3.18 professional responsibility.pdf

This chapter explores the ethical tensions and challenges that lawyers face as advocates within the adversarial legal system. It outlines the debate over the proper role of truth and zealous advocacy, and discusses specific ethical rules and case law that govern lawyers' conduct. The main points, ru...

This chapter explores the ethical tensions and challenges that lawyers face as advocates within the adversarial legal system. It outlines the debate over the proper role of truth and zealous advocacy, and discusses specific ethical rules and case law that govern lawyers' conduct. The main points, rules, and cases covered in the chapter are as follows: I. Debate over the role of truth and zealous advocacy in the adversary system A. Arguments for prioritizing winning over truth-seeking B. Arguments that partisan advocacy ultimately promotes truth and justice II. Ethical dilemmas when a lawyer suspects client perjury A. Nix v. Whiteside (1986): The Supreme Court addressed a lawyer's duties when a criminal defendant intends to commit perjury 1. Lawyers must attempt to dissuade clients from perjury 2. Lawyers may withdraw or disclose perjury to the court if necessary B. Continuing debates and jurisdictional variations 1. The "narrative approach" as a controversial middle ground 2. Unresolved questions about lawyers' level of knowledge and appropriate remedies III. Presenting favorable evidence and arguments while avoiding falsity A. Lawyers' leeway to offer evidence and arguments they personally doubt B. The line between permissible spin and impermissible deception 1. United States v. Sarwari (2012): Perjury based on taking advantage of question ambiguity 2. The Subin-Mitchell debate on the ethics of presenting a "false defense" IV. Hardball tactics, incivility, appeals to bias, and misrepresentations A. Temptations to cross ethical lines in the name of zealous advocacy B. Lawyers' competing duties to clients and as officers of the court 1. In re White (2011): Discipline for incivility and derogatory remarks 2. Mullaney v. Aude (1999): Sanctions for gender-biased deposition conduct V. Specific ethical rules governing lawyer conduct A. Rule 3.3: Candor Toward the Tribunal 1. Prohibits false statements and offering evidence known to be false 2. Requires disclosure of controlling adverse legal authority (Thul v. OneWest Bank, FSB (2013)) B. Rule 3.4: Fairness to Opposing Party and Counsel 1. Prohibits unlawful obstruction of access to evidence 2. Prohibits falsifying evidence or assisting in fraudulent conduct C. Rule 4.1: Truthfulness in Statements to Others 1. Prohibits false statements of material fact or law D. Rule 8.4: Misconduct 1. Prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation The chapter illustrates these principles and rules through various cases and examples, highlighting the often-blurry lines between permissible advocacy and impermissible deception. It emphasizes the need for lawyers to exercise sound ethical judgment in resolving these tensions while zealously representing their clients within the bounds of the law and professional ethics. The chapter discusses several important issues related to criminal prosecutions, with a focus on lawyers' ethical obligations when dealing with real evidence and the special duties of prosecutors. Here is a summary and analysis, followed by an outline of the main points, rules, and cases: Summary and Analysis: The chapter explores the complex ethical dilemmas lawyers face when coming into possession of real evidence in criminal cases. Lawyers must balance duties of loyalty and confidentiality to clients with legal obligations not to conceal or destroy evidence. In general, lawyers cannot take possession of illegal items like contraband, and must turn over evidence to authorities. But questions remain about whether lawyers can return evidence to where they found it to avoid implicating clients. The attorney-client privilege protects client communications about evidence but not the evidence itself. Once lawyers take possession of evidence, they may have to reveal its original location, destroying the privilege. So lawyers are incentivized to leave evidence where found. Obstruction of justice laws prohibit altering, destroying or concealing evidence, giving lawyers little leeway. Advising on or engaging in such conduct risks severe criminal penalties for both lawyers and clients. The chapter also examines the heightened ethical duties of prosecutors as "ministers of justice." Prosecutors have constitutional obligations under Brady v. Maryland to disclose exculpatory evidence. But the retrospective "materiality" standard tempts prosecutors to withhold evidence. Ethical rules go beyond the constitutional minimum and require timely disclosure of information helpful to the defense. In making charging decisions, prosecutors wield vast discretion. The chapter presents two hypotheticals raising difficult questions about what charges are appropriate given the strength of the evidence, public safety concerns, and defendants' willingness to cooperate. Finally, the chapter considers prosecutors' obligations to crime victims and society at large. Victims have interests in charging and plea bargaining decisions, though prosecutors ultimately decide. Two additional hypotheticals highlight challenging prosecutorial dilemmas involving the role of private interests in criminal cases and the proper course when prosecutors doubt the defendant's guilt. Outline of Main Points, Rules and Cases: I. Lawyers' Ethical Obligations Regarding Real Evidence A. Lawyers cannot possess illegal items and must generally turn over evidence to authorities B. In re Ryder (1967): Lawyer transferred client's stolen money and shotgun used in robbery into his own safety deposit box. Court suspended him for unethically concealing evidence. C. Privileged client communications about evidence are protected, but the evidence itself is not D. Once lawyers take possession of evidence, they may have to reveal its original location, destroying privilege E. Obstruction of justice laws (e.g. 18 U.S.C. §1512) prohibit altering, destroying or concealing evidence II. Prosecutors' Special Ethical Duties A. Prosecutors must disclose materially exculpatory evidence to the defense under Brady v. Maryland (1963) 1. But retrospective "materiality" standard creates perverse incentives B. Ethical rules (e.g. Model Rule 3.8(d)) require timely disclosure of information helpful to the defense 2. Courts split on whether ethics rules are broader than constitutional minimums C. Prosecutors have broad charging discretion 3. Hypotheticals: How should prosecutors decide on appropriate charges given evidence strength, public safety, and defendant cooperation? D. Prosecutors' duties to crime victims and the public 4. Victims have legitimate interests but prosecutors ultimately decide 5. Hypotheticals: Dilemmas involving private influence and prosecutorial doubts about guilt Summary and Analysis: The material discusses the ethical duties and risks lawyers face when engaging in negotiations and transactional matters on behalf of clients. The main points are: 1. Lawyers frequently act as negotiators, even though negotiation does not necessarily constitute the practice of law. Lawyers engaged in negotiation are still bound by ethical rules, including prohibitions on lying, assisting fraud, deceiving, or remaining silent when there is a duty to speak. 2. Lawyers face risks when negotiating on behalf of "bad clients" engaged in fraudulent or criminal conduct. The lawyer may unwittingly assist the client's misconduct and then face a dilemma about whether to disclose the conduct to the victim. Rules 1.6 (confidentiality) and 4.1 (truthfulness to others) come into tension in these situations. 3. Lawyers can face personal liability for their own false statements made in negotiations, even if unintentional. An opposing party may rely on a lawyer's representations of fact, creating potential negligent misrepresentation claims if the statements are false. Legal opinions are generally not actionable unless they imply false facts. 4. Exploiting an opposing party's factual or legal mistakes in a negotiation is generally permissible, though courts have imposed disclosure duties in some circumstances, such as when a represented party dies during litigation. Misusing information about an opposing party's immigration status to gain leverage may violate ethical rules. Outline: I. Lawyers as Negotiators A. Negotiation is not necessarily the practice of law B. Ethical duties still apply in negotiations 1. No lying, assisting fraud, deceiving 2. Duty to speak in some circumstances II. Risks to Lawyers in Negotiations A. The "Bad Client" Problem 1. Assisting client fraud/crime unknowingly 2. Tension between confidentiality (1.6) and candor (4.1) 3. Noisy withdrawal as a middle ground B. Liability for Lawyer's Own Misstatements 1. Negligent misrepresentation to opposing party 2. Opinions actionable if imply false facts C. Exploiting Opponent's Mistakes 1. Generally permissible to remain silent 2. Courts have required disclosure in some cases 3. Limits on using immigration status for leverage Expanded Explanation: The material highlights the challenging position lawyers are often in during negotiations. On one hand, they have duties of loyalty and confidentiality to their own clients. On the other hand, they cannot lie, deceive, or assist misconduct, and may be liable for their own misstatements relied upon by opposing parties. When a lawyer discovers her client is engaged in fraud during a negotiation, she must withdraw and consider whether disclosure is permitted or required to prevent assisting the fraud. The confidentiality exceptions in Rules 1.6(b)(2)-(3) sometimes allow disclosure to prevent financial injury from a client's fraud in which the lawyer's services were used. If not, a "noisy withdrawal" hinting at the reason is a middle ground short of explicit disclosure. Courts have held lawyers liable for false statements made in negotiations under a negligent misrepresentation theory, finding opposing parties may reasonably rely on a lawyer's factual assertions. However, liability does not normally attach to erroneous legal opinions unless the opinion implies false facts as well. In general, lawyers negotiating at arm's length are not required to disclose facts helpful to the other side or correct their mistakes. But exceptions have been made when an represented party dies during litigation or a lawyer threatens to report someone's immigration status solely for leverage. Overall, the rules require a delicate balance for lawyers negotiating deals - promoting their client's interests while still complying with duties of truthfulness to others. Crossing ethical lines can lead to disciplinary action and civil liability, making awareness of these principles critical for transactional attorneys and litigators alike. except as law may otherwise expressly permit, a lawyer who has formerly served as A public officer or employee of the government: (1) IS SUBJECT TO RULE 1.9(c); and (2) shall not otherwise represent a client in connection with aa matter in which the lawyer participated personally and substantially as a public officer or employee, Unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. Rule 1.1(a): The lawyer’s new firm is also disqualified unless the former government lawyer is screened, shares no part in the fee, and written compliance notice is give tot the government agency. What is appropriately screened mean? Rule 1.1(b): Two causes of action for the tort of negligence leading to death (1) Wrongful Death (2) Survival cause of action, the person’s survivors can bring the original case against the defendant even if the tort didn’t kill the person. PART 3: SPECIAL LAWWYER ROLES Chapter 7: Ethics in Advocacy How to withdraw: You must withdraw if the representation will result in violation of the rules of professional conduct. You’re fired. Rule 1.2(d): you may not help client engage in an illegal act. They bring you a gun or weapon and you do not touch it. You may withdraw: One through seven. (C) A Lawyer must comply with applicable law requiring the 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. Detailed Summary: The chapter explores the distinct ethical challenges faced by lawyers representing organizations. Under Rule 1.13(a), a lawyer representing an organization owes allegiance to the organization itself, acting through its duly authorized constituents, rather than to any individual officers, employees, or owners. This presents confidentiality and privilege issues, as discussed in the Upjohn case, because the lawyer must interview individual constituents to gather information to represent the organizational client. Upjohn warnings should clarify that the organization controls the privilege. The Tekni-Plex case illustrates how attorney-client privilege can travel to new management after a change in corporate control. Conflicts of interest are also complex in the organizational context. The ABA, Restatement, and cases like GSI Commerce Solutions provide tests for when representation adverse to a corporate affiliate is a conflict - focusing on factors like operational commonality, financial interdependence, and shared management. Representation of closely-held entities with few constituents presents additional challenges. The Sarbanes-Oxley Act and amendments to Rule 1.13 impose heightened obligations on lawyers to "report up" evidence of organizational misconduct and allow limited "reporting out" to authorities. The SEC regulations, such as 17 C.F.R. Part 205, provide detailed reporting triggers and procedures that lawyers appearing before the SEC must follow. Lastly, the chapter examines ethical concerns with lawyers acting as whistleblowers against clients for a monetary reward under laws like the False Claims Act and Dodd-Frank. Cases like Quest Diagnostics exemplify the risks of violating confidentiality and other ethics rules, even if disclosure is technically allowed under the statutes. Detailed Outline: I. Introduction Rule 1.13(a): Lawyer represents the organization itself II. Confidentiality and Privilege Upjohn case and "Upjohn warnings" In re Grand Jury Subpoena: lawyers avoiding accidental representation of constituents Tekni-Plex: privilege transfers to new management after merger III. Conflicts of Interest ABA Opinion 95-390: tests for when representing related entities is a conflict Restatement §121, cmt. d: material adverse financial impact on affiliate GSI Commerce Solutions: operational and financial factors JP Morgan v. Liberty Mutual: disqualification based on impact Representing closely-held entities (Bobbitt case) Murphy & Demory v. Admiral Murphy : joint representation pitfalls IV. Sarbanes-Oxley and Rule 1.13 Amendments Section 307: SEC rules for lawyers reporting evidence of violations 17 C.F.R. Part 205: detailed reporting triggers and procedures Rule 1.13 amendments: strengthening "reporting up" and allowing limited "reporting out" V. Lawyers as Whistleblowers False Claims Act and Dodd-Frank rewards for reporting client misconduct 17 C.F.R. §240.21F-4(b)(4): SEC vs. state ethics rules on disclosure Quest Diagnostics case: risks of violating ethics rules Policy debate: incentivizing disclosure vs. damaging client trust VI. Conclusion Heightened ethical duties and complex loyalties in organizational representation Evolving standards and unresolved tensions between client interests and public protection