii) Only 7 states have adopted this rule in its entirety b/c it is vague/overbroad; gov’t deciding what conduct offends others. (iii) Comment: Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Misconduct does NOT have to: ⇒ Relate to the practice of law (except 8.4(g)) ⇒ Take place during the course of law practice E.g., Public officials’ misconduct in office (e.g., Nixon; Clinton) ⇒ Take place in the state of admission ⇒ Be charged or proven criminally ⇒ Be based on lawyer’s actions (can be based on employee’s conduct) Rule 1.2(d): Scope of Representation You can’t counsel a client to violate the law, but you can tell them what the boundaries are; if you were to do this, this would be illegal. Rule 1.2(d) (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or 6  fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. ➔ Comment: There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. ➔ Comment: When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). Rule 4.1: Truthfulness in Statements to Others In the course of representing a client, a lawyer shall not knowingly: (a) Make a false statement of material fact or law to a third person; or (b) Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 ★ Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. ★ Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. ★ In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6. Rule 8.5: Disciplinary Authority; Choice of Law Where a lawyer is admitted, he is subject to disciplinary authority regardless where the conduct happens. Additionally, can be subject to disciplinary authority of a jurisdiction he is not admitted in if he provides any legal services there. (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur. 7 ⇒ It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Rule 8.3: Reporting Professional Misconduct A lawyer MUST report conduct that they know of by other lawyers if it raises of substantial question of the lawyers fitness (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. ➔ Scope of duty to report ◆ Report only those Rule violations that raise a substantial question as to honesty trustworthiness or fitness ◆ "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance; refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. ◆ 8.3 does not technically require self-reporting. ➔ The duty is triggered by a lawyer’s knowledge. ➔ A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. ➔ Lawyer is NOT required to report if it requires a disclosure of client confidences under Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests. Rule 5.1: Responsibilities or a Partner or Supervisory Lawyer Supervising/Managing attorneys MUST ensure that they properly train their employees and make sure they are complying with the rules of. A supervising lawyer will be responsible for the actions of another lawyer in violation of the rules if they order the conduct or fails to take action to prevent it when they can. (a) A partner in a law firm, and a lawyer who 1. Lawyers must set up systems to prevent ethical problems. individually or together with other lawyers possess These include procedures to check for conflicts of interest comparable managerial authority in a law firm, shall and to manage client funds. make reasonable efforts to ensure that the firm has ○ Size of the firm may determine what systems are in effect measures giving reasonable assurance that sufficient: In a small firm of experienced lawyers, all lawyers in the firm conform to the Rules of informal supervision and periodic review of Professional Conduct. Train your people. compliance with the required systems ordinarily will (b) A lawyer having direct supervisory authority over suffice. In a large firm, or in practice situations in another lawyer shall make reasonable efforts to which difficult ethical problems frequently arise, more ensure that the other lawyer conforms to the Rules elaborate measures may be necessary. of Professional Conduct. Make sure they comply 2. If a subordinate lawyer commits an ethical violation, the with the rules. supervising lawyer is not responsible for that violation if (c) A lawyer shall be responsible for another lawyer's they didn’t direct OR know about it. However, could be a violation of the Rules of Professional Conduct if: breach of 5.1(b) to make reasonable efforts to prevent (1) the lawyer orders or, with knowledge of the violations. 8  specific conduct, ratifies the conduct involved; 3. A lawyer may be responsible for the conduct of a partner, or associate, or subordinate. Partners have e at least indirect (2) the lawyer is a partner or has comparable responsibility for all work being done by the firm” as well managerial authority in the law firm in which as supervisory responsibility for work being done by the other lawyer practices, or has direct subordinate lawyer son the matters they are responsible for. supervisory authority over the other lawyer, and 4. The directly supervising partner is not the only partner who knows of the conduct at a time when its may be responsible for a violation. Any partner who knows consequences can be avoided or mitigated but and fails to take action fails to take reasonable remedial action. ➔ "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. ➔ "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. Rule 5.3: Responsibilities Regarding Nonlawyer Assistance Same as 5.1, but it applies to non-lawyers working in a firm. With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; Train your people. (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and Make sure that they don’t violate the rules. (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. ➔ Non-Lawyers include assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. ➔ The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. ➔ A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. Rule 5.2: Responsibility of a Subordinate Lawyer A subordinate lawyer cannot just say that they were following orders to get out of violating a Rule. Exception: if it is a reasonable resolution of an arguable question of professional duty, it is okay to err on the side of the supervising attorney.. Conflict of interest might be an example. 9  (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. ➔ Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document's frivolous character RELATIONSHIPS BETWEEN LAWYERS AND CLIENTS Formation of the Lawyer Client Relationship ★ The most common way is through a formal agreement. However, there can be a relationship without a formal agreement. ★ Togstad ⇒ an attorney-client relationship is created whenever an individual seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice. ○ To determine if an A/C relationship has been created, we focus on the expectation of the person who wants advice, not on the expectations of the lawyer. ○ Before giving an opinion, a lawyer must consider whether the person seeking the opinion would reasonably treat it as legal advice and rely on it. Rule 1.18: Duties to Prospective Clients This rule STOPS when the lawyer-client relationship begins. If the lawyer doesn’t give any advice, they are likely to stay a prospective client. See full rule in CONFLICTS. (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. Rule 1.1: Competence When representing a client, the lawyer must act competently. If the lawyer is not capable of providing competent representation, he should not take the case. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances. Factors in Determining Requisite Skill Exceptions to Skill Level 1. The complexity and specialized nature of ★ A lawyer may accept representation despite lacking competence in the the matter; field where the requisite level of competence can be achieved by 2. The lawyer’s general experience; reasonable preparation. 10  3. The lawyer’s training and experience in ★ In an emergency a lawyer may give advice or assistance in a matter in the field in question; which the lawyer does not have the skill ordinarily required where 4. The preparation and study that the lawyer referral to or consultation or association with another lawyer would be is able to give the matter; and impractical. Even in an emergency, however, assistance should be 5. Whether it is feasible to refer the matter limited to that reasonably necessary in the circumstances to, or associate or consult with, a lawyer ★ A lawyer need not necessarily have special training or prior experience of established competence in the field. to handle legal problems of a type with which the lawyer is unfamiliar Thoughtfulness and Preparation ★ To handle a matter competently, a lawyer must inquire into and analyze the facts and legal elements of the problem, applying the methods and procedures used by competent practitioners. Retaining Other Lawyers to Assist in the Matter ★ Sometimes competence may be gained by consulting with other attorneys. However, before a lawyer retains or contracts with lawyers outside her firm to assist in the provision of legal services to the client, the lawyer: 1. Must reasonably believe that the services of the outside lawyers will contribute to the competent and ethical representation of the client, and 2. “Should ordinarily” obtain the client’s informed consent. Competence in Criminal Cases ★ To prevail on a claim for ineffective assistance of counsel (6th Amendment), the movant must show: 1. Counsel's performance fell below an objective standard of reasonableness. 2. Counsel's performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different. Rule 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer A lawyer and a client can agree that the lawyer will perform only specific limited legal services. (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. (i) The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities. 11 Lawyer and Client – Who has Authority??? ★ The client has the ultimate authority to determine the purposes to be served by the representation within limits imposed by law and ethics. ★ Lawyers = Agents; Clients = Principals – Clients are bound by whatever their lawyers do or fail to do. ★ Actual Authority (Express or Implied) ○ A client may give the lawyer express authority to act on their behalf. By asking a lawyer to represent you, you are authorizing that lawyer to take action that is reasonable and calculated to advance the client’s interests. ★ Apparent Authority ○ Might come up with settlement agreements – Has the client made it clear that something is NOT on the table? ★ Some Actions by Lawyer’s that May Not Bind Clients 1. Whether the settle a case 2. Accept a plea 3. Waive a jury trial 4. Whether they will testify. ★ Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. ★ Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. ★ Disagreement with Lawyer and Client ○ If disagreement arises lawyers should consult other laws that might be applicable and consult the client to seek a mutually acceptable resolution. ○ If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. Rule 1.16. ○ A Lot of times court’s will defer to the expertise of the lawyer on the types of arguments to make and stuff like that. ★ Agency Actions: At the beginning of the relationship, a client may give a lawyer authority to take action on their behalf. The client may, however, revoke such authority at any time. Limiting the Scope of Representation ★ The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. ○ Example: When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. ★ Limited Representation May ○ Arise because the client has limited objectives; ○ Exclude specific means to achieve the client’s objectives; ○ Exclude actions that the client thinks are too costly or that the lawyer regards as repugnant. ★ Limited Representation Must must be reasonable under the circumstances. ○ Okay: If a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. ○ Not Okay: Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Criminal, Fraudulent, and Prohibited Transactions ★ A lawyer cannot counsel a client to commit a crime or fraud, BUT a lawyer can give an honest opinion about the actual 12  consequences that appear likely to result from a client’s conduct. ○ Not Okay: The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. ★ A lawyer is not necessarily at fault just because the client used the lawyer's advice in a course of illegal action. ⇒ distinction b/w advising client and helping client do illegal shit. ★ A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. ○ In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. Rule 1.3: Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Diligence Means: ★ A lawyer should pursue a matter on the client’s behalf despite opposition, obstacles, and personal inconvenience, and may take whatever lawful and ethical measures are required to vindicate the client’s cause. ★ The lawyer should act with dedication and commitment to the client’s interests and with zeal in advocacy on the client’s behalf. ★ A lawyer must control their workload, so they can handle each matter competently. ★ A lawyer should not procrastinate; act with reasonable promptness. Procrastination can affect a client’s interests in substance and/or cause them anxiety. ○ A lawyer's duty to be prompt does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client ★ Once a lawyer agrees to handle a matter for a client, the lawyer must see the matter through to completion (unless termination or withdrawal is required/permitted). ○ Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. ★ If a lawyer is a sole practitioner, they plan for someone to take on their cases if they die. Diligence Does NOT Mean: ★ Diligence does NOT mean that a lawyer has to press for every advantage that might be realized for a client. They are able to use their professional discretion. ★ Acting with diligence does not require the use of offensive tactics. Rule 1.4: Communication Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; 13  (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Informed Consent: If you need their informed consent, get it promptly by explaining all the material risks and reasonable alternatives to the client. ⇒ unless prior discussions with the client have resolved what action the client wants the lawyer to take. ★ Is there a waivable conflict? ★ Is there an offer to settle or a plea bargain? ○ Must be conveyed to client unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. Keeping Client Updated: ★ Keep the client updated on the status of the matter AND let the client know about the means you are using to accomplish their objectives. ○ Sometimes, this will require consultation prior to taking action ○ Othertimes, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. ⇒ still need to inform the client of the actions that have been taken on the client’s behalf. ★ Explaining Matters: A client should know what is going on in the case enough that they can participate intelligently in decisions concerning representation and the means that are to be pursued. This doesn’t mean that every little thing needs to be explained. ○ The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. ○ When Fully Informing is Impracticable – the amount and kind of information and explanations the lawyer should give the client depend on the client’s situation. Diminished Capacity – See 1.14 When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. Regular Established Relationship – if the attorney and client have a regular relationship regarding routine matters, the two of them may agree on a convenient arrangement for only limited or occasional reporting. Request for Information by Client ★ If a client makes a reasonable request for information, you must comply promptly. ★ if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Can a Lawyer Withhold Information? ★ In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. ○ Example: a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates 14  that disclosure would harm the client. ★ A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. ★ Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 8.4(c) ⇒ You can’t lie to your client. Rule 2.1: Advisor Give your client candid advice, and don’t just tell them what they want to hear.. In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. Scope of Advice – A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. ★ Super technical legal jargon can be confusing. Give them the big picture where practical considerations, such as cost or effects on other people, are predominant. ⇒ it is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. ★ IF purely technical advice is asked: ○ When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. ○ When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations. ★ Sometimes a lawyer may need to advise a client to go OUTSIDE THE LAW and consult with another field to get competent advice. ○ Ex: Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; ○ Ex: Business matters can involve problems within the competence of the accounting profession or of financial specialists. When Should a Lawyer Offer Advice ★ Generally, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Rule 1.14: Client With Diminished Capacity Maintain the relationship in as normal a manner as you can. (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. If capacity is diminished, proceeds in the normal attorney client relationship “as far as reasonably possible” (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take 15  action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. Sometimes a lawyer needs flexibility to assume a more paternalistic role to protect clients from harm. In such cases, a lawyer may ask the court to appoint a third party who would make decisions on their behalf. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. Don’t share this shit that doesn’t need to be. Lawyer’s Duties ★ Just because a client has diminished capacity does not mean that they cannot make some decisions affecting their own well being ○ Young children can give valuable opinions about who should have custody of them. ○ Many old clients can handle their financial matters, but might need legal protection for big transactions. ★ The lawyer has a duty to maintain a normal relationship with diminished client’s as far as reasonably possible. ★ The lawyer has a duty to treat the client with attention and respect. ★ Even if a client has a guardian or other representative, the lawyer should, as far as possible, treat the client as a client particularly in communication with the client about significant developments. ★ The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Protective Action and Appointment of Guardian ★ When the client has diminished capacity and faces a risk of substantial physical, financial, or other harm, the lawyer may take reasonable actions to protect the client. ⇒ makes it clear that the lawyer may take other actions than those mentioned in the rule to protect client. ★ These actions include consulting with people or entities that can protect the client, and, when appropriate, seeking the appointment of a guardian or similar surrogate. ★ A lawyer can and should make a preliminary assessment of a client’s mental capacity. ★ When taking protective action, the lawyer has implied authority to reveal the client’s confidential information, but only to the extent necessary to protect the client. Emergency Legal Assistance to Nonclient with Seriously Diminished Capacity ★ In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person's behalf has consulted with the lawyer. ★ Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. ★ The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. ★ In an emergency situation, confidences may be disclosed only to the extent necessary to accomplish the intended protective action. ★ Normally, a lawyer would not seek compensation for such emergency actions taken. Rule 1.16: Declining or Terminating Representation There are two ways to end a relationship in the middle of representation: mandatorily withdraw or permissively withdraw. (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or 16  (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Declining Representation: A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. Natural End of Relationship: Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. ★ A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the ethical rules. ★ However, The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct ★ If Appointed: to represent a client, withdrawal ordinarily requires approval of the appointing authority. Mandatory Withdrawal ★ Pending Litigation – court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. ★ Confidentiality Problem – Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient ★ The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client's interests. ★ Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct Permissive even if the lawyer does not further it. Withdrawal ★ Withdrawal is also permitted if the lawyer's services were misused in the past even if that would materially prejudice the client. ★ The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. 17  ★ A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation. ★ A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances. ★ Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences Discharge may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client. ★ If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. Duties to Client at the End of Attorney Client Relationship 1. If work completed, return any papers and property to which client is entitled (MR 1.16(d)) ○ Client entitled to client’s originals and lawyer’s “end product”, including significant correspondence, filed briefs, applications for licenses, etc. ○ Client is not entitled to papers and property that the lawyer generated for the lawyer’s own purpose in working on the client’s mater (attorney work product; drafts of “end product”), unless showing of harm to clients interest absent delivery. ○ When lawyer’s representation ends mid-matter, protection of client’s interest may require that certain materials the lawyer generated for lawyer’s own purpose be provided to the client. 2. If work not completed, duty to safeguard client’s property (including documents) and deliver to client upon client’s request (MR 1.15) 3. Return any unearned payment client made 4. Continuing, indefinite duty to protect client confidences 5. Lawyer can retain documents if client has not paid bill in full, unless would “unreasonably harm the client” (retaining lien) THE DUTY TO PROTECT CLIENT CONFIDENCES Rule 1.6: Confidentiality of Information General Rule (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). Exceptions (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; 18  (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney- client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Hacking rule, take steps to protect your information in the cloud. Accidental Disclosure – Hacking Rule??? Unauthorized access is not a violation if lawyer made reasonable efforts to prevent it. The comment does not describe the steps that a lawyer must take but lists factors to consider: ○ the sensitivity of the information, ○ the likelihood of disclosure in the absence of additional safeguards ○ the cost of and difficulty of implementing additional safeguards ○ the “extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).” RULE 1.6 ANALYSIS 1. Is it protected information? 2. If it is protected, you may not reveal it or use it unless the client gives you informed consent. 3. If not informed consent , do you have implied authorization? 4. If neither, you may disclose the information if it falls into an exception. 19  Is there information Is the revealing the information for: relating to representation Preventing reasonably certain death or You MUST of a client? substantial bodily harm NOT disclose Preventing client from committing the Yes crime/ fraud reasonably certain to result in injury to financial interest or Do you have informed N property of another which has used consent, or implied o your services authorization to disclose? Preventing/ mitigating/ or rectifying substantial injury to financial interests/ Yes property of another that is reasonable certain to result from client’s fraud/ You MAY crime using your services disclose the Securing legal advice about information. compliance with rules Establishing claim/ defense for lawyer against claim or allegation against their conduct If using exceptions Complying with other law/ court order (2) or (3), would failing to disclose a You MUST material fact when disclose the permitted assist a information client’s criminal or fraudulent act? You MAY disclose the information 1. Is It Protected Information? ★ Rule 1.6 protects “information relating to the representation of a client” ⇒ any information a lawyer learned in connection with a matter the lawyer is handling for a client’s case, regardless of whether the lawyer receives the information from the client or form another source ★ This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. ○ It matters whether the third party is ABLE to do it, not whether they are likely allowed to do it. ★ A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. ★ Information generally understood to be confidential ○ Personal information relating to the client the disclosure of which would be embarrassing or detrimental to client; ○ Information learned from client, and information learned from interviews, documents, photographs, observation, or other sources. ○ Information relating to the representation acquired before the representation begins and after representation terminates ○ Notes or memos that the lawyer created relating to the matter. ★ Conversations about past crimes are confidential 2. Is there Informed Consent or Implied Authorization? ★ Informed Consent to Disclosure ○ To obtain informed consent, the lawyer must communicate “adequate information and explanation about the material risks of and reasonable available alternatives to the proposed course of conduct.” ○ Consent in Writing is probably better. ★ Implied Authorization to Disclosure 20  ○ Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. ○ In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. ○ Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. 3. Is There an Exception That Allows You to Disclose the Information? To Prevent Death or Bodily Injury (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; ★ Recognizes the value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or bodily injury. ★ “Reasonably Certain” ⇒ Will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. ○ MUST be based on knowledge!!!! CANNOT be based on suspicion or concern. ★ Example: a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyers disclosure is nec to eliminate the threat or reduce number of victims. Before Fraud has Occurred (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; ★ Limited rule: Allows lawyer to reveal information necessary to prevent client’s future conduct WHEN ○ Lawyer’s services were used ○ reasonably certain that it will result in substantial financial injury ○ Purpose is to prevent fraudulent act ★ Such a serious abuse of client/lawyer relationship by the client forfeits the protection of this Rule. ★ Permissive disclosure, BUT the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent After Fraud has Occurred (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; ★ Limited rule: Allows lawyer to reveal information necessary to prevent prevent, mitigate or rectify client’s past conduct WHEN: ○ Lawyer’s services were used ○ Reasonably certain that it will result in substantial financial injury ★ If the losses suffered could be decreased by disclosure, it may be permitted. ★ Does not apply when a person employs the lawyer for representation concerning the particular defense. 21  Permits a lawyer to reveal confidences to the extent nec for the lawyer to obtain advice about complying with the rules of professional misconduct. (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (4) to secure legal advice about the lawyer's compliance with these Rules; ★ A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these Rules. ★ In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct. Revealing confidential info is allowed to the extent nec. to establish a claim for legal fees, to defend herself against any civil claim, or any criminal charge that involves the lawyer’s work on behalf of a client, or to respond to any allegations that she has engaged in professional misconduct. (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; ★ Limits on Revealing Shit Under this Exception: ○ Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. ○ SO, if a lawyer needs to reveal confidences to protect their own interest, they must take steps to avoid the need for revelation, to limit its scope, or to limit the dissemination of the information. ★ A lawyer does not have to wait until a lawsuit or charge is filed before they can reveal confidential info to defend themself. ○ A lawyer may respond to any assertion that he has engaged in a wrongdoing by revealing info nec to defend themself. ○ This right arises when an assertion of wrongdoing has been made, so that the defense may be established by responding directly to a third party who has made such an assertion ★ A lawyer may be allowed to reveal confidences even if he is not alleged to be the primary wrongdoer. ○ Someone might be alleging they were defrauded by the lawyer and the client acting together. Under what conditions may a lawyer reveal confidential information in self-defense? To establish a claim against a client for unpaid fees To defend against a claim of malpractice or other civil liability against the lawyer To defend against a disciplinary proceeding To defend against a criminal charge When is revelation allowed? The lawyer need not wait for formal proceedings to be instituted by may reveal info to prevent such an action. When authorized, how much can a lawyer reveal? No more than nec to vindicate the lawyer. The lawyer should minimize the number of people who learn the confidential info revealed, should seek a protective order, and should take other available steps to avoid dissemination of the information. Should the lawyer inform the client before revealing confidential information? Yes. The lawyer should notify the client before using confidential information in self-defense and should seek solutions that do not require the lawyer to make the revelation, but the lawyer may use the information even if the client does not consent. 22  Court orders take precedence over the obligation to protect a client’s confidences (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (6) to comply with other law or a court order; or ★ Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. ★ In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court's order. Permits limited disclosure to prevent conflicts of interest (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. ★ When Does this Rule Apply? ○ When a lawyer is considering an association with another firm, ○ Two or more firms are considering a merger, or ○ A lawyer is considering the purchase of a law practice. ★ What Kind of Disclosure is Allowed? ○ disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated. ★ Disclosure is Still Prohibited IF: the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client ⇒ NEED INFORMED CONSENT ○ The fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; ○ That a person has consulted a lawyer about the possibility of divorce before the person's intentions are known to the person's spouse; or ○ That a person has consulted a lawyer about a criminal investigation that has not led to a public charge ATTORNEY-CLIENT PRIVILEGE & WORK PRODUCT DOCTRINE Ethical Duty to Protect Attorney-Client Privilege Work-Product Doctrine Confidences Source Ethical Duty, Rule 1.6 Common Law Evidence Rule FRCP 26(b)(3) Information relating to the Narrower Scope: confidential Material, Esp. “mental representation of a client communication b/w a lawyer and impressions,” prepared by lawyer Scope (obtained from any source). a client for the purpose of in anticipation of litigation obtaining legal advice. Professional discipline for Quash subpoena or otherwise Refuse to produce discovery. Method of improper revelation of exclude the communication as Enforcement confidences. evidence. 23 Attorney Client Privilege One of the exceptions to Rule 1.6 is if the court compels disclosure. If the information is both confidential AND privileged, it becomes the lawyer’s duty to express that privilege Elements of A/C Privilege 1. An AC Relationship 2. The communication must have been made in confidence (client’s reasonable belief) ○ Restatement 71: ““A communication is in confidence...if, at the time and in the circumstances of the communication, the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person...” ○ If a third party who is not necessary to the communication is present during the communication, clients may lose privilege. i. Employees of the lawyer may be present ii. Someone who is helping with representation (translator, consulting expert, investigator, may be present) iii. A casual friend in the room is problematic. iv. NOTE: If a lawyer is representing two clients in a case… the communications between the two clients are privileged against the outside world. But, it is not privileged against the two clients. If their interests are no longer aligned, they are allowed to disclose UNLESS there was an agreement from the outset that it was disclosed. 3. The communication must be made for the purpose of giving or obtaining legal advice. ○ If a client asks for “business” advice, the conversation is not privileged. ○ If a conversation is partly personal advice and partly legal advice, only the portion about legal advice is privileged. Scope: privilege covers oral or written communication to a lawyer, not underlying facts. Does not cover someone’s appearance or physical evidence. ★ If a client makes a map of a building that the client intends to use to kidnap a person and keep them in the building… that doc and the map doesn’t take on the privilege. Giving something to the lawyer doesn’t make something privileged. The client made the map for purposes of carrying out the crime, not for the purpose of legal advice. ○ However, if the lawyer, in the scope of representation, asks the client to draw the map to help with the case… now it is privileged b/c it was for purposes of getting legal advice. Asserting the Privilege Type of Case A Lawyer Might Assert the Privilege If: A lawyer or client is subpoenaed to testify before grand jury A lawyer is subpoenaed to testify before a petit trial jury Criminal Cases A client is cross examined during a trial A client's documents are seized from his lawyer pursuant to a search warrant Discovery is sought from a lawyer or client through depositions, Civil Cases and Admin Adjudications interrogatories, or requests for production of documents A lawyer is called to testify before a judge or jury at trial Legislative and Administrative A lawyer or a client is subpoenaed to testify before a legislative Investigations committee or an administrative agency A lawyer seeks to avoid disclosure by preemptive proceeding or A Reporting Statute Appears to Compel invokes the privilege to defend against penalties for not having made a Lawyer to Disclose a Communication disclosures. 24 Exception to the Privilege 1. Waiver – Attorney client privilege can be waived if: ○ Express or inadvertent revealing of info to non-privileged persons by client. ○ If it is revealed by lawyer with the authority of client. ○ Inaction ○ Revealing to 3p ○ Putting communication at issue ○ Part disclosure ○ Compliance with court order. 2. The Sixth Amendment ○ SCOTUS has declined to decide whether the 6th amendment can overcome the AC privilege. A few lower court decisions have found that the privilege isn’t absolute. 3. Lawyer’s Self-Defense ○ In a few cases, fed courts have stated that an attorney may reveal privileged info to defend himself 4. Crime-Fraud ○ Privilege does not cover a conversation in which a client asks a lawyer for advice in planning or help in committing a crime or fraud. i. This doesn’t apply to advice as to what acts are legal or or advice about past acts. ○ If client tries to get information from lawyer to commit fraud (in the client’s mind), this isn’t covered. Even if the lawyer doesn’t know that this is the client’s intention. Work Product Doctrine ★ Discovery Rule that protects documents and other material (notes of interviews with non-clients, lawyer’s impressions or thoughts about the case) that the lawyer prepares in anticipation of litigation. ★ This is not an absolute right. Discovery might be compelled upon a showing of “substantial need” of materials in preparation of case that the other party is unable to obtain without undue hardship. 25  CONFLICTS OF INTEREST BETWEEN CLIENTS Type of Conflict Simultaneous or # of Lawyers Lawyer(s) Work for Relevant Rules Sequential Involved the Same Firm Representation Concurrent Simultaneous One Yes 1.7, 1.8, 1.13, 1.18 Successive Sequential One Yes 1.7, 1.9, 1.11(a), (c), (d), 1.12(a) & (b) Imputed Simultaneous or Two or more Currently in same firm 1.10, 1.11(b), 1.12(c) Sequential but may previously have been in a different firm Rule 1.7: Conflict of Interest: Current Clients A lawyer cannot represent a client if there is a concurrent conflict under 1.7(a) unless it satisfies ALL FOUR elements of 1.7(b) (a) Except as provided in paragraph (b), a (a) A concurrent conflict is one between two current obligations of the lawyer shall not represent a client if the lawyer – two clients, a client and another person, or a client and the representation involves a concurrent lawyer’s own interest. conflict of interest. A concurrent conflict of (1) “Directly adverse” means that a lawyer is acting directly interest exists if: against the interests of one of his own clients. → Necessarily (1) the representation of one client will be hurting the interests of one client in favor of another. directly adverse to another client; or (2) Even if there is no direct adversity, there is a conflict if there is (2) there is a significant risk that the a significant “likelihood that a different in interests will representation of one or more clients eventuate and, if it does, [that] it will materially interfere with will be materially limited by the the lawyer’s independent professional judgment.” Comment 8. lawyer's responsibilities to another (b) Even if a conflict is found under 1.7(a), in most cases a lawyer may client, a former client or a third person represent the conflicting interests if he obtains the clients’ informed or by a personal interest of the lawyer. consent. But if one of the conditions listed in (b)(1), (2), or (3) is not satisfied, the lawyer may not ask for client consent. (b) Notwithstanding the existence of a (1) A lawyer may not ask for consent “if in the circumstances he concurrent conflict of interest under lawyer cannot reasonably conclude that the lawyer will be able paragraph (a), a lawyer may represent a to provide competent and diligent representation” Comment client if: 15 (1) the lawyer reasonably believes that the (2) “For example, in some states substantive law provides that lawyer will be able to provide [even if the clients consents,] the same lawyer may not competent and diligent representation represent more than one defendant in a capital case” Comment to each affected client; 16. (2) the representation is not prohibited by (3) A lawyer may not represent adverse parties in litigation law; even with their consent. For example, a lawyer cannot (3) the representation does not involve the represent both plaintiff and defendant in a lawsuit requesting an assertion of a claim by one client amicable divorce. against another client represented by (4) To get informed consent, a lawyer must explain to each the lawyer in the same litigation or affected client the “ways that the conflict could have adverse other proceeding before a tribunal; and effects on the interests of the client”. Comment 18. Sometimes (4) each affected client gives informed this requires disclosure of another client’s confidences, which consent, confirmed in writing. requires that client’s consent. Comment 19. Spotting, Evaluating, and Responding to Conflicts 26 ★ Comment 2: Resolution of a concurrent conflict of interest under 1.7 requires the lawyer to: 1. Clearly identify the client or clients 2. Determine whether a conflict of interest exists 3. Decide whether the representation may be undertaken despite the existence of a conflict (i.e – whether it is consentable). 4. If it is consentable, consult with the clients affected and obtain their informed consent confirmed in writing. ★ Finding Conflicts Before Representation has Begun ○ Conflict can arise before representation has begun. At such time, the representation must be declined, unless informed consent is obtained. ○ To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. ★ Conflicts Arising After Representation ○ If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. ○ Also consider Rule 1.9 to see if lawyer may continue to represent any of the clients. DIRECT ADVERSITY MATERIAL LIMITATION ★ Absent consent, lawyer may not act as an ★ Even where there is no direct adverseness, a conflict of interest advocate in one matter against a person the