Professional Responsibility Outline PDF

lOMoARcPSD|48850210 Professional Responsibility Outline Prof Responsibility (University of Memphis) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Kourtney Thomas ([email protected]) ...

lOMoARcPSD|48850210 Professional Responsibility Outline Prof Responsibility (University of Memphis) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 PROFESSIONAL RESPONSIBILITY OUTLINE 1.0 Terms Belief: (subjective) denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances. Confirmed in writing: when used in reference to IC of a person, denotes IC that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. Send within reasonable time after obtaining IC. Fraud: denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. Informed Consent: agreement by a person to a proposed course of conduct after the lawyer has communicated adequate info and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Known: (subjective) actual knowledge of the fact in question. May be inferred from circumstances Reasonable: (objective) when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. Reasonable belief: (subjective & objective) when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that belief is reasonable. Reasonably should know: in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. Screened: 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 info that the isolated lawyer is obligated to protect under the Rules or law. Substantial: material matter of clear and weighty importance Tribunal: court or body acting in an adjudicative capacity. Acting as such = neutral official, after presentation of evidence or legal argument by a party, render a binding legal judgment directly affecting a party’s interests in a particular matter. Writing: tangible or electronic record. Signed = executed/adopted w/ intent to sign the writing. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Analysis: 1. Is __ a lawyer and thus bound by the ABA Model Rules of Professional Responsibility (The Rules)? a. State obvious facts from fact pattern to indicate person in question is a lawyer b. Conclude yes, bound by The Rules 2. Is the individual in question a client of __? a. As reflected in Togstad, the existence of a lawyer-client relationship is determined as viewed from the perspective of the client; if a person seeks and receives legal advice, and depends on whether a reasonable person would have relied on the legal advice provided by the lawyer to the potential client. It is not dependent on a payment for legal services. 3. Did __ provide competent representation when __ to Client? a. Rule 1.1 requires legal knowledge, skill, thoroughness, and preparation reasonably necessary to the representation in question be provided in order for a lawyer to have conformed to the competency requirement. Rule 1.0(h) provides the definition of “reasonable” as an objective standard, that of a “reasonably prudent and competent lawyer.” b. The comments provide factors to consider in determining whether requisite knowledge and skill have been employed, including: (1) complexity and specialized nature of the matter, (2) the lawyer’s general experience, (3) the lawyer’s training and experience in the field in question, (4) the preparation and study the lawyer is able to give the matter, and (5) whether it is feasible to refer/consult/associate the matter to/with a lawyer of established competence in the field. c. The comments further explain that a newly admitted lawyer may be able to provide competent representation without any special training or prior experience, depending on the circumstances. The most important legal skills required of competent representation are the ability to determine what kind of legal problems a situation may involve and adequate time to prepare or study the issues presented, particularly in a novel area of law for the lawyer in question. d. Required attention and preparation are determined in part by what is at stake, issues of greater complexity and consequence typically require a higher level of attention and preparation. e. Emergencies: Lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required for competent representation but the assistance should be limited to what is reasonably necessary under the circumstances. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 1.2 Scope of Representation and Allocation of Authority Between C and L (a) [a lawyer] [shall abide by C’s decisions] [concerning objectives of representation] and [shall consult with the client] (1.4) [as to the means by which they are pursued] L may take such action on behalf of the client as impliedly authorized to carry out the rep L shall abide by C’s decision whether to settle a matter Crim: L shall abide by C’s decision (after consultation w/ L) as to:  plea to be entered,  whether to waive jury trial, and  whether C will testify (b) L’s rep of C does not = endorsement of C’s views/activities (c) L may limit scope of rep if: (1) reasonable under circumstances and (2) C gives IC  IC = agreement by a person to a proposed course of conduct after L has communicated adequate info and explanation about material risks of and reasonably available alternatives to the proposed course of conduct  C8: L must provide disinterested advice if the lawyer believes that the client needs service that the lawyer has not agreed to provide. (d) [shall not counsel C to engage, or assist C, in conduct that L knows is criminal or fraudulent] but [L may discuss legal consequences of any proposed course of conduct with C] Notes: “Knows” [or any variation of it]: denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. (1.0(f))  Subjective  Seems to exclude negligent or perhaps even reckless conduct “Fraudulent” : denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. R. 1.0(d)  Generally, fraud involves an intentional misrepresentation of a material fact – a lie or a purposeful deception. Omission can constitute fraud, if intended to deceive another person (4.1(b) 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.  C1: L should pursue a matter for a C despite opposition or personal inconvenience and take whatever lawful/ethical measures are required to vindicate a client’s behalf.  Commitment, dedication to interests of C, zeal in advocacy  “not bound to press for every advantage that might be realized.”  means discretion, tied back to 1.2  rule does not require the use of offensive tactics or preclude a lawyer from treating all persons with courtesy and respect. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210  C2: Control workload to ensure competence  C3: [No procrastination!]  “zeal” is not in the black letter law anymore, just mentioned in comments.  Restatement § 16, c.f: lawyer arguably has an ethical duty to fulfill promises made to a client.  Remember to always formally withdraw from a case if leaving! 1.4 Communication (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 R.1.0(e), is required by these Rules;  Informed Consent: denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate info and explanation about the material risks of and reasonably available alternative to the proposed course of conduct (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;  “means” = some discretion by lawyer (R.1.2), still must consult with C  “objectives” = clients entitled to decide (3) keep the client reasonably informed about the status of the matter;  status = significant developments affecting the timing or substance of representation [C3] (4) promptly comply with reasonable requests for information; and  Can’t respond promptly? Explain when a response may be expected [C4]  Promptly respond or at least acknowledge C communications [C4] (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.  Should give C enough info “to participate intelligently” in decision about objectives and means.  Ordinarily not expected to describe trial or negotiation strats in detail [C5]  requires provision of info to a client about matters that require informed consent, about which a client must make a decision, about the status of a matter, and about matters on which the client has requested information.  “reasonable communication” requirement likely implies no lying to clients. C7: lawyer may “withhold” a psychiatric diagnosis of a client when an examining psychiatrist indicates that disclosure would harm the client, but no mention specifically of if allowed to lie about the diagnosis if the client poses a direct question to the lawyer. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 1.5 Fees (a) [A lawyer] shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputations, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Communication about Fee Arrangements 1.5(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.  rule recommends but does not require disclosure be in writing (unless contingent fee)  disclosure doesn’t have to happen before starting work, just within reasonable time after  lawyers don’t have to estimate the amount of time they will spend or the total fee Contingent Fees 1.5(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. [many criminal and domestic relations cases not allowed] A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. [gotta pay even if no recovery] Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. No Contingents in Domestic/Criminal Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 1.5 (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. Division of Fees 1.5 (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the decision is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; [financial and ethical responsibilities as if in a partnership] (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and [signed writing by client, complies with (c)] (3) the total fee is reasonable. 1.6 Confidentiality of Information (+TN) [Crime/Fraud Exceptions] (a) A lawyer shall not reveal information relating to the representation of a client UNLESS the client gives IC, the disclosure is impliedly authorized in order to carry out the representation (C5), OR the disclosure is permitted by (b).  includes disclosures that could reasonably lead to the discovery of such prohibited information by a third person. Hypotheticals are useful, but only if there is no reasonable likelihood the listener will be able to ascertain the identity of the client or the situation involved.  C3: Source of info irrelevant, info relating to representation of a C is protect by the rule.  [Restate] Generally known info = not confidential C info o Depends on all circumstances relevant in obtaining the info o Unless, C specifically requests info not be used/disclosed o L may not use/disclose confidential C info if reasonable prospect that doing so will adversely affect a material interest of C, or if C has instructed L not to use or disclose (lower standard than Model Rules) o L to take reasonable steps to protect confidential C info against impermissible use/disclosure  Fact of representation may not always be confidential, but can be based on circumstances (b) A lawyer may reveal info 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;  C6: such harm is reasonably certain to occur if it 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 three. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210  [Restate]: persuade C to not act or to warn V/prevent harm, advise as to L’s ability to use info under this section and consequences.  (TN): may turns into must in this situation (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; (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 C’s commission of a crime or fraud in furtherance of which the C has used the lawyer’s services; (2 and 3) Both: May reveal client criminal/fraudulent conduct IF: 1. there is a reasonable certainty that the client’s conduct will result in substantial financial injury or substantial injury to the property of another, a. (TN) Allows disclosure for financial/property injury as well as other crimes b. (TN) Allows disclosure in situations to prevent commission of crime by C or another person 2. the client is using or has used the lawyer’s services in committing the act(s), AND a. (TN) Not required 3. the purpose of revealing confidences is to prevent the criminal/fraudulent act or to prevent, mitigate, or rectify the harm resulting from the act(s). (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. Consider:  sensitivity of the info  likelihood of disclosure absent additional safeguards  Cost of additional safeguards  Difficulty of implementing such safeguards  Extent safeguards adversely affect the lawyer’s ability to represent clients (difficult to use device/software) “Reasonably believes”: subjective and objective standard C16: Revelation would be “necessary” only if Client refuses to take “action to obviate the need for disclosure” When a lawyer’s services have been used to assist a client’s crime or fraud, the balance tips in favor of permissive disclosure (balancing need for confidence and prevention of harm to public) 1.7 Conflict of Interest: Current Clients (+TN (c)) Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict exists if: (1) the representation of one client will be directly adverse [if lawyer’s conduct on behalf of one client requires the lawyer to act “directly” against the interests of another current client (C6)] to another; OR  C6: The need to cross your own client creates direct adversity o “inescapable direct adversity” implicates: diligence, competence, confidences  C7: direct adversity is not limited to litigation matters i.e., transactional with competing interests, etc. (2) there is a significant risk [“likelihood that a difference in interests will eventuate and, if it does, that it will materially interfere with the lawyer’s independent professional judgement” (C8)]that the representation of one or more clients will be materially limited [if a client would receive less vigorous representation from a lawyer because of the lawyer’s other responsibilities, there might be a material limitation] by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. [To evaluate whether a conflict is present, ask: (1) How likely is it that a difference in interests will eventuate? and (2) If there is such a divergence, would it materially interfere with the lawyer’s advice to or representation of a client? (C8)] [C23 has a bunch of examples] (b) Notwithstanding the existence of a concurrent conflict of interest [above], a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation [“if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation” can’t ask for consent (C15)] to each affected client; (2) the representation is not prohibited by law [some state laws prohibit rep even with consent in certain situations, such as capital cases (C16)]; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal [can’t rep both D and P even with consent in same case, think amicable divorce]; AND (4) each affected client gives informed consent, confirmed [not necessarily signed by the client!] in writing [Informed consent = explaining to each client the relevant circumstances and of the material and reasonably foreseeable “ways that the conflict could have adverse effects on their interests.” (C18) This could require disclosure of another client’s confidences, which requires that client’s consent (C19)]. C30/31: attorney-client privilege not attaching in certain co- representation situations, sharing of information, etc. C20: a writing purporting to fulfill the requirements of actually explaining the risks/advantages of representation as well as reasonable Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 available alternatives, with the reasonable opportunity to consider the risks/alternatives and raise questions/concerns does not suffice and the L must actually do the explaining. The writing is there to impress the seriousness of the decision and to avoid disputes/ambiguities. Also depends on level of sophistication of the Cs.  Informed consent is “agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternative to the proposed course of conduct” R1.0  email sufficient  written confirmation sent after oral agreement TN RULES 1.7 differences: (c) A lawyer shall not represent more than one client in the same criminal case or juvenile delinquency proceeding, unless: (1) the lawyer demonstrates to the tribunal that good cause exists to believe that no conflict of interest prohibited under this Rule presently exists or is likely to exist; and (2) each affected client gives informed consent. 1.7(a)(2) Situation: Positional Conflicts: Taking Inconsistent Legal Positions in Litigation  The Rules normally permit a lawyer may make inconsistent arguments on a legal issue in different courts at different times without running afoul of the conflicts rules. i.e. a “positional” conflict  Issues may arise depending on the likelihood that one client would be materially harmed if a lawyer made an argument in another case that was contrary to the client’s interest. i.e. significant risk of materially limited representation (soft pedaling one argument, alter strat to avoid impacting other client, etc.) “when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client” SRML exists, need to meet requirements of 1.7(b) If:  Significant risk of material limitation Then:  informed consent of the affected clients, OR  lawyer must refuse one of the representations or withdraw from one or both matters Consider these factors in positional conflicts issues [Restatement § 128]: 1. whether the issue is before a trial or appellate court a. ABA opinion said this didn’t matter as much as considering whether the decision in one case is likely to affect the decision in the other and whether the lawyer might be inclined to “soft-pedal” or otherwise alter one or another argument to avoid affecting the other case. 2. whether the issue is substantive or procedural Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 3. the temporal relationship between the matters 4. the practical significance of the issue to the immediate and long-run interests of the clients involved 5. the clients’ reasonable expectations in retaining the lawyer. 1.8 Conflict of Interest: Current Clients: Specific Rules (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a C unless: (1) Terms = fair and reasonable to C + full disclosure in writing, reasonably understandable by C (2) C advised in writing about seeking independent legal counsel and given reasonable opportunity to do so (3) C gives informed consent, signed in writing, to essential terms + L’s role in transaction, including whether L is representing C in the transaction (b) L shall not use info relating to representation of a C to disadvantage of C, unless IC (c) No soliciting substantial gifts from Cs, or prepare instrument for such gifts to L or relative of L, unless recipient is related to C. (close familial relationship) (d) after representation, no literary or media rights based on info relating to representation (e) Lawyer shall not provide financial assistance (f) accepting compensation from third party, must: (1) get IC from C, (2) no interference w/ L’s independence of professional judgment or w/ client-lawyer relationship; and (3) info relating to rep of a C is protected as required by R 1.6. (g) two or more Cs, no aggregated settlements/agreements, unless Cs give IC, in writing signed by Cs. (h) limitation to L’s liability:  prospective malpractice = C independently represented,  settle claim = C advised in writing about seeking independent legal counsel + opportunity to do so  arbitration = C fully informed about scope and effect of agreement  also remember entities like LLCs or LLPs as a way of limiting liabilities (i) no proprietary interest in CoA or subject matter of litigation L conducting for C, except: (1) lien authorized by law to secure L’s fee/expenses; and (2) K w/ C for reasonable contingent fee in civil case. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (j) no sex w/ C unless consensual sex relationship existed when client-lawyer relationship commenced.  (TN) only prohibited is sex relationship present SRML to representation (k) prohibitions (a)–(i) contagious in firms Rule 1.9 Duties to Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. [bar representation of a new client (absent consent) if new rep would involve “substantially related” matter (involve same transaction or legal dispute or if substantial risk that confidential factual info as would normally be obtained in prior rep would materially advance the C’s position in subsequent matter) AND material adversity] (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by R. 1.6 and 1.9© that is material to the matter; Unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter [bars use or revelation of confidences of former clients to same extent as barred for present Cs]: (1) use the information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the info has become generally known; or (2) reveal info relating to the representation except as these Rules would permit or require with respect to a client. Notes:  Lawyer always permitted to proceed with new work if lawyer can secure informed consent from former client (conflict that could adversely impact a present C might not be waivable)  Conflicts that impact former Cs raise problems only if there is a “substantial relationship” between work done for former C and the new matter (Conflicts that impact present clients may be problematic regardless of subject matter of the two reps) Situation Possible Interest Cant this conflict be Rule Harmed waived? Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 Lawyer knows (or Breach of Yes, by informed 1.9 might have had commitment to keep consent of former access to) info from a confidences of client former client that former client could be used adversely to the former client. New client wants Possible adverse use Yes, by informed 1.9 lawyer to sue of confidences of consent of present 1.7 lawyer’s former former client, and former clients, client, whom lawyer depending on subject unless the conflict is represented for years matter so severe that the on a variety of lawyer could not matters Lawyer’s advocacy reasonably believe on behalf of new that he could provide client might be competent and compromised by diligent relationship to former representation to the client new client Duties to former clients limited mainly to:  protecting confidences,  avoiding side-switching,  refraining from attacking the work the lawyer did for the former client A lawyer must decline any new matter that presents a substantial risk that the lawyer would make material adverse use of the former client’s confidences, unless former client consents. When does a present client become a former client?  Formal termination, or  “lawyer has completed the contemplated services” o course of dealing examination required here o Ks with a C are construed from the C’s viewpoint, C’s reasonable understanding of the scope of representation controls (Restatement) o time since last work done for a long-term client may not matter! Can you drop one client to take on representation of a more lucrative one?  if new matter would be adverse to first client, generally, lawyer may not drop the first client o lawyer can’t fire a client to lower the conflicts bar on a new client If one of the following conditions is met, lawyer may use more lenient successive conflicts standard to evaluate the conflict:  The lawyer withdraws at the natural end point in the representation  C fires the lawyer for reasons other than the impending conflict  C triggers a conflict for the lawyer by some action (e.g. acquiring a company that is a D in a matter in which the lawyer represents P) that was unforeseeable to the lawyer. Referred to as “thrust upon” a lawyer by the C. Withdrawing in this situation make C a former client. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210  Lawyer withdraws for some other good reason (e.g. if C insists that the lawyer assist in committing a fraud or if the C refuses to pay fees owed.) Can C preclude an adversary from hiring certain firms by creating concurrent conflicts?  unethical for a lawyer to suggest or participate in this practice  firms being sought could try an advanced waiver of conflict (effective in certain jurisdictions) o R.1.7(C22) advanced conflicts waivers condoned under circumstances where C is an “experienced user of legal service” and C is familiar with the type of conflict it waives. In House Counsel  former in-house counsel: corporation former client for matters lawyer actually worked on. If lawyer didn’t work on a certain matter and received no confidences about it, corp will not be viewed as a former client even for matters taking place during former employee’s tenure with them. Can you represent both spouses in a divorce?  Many states forbid it but permit a lawyer to assist both parties in preparing a settlement agreement, so long as the clients agree and the resulting settlement seems fair  A lawyer who improperly represents both spouses in a divorce may be subject to malpractice liability or discipline  TN Rule: requires you to file a CoA for divorce on fault or irreconcilable differences o In irreconcilable differences divorce both parties have to agree on every aspect of divorce o If the parties have a common objective then TN rule 2.2 governs o But if differences emerge, then counsel is disqualified from representing both clients o Most lawyers in this area don’t go down this road, but the rules permit it Insurance Companies and Insured Persons  lawyer being paid by one client (insurer) to represent both itself and another client (the insured).  governed by K and insurance law but PR provides useful guidance  Who is the client? o “a lawyer designated to defend the insured has a client-lawyer relationship with the insured. The insurer is not, simply by the fact that it designates the lawyer, a client of the lawyer.” (Restatement) o Insurer may also be a client but insured is always a client. o communications between insurer and counsel for the insured “should be regarded as privileged and otherwise immune from discovery by the claimant or another party to the proceeding.” o “the insurer should be accorded standing to assert a claim for appropriate relief from the lawyer for financial loss proximately caused by professional negligence or other wrongful act of the lawyer.” o Case law: lawyer may represent both the insurer and the insured so long as there is no conflict between their interests. e.g. a claim will be covered entirely by the Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 insurance policy, then usually the insurer and insured’s interests are largely aligned.  Can lawyer reveal confidential info from the insured person to the insurer? o No. Even if the insurer also is a client of the lawyer and even if “the insurer has asserted a ‘reservation of rights’” in the matter and informed the insured that it may refuse to pay the claim. o Can lead to estoppel of company from denying coverage if they use info to their benefit  When is there a conflict between the interests of the insurer and the insured? o R. 1.8(f):  A lawyer shall not accept compensation for representing a client from one other than the client unless:  (1) the client gives informed consent;  (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and  (3) information relating to representation of a client is protected as required by R. 1.6 o (C11&12)  third-party payers frequently have interests that differ from those of the client such as interests in minimizing the amount spent on representation and learning how the representation is progressing  lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer’s independent professional judgment and there is informed consent from the client. o Think about 1.7: significant risk of material limitation in representation by lawyer’s own interest in the fee arrangement or responsibilities to third-party payer  may continue representation with informed consent of each affected client, unless nonconsentable. Must be confirmed in writing. o Higher chance of conflict existing if damage award likely to exceed coverage amount of insurance policy.  What should the lawyer do if a conflict arises between insured and insurer? o act in the best interests of the insured, but obviously not assist client in fraud. o if insurer also a client, act in best interests of both, but if not possible ,withdraw from representation of both o insurer may have to pay for a separate lawyer for the insured if they contest coverage  Can a lawyer accept direction from an insurer as to how much to spend on discovery and other aspects of litigation? o duty of competent representation to insured. o anything beyond competency, the K between the insurer and the insured may delegate to the insurer authority to make decisions about discretionary efforts or expenses in litigation. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 o If insured might incur liability exceeding the policy limits, lawyer may not follow a direction by the insurer that would substantially increase the risk of such liability.  Disagreement over whether to settle? o lawyer’s professional obligations to the insured should govern the lawyer’s conduct in the event of a dispute about settlement. o if insurer wants to settle and the insured does not, lawyer must withdraw from representing both of them in the matter. o if insured rejects a settlement that is within the policy limit and wants to litigate, she will have to hire another lawyer at her own expense. o if insurer turns down a settlement and then damages are awarded in excess of the policy limits, the insurer often is required to cover the legal fees incurred. R. 1.10 Imputation of Conflicts of Interest: General Rule (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by R. 1.7 or 1.9, [firm of lawyers considered one lawyer for rules governing loyalty to client] UNLESS (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon R 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, AND (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquires or objections by the former client about the screening procedures; and (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client’s written request and upon termination of the screening procedures (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by 1.6 and 1.9(c) that is material to the matter (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in R. 1.7 C3: Need reasonable system for determining conflicts depending on size and type of the firm. “Screening” = procedures adopted are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect.  to be effective, measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening [once representation starts]  Do these things: o Disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm o Lawyers working on the matter should be informed that the screening is in place and that they may not communicate with the disqualified lawyer o Additional measures appropriate for the particular matter based on circumstances  Written undertaking by screen lawyer to avoid any communication, and/or any contact with any firm filed or other info (electronic form too)  written notice and instructions to all other firm personnel forbidding any communication  Denial of access by the screen lawyer to the info/files  periodic reminders If you get an effective screen in under this rule, you get to do 1.7 analysis for the current client excluding the screened lawyer (no imputation!), just looking at the other firm lawyers. *remember potential third person (the screened lawyer) or personal interest, per 1.7(a)(2)* [e.g. firm owes some loyalty to the screened partner, but does that really rise to significant risk of materially limited representation? Ehhhh, maybe throw it in there but probably not a problem, if anything, consentable concurrent conflict] **remember, 1.4 probably going to require you tell your own client about this stuff too Lawyer moves from Firm A to Firm B. The lawyer does not bring any clients with him. To analyze conflicts the lawyer carries with him into firm B based on confidences learned at firm A: 1.9(b) To analyze conflicts that other lawyers at firm B may have b/c of the lawyer’s work at firm A: 1.10(a) To analyze conflicts remaining at firm A as a result of work the lawyer did while there: 1.10(b) Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 1.13 Organization as Clients (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. [the client is the organization itself, not the constituents] (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. [reporting up when someone associated with the org is involved in unlawful or otherwise harmful to the org stuff] Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determine by applicable law. [lawyers should ordinarily defer to the decisions of corporate officers on “policy and operations,” unless those decisions are unlawful or likely to “substantially injure” the org, then report up duty commences. The required action by the lawyer depends on “the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved,” and other factors. Lawyer might just have to request reconsideration or review by higher authority in the org. Lawyer might have to report to someone outside the org.] (c) Except as provided in paragraph (d), If a. (1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and [allows reporting of confidential information to someone outside the org when lawyer is reasonably certain the conduct by an employee is reasonably certain to cause signification harm to the org] b. (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not R. 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. [no reporting out of the org if lawyer engaged to investigate possible illegal conduct or to defend the org or an employee against allegations of illegal action] Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal. [noisy withdrawal/firing section] (f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing. [inform constituents that have potentially conflicting interests with that of the org of the lawyer’s role as representative of the org] (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of R. 1.7. If the organization’s consent to the dual representation is required by R. 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. [lawyer may represent folks associated with the org so long as representation complies with R. 1.7. Obtain consent from the org.] Generally, a lawyer who is an employee of a corporation and represents the corporation may not undertake representation of shareholders of the corporation. [Restatement § 131] “A lawyer may not represent both an organization and a director, officer, employee, shareholder, owner, partner, member or other individual or organization associated with the organization if there is a substantial risk that the lawyer’s representation of either would be materially and adversely affected by the lawyer’s duties to the other.” Subsidiary Representation General Rule: 1.7 (C34): we rep a corporation, not their constituents or affiliated orgs, subsidiaries, etc. Unless, circumstances are such that the affiliate should also be considered a client:  understanding between lawyer and the organizational client that the lawyer will avoid representation adverse to the client’s affiliates, or the lawyer’s obligations More likely to be a client if:  the lawyer received confidential information from or provided advice to the related entity such as a subsidiary.  the entity was controlled and supervised by the parent organization.  the original client could be materially harmed by the suit against the related entity Less likely to be a client if: Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210  the lawyer no longer represents the initial corporate client  the two entities became linked (e.g. merger) after the lawyer began representation of the first entity. Reasonable conflicts check system, if typically represent corporations, likely would include a way of identifying all subsidiaries of any represented corporation. 1.14 Client with Diminished Capacity (a) When a C’s capacity to make adequately considered decisions in connection with a representation is diminished, whether b/c of minority, mental impairment or for other reasons, the lawyer shall, as far as reasonably possible, maintain a normal c-l relationship with the client. (b) When the lawyer reasonably believes that the C has a diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the C’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the C and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Info relating to the representation of a C w/ diminished capacity is protected by R 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under 1.6(a) to reveal info about the C, but only to the extent reasonably necessary to protect the C’s interests. 1.16 Declining or Terminating Representation (a) L shall not rep C, or shall withdraw, if: (1) rep will result in violation of the Rules (2) L’s physical/mental condition materially impairs L’s ability to rep C; or (3) L is discharged (b) L may withdraw from rep if: [Or] (1) no material adverse effect on interests of C (2) C persists in criminal/fraudulent course of action involving L’s services L reasonably believes is crime/fraud (3) C has used L’s services to crime/fraud (4) C insists on action that L considers repugnant or L fundamental disagreement with (5) C fails to substantially fulfill an obligation to L regarding L’s services, after reasonable warning that L will withdraw unless fulfilled (6) rep will result in unreasonable financial burden on L or unreasonably difficult by C (7) other good cause exists (c) L must comply with applicable law requiring notice or permission of tribunal for termination. If ordered to continue rep by tribunal, L must do so notwithstanding good cause for termination Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (d) Upon termination, L take steps reasonably practicable to protect C’s interests: like notice to C, time for employment of new L, giving over papers/property C is entitled to, refunding any advance payments not earned. R. 1.18 Duties to Prospective Client (a) A person who consults with a lawyer [consultation: through written, electronic, or in person communication. More likely consultation if lawyer invited the sharing of info w/o warning that he undertakes no duties. Unilateral communication or communication for the purpose of disqualifying the lawyer from representing someone else do not create a prospective client relationship] about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensures, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as R. 1.9 would permit with respect to information of a former client. [lawyer should avoid acquiring more info than needed to decide whether to go forward with representation.] (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter [can’t rep a current client if lawyer gets info from prospect that could be “significantly harmful” to prospect if it were told to current client] if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d) [get an agreement before consultation with a prospect that info disclosed will not preclude lawyer from representing a different client in the matter] (d) when the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: [imputation of conflict to other firm lawyers happens unless informed consent or firm takes reasonable measures to avoid exposure to more disqualifying info than reasonably necessary, screen the lawyer, and provide written notice] (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client.  Keep an eye out for possibility of inadvertently turning a “prospective” client into an actual client! Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 o websites, etc. Need clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations  Contacting a lawyer for the purpose of disqualifying the lawyer from representing a potential adversary DOES NOT create a prospect relationship.  “Screening” a lawyer requires only that the disqualified lawyer be isolated from lawyers working on a matter “through timely imposition of procedures... that are reasonably adequate under the circumstances” to protect the confidences. 2.1 Advisor In representing a C, a L shall exercise independent professional judgment and render candid advice. In rendering advice, a L may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the C’s situation  Permits but does not require L to counsel Cs about a range of considerations beyond the law, including the morality of their proposed actions. Which Truth-telling rule applies? Who might lie or deceive Situation (court, admin Lawyer’s obligation hearing, or discovery) Lawyer Lawyer is considering Lawyer must not do it. R. making a false statement of 3.3(a)(1), 8.4. fact or law to a judge Client Lawyer knows that her client Lawyer must counsel client is considering testifying and refrain from asking client falsely in court or in a questions that would elicit the deposition. false testimony. R. 3.3(a)(3) Civil client or witness in any Lawyer suspects but does not If lawyer “reasonably proceeding know that planned testimony believes” it is false, lawyer may be false; witness is not may refuse to offer the criminal D testimony––or may allow it. R. 3.3(a)(3) Criminal defendant Lawyer suspects but does not When D insists on testifying, know that planned testimony lawyer must allow it, if may be false; witness is lawyer “reasonably believes” criminal D but does not “know” it is false. R. 3.3(a)(3) Client or witness Lawyer Knows that her client Lawyer must counsel client to or other witness has testified correct the record; consider falsely during direct or cross withdrawing; correct record if necessary to undo the effect of the false evidence. R. 3.3(b) and (c), and C10 Client or witness Witness has misled the court Lawyer may have duty to Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 by making statements that are counsel client and correct the literally true but deceptive. record. R. 3.3(b), 8.4(c) Lawyer Lawyer knows of directly Lawyer must bring it to adverse controlling legal court’s attention (and may authority that has not been distinguish it or explain why disclosed by opposing it is not authoritative). R. counsel. 3.3(a)(2). Lawyer Lawyer knows of facts No need to disclose unless adverse to client’s interest, the proceeding is ex parte. R. not requested in discovery or 3.3(d) required to be disclosed by a court rule. R. 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of law or fact to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; [false statements by lawyers themselves, no clients/witness. Must correct once found to have made false statement] (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction know to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes to be false. [Rule applies to trial testimony, depositions, and other testimony related to adjudication (C1)] (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of info otherwise protected by R. 1.6. [final judgement affirmed on appeal or time for review has passed] (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 C8: Lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood. Lawyer’s duty if he knows that a client has lied to a tribunal R. 3.3 (C10): a lawyer cannot ignore an obvious falsehood. If a lawyer knows that a client has testified falsely, the lawyer must try to persuade the client to correct the record. If the client won’t, the lawyer must seek to withdraw or, if that will not “undo the effect of the false evidence,” must disclose the falsity to the tribunal, even if that will require disclose of confidential info. R. 3.4 Fairness to Opposing Party and Counsel (a) A lawyer shall not:... unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.  There must be some legal obligation to disclose independent from the ethical rules to make something “unlawful”  Such as: hiding evidence that was the fruit or instrumentality of a crime which the law required the lawyer to turn over to law enforcement officials. o criminal obstruction of justice statutes o court order (contempt of court) o discovery request or discovery rules imposing an ongoing duty of disclosure (R. 3.4(a)) o constitute a tort (spoliation) [less clear]  “potential evidentiary value” o look to circumstances: is an investigation reasonably anticipated? o ability to inspect and test physical evidence. Disagreement as to whether a lawyer should turn over evidence like that to the cops or return it to his client.  If a client tells a lawyer about the location of evidence, the lawyer may inspect the evidence but should not disturb it or move it unless doing so is necessary to examine or test the evidence.  If the lawyer merely inspects the evidence without disturbing it, the lawyer’s knowledge of its location remains privileged.  In many state, a lawyer may “take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence.... Applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority....”  If a client delivers physical evidence of a crime to a lawyer, the lawyer may examine and test the evidence but must turn it over to the law enforcement authorities within a reasonable period of time –– at least in some jurisdictions –– although this duty has been challenged as a violation of the Fifth and Sixth Amendments. The rule applies to documents as it does to other physical evidence. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210  A prosecutor who receives evidence of a crime from the lawyer for a suspect should take steps to avoid revealing to a jury the fact that the incriminating evidence came from the defendant’s lawyer. Concealment of Document and Other Evidence in Civil and Criminal Cases Limited obligation to reveal 3.4(a) applies to both civil and criminal but still requires “unlawful” element. Will be state by state determination. Civil is different because possession of such documents may not cover up a crime. Plus, discovery. Criminal Matters:  If a lawyer does not know that a violation of law has been committed and no criminal investigation is foreseeable, a lawyer has no duty to turn evidence over to a prosecutor.  In some states, the lawyer’s duty not to conceal tangible evidence takes effect as soon as the lawyer believes that an official investigation is about to be instituted. In other states, it does not begin until an investigation has actually started. Civil Matters:  Obligations in civil cases are governed by civil discovery rules as well as by professional responsibility rules. Soon after a civil case is commenced, a lawyer may have a duty under the pertinent rules of procedure to turn over some but not all info to the opposing party, even in the absence of a discovery request.  Some state laws require the preservation of business records for specified periods of time even if no dispute is on the horizon. In general, when a lawsuit is pending or foreseeable, individuals and businesses have more stringent duties to protect and eventually to disclose relevant material.  As in the case of tangible evidence, where no specific record preservation statute applies but a lawyer has some reason to believe that wrongdoing has occurred, state law varies as to when the duty to preserve evidence arises (i.e. whether a lawsuit or government investigation must have begun, be imminent, or merely be reasonably foreseeable)  In any event, once a duty to preserve documents applies, relevant records and object should be retained even if they could otherwise routinely be destroyed. (b) A lawyer shall not... falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. (d) A lawyer shall not... in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing counsel. 4.1 Truthfulness in Statements to Others (+TN) 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 Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (b) fail to disclose a material fact to a third persons when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by R. 1.6 [See interaction of this rule with 1.6(b), “may reveal” can turn into a “must” quickly] If a situation in which a lawyer’s failure to reveal would constitute “assisting a criminal or fraudulent act,” R.4.1 now requires a lawyer to reveal the info. R.3.3 Required disclosure to a tribunal based on lawyer’s client or another witness providing false testimony Also, R.1.16 may require a lawyer to withdraw from representing a client if 1.6(b)(2) is violated. R.1.6(b)(5) allows a lawyer to use confidential information to defend against claims about the lawyers work (civil, criminal, or a claim by a client against the attorney) but the lawyer must disclose only what is necessary. Under what conditions may a lawyer reveal confidential info in self-defense?  establish a claim against a client for unpaid fees  defend against claim of malpractice or other claim of civil liability against the lawyer  defend against a disciplinary proceeding  defend against a criminal charge When is revelation allowed?  No need to wait for formal proceedings to be instituted but may reveal info to prevent such action When authorized, how much can a lawyer reveal?  No more than necessary to vindicate the lawyer. Minimize number of people who learn the confidential info as much as possible (protective order, etc.) Should the lawyer inform the client before revealing confidential info?  Yes. Lawyer should notify the client before using the confidential info in self-defense and should seek solutions that do not require revelation, but then lawyer may use info even if client does not consent. (TN) Noisy Withdrawal R.5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers (a) A partner in a law firm, 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 all lawyers in the firm conform to the Rules.  includes requirement to implement/enforce procedures to check for conflicts of interest and to manage client funds (systems to prevent ethical problems)  size of firm/experience of lawyers = level of involvement of system  “law firm” includes legal service orgs, and legal departments of corporations, government agencies, and other orgs. Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules  Managing lawyer not responsible for violation of subordinate if manager did not direct or know about it, BUT could be a breach of 5.1 for failure to make reasonable efforts to prevent (c) A lawyer shall be responsible for another lawyer’s violation of the Rules IF: (1) the lawyer orders or with 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 other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take remedial action. R.5.2 Responsibilities of a Subordinate Lawyer (a) a lawyer is bound by the Rules notwithstanding that the lawyer acted at the direction of another person. (b) a subordinate lawyer does not violate the Rules if the lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.  Making “reasonableness determination: o Do some research o seek advice from someone more experience 5.3 Responsibilities for Nonlawyer Assistance 6.1  Lawyers generally have the discretion to decide which clients they will accept.  C1 recognizes the need or Ls to rep unpopular Cs, R doesn’t impose an obligation 8.1 Bar Admission and Disciplinary Matters  No knowingly false statements of material fact or failure to disclose fact necessary to correct misapprehension known  in bar application, lawyer in connection with bar admission process or any disciplinary matter  also, no failing to respond to a lawful demand for info from an admissions or disciplinary authority  but 5th amendment privilege and 1.6 still in effect R. 8.3 Duty to Report (a) a lawyer who knows that another lawyer has committed a violation of the Rules 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 Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 a. [standard for knowledge is objective ] “reasonable lawyer in the circumstance would have a firm opinion that conduct in question more likely than not occurred.” Restatement § 5, comment i. (b) [Required reporting for misconduct by judges] (c) This Rule does not require disclosure of information otherwise protected by R. 1.6 or info gained by a lawyer or judge while participating in an approved lawyers assistance program. Elements: IF (a) “Knowledge” [objective standard] (b) of another lawyer (c) committing a violation of the rules, (d) which raises “substantial question” about “honesty, trustworthiness or fitness” of other lawyer THEN (a) Must report other lawyer to disciplinary authorities UNLESS (b) Confidential info under R. 1.6, or (c) Learned through approved lawyers assistance program IF NOT, THEN (a) could be subject to discipline yourself R. 8.4(c) Misconduct It is professional misconduct for a lawyer to... engage in conduct involving dishonesty, fraud, deceit or misrepresentation. [applies to all conduct by lawyers, including before tribunals] Conflict Analysis Flowchart Is the individual not a client, a prospective client, a current client, or a former client? Not a client:  Certain general duties 8.4, 4.1 Prospective: (1.18) a) Person b) Consults i) Did lawyer specifically request or invite submission of info about potential representation? Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 ii) Were there any clear and reasonably understandable warnings or cautionary statements that limit lawyer obligations? (1) client’s perspective (2) in context with entire advertisement iii) Did the person provide information in response? iv) Unilateral communication to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship is not a prospective client. v) Communication for the purpose of disqualifying the lawyer from representing someone else does not create prospective relationship c) w/ Lawyer d) about possibility of forming a client-lawyer relationship Duties owed Prospective Clients: a) Confidentiality i) Info learned, can’t reveal, except as 1.9 would permit b) No conflicting representation i) interests materially adverse to those of prospect C ii) in same or substantially related matter iii) if info received from prospect could be significantly harmful to prospect in the matter iv) [law firm] imputation to whole firm (except (d)) c) (d) Exceptions: i) if disqualifying information received, rep still permissible if: (1) both affected client and prospect give informed consent, confirmed in writing; OR (2) [law firm] lawyer receiving info: (a) took reasonable measures to avoid exposure to more info than was reasonably necessary to determine rep, and (b) disqualified lawyer is timely screened w/ no fee, and (c) written notice is promptly given to prospect Current (1.7) a) Already gave any legal advice? b) Reasonable person would believe relationship had been formed/reasonable reliance on advice? c) (1.7) Determine whether a concurrent conflict of interest exists; (1) Concurrent Conflict: (a) Direct Adversity (i) Will representation of one client be directly adverse to another client? (Client A vs. Client B) (ii) e.g.: L reps CA and then sues CA as rep of CB, cross a client (iii) If you have Direct Adversity, you also have Significant Risk below (b) Significant Risk of Material Limitation (i) Look to, responsibilities to another: client, former client, or third person, or personal interest (ii) How likely is it that a difference in interests will eventuate? and Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (iii) If there is such a divergence, would it materially interfere with the lawyer’s advice to or representation of a client? (C8)] 1. if a client would receive less vigorous representation from a lawyer because of the lawyer’s other responsibilities, there might be a material limitation [there is overlap between this and the “reasonably believe competently/diligently represent” analysis (2) Decide whether the lawyer is permitted to represent the client despite the existence of a conflict (consentable under (b)?) (a) reasonably believes that [lawyer] will be able to provide competent and diligent representation given the circumstance, (focus: something about our representation of the other side that is going to keep us from doing all those “competent/diligent” things) (i) Objective standard, what would a reasonable lawyer think? (C15) (ii) Would there be an adverse effect on the representation of either client? 1. Are matters involved factually interrelated? 2. Joint representation of two parties with very divergent interests? 3. Present and former client; conflict only adverse to former? 4. Friendship of bond of professional loyalty to one C? 5. Sophisticated client? More so? (b) representation not prohibited by law, AND (c) representation doesn’t involve litigation that the lawyer is representing one client against another she is also representing in the matter (i) Is L only on one side of the “v”? (3) if so, consult with the clients affected by conflict (a), obtain their informed consent, and send written confirmation to the client of the informed consent (C2). (a) relevant circumstances and alternatives (b) may require obtaining consent to reveal confidential information from client (C19) (may be impossible to make disclosure necessary to obtain consent due to this requirement) ii) Remember: If a nonconsentable conflict emerges after a lawyer-client relationship has begun, the lawyer might be able to remedy the conflict by withdrawing from representation of one of the affected clients (C5). But, sometimes will have to give up both clients. Former a) Was there a formal termination? or b) “completion of the contemplated services?” i) course of dealing examination required here (1) Was the previous work a one-off or an ongoing relationship involving various matters/issues? (2) How much time has elapsed since last time you did something for them? (1 year or less, more likely to still be current, especially if ongoing relationship, maybe much longer) (3) Scope of termination letter, if any? (4) Nature of contact/relationship since services provided? Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 (5) Have they had other counsel in the interim? ii) Ks with a C are construed from the C’s viewpoint, C’s reasonable understanding of the scope of representation controls (Restatement) c) If a former client, 1.9 (duty to protect confidential info) analysis d) Is it the “same matter” as the previous one? i) Matter: anything that is subject of representation: litigation, a transaction, a subject on which a C requests advice. ii) Could be a document that the lawyer produced (can’t attack an instrument the lawyer drafted) e) If not, is it a “substantially related” matter to the previous one? i) Very fact specific ii) focus: what a lawyer might have learned during the first matter that could be used adversely to the former client in the second. iii) “substantial relationship:” whether a lawyer would normally have learned info from rep in the first matter that could be used adversely to the former client in the second matter iv) C3: substantial risk that confidential factual info as would normally have been obtained in the prior representation would materially advance the C’s position in the subsequent matter. (1) NOT actually learned info, but on ordinarily would have learned focused! v) (majority) fact-based analysis, not common legal issue based vi) Ask these questions: (1) Do the matters involve the same transaction or legal dispute? If yes = Substantially Related (2) Is there a substantial risk that a lawyer representing a C in a matter like the one handled for the former C would normally have learned confidential info in the first matter that could be used to materially advance the new client’s position in the second matter? Answer this by asking: (a) what types of info would a lawyer handling a matter like the first one normally acquire? (b) Would that info provide the second client with a material advantage? (i) Think about passage of time–obsolete info now (ii) what about info that has been made public or to other parties adverse to the former C? (c) If both answers are yes, the two matters = substantially related (d) If substantially related, Lawyer may not represent the new C unless informed consent from former is given f) If yes to either, then: is the new client’s interests “materially adverse to the interests of the former client?” i) intention of the rule is to require consent if the use of the former C’s confidences might harm the former C’s interests. “adversity is a product of the likelihood of the risk and the seriousness of its consequences” ii) TWO APPROACHES: (1) ABA has stated that “material adversity” be read to refer only to “direct adversity” as defined in R. 1.7. (involving a suit against old client or participation Downloaded by Kourtney Thomas ([email protected])  lOMoARcPSD|48850210 in some similarly adversarial process CHECK THIS WITH OLD NOTES ON 1.7) (a) e.g. One client suing the other client (2) Restatement concludes that material adversity is limited to potential harm to the type of interests that the lawyer sought to advance on behalf of the former client (new matter adverse to interests of a former C that are unrelated to lawyer’s previous work, no material adversity) (a) higher level analysis, see C3 for examples (b) typically same result than ABA approach g) If yes, lawyer may not go forward with the new rep w/o former C’s informed consent i) But remember! Do 1.7 analysis for the new potential client. as in, will there be a significant risk that the representation of new C will be materially limited by L’s responsibilities to a former client, etc. ii) Also, former C’s likely won’t provide informed consent h) Informed consent must be confirmed in writing! Downloaded by Kourtney Thomas ([email protected])