professional-responsibility-outline.pdf

lOMoARcPSD|19835293 Professional Responsibility Outline PROFESSIONAL RESPONSIBILITY (University of South Dakota) Studocu is not sponsored or endorsed by any college or university Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Legal Profession – Introduction   Read through al...

lOMoARcPSD|19835293 Professional Responsibility Outline PROFESSIONAL RESPONSIBILITY (University of South Dakota) Studocu is not sponsored or endorsed by any college or university Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Legal Profession – Introduction   Read through all of the rules in one sitting Three good resources: ABA/BNA Manual; ALI Restatement of Law Governing Lawyers; ABA Annotated MRPC (Best and biggest) Chapter 1: Ethics Introductory Material: p.1-14 in Casebook. A. History: 1. 1908: ABA adopted Cannons of Professional Ethics: this was the “code of conduct” until 1970 when the ABA promulgated the Model Code of Professional Responsibility. Lewis F. Powell. DR (disciplinary rules) and EC (ethical considerations) were the two sections called “canons.” 2. 1977: Committee began work on Model Rules of Professional Conduct; 1983: these Model Rules were adopted by ABA. The State Supreme Court then decides on whether or not to follow these rules. The South Dakota Supreme Court adopted the Model Rules in 1988. i. 1983 Scrapped code and adopted the rules because of Watergate. Mandated that all law schools require students to take a class like this. ii. Consumerism movement led by Ralph Nader showed up in challenges in court like restrictions in advertising. NOT ON EXAM. iii. California has its own rules and does not follow the ABA rules. 3. These rules are models: have to be adopted by a jurisdiction before they are effective. In 2000, ABA set up Ethics 2000 commission and adopted changes in 2002. i. SDCL 16-18: SD Model Rules codified by an appendix. SD did not accept the Preamble, Scope, and Comments 4. Courts have won the fight between legislature and courts as to the regulation of lawyers. B. Model Code: 1. Divided into Cannons, Ethical Considerations (considered aspirational; higher goals than mere rules), disciplinary rules C. Model Rules: 1. Restatement format: made up of disciplinary rules and some ethical considerations. The comments are there to explain the rules; not supposed to be treated as rules. 2. Rules not supposed to be the basis for civil malpractice. D. Professionalism: p.11 1. Historically, there were four professions: clergy, military, medicine, law 2. Qualities of a profession: License and rules together form system of regulation. i. Some mandated education ii. Some system of licensure iii. Code of ethics (rules) iv. Self-regulation based on code of ethics. Misleading because Supreme Court is a governmental agency, but it is self-regulation. We are not subject to statutes by legislature or any licensing board. 3. Duty of professional: to serve the client, public, profession, or self. Self was added in the 1980’s. Historically, it was thought that every other means of making a living only had a duty to self. Admission to the Bar A. In General: 1. Rule 1.0 Terminology 2. Bar admission procedures are statutory. i. 16-16-2: applicant must be a person of good moral character. 1 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 ii. 16-16-2.2: The applicant has to establish her good character by clear and convincing evidence. Once she has been admitted to the bar, the b/p shifts to the ethics committee to prove grounds for disbarment. a. You have the burden of proof of showing that you have good moral character; C&C is a high standard of proof iii. 16-16-2.4: 3. Conditional admittance (16-16-17.1)—South Dakota has the option of conditional admittance: if someone has a serious chemical dependency problem, ensures that person will get treatment. Public does not know it is a conditional admittance; the B/P stays on the application; SD and 10 other states have it. i. 16-16-2.3: Relevant conduct that may merit further inquiry: 14 factors to consider (handout) ii. Academic misconduct—if you do something real bad in law school—not much time will pass before you try to be admitted. iii. 16-16-2.4: Other factors considered by the board—usually work to applicant’s favor. a. Applicant’s age at the time of the conduct b. Recency of conduct c. Reliability of the information concerning the conduct d. Seriousness of the conduct e. Factors underlying the conduct f. Cumulative effect of conduct or information g. Evidence of rehabilitation h. candor in the admissions process: looking for folks who take responsibility for their actions. SD Rule 8.1: Attorney can be disciplined for lack of candor in the admissions process. i. Result of applicant’s criminal background check (new). 4. Character committees can look into four areas: applicant’s FLIMP i. Mental health—ADA (Americans with Disabilities Act) has blown this issue out of the water. ii. Finances – Bar can ask about this and your financial circumstances. iii. Honesty and integrity—see candor iv. Personal life-- Note on p. 704 about woman in Virginia who was not going to be admitted because she was living with a guy she was not married to. v. Loyalty to the American system of government. 5. Frequently cited grounds for denying admission: i. Criminal conduct (p.701)—do not need a conviction – they can still consider it. Burden of proof is less than in the criminal case. ii. Lack of candor in the application process iii. Dishonesty or lack of Integrity in legal academic settings Mental health (see above) (p.703). You won’t be denied if you are dealing with your problem. Substance abuse is here. iv. Financial probity: cannot keep someone out strictly because of bankruptcy; courts found a way around this (p.704)—claim it is looking at applicant’s financial irresponsibility before bankruptcy was declared. Private life: Test is whether the conduct bears a rational relationship to the applicant’s ability (fitness) to practice law. 6. In re Mustafa: Applicant was president of moot court and embezzled funds. He intended to pay it back. A good student otherwise. Committee concluded he was of good moral character—reversed. The misconduct was too close to the time of application—an attorney who had done this would probably be disbarred for 5 years. Court borrows from disciplinary rules. (The committee makes a recommendation; court does not have to follow it. Court not bound by committee recommendations; court engages in de novo review.) It’s the state court of D.C. that is doing this. Letter of censure in his file is his only punishment. Dean wrote letters for him about his good character. They are not applying 2 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 5 year wait because he is not a lawyer, but they do wait and see. Some jxds don’t make character determination until after you pass the bar. i. Apply SD factors: a. 16-19-83: 5 year wait b. SD only occasionally readmits someone. ii. Factors that help the Court: a. This was probably unlawful conduct: do not have to charge or convict to be unlawful conduct—different standards of proof (C&C v. BRD) and burdens of proof (on applicant v. on ethics committee). Higher standard of proof than civil cases. Most civil cases have to prove by a preponderance of the evidence. Applicant has to show by C & C evidence. Same burden applies in all jxds BV is aware of. Can be denied acceptance to the bar even if acquitted of a crime. b. Academic misconduct—probably violated honor code/this factor is usually cheating on an exam. c. Acts involving dishonesty, disloyalty, fraud, deceit or misrepresentation d. False statements (check stubs/to co-president) e. Neglect of financial responsibilities f. Unlawful conduct of embezzlement g. Seriousness of the conduct h. Reliability of the information. iii. Other factors that help Mustafa a. Recency of conduct/age—ouch! b. Reliability of the information concerning the conduct—helps c. Seriousness-ouch! d. Evidence of rehab/restitution—help – intended to repay. BV questions his intention to repay e. Candor—help, but facts don’t support it. Still important when you get into trouble. f. Marriage – not really a legal question g. He cooperated – very important h. Community Service 7. Burden of proof is on the applicant – clear and convincing (somewhere between preponderance and reasonable doubt) i. Rule 8.1 – BV has duty as dean to report people. Part of candor element. B/P shifts to bar. This rule is not applicable to applicants since they are not lawyers yet. 8. In Re Wittison (95 SD 633) is leading case about bar admission. He cheated on the exam here at USD. Also there was a law review incident that occurred the year before. Bar admission process is confidential. Educators cannot be part of it. Wittison was admitted in Iowa, but they didn’t know about the law review problem. Court said it is de novo, but carefully considers board recommendation. 9. Other things Bar Examiners may consider in admission i. SDCL 16-16-2.3 relevant conduct ii. SDCL 16-16-2.4 factors to consider iii. Bankruptcy (even though federal law trumps state law) iv. Charges, even if not arrested v. Do not consider student loans vi. Lack of candor in applications vii. Mental health 10. In Re Glass i. Glass had an elaborate scheme for covering up the fact that he had written a lot of false stories for the New Republic Magazine. Glass passed the bar in CA, but was rejected admission. He also applied for the NY bar and was not forthright to them either. Court does 3 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 not admit glass. They are trying to protect Glass’ prospective clients (as he is self-interested) and the profession itself (from the negative public image). ii. SD Rules that apply a. 16-16-2.3 (Go through the list) b. 16-16-2.4 (Go through the list) 11. RULE 1.1 – Competence i. Lawyers are very rarely disciplined for incompetence because there is another remedy for a client who has an incompetent lawyer – legal malpractice Chapter 2: Attorney-Client Relationship A. Confidentiality 1. In General i. Duty to client of confidentiality lasts forever – even past the client’s death ii. Privilege not lost when lawyer uses a paralegal. iii. Fact that the communication with the lawyer is privileged does not mean the other side is prohibited from conducting depositions to reveal the underlying facts iv. Work-product doctrine: a mess. a. Weakness: has to be done in contemplation of litigation; some think the WP doctrine does not protect information after litigation is over; there are exceptions to WP doctrine (hardship) that don’t apply to privilege. b. Since there are holes in WP doctrine, we keep fighting over privilege. v. Preamble – Paragraph 8 (logic behind confidentiality) a. “preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private vi. Confidential information = Information protected by Rule 1.6; Privileged Information = Rule of Evidence a. There may be situations where information is NOT privileged, but yet you still have a duty to protect it 2. Elements of Confidentiality i. Need an attorney-client relationship. a. Can have AC relationship even if not being paid b. Can have AC relationship if being paid by someone other than client c. There is an AC relationship if client reasonably believes that there is one. Westinghouse Electric Corp. v. Kerr-McGee. If the relationship is doubtful—then there probably is an AC relationship. Most important is whether client thinks you are his attorney. This is a very subjective factor. Did client detrimentally rely on the “relationship?” Most important thing is telling something confidential to lawyer. Exchange of confidential information for legal advice. ii. To get an attorney-client relationship (or fiduciary duty): First your client must have a “reasonable belief” that he has given you confidential information and that you were performing a legal service for the benefit of the client or possibly others. a. Test : Client provides CONFIDENTIAL INFO ß in return forà Attorney’s LEGAL ADVICE 1) Notice that there is not necessarily an exchange of money b. Almost on every case the client wins the issue of reasonable belief when in front of a jury. c. Fee agreements are important, as well as engagement, non-engagement, or termination letters. Make sure you send the client those documents d. This test is in the first sentence on top of page 19. 4 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 iii. Continuing Representation is important to consider: Rule 1.18, Comment 4 3. Cases: i. Perez v. Kirk & Carrigan (1991): P.25 Perez ran into a bus (brakes failed) and many people were injured (21 children died). The defendant’s (Coca-cola) attorneys represent to plaintiff (Perez) that they will be his attorneys any statements they give him will be confidential. Defendant (Kirk and Carrigan) later releases plaintiff’s statement to DA, and plaintiff is prosecuted. a. Attorney-Client relationship can be implied from the conduct of the parties. If the plaintiff reasonably believes he is a client, he is. b. Defendants will lose no matter what—“Defendants breached their fiduciary duty to plaintiff either by wrongfully disclosing a privileged statement or by wrongfully representing that an unprivileged statement would be kept confidential.” c. The attorneys argue that the information was not privileged; there were no fees, and no written agreement to create the attorney client relationship. They also say that there were 3rd parties present, the info is not privileged, but it is still confidential. They also say they were following a court order (under 1.6 (b) (5)). Court doesn’t do much with that. 1) Fiduciary relationship broader than AC relationship. 2) Malpractice can be tort, contract, or violation of fiduciary duty. You are in big trouble when they call you a fiduciary. d. Perez and lawyers had A/C relationship because Perez reasonably believed that he gave info and it would be kept confidential. Do not cite this case…he lost on MSJ. All facts on appeal are presumed to be true. They said that they were my lawyers. This fact is taken to be true. No testimony is needed. Lawyers are making contradictory alternative arguments. This is a bad argument. Misses the distinction between privileged and confidential. 4. Rules i. Rule 1.6: a. (a) Lawyer shall not reveal information relating to representation of a client [construed broadly—during representation covers everything—this shows that something that is not privileged can still be protected under 1.6] unless the client consents after consultation [defined in terminology section], except for disclosures impliedly authorized in order to carry out the representation, and except as stated in paragraph (b). b. If your client has asked you to negotiate, business info is protected under 1.6, but it is impliedly authorized to reveal in order to negotiate. 1) [If a judge orders you to reveal some information of your client, a comment in 1.6 says that you have to reveal that information and you are not held liable for violating the confidentiality of your client.] c. (b) EXCEPTIONS: A lawyer may reveal such information to the extent the lawyer reasonably believes necessary 1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm, or 2) To secure advice about the lawyer’s compliance with these rules 3) To establish a claim or defense on behalf of the lawyer. 4) To the extent that the revelation would be necessary to rectify the consequences of a client’s criminal or fraudulent act in which the lawyer’s services had been used. [Not in the ABA Model Rules; trial lawyer do not like this.] 5) To comply with other law or a court order. (this is sub-section 6) 5 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 d. (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. 1) Encrypting email, securing files, etc.. e. 1.6 Comments: The client is thereby to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.... The client will be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action.... Lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. Lawyer had duty not to use false evidence. In a tribunal, then Rule 3.3 trumps Rule 1.6. After withdrawal, the lawyer is required to refrain from making disclosure of the clients’ confidences, except as otherwise provided in Rule 1.6. Neither this rule nor Rule 1.8(b) nor Rule 1.16(16) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.... The duty of confidentiality continues after the AC relationship has terminated. f. Keep in mind: 1) That the ethics committee may second guess an attorney’s decision to reveal under 1.6; will not second guess a decision NOT to reveal. 2) Scope: “The lawyer’s exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination.” ii. HIV hypo (Page 22): gf pays you to represent her bf in bar fight. He says he’s HIV positive but not to tell the gf because he usually uses condoms. a. 1.8(f): doesn’t matter who is paying, the BF is still your client, not the GF who is paying for your services b. If you want to reveal it to protect the gf, you would want ABA rule over the SD rule. 1) ABA 1.6(b)(1): to prevent reasonably certain…harm 2) SDCL: only to prevent criminal act (in SD, knowingly transmitting HIV – SDCL 22-18-31) iii. Rule 1.8 a. (b) – can’t use confidential info to detriment of your client b. (f) - says the person paying the bill does not have any right to the information—she is not a client and therefore has no right to the information. (Like in insurance… company pays you to represent insured). iv. Rule 1.3 – rule on diligence paragraph 4 – WRITE THE DAMN TERMINATION LETTER!! If you want a chance to take other case against former client, you have to have concluded matters. You never want to lose a client, so lawyers don’t like to write these letters. Intentionally keep them as client. a. Engagement b. Nonengagement c. Termination – important to cut off the relationship; if you’re hired by a rich guy, don’t write the termination and take the risks of the conflicts v. Rule 1.9(c) – confidentiality continues after client’s death 5. Privileged v. Confidential i. Privileged (governed by SDCL § 19-19-502): information protected by the Rules of Evidence, Information communicated to you by the client. Narrower than information relating to representation. It can’t be introduced into court. “Communications between client and lawyer made in confidence for the purpose of obtaining legal assistance.” 6 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 ii. Confidential: information protected by Rule 1.6 a. “Information relating to the representation of a client” b. A professional duty. Applies in any situation c. Authors refer to this as “ethically protected.” d. Model Code: used “confidential” to mean “privileged.” Other protected information was “secrets.” Work Product Privileged Confidential iii. Confidential information category is broad—encompasses both privileged information and work product. Protected information or confidential information are bigger than privileged information. People use confidential and privileged synonymously and that is wrong. a. Work product doctrine: Documents or other tangible materials prepared by a lawyer in anticipation of litigation. Another rule of evidence. Does not have to come from client; lawyer-generated info; mental impressions; relevant in context of not being discoverable. Not destroyed by a third party hearing it. Anything in WP is confidential under Rule 1.6. b. Privileged information—from client iv. Scope: But there are some duties, such as that of confidentiality under Rule 1.6, which may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. a. Also applies after you’re done representing someone 6. Tests to examine the scope of the privilege as applied to corporations (aka entity, LLC, etc): i. For convenience, corporations are PEOPLE with regards to this area of law. Your client IS the corporation. a. You as the attorney are the agent for the client (corporation). When you are conducting your business, say if you are speaking to an employee of the corporation (president, CEO, etc), that employee is an agent of its employer (also the corporation). In determining whether the information is privileged, it gets a little tricky because when you speak to an agent of the corporation, you are not speaking to your client, you are speaking with an agent. Below are some precedent tests used. 1) You are an agent speaking to an agent. ii. Control-group test: evaluates communications between a hierarchical group and the attorney. Any conversation about legal advice with a group of managers or decision-makers is covered. Simply asks “who was talking?”à senior management. You don’t worry about what was said, simply who said it. If it’s the senior management, its privileged. a. Narrowest test: Only the top management is in this group—they are the only people that should represent this company and have protected communications. iii. Subject-Matter Test: focuses on the nature of the communications between employer and employee. a. Broadest test: Focuses not on the ID of the person with whom the lawyer communicates, but on the subject of the communication. Asks whether the information was given to the lawyer to enable the lawyer to give legal advice to the entity. Here, information is communicated to a lawyer and the subject matter of the conversation is within the scope of the employment. (“what was said?) iv. R2d § 73(Restatement Test) (a variation of the subject matter test): Privilege of corporations extends to communications that: a. Otherwise qualify as a privilege b. Is between an agent of the organization and [an attorney or agent of the attorney) 7 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 c. Concerns a legal matter of interest to the organization d. Is disclosed only to attorney and their agents and other agents of the organization who reasonably need to know of the communication in order to act for the organization. 1) Samaritan Tests—two part test: All communications made by Employee seeking legal advice from counsel are covered by privilege (does not matter where on the ladder the employee is). v. All communications made in confidence to counsel in which the communicating employee is directly seeking legal advice are privileged. a. ***Counsel seeks information from employee—privileged if it concerns employee’s own conduct within the scope of employment AND to assist lawyer in assessing/responding to that employee’s conduct. Mere “witnesses” are not covered. vi. Employee’s communications covered if dealing with conduct that would subject the corporate client to liability. vii. ***Where someone other than the employee initiates the communication, communication by a corporate employee to corporate counsel is within the corporation’s privilege if it concerns the employee’s own conduct within the scope of his or her employment and is made to assist the lawyer in responding to the legal consequences of that conduct for the corporate client. This excludes witnesses from the privileged communications.. 7. Cases and Hypos i. Upjohn Co. v. United States (1981): p.34 - big US Supreme Court (Rehnquist) case on attorney-client privilege rejecting the control group test. Info here was held to be privileged. The Supreme Court held that the communications of lower ranking employees were protected by attorney–client privilege when protection was necessary to defend against litigation. a. Court held that a company could invoke the attorney–client privilege to protect communications made between company lawyers and non-management employees. b. Some argue it adopted a subject-matter test (also adopted in SD at 19-19-502(2) ii. Problem: Slip and Fall: (CHART ON TWEN) ***NOT ON EXAM!!!! a. (A) Burkow: head of maintenance 1) Probably protected under all the tests 2) Control group: he’s head of maintenance – probably, need organizational chart to determine how high up he is 3) Survives the SM test (because it is privileged by the other 2) 4) Samaritan—covered: regarding his conduct as head of maintenance b. (B) Morse: waxed the floors 1) Fails CG test 2) Survives SM test 3) Survives Samaritan test: concerns the legal consequences of how he waxed the floors. c. (C) Sandstrom: salesperson witness 1) Fails CG 2) Fails Samaritan—mere witness 3) Covered under SM—as long as her scope of employment covers the safety of individuals (Upjohn is broadly inclusive) d. (D) McCormick—off duty buyer who witnessed the accident while shopping 1) Fails CG 2) Fails Samaritan 3) SM? Issue is whether the SM test is broad enough to cover McCormick 8 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 (E) Kuhl—shopper—not covered by any test. All the above could be protected by the work product doctrine. Review of Upjohn: Not clear what the rule of evidence would be and what privilege would be if this case was litigated in SD. SD has statute 19-13-2(2) in evidence law (Larson treatise). We have CG test. Rehnquist said it was too narrow. Question is whether our supreme court would follow it because all of the other cases decided under SM test. CG is least favorable to corporate client. iii. Example: Admission against interest – when client tells another person that they did the crime. When the client tells you he told someone else he did it, the lawyer and the client cannot be compelled to testify he said that. But third person can be compelled to testify that he admitted to the crime. This is how privileged information can be found through discovery. iv. If you have to go through corp’s lawyer, everything is privileged from employee. Important to get to employee quickly before they become a “client.” If you have to wait until discovery, they will have been counseled. From corporate counsel side, if you don’t know who is client, you don’t know what you can promise employee about what is privileged (4.3 problem). 8. Exceptions to the Attorney Client Privilege: p.39 Be aware when things may be protected by Rule 1.6 and not privileged i. Self-defense exception Rule 1.6(b)(5): a lawyer may reveal such information to the extent the lawyer believes necessary to... establish a claim or defense on behalf of the lawyer’s employee’s and the client, to establish a defense to a criminal charge or civil claim against the lawyer or the lawyer’s employees based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer or the lawyer’s employees representation of the client a. In Re Bryan pg. 40 (potentially on test) 1.8 & 1.6 b. Rule 1.6 allows you to reveal information to protect yourself c. Where 3rd party or client is bringing a disciplinary charge against you or suing you for malpractice, you can make a pre-emptive strike (do not have to wait for the suit to be filed). d. There is a threshold test of reasonable necessity ii. Collection of Fees: Both Code and Rules permit lawyers to reveal confidential information to the extent necessary when they sue to collect fees. A little self-interest here! iii. Waiver: Client may waive protection of either the privilege or the ethical duty of confidentiality. Waiver may be explicit or implicit. Waiver will be implied when the client puts the confidential communication in issue in litigation. Clients may waive the AC protection by revelation of all or part of a confidential communication. iv. Crime-Fraud exception: p.42 Communications between AC not privileged (but may be ethically protected) when client has consulted lawyer to further a crime or fraud, whether or not crime or fraud is accomplished and does nothing to advance it. Rule 1.6(b)(3) v. Identity and Fees: p.64 not privileged. A client’s ID, source of fees paid, amount of fees, and other information about the representation not involving “communications” are not covered. Three “special circumstances” exceptions: vi. Future Crimes or Frauds: p. 44 Distinct from crime-fraud privilege; a lawyer is permitted to reveal confidential info to prevent future financial crimes or frauds, or to avoid or mitigate “substantial” financial injury vii. The “fiduciary” exception: viii. Noisy Withdrawal: p.45 When a lawyer must withdraw from representing a client due to criminal or fraudulent behavior, he can retract any oral or written representations that he may have made and that they client may be using for illegal purposes. You notify everyone you are withdrawing, and that is why it is noisy. 1.2 and 4.1 e. f. g. 9 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 ix. SD Prevent crime-death, substl bodily harm Secure advice on rules Self-defense (claim) Rectify crime/fraud when services used Comply with law/court order ABA 1.6 Prevent death/substl bodily harm “” “” Prevent crime/fraud-substl injury Prevent, rectify, mitigate Detect, resolve confidential info Duty: inadvertent disclosure (4.4(b)) B. Agency 1. In general, pg 48-49: x. Lawyer is agent, and client is principal; Acting for the client means the lawyer’s conduct will be attributable to the client, even if the lawyer errs, if the lawyer is careless, or worse. a. Litigant chooses counsel at his peril b. Rule of agencyà agents bind principals. xi. Possible punishments for attorneys a. Discipline b. Ineffective assistance of counsel c. Malpractice d. Disqualification xii. SD was the first state to say you have a duty to communicate that they do or do not have malpractice insurance (see below) 9. *Rule 1.2 is very important! i. (a): The client determines the objectives of representation; the attorney determines the means, but must consult with client regarding means. a. Decision to waive jury trial: clients b. Decision whether to be present during trial: clients c. Decision whether to appeal: clients d. Decision whether to forgo a Confrontation Clause objection to the introduction of evidence can be made by counsel so long as the accused does not dissent and the decision can be viewed as a legitimate trial strategy. e. Decision whether the client will testify: clients f. Decision to plea (guilty or not guilty): clients g. Decision whether to cross-X: attorneys. But if client does not want you to cross a particular witness—it is the client’s choice. h. Decision to settle: client’s. Attorney can get in trouble for not notifying the client of a settlement offer on the table. The language of the rule implies that the attorney must communicate this offer to the client. If attorney does not communicate settlement offer to client, client can sue (and must prove he would have taken the offer) ii. (b): A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. A self-protective rule: more of a statement to the public than to the attorney: an attorney does not endorse what their clients do. This protects the reputation of individuals who represent unpopular clients. iii. (c): A lawyer may limit the objectives of the representation if the client consents after consultation: (see terminology). Need a clean engagement letter that limits your representation and lets client know that there are alternative remedies available. The best engagement letter will not protect you if you limit your representation so much as to violate Rule 1.1 on competency. For example, if it’s a divorce action, you cannot tell your client that you will not 10 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 consider the tax consequences of the divorce. Attorney will be measured against the competency of other lawyers in the community. A violation of this rule usually results in malpractice c/a, not disciplinary action. iv. (d): fine line between assisting client in illegal conduct and advising client of illegal conduct. 10. Cases i. Taylor v. Illinois (1998) p.49: Lawyer fails to reveal a potential witness (a tactical advantage); which barred the witness from testifying. D claims violation of his 6th confrontation rights (Confrontation Clause). Conviction Affirmed (See Rule 1.2.) a. Court: clients suffer from their attorneys’ blunders. Client must accept attorney’s decisions. Client bound by what attorney does and is stuck with consequences of attorney’s blunder. The lawyer has full authority to manage the conduct of the trial. A principal is bound by the acts of his agent within the scope of the agent’s authority. b. Dissent (Brennan): Intentional misconduct should not be attributed to the client - the attorney here willfully violated the statute, and the client should not be punished for that. Remedy should be sanctioning attorney. ii. Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc. (2009) p.51: Contract dispute between BMF and TBI. Default judgment against BMF and denied their motion to vacate. BMF asserted that every inquiry they made to lawyer Hinterlong that he said they were fine, when in fact he was delaying and doing nothing. a. All of the attorney’s misconduct (except where it is outside the scope of employment or excusable neglect) becomes a problem of the client. Their remedy is malpractice 1) However, lawyer here does not have malpractice insurance 2) SD Rule 1.4à duty to keep client informed. SD added two more elements. SD requires that if you don’t carry malpractice insurance, you have to tell your client. Second, this notification for not having insurance, it has to be on your official letterhead. b. Because clients are held accountable for attorney’s actions, it doesn’t matter if it falls between “mere negligence” and “gross misconduct” iii. Nichols v. Keller (1993) (Duty to inform and advise) p.55: Client goes to attorney after injured on the job. Attorney fails to advise him on any other remedies besides worker’s comp. The statute of limitations expires on alternative civil tort claims and the clients sues attorney for malpractice. a. Worker’s comp attorney must, at very least, advise the client as to other remedies and the need to inquire into obtaining other counsel. Why? Clients rely on their attorneys to provide them with this basic information. b. Attorneys must advise on what they are specifically pursuing. (Lawyers can reasonably limit scope of representation) 11. Samaritan v. Goodfarb: i. Childs heart stopped beating during a surgery. A Good Samaritan lawyer had four employees sign a form agreeing to accept legal representation from him and directed a paralegal to interview three nurses and one scrub technician who were present. Two years later, the employees were deposed and couldn’t remember what happened. The child sought the production of the interview. ii. Privilege not extended to mere witnesses. 12. A client must give you Informed Consent i. Information ii. Explanation iii. Risks iv. Alternatives 13. 1.2 and 1.4 together create a duty communicate settlement offers 11 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 14. Problem on Page 59 – “In a Box” i. Answer: Get informed consent from Font & Blue; talk to Font & Blue about the risks etc., then tell Jenny (your client) ii. You Cannot represent Jenny on the deal if you do not tell her about the AG’s investigation of the company she is looking to buy 15. Vicarious Admissions: GET FROM CLASS NOTES. 16. Judicial Admissions: A lawyer’s made in open court of other pleading (that has not been superseded) bind the client C. Autonomy of Attorneys and Clients: p.59 1. In general i. Rule 1.16: ii. Attorney SHALL withdraw if a. Representation violates Rules of Conduct b. Attorney’s physical or mental conditions materially impairs lawyer’s ability to rep the client c. Lawyer is discharged iii. Lawyer may withdraw if can do so without material adverse effect on the interests of the client or a. Client persists on crime/fraud path b. Client uses attorney’s services to perp a fraud c. Clients insists on objective that’s repugnant or imprudent to the client d. Client fails to substantially fulfill obligation to lawyer regarding lawyer’s services—not paying the attorney fees e. If rep will result in unreasonable financial burden on lawyer f. Other good cause iv. Judge may order attorney to continue the representation. v. So judge can trump 1.16 a. (d): once you withdraw, you still have specific obligations after you terminate the representation. The lawyer may retain papers and property relating to the client to the extent permitted by other law. Statutory lien allowing attorney to keep client’s property under certain circumstances in order to get paid. (SDCL 16-18-21) 1) Here, the objective is not to get impeached—so (b)(3) probably will not work. Can’t really say that pursuing this strategy is repugnant or imprudent. 2) Ruff probably can’t find a way out 17. The Lawyer’s Autonomy i. Problem on Page 60 – “Ms. Niceperson” a. Answer: Make a call to opponent counsel’s firm; this goes to fact that you would basically want another lawyer to do the same for you; you probably wouldn’t be disciplined for this; talk to the client after you do this b. Can a lawyer generally grant an extension to an opponent without consulting with the client? Yes. See Rule 1.3, cmt.. ii. Problem on Page 61 – “Lesser Included Offenses” a. Answer: It is the client’s decision about what you will seek, but ultimately, the judge will charge whatever the judge sees fit iii. Hypo: You are representing a minor in an adoption; foster parents now want to adopt this boy; the boy tells you that the father has been sexually abusing him, but the boy doesn’t want you to tell anyone. What do you do? a. Look at Rule 1.14 & 1.16 iv. Jones v. Barnes 12 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 a. Barnes was convicted of assault and robbery. On certiorari, the issue was whether defense counsel assigned to prosecute an appeal from a criminal conviction has a constitutional duty to raise every nonfrivolous issue requested by the defendant. 18. The Client’s Autonomy p.68 i. Olfe v. Gordon (1980): P Olfe specifically instructed no second mortgages. She wanted to have a first mortgage. Lawyer decides that the second mortgage is good enough and took a second mortgage and told P it was a first mortgage. Buyer defaulted on loan and seller (Olfe) lost $25,000 and sues Gordon for malpractice. TC dismissed for lack of expert testimony. a. If house sells for less than the amount of loans, then you have priority of lendors. First mortgage lendor gets all their money first. She wanted to get that loan money ahead of anyone else b. With malpractice, need expert to establish standard of care of lawyers in geographic area to prove malpractice. 1) Why no expert testimony required here? Attorney’s conduct was so egregious and obviously incompetent that we don’t need an expert. This is rare that a court will do that. As matter of agency law, if attorney fails to follow P’s instructions, there are tort liabilities. c. Real issue—not following client’s instructions. Agents (lawyers) follow instructions of principles (clients). The miscommunication regarding the nature of the mortgage was also a problem. Lawyer’s defense (substituted judgment) was that he was acting in her best interests. 1) Rule 1.4: duty to communicate “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” i) Have to tell client of a settlement offer, even if it’s really low. Unless the client says “I won’t take anything less than $50,000” but then the client will forget that she said that and you are screwed. 2) Rule 1.2(a): A lawyer shall abide by a client’s decisions concerning the objectives of representation. Client determines objectives of representation and lawyer determines the means. What are objectives? Whether to settle a matter, enter plea, etc. ii. Criminal case – witness can testify even if its perjury, but you can tell court they are lying. iii. Civil case – you can deny client’s right to testify if they are going to lie. What if client is asked something that he will answer with hearsay…do you have to ask to object? No its means. Even if they are means, you should still talk to your client about them (except evidentiary objections… judge won’t give you time to talk to client). a. 1.2 (b) – we all have to represent bad people. Doesn’t mean that we agree with their beliefs or actions. b. 1.2 (c) – if you come to me and want to start a business, I can say that I am competent to draw up corporation documents, tax filings, etc. But if you are going to have a trademark, I don’t do that. You can decide if that is good business or not. What you can’t do is to say “this accident you were in, there might be worker’s comp or claim against third person, but I only do worker’s comp.” You can draw line at litigation. Trial v. appellate stage. Court may not let you if you are appointed counsel. c. 1.2 (d) – somewhat controversial. You can’t counsel or assist a client in criminal or fraudulent conduct. You can be charged as an accessory. You can tell your client options they have. (If property is outside of US, government can’t get to it). You can explain the legal consequences of something and client can act on that. iv. Clients with Diminished Capacity: p.71 Rule 1.14(a) a. Try to represent client as you would any other client – (normal client/lawyer rel.) 13 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 b. Diminished capacity, minority, etc. 1.14 gives you an out to 1.6. When you know child will be placed in bad home and he doesn’t want you to tell, you get a guardian ad litem. c. Do not confuse the role of advocate with the role of guardian ad litem (substituting lawyer’s idea of client’s best interests for client’s wishes). Move the court to appoint a guardian ad litem if attorney is concerned that client’s wishes are not in accordance with client’s best interests. 1) Counsel does not get to substitute his own judgment for the client’s judgment; however, a guardian can substitute his judgment for his client. The guardian becomes a decision maker and the counsel remains an advocate. d. Runge v. Disciplinary Board: 1) You cant get in trouble for violating a comment in the Rules. v. Hypo pg 67 “Accept the Offer” a. The ex-wife wants to take the lowball offer by the ex-husband. It is your client’s own decision to make—under Rule 1.2 b. The effects on third persons are a client’s decision. 1) Rule 1.2—the distinction between objectives and means. The questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. 2) Rule 1.4—Have to communicate the offer to her. c. To protect yourself as an attorney—Document the advice you give and her decision to follow that advice and ask her to sign and return the document indicating that that is her decision. d. Look at comment 2 to rule 1.2!! She is allowed to be concerned with the feelings of her ex-husband. She has to live with it, you don’t. vi. Hypo: you’re a lawyer representing 11-year-old in adoption case. Parents wanting to adopt have been foster parents. While discussing, boy says father was sexually molesting him, but says you can’t tell anyone. Rule 1.14. a. Once you’ve figured out the right thing to do, you still need to figure out the right way to do it. b. It is information relating to 1.6. The exception to this rule that would allow you to reveal the info is the ABA exception to imminent bodily harm. 1) SD - It must be that the client is causing the harm, not the case here. 2) Mandatory reporting laws do not always apply to confidentiality in professional relationships c. In SD, try 1.14(b) to try to get new guardians appointed. Guardian ad litem can work in best interests of the boy. 1) 1.14(c) allows you to reveal some info about the client D. Terminating the Relationship p.72 1. In general i. Write termination letters when done representing someone. Remember—if the client thinks you are their lawyer, you are. a. Termination letters help avoid C/I. Under C/I rules, there is a rule for current clients and for former clients. W/o termination letters, former clients may be mistaken for current clients. b. Also, if no termination letter, you may have a duty to keep abreast with the client’s business/life matters and respond accordingly. c. Look at comment for Rule 1.3 ii. Once established, an AC relationship does not terminate easily. 14 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 2. 3. 4. 5. iii. Termination by lawyer: Rule 1.16—Section where you must and where you may decline representation. Declining or terminating representation.—under this rule, you have to protect your client once you withdrawal. a. 1.16(a) Mandatory withdrawal – 3 reasons b. 1.16(b) Permissive withdrawal – 7 reasons 1.16(c) Judge can deny your request for withdrawal and you still have some duties. i. If you are forced to stay in, and staying in will violate rules, look at comment 3: “The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.” Statutory attorney’s lien on the client’s confidential papers—SDCL 16-18-21 thru 25. Does 1.16 make it too easy for a lawyer to terminate? i. (d) There are certain things you have to do to protect property of client and you also have statutory right to keep papers of client in order to get paid. If we don’t keep it, we don’t have anything. May not be a good relationship with the client. Better than suing client for a fee (they will turn around and sue you for malpractice almost all of the time) ii. But it takes very little for a client to execute disciplinary complaint, even malpractice suit You might not want to write a termination letter if you want the client to remain as your client. If you don’t write a termination letter, you might get stuck and have to decline representing someone you want to represent due to conflict of interest. i. You can also execute a letter to notify that you will continue to represent someone, even after death. Episodic Client: i. If a client engages you for 2-3 times a year, there’s a reasonable client expectation that the relationship continues during intervals even if you are religious about closing every engagement with a closing letter. a. Former clients are better insofar as (1) the conflict of interest rules are softened; (2) the duty to inform is eliminated, and (3) the statute of limitations on malpractice typically runs from the date the representation has ended. Chapter 3: Protecting the Client-Lawyer Relationship A. Communicating with another Lawyer’s Clients p.75: 1. In general: ii. If the witness/party has an attorney—Rule 4.2 (p.76-elements) applies. iii. If no attorney, Rule 4.3 applies. iv. Purposes for rule: a. Fairness to represented party—do not want to take away the effectiveness of this party’s representation b. This rule is consistent with privilege, confidentiality—want to protect this relationship c. Element of professional courtesy: “Golden Rule”/reciprocity idea d. This rule Prevents a lawyer from: 1) Getting a damaging admission from the opposing client; 2) Learning a fact she would not learn if counsel were present to protect the opposing client 3) Settling or winning a concession in the matter without interference from opposing counsel 4) Learning the opponent’s strategy or gaining information protected by the attorneyclient privilege and the work-product privilege 5) Weakening the opposing client’s resolve by casting doubt on the strength of his or her position; and 15 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 6) Disparaging the opposing lawyer to his client. v. Can the clients talk directly with each other? Yes, the rules do not prohibit this. a. Rule 8.4. It is a violation of the Rules to violate the rules through the acts of another. 1) 8.4(a)—you can’t use your client to go talk to another client: Misconduct— violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another. b. What happens if the other side (Client 2) is not represented by counsel—Rule 4.3 says you have to make it clear to Client 2 that you are represent Client 1. c. What if Client 2 is the Government—we are citizens that have a right to talk to our governmental units—this communication is authorized by law even though the city council or government is represent by a lawyer. vi. Rule 4.2: The Anti-Contact Rule. (Or “no contact rule”) a. In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless (exceptions, see below) the lawyer has the consent of the other lawyer or is authorized by law to do so. b. The Rule protects against: 1) Overeaching by other lawyers 2) Uncounseled disclosure of informations, and; 3) Interference with the attorney-client relationship Comment: The rule does not prohibit discussing “separate matters” with a represented party. This rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question. i) Used to be a big debate as to what “party” requires. Model Rules amended to say “person.” SD has not made the switch. 5) Comment (with respect to corporations): Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization [control group], and with any other person whose act or omission in connection with the matter may be imputed on the organization for purposes of civil or criminal liability on whose statement may constitute an admission on the party of the organization [vicarious admissions/imputed liability]. i) Not exactly consistent with Niesig. Probably more protection in comment than even the best case law suggests. c. There are two exceptions to Rule 4.2: 1) consent by the other attorney, 2) unless it is authorized by law (You can do undercover operations until the 6th Amendment right to counsel kicks in and the no contact rule kicks in) i) Or if it does not concern the content of the representation 6. Civil Matters: i. Niesig v. Team I (1990 (no contact rule in corporate setting): P injured when he falls at construction site. P wants to interview all of defendant corporation’s employees who were on the scene when the accident occurred. D’s claimed 4.2 barred such contact. Upjohn/Samaritan issue, but what employees are covered by the no contact rule? YOU CAN ALWAYS INTERVIEW FORMER EMPLOYEES WITHOUT VIOLATING THE NO CONTACT RULE. THE ONLY PEOPLE YOU CANNOT TALK TO ARE THE ONES WHOS ACTS OR OMISSIONS IN THE MATTER……SEE SIMMONS NOTES. a. This case is about the no contact rule. Can the lawyer contact them? The no contact rule is totally different then the privilege rule. 4) 16 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 b. The alter ego rule: The test defines “party” to include corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation’s alter egos) or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel. All other employees may be interviewed informally. c. Samaritan review: employees seeking the advice of counsel and employees whose conduct creates company liability (conduct within the scope of employment to assist counsel in assessing legal consequences of the conduct.) d. Rule 4.2—South Dakota follows the comments in rule 4.2. e. Thus, Niesig and Samaritan attempt to ID essentially the same group of employees. ii. Governmental Entities a. First Amendment right to petition the government. b. If suing city, can talk with city council members without representation. c. Most common sanction for 4.2 violation—removal from case (disqualification), suppression of the evidence. d. 4.2 Exceptions 1) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter... 2) Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused… 7. Testers: A tester is someone who pretends to be what they are not. Lawyers have used people to obtain information under false pretenses. i. Prohibited under Rules 8.4(a) and 4.2 8. Criminal Matters: Defense attorney can always go talk to the victim unless that victim is represented by civil counsel (the victim is not the client). You can also talk to witness without violating the no-contact rule. i. General: A prosecutor’s custodial pre-arraignment interview of a poor suspect invites application of the no-contact rule and suppression even though the suspect does not yet have a lawyer yet. We know the lawyer will be probably be the public defender: appointment comes after indictment, which is within the prosecutor’s control. ii. United States v. Hammad (1988) p.87: Prosecutor uses a fake subpoena and an undercover witness working with the government to obtain incriminating evidence. BV: This case hasn’t been followed much, even by the 2nd Circuit. a. To what extent does Rule 4.2 restrict the use of informants by the government prosecutors prior to indictment, but after a suspect has retained counsel in connection with the subject matter of the investigation? 1) Government: argues application of 4.2 will curtail investigations; want 6th Amendment to control. Prohibiting contact especially harmful when you have career criminals with “in house” counsel. 17 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 2) The “turning point” of the case—the issuing of the fake subpoena, which made Goldstein an “alter ego” of the prosecutor. b. Suppression was the TC remedy—but this court reversed given the unsettled nature of the law. c. The use of informants by government prosecutors in a pre-indictment, non-custodial situation, absent the type of misconduct that occurred in this case, will generally fall within the authorized by law exception to the disciplinary rule and therefore will not be subject to sanctions. iii. US v. Carona (2011): Carona was a Sheriff in Orange County who received bribes from Donald Haidl (support of Sheriff’s office in exchange for cash). Haidl also offered Carona and another sheriff a bribe not to take bribes from anyone else, and gave Carona a speedboat. Haidl admitted his conduct in order to make a plea deal. The gov’t used Haidl and have him two fake subpoenas. Carona later told him Haidl to lie to the grand jury about their transactions. Carona was convicted of witness tampering. a. To determine whether communications by federal prosecutors violate Rule 2-11 (Rule 4.2), there is a case-by-case adjudication approach. b. Providing fake court papers to an informant to use during a conversation with a represented party is not conduct that violates the rule. 1) It did not cause Haidl to be any more of an alter ego of the prosecutor than he already was by being an informant. 2) The false documents were props used by the government to help the witness. c. It has long been established that the government may use deception in its investigations in order to induce suspects into making incriminating statements. B. Improper Acquisition of Confidential Information 1. Hypo p.93: Something You Should Know i. File a motion to compel discovery- tell the judge the situation. Tell the employee that you really can’t talk to him in this situation and tell him that he should get a lawyer and then you can talk to that lawyer about this situation. ii. One thing you can never get into trouble for is telling someone to get a lawyer. 2. Inadvertant Disclosure i. Misdirected fax: Can you use that information? Should you use that information? Not a clear rule on this. a. Whose property was this—the company’s b. Is the information ethically protected? Yes c. Advice: Call the other side; advise them you have the information, ask what to do with it; do not read it. 3. ABA Opinion 1.6(c), 4.4(b): concluded that a lawyer who mistakenly received an opponent’s confidential information should not examine it but should instead request the opponent’s instructions. Courts have repeatedly refused to view the unintended revelation of privileged documents (marked as such) as a waiver. i. As a basis of decision, included some words on professionalism and civility: even though it might benefit your client to read the privileged info., you might send the info inadvertently next time (“Good Sense and Reciprocity” section) ii. SD attorney: advised to notify the other side and give opposing counsel opportunity to file a 19-13-27 claim. The privilege is not lost by an involuntary disclosure. a. A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege. iii. Rule 4.4(b): Note from last time on inadvertent discovery of documents. Look at comments to this too. iv. Comment 2 deals with whether you use the info. 18 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 v. Comment 3 says you can be more ethical than the rule requires 4. FRE 502 (adopted in 2008), ties in with ABA 1.6(c): don’t lose privilege for info if the info was i. Inadvertently disclosed ii. You took reasonable steps to prevent the inadvertent disclosure iii. Promptly try to rectify Chapter 4: Financing Legal Services (Fees) 1. In General, 2. Rule 1.5: A lawyer’s fee shall be reasonable. i. Section (a): 8 factors to consider under reasonableness – the most important factor:(emphasis here) a. (1) time and labor required, novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly 1) This is the Number 1 Factor to consider. First five words!! 2) Lodestar = reasonable rate x reasonable hours: Means “guiding star”. These same factors are used in fee disputes. Also use these factors for court awarded fees. Civil rights and environmental cases are the most common. Fee awards against the government. b. (2) likelihood other employment will be precluded (lawyer had to turn away other business and this is apparent to client) c. (3) fee customarily charged in locality for similar services d. (4) amount involved and results obtained e. (5) time limits imposed by client/circumstances f. (6) nature and length of professional relationship with client g. (7) lawyer’s experience/ability/reputation h. (8) Whether fee is fixed or contingent. ii. Section (b): Fee agreement shall be communicated to client, preferably in writing, before or within reasonable time after commencing representation. Talk to client early on. a. If you wait for a while before agreeing to fees, court may perceive client as being in an unfair bargaining position. Look at 1.8 (a). b. Fee preferably should be in writing. AC relationship is a trust relationship. Requiring writing might undermine the gentlemen’s agreement and handshake. This is why the ABA rejects requiring it for all fee agreements. iii. BE SURE TO KNOW THIS RULE AND EVERY SUBDIVISION 2. Division of fees: 1.5(e): division of fees only if i. in proportion to services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; ii. the client is advised of and does not object to participation of all the lawyers involved iii. NOTE: Look at 1.15 – trust accounts (client’s money). iv. SAND = requirements of 1.15. a. Separate b. Account c. Notify and d. Deliver. Turn to 1.8 (e). 3. Types of Fees: i. Flat Fees a. D.U.I for $1,000 ii. Base Fees a. Representation through preliminary hearing for $1,000, hourly thereafter. 19 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 iii. Hourly Fees a. Partners, associates, Paralegals. iv. Contingent Fees a. 1/3 of recovery, if any v. Hybrid contingency fees a. 1/5 of recovery, if any, plus $75/hour. vi. General Retainer a. To be available for any matter vii. Special Retainer a. To be available for a specific matter viii. “South Dakota Retainer” a. An advancement from client against future legal work. Deposited in trust account until work completed. A. The Role of the Marketplace 1. Brobeck, Phleger & Harrison v. Telex Corp. (1979): Telex, on appeal, lost a $259.5 million antitrust judgment + a $18.5 million counterclaim judgment to IBM. D Telex hired P Lasky to try and get the SC to accept cert. Terms awarded Lasky a substantial fee for agreeing to take this case. Telex wanted the lawyer to work on a contingent fee agreement. Fee was excessive, shocking for amount considering he didn’t put a lot of time into case. Telex drafted the agreement and insisted upon a contingent fee. Clear written agreement here; client responded with some hypos; attorney responds to the hypos with a memo; client did not respond to this. ix. Telex settled with IBM. Cert request withdrawn. Counter-claim judgment dropped. Lasky submits bill—Telex will not pay. Lasky firm sues client Telex to collect $1,000,000 in attorney fees. Lasky’s motion for SJ granted—affirmed; Telex has to pay. x. This is a contracts case, not a disciplinary one. This fee was not unconscionable. a. Test: whether a man in his sense and not under a delusion would make on one hand, and as no honest and fair man would accept on the other. b. In fee cases, not unlike other Ks, the sophistication of parties makes a difference. c. Essentially, attorney was successful: prevented client from having to pay $18.5 million and going bankrupt. d. THIS WAS NOT A RULE 1.5 CASE, IT’S A FEE CASE, HOWEVER, WE CAN USE IT TO INTRODUCE THE RULE. xi. Rule 1.5(a), what factors contribute? a. 7 – reputation b. 4 – amount involved c. 5 – time limitations d. 2 – employment preclusion e. 1 – difficulty f. 8 – contingent fee xii. Negotiation and sophistication of the client a. Amount involved and results—clearly helps Lasky out—His client got a majority of things that it wanted. b. Time limitations—get a cert petition done is a positive factor for Lasky. c. Length of Attorney/client relationship—this is the first time Lasky worked with this client therefore the fee should preferably be in writing. d. Experience/ reputation—this factor helps Lasky out e. Fixed or contingent—In a contingent fee there is a risk element that helps or hurts either the client or attorney. Fixed is less risky. With a contingent fee—you get a huge settlement for not very much work. B. Unethical Fees 20 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 1. In general: i. One test: “So exorbitant and wholly disproportionate to the services rendered to the Ds as to shock the conscience.” ii. Look at Rule 1.8: Conflict of Interest: Prohibited Transactions iii. You don’t have to put a fee agreement in writing (unless it is a contingent fee agreement— then it must be in writing); however, if you don’t, you as a lawyer might get yourself into a lot of trouble. The best point to enter into a fee agreement is after you have the initial consultation with the client. 2. In Re Laurence S. Fordham (1997): Discipline case. The Attorney in this case represented a defendant in a criminal DUI case and charged $50,000 to get a not-guilty plea; the case would normally cost less than $10,000. Fordham was a civil lawyer and not a criminal lawyer, with no experience trying this type of case. The board recommends against discipline. The Court disagrees and orders a public reprimand: Fordham’s fee was clearly excessive. i. The Court applied DR 2-106(A) which applies a clearly excessive standard and not a reasonable standard. ii. The client entered the agreement with “open eyes.” Hearing committee found “safe harbor.” As long as an agreement existed to bill a reasonable rate multiplied by number of hours, the fee was within safe harbor and protected from challenge. a. This was rejected. iii. Possible guidepost: if a fee is likely to be completely out of line with what competing lawyers generally charge for the same service; even if you think it’s justified; you better go out of your way to explain everything in great detail, in writing, including worst-case scenarios. iv. 1.5(a) Factors in Fordham’s case: a. For discipline 1) (3) Customary fee—this fee he charged was overly excessive for a OUI representation. Case is decided on this factor. Experts testified that fee is usually 1-5K, with high being around 15K. This factor is what really hurt Fordham. 2) (1) spent a lot of time learning the law on this case because he had no experience. Old code: you can’t learn at the expense of the client. ABA did not carry this over, even in the comments. b. Against discipline 1) (4) won the case 2) (7) reputation, chosen by client and given credit for great new theory 3. Hourly or value billing? i. Value billing: paying a lawyer for what is done and not for how long it took to do it. Fee not fixed or formulaically determined in advance. a. This lingo often appears with fee-shifting statutes (as with § 1983 claims) 4. 2000 SD 23 – Discipline of Dorothy - $60,000 fee in child support case. He did a lot of other things wrong, too. Clients were going to see him one day and they ran out of gas. Lawyer ran out there and gave them gas and charged them $100/hour for doing that. 5. Courts may reduce or deny Unethical Fees: Courts may order reduction of excessive fee or deny fee altogether. As one court noted, to allow any fees at all to lawyers who charge exorbitant fees would to encourage high fees—no risk of loss. 6. Should Lawyer be Required to Put Fee Agreements in Writing: note that it just says the fee agreement should preferably be in writing. Under Model Code, rule was: “A lawyer’s fee shall not be illegal or clearly excessive.” But same factors to evaluate under both Model Code and Model Rules. 21 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 7. Nonrefundable Fees: general retainers are permitted, as the client is paying the attorney for the attorney’s general availability i. Rules implicated: a. Rule 1.16(a)(3): attorney who sets up non-refundable fee agreement essentially refusing to be discharged. b. Comment 4: Client has right to discharge a lawyer at any time, with or without cause, subject to liability for payment for attorney’s service. c. Rule 1.16(d): attorney must “refund any advance payment of fee that has not been earned” upon termination of representation. ii. What advantage does client get for non-refundable fees? a. Probably lower than hourly fee, as lawyer is essentially eliminating risk of being discharged (what Cooperman court did not like) iii. What other rule implicated in these cases? a. Rule 1.15: Safekeeping Property. Courts that do not recognize nonfundable retainer fees; may relabel such fees as unearned fees for availability. Then have to look out for Rule 1.5, as such funds may be required to be in a trust account. Court may determine it’s a general fee for availability, that portion of which is unearned must be placed in a trust account. b. SAND: Separate account for clients funds iv. Have at least two trust accounts: a. Trust account for Clients (can be individual or pooled) (NOT MINE)—This contains the retainer, advance fees and expenses, settlement checks, and earnest money. Use this trust account to pay expenses, settlement funds to client, earnest money to seller, and bank charges. You cannot use this for your office supplies or even your annual state bar dues. b. Operating account (MINE)—fees that you earn, and out of this account you pay office expenses like lawyer and staff compensation, rent, supplies and sales taxes and your own compensation. 1) Separate 2) Account for those funds—keep perfectly accurate records 3) Notify—you notify the client on what is happening with those accounts 4) Deliver—You deliver the money to the client c. There will be a Trust Account Question on the test, use SAND—look at Rule 1.15 d. Quantum Meruit: if client does not pay attorney, attorney has right to recover for services. But if attorney sues client, guarantees a counterclaim for malpractice and filing with state bar disciplinary board! You can only argue quantum meruit if you don’t use a non-refundable retainer fee. C. Contingent Fees (Multiple Choice questions 1. Lawyer depends on occurrence or nonoccurrence of an event. Most prevalent in personal injury or property damage actions. 2. The typical contingency fee is a share of recovery. But contingency fees are also allowed for successfully closing on a real estate deal or a loan. And reverse contingency fees have been approved for the amount saved (e.g., in reducing the amount of back taxed owed) i. Factors to consider in taking a contingency case a. Likelihood of recovering b. Amount of likely recovery 3. Whether a contingent fee is likely to be more favorable to the lawyer than hourly fee: i. *Most important: Likelihood of the occurrence of the contingency ii. When it is likely to occur iii. Probable size of recovery 22 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 iv. Amount of work required v. Size of the lawyer’s percentage 2. See Rule 1.5 i. Good practice to at least offer an hourly rate ii. With Contingency Fees, have to make an exception to the Conflict of Interest Rules a. Contingency fees are viewed as conflicts of interest: conflict of interest would be advancing the costs of your services to the client. This gives you, as attorney, a stake in your clients claim b. Rule 1.8(e): “A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation.” iii. Contingent fee agreement shall be in writing and shall state method by which fee is to be determined and whether out of pocket expenses are to be deducted before or after contingent fee is calculated. 1.5 (c). Contingent fee is percentage of outcome. If you don’t win, you don’t get anything. Gives you permission to have interest in the outcome of the case. a. Could be 1/3 of gross or 1/3 of net 3. Prohibitions on Contingent Fees in Criminal Cases and Matrimonial Cases i. See Rule 1.5(d)(1) ii. No contingency fees agreements for domestic relations matters including divorce, alimony or support (unless already divorced), or property settlement (no mention of child support, but Simmons still thinks this is included in the rule); a. State has an interest in seeing as much money stay with the family as possible b. Since the law empowers the judge to order a wealthier spouse to pay the other spouse’s counsel fees, the less wealthy spouse does not need a contingent fee to be able to attract a lawyer c. Exception: for the collection of settlements in domestic relations matters iii. A contingent fee gives the criminal lawyer a stake in the outcome that might lead to a recommendation of a course of action not in the client’s best interests a. Sometimes they do a quick settlement b. A criminal lawyer who gets acquitted might not be able to pay contingent fee anyway 4. Statutory Fee Ceilings – Know that some jurisdictions put a cap on certain damages (like Med Mal in SD; the cap was later struck down by the SD SC) 5. Minimum Fee Schedules i. Goldfarb v. Virginia State Bar a. Goldfarb contracted to buy a house in VA. The financing agency required them to secure title insurance; this required a title examination, and only a member of the VA State Bar could legally perform that service. All lawyers in the area that the couple contacted wanted to charge a minimum fee that they obtained from by the State Bar. Couple sues State Bar and County Bar alleging that the operation of the minimumfee schedule constitutes price fixing in violation of §1 of the Sherman Act. b. Holding: Certain anticompetitive conduct by lawyers (fee scheduling) is within the reach of the Sherman Act (antitrust laws) 1) This can be construed under Rule 1.5 (to ensure that attorneys are not overcharging)àper Simmons, not in case. E. Court Awarded Fees 1. Determination of Amount, In General: i. Lodestar: “guiding star”: the number of hours reasonably expended on the litigation x reasonable hourly rate 23 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 a. You can also contract for additional fees ii. In reviewing a fee award by trial court, standard of review is abuse of discretion. a. This is because the trial judge is in the position to evaluate the facts iii. Fee shifting statutes—most closely associated with civil rights statutes. a. Purpose of these statutes is two-fold: vindicate civil rights and to induce attorneys to take civil rights cases. 2. Mandatory Pro Bono Plans i. Rule 6.1à every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono public services per year. a. Should also give money 3. Who Gets the Money? i. Division of fees between firms: Rule 1.5(e): (1) If the total fee is reasonable, (2) client permission, in writing; you can divide fees, but (3) the division has to be either in proportion for amount of work, OR each lawyer assumes responsibility for the joint representation (you can both be sued for malpractice) Chapter 5: Concurrent Conflicts of Interests p.145 1. In General i. A conflict of interest is present where there is a significant risk that the representation of one client will be materially limited by the lawyers responsibilities to another client, a former client, a third person, or the lawyer’s personal interests. Rule 1.7(a)(2) (paraphrased) ii. First have to look at Rule 1.5…if all elements of this rule are good to go, THEN you evaluate if you have a conflict of interest. This is very fact driven. We started with Rule 1.7 ii. Definitions a. Concurrent conflicts: involving two or more current clients b. Successive conflicts: involves current client and former client iii. Threshold issue: is there an A-C relationship? Look for an exchange of confidential information for legal advice, as well as the client’s reasonable belief. iv. RULES a. 1.7 - Conflict between two Current clients; concurrent – Comment is important!! b. 1.8 - Specific Conflicts; business deals, etc. c. 1.9 - Former client, Successive conflicts d. 1.10 - Imputed Conflicts of Interest – if one lawyer in firm has a conflict, all do e. 1.11- Imputed Conflicts of Interestà government-lawyer conflicts f. 1.12 -Imputed Conflicts of Interest g. 1.13-Organizational Lawyer Conflicts h. 2.3 Evals i. 3.7 Witness Advocate COIà lawyer-as-witness conflict 4. Principles dealing with conflict of interests i. Loyalty – protects clients (discipline), legal system, lawyers; fair representation ii. Confidentiality – cases help provide predictability and guidelines 5. Rule 1.7 – ON TEST!! i. Rule 1.7(a): Two types of conflicts – Remember Kerr-McGee. Get all their names. Corporations and women change their names. Comment gives leeway. Confidentiality is key to understanding COI. Most of the time confidential information is being threatened and then you know there is a conflict. ii. BV HYPO: One is inventor and one person is investor. They want you to put together a business using both of them. You can do that. The moment that investor says “I haven’t talked to my buddy about my bad investments in the past and he hasn’t seen my financial 24 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 iii. iv. v. vi. records.” You have a major problem. Inventor tells you separately, “this is a great idea that I have come up with, but I am not sure I can get a patent.” Problem is not that you can’t represent them; the problem is that you have a conflict because you have to protect the confidential information. Another Hypo: H and W want you to write their wills. H wants to leave money to his mistress. You have a COI. He doesn’t want W to know. a. Representation of one that is directly adverse to another 1) Might happen in conjunction with Rule 1.10 (imputation)—a firm of lawyers equals one lawyer 2) Example—representing both the plaintiff and defendant. b. Representation of one that may be materially limited by lawyer’s responsibility to another client, 3rd party, or self With both a and b, can get rid of conflict under certain circumstances a. If client consents after consultation; and 1) “Consultation” defined in the terminology section—denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question. b. If lawyer reasonably believes that the representation will not be adversely affected. 1) For definition of “reasonably believe” have to go to terminology section. This is defined with objective and subjective elements. Rule 1.7(b) (2): concerned with privilege rules in multiple representation situations. COI can be consented to. a. Three interests that have to be taken into consideration when talking about a conflict — 1) another client, 2) a third person, 3) or the lawyer’s own interests. Comments: primary interest to be achieved is loyalty to client. Sometimes, this loyalty defined as a fiduciary duty. a. Vickrey: one of primary purposes of conflict of interest rules is to protect confidential information. Safest test to check for conflict of interest: check if the representation of one client jeopardizes the confidential information of another client. b. Need A-C relationship for conflict of interest Rules to attach. Remember that it is easy to have this relationship, which is controlled by other rule. c. If client is consenting, client has to know enough about the situation to make an informed decision regarding consent. However, cannot reveal confidential info in course of “informing” client; thus, a fully-informed consent may not be possible. d. Ordinarily, a lawyer should decline to represent more than one co-defendant. e. Issues conflict: attorneys can take different positions on 2 different cases. (I.e., argue for tobacco companies one case; sue them in the next case). Thus, can maintain different positions before different trial courts. Once the cases get to the appellate court at the same time, cannot take different positions. f. Factors to consider when determining whether there is potential for adverse effect: 1) Duration and intimacy of lawyer’s relationship with the client or clients involved, 2) Functions being performed by the lawyer 3) Likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise 4) Question is often one of proximity and degree 25 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Generally, loyalty to a client prohibits undertaking representation directly adverse to that client without that client’s consent. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. However, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. A. Client-Lawyer Conflicts 1. Generally i. Consequences of conflict of interest? a. Discipline—not real common b. Disqualification 1) With this, attorney loses his fee and may be ordered to pay fees for substitute counsel. c. Rule 11 of Civ Pro (frivolous lawsuits) may also come into play. ii. Policy debates a. To some extent, cutting off client’s choice to attorney with conflict of interest rules b. Purpose of conflict of interest rules is to protect the client c. Specialization of practices has been affected by conflict of interest—smaller client base. 2. Business Interests i. In Re Neville (1985): Bly, client, is real estate guru, and has had an AC relationship with Neville for 10 years. Neville, Bly, and 3rd party enter into a business transaction. Neville makes a ton of money—Bly loses out. The client (Bly) suggested the terms of the contract. Discipline was a public censure, as well as the board considered a 60 day suspension. a. Court – there’s “no bright line” b. Court goes beyond Rule 1.8(a) and says that attorney must tell the client to get independent advice. Do not, however, suggest a specific name—courts may perceive this as “not independent.” c. Neville argued that he was not a lawyer for Bly and that he was merely a business man and seeking a business opportunity. 1) The Court did not buy this argument—Neville should have given full disclosure and gotten consent and should have told Bly to go seek another counsel on this issue and the terms have to be fair and reasonable. d. Remember—deal must be fair and reasonable. 1) Hard to have a deal with client where attorney has explained everything; client agrees; then client loses big while attorney reaps a windfall. 2) “Respondent’s fiduciary duty required that he take no advantage except with his client’s ‘consent’ after ‘full disclosure.” Logical problem here—implies that you can take advantage of your client only after client consents to being taken advantage of. 3) Neville suggests that if the attorney comes out the least bit ahead, there is probably a conflict of interest. Treat them as if they are your client. e. Full disclosures – requires not only full explanation of the divergence in interest between lawyer and client and explanation about seeking independent advice, but also a detailed explanation of the risks to the client that flow from the agreement. Must be informed consent in writing ii. A Lawyer’s Financial Interests: Code places burden on counsel, irrespective of client’s sophistication, to obtain his consent after full disclosure before entering into a business transaction where the differing interests of counsel and client may interfere. g. 26 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 3. 4. 5. 6. 7. iii. Interests Adverse to Clients: Rule 1.8(a) prohibits a lawyer from “knowingly acquir[ing] an ownership, possessory, security or other pecuniary interest adverse to client unless certain conditions are satisfied.” Media Rights: usually has to do with high-profile defendants. Acquiring media rights to story may cause attorney to grandstand, since he now has a stake in the outcome of the proceedings. “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial art on information relating to the representation.” Financial Assistance and Proprietary Interests: policy behind prohibiting clients advances for personal expenses—prevents unfair competition within the profession. Cannot advance living and med expenses; can advance court costs and expenses. i. This only applies to contemplated or pending litigation. BUT NOTE Rule 1.8 still applies. If you are making a will for someone, that is not pending litigation, but Rule 1.8 still applies if you make that person a loan because that is a business transaction and you can be punished. So, if you follow Rule 1.8 then you are good to go OR if you make it a gift, then you are good to go. Fee-Payor Interests: Rule 1.8(f) when lawyers are paid by one person to represent another (i.e., insurance defense), attorney is obligated to protect the client’s confidences, even though client is not footing the bill for services. Related Lawyers and Significant Others i. Gellman v. Hilal (1994): This was a disqualification motion. Wife represented D in former medical malpractice action. Then Husband represents Plaintiff against same Defendant. Is there a conflict of interest? No, the court says this is OK. Why would Rule 1.8(i) not apply? a. First, Rule 1.8 applies to concurrent representation. It is a list of “do not’s.” 1.8(i) no longer exists. Instead, ABA made comment 11 to Rule 1.7. There seemed to be a problem for women wanting to practice in the same area as their husbands. 1) Says this is ordinarily a conflict, but it can be resolved with client consent. 2) In the “current client” rule, so arguably this would not matter if husband tells his client because it was the wife’s former clients. b. Confidentiality is the worry. Two types of disclosures that court is concerned about: 1) Intentional - the intentional sharing would increase the husband and wife’s bank account 2) Inadvertent c. Court says that both types of disclosures can be avoided by professionals. If the wife violates the rule, she runs risk of getting disciplined. This case deals with whether or not the representation of the wife still exists. Since the representation no longer exists, then there is no conflict of interests. 1) Husband says he doesn’t even know who the wife represents (could be a good or a bad thing) d. Case law between disqualification and disciplinary proceedings—not necessarily transferable. There is a higher threshold of misconduct required for disqualification as compared to disciplinary action. ii. Private and Public Lives: Forbidden – Giving money to client for humanitarian reasons; trying not to get manipulated by other side; money to live on. A Lawyer’s Legal Exposure i. 1To get rid of a conflict under Rule 1.8 you also have to make sure that you did not violate Rule 1.7. Always worry about the general rule of 1.7 when you argue a conflicts question. ii. Rule 3.7: you can’t represent the client if you’re a witness in the case (a few exceptions) 27 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 B. Client-Client Conflicts 1. Not dealing with disqualification or disbarment, rather... talking about whether lawyers’ conflict in a criminal case constitutes assistance of counsel so ineffective it is violative of the 6th Amendment right to effective counsel. This problem is remedied by a reversal and new trial for the defendant. Does NOT have any direct consequences for a lawyer. i. It is very difficult for a person to win an "ineffective assistance of counsel case".... if they do find it, more times than not the courts end up on dismissing because no "prejudice" was found. 2. Criminal Cases (Defense Lawyers) i. Cuyler v. Sullivan (1980): D accused of murder. D represented by two attorneys who represented two accomplices who were both acquitted. D convicted. The attorneys did not even put on a case for the D. One attorney claims he thought their case was strong; another admitted that he did not want D testifying, as this may harm the other defendants. Also did not want co-Ds testifying at D’s trial. Why not—implicate yourself; open for investigation; cross-X; “throwing off”; impeachment; plea bargaining. a. Read 1.7, comment 23 – normally should not represent more than one co-defendant b. Privilege in matter of joint rep: as matter of evidence law, no one D can assert the privilege against another D. c. FRCrimP 44(c) requires the Court to inquire as to the conflict of interest when multiple rep of Ds involved. Court has duty to investigate. With this case—burden on D to make a timely objection—then the court has to give D opportunity to show prejudice in trial. d. The Court holds that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance. You need to show that the attorneys performance was impaired, but you do not have to show that there is a probability of a different outcome. e. Court uses a test: A defendant who shows that a conflict of interest ACTUALLY affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. Here the court holds that a court does not have a duty to inquire as to the voluntariness and willingness of a criminal defendant to be represented by a lawyer where there is conflict of interest... This court also holds that you also have to have adverse impact on the case too... (44C)(Was a federal rule) f. Holloway Holding – if the judge forces a conflict of interest with an attorney, it results in an automatic reversal ii. Turning Conflicts into Sixth Amendment Claims after Cuyler: a. Strickland v. Washington: This is a case from 1984, it came after Cuyler. In ineffective assistance of counsel cases, the court will presume prejudice “only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” It has been increasingly hard to win ineffective assistance cases since Cuyler. “But for” test from Crim Pro, defendant must show that “but for” the conflict of interest, he would have been fine 1) Cuyler fits in: a conflict of interest will give you a better case for ineffective assistance of counsel claim. Conflict creates a presumption of deficient performance and prejudice. 2) Recall—just because the judiciary has set high bar for reversal on habeas proceedings does not mean the attorney could not be disciplined on the same conduct. 28 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 3) Applying Cuyler and Strickland, if you CAN find an ACTUAL conflict of interest, it makes it easier to prove prejudice. b. Mickens v. Taylor (2002): Lawyer assigned to represent murderer D. Shortly before he had represented the victim in another case. The lawyer still owes a duty to the dead victim. Lawyer can’t use info he gained about the victim in representing the D. Court denies relief to the D when lawyer did not present conflict (5-4 decision). Mickens gets the death penalty. c. Rule 1.8(g) and comment 13: no aggregate claims when representing more than one client d. Wheat v. United States (1988): VICKREY'S FAVORITE! Really good criminal defense lawyer from San Diego, Iredale. Wheat and two other Ds, Gomez-Barajas and Bravo, were involved in drug ring. Iredale represented GB (there is a plea agreement for GB and it has not been accepted by the court yet) and B. Wheat wants Iredale to represent him too because Iredale got an acquittal for GB (followed by plea bargain on lesser offenses of tax evasion and illegal importation) and a plea for B (final plea—B agreed to testify against Wheat). Two days before trial, Wheat makes a motion to substitute counsel. Denied. Trial court does not allow Iredale represent Wheat. Why? The United States attorney brings up a conflict that Wheat could use on appeal – conflict is that the gov’t calls one of former Ds (Iredale’s client) as a witness. 1) Holding: Can consider whether prosecution is manufacturing a conflict of interest i) From the outside, it looks like the Prosecutor manufactured a conflict... (Court says can't trust the lawyer to provide enough information to a client to effect a consensual waiver of future conflicts of interest.) ii) Looks like B was added to the witness list in Wheat’s trial to create a conflict of interest—to conflict Iredale out. iii) Bravo may have to testify against Wheat…Let other counsel cross B iv) No link between Wheat and B—they did not even know each other. When B did actually testify at Wheat’s trial—he did not have anything that would criminally implicate Wheat. 2) Court doesn't allow him to get this different counsel to represent him because the Conflict of Interest which would have risen is nonconsentable. 3) Don't like to cross-ex your client cuz you are bordering on breaching duty to keep some information confidential. i) There is a conflict of interest in cross-exing Bravo in Wheat's defense. ii) One problem with this opinion is that it assumes GB will go to trial... (It later turns out his plea is accepted.). iii) However, Wheat's testimony that we know now was irrelevant, was important at the time because the District Court hadn't gotten the case at trial yet. iv) Final criticism is that Bravo wasn't even on the witness list until after they tried to hire Iredale. 4) Dissent: relies on the theory of adding counsel and not just substituting counsel. i) Remedy here is having co-counsel doing the cross-examining—this would say that co-counsels could keep information from one another. ii) Vickrey sides with dissent: Westlaw facts said it was substitute 29 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 5) “Consent after consultation”—all three Ds waived the conflict here. But the majority concluded that defense lawyers could not be trusted to tell Ds about all the implications of multiple representations. e. IN EVIDENCE-- "Common Interest Approach"-- if lawyer represents two+ persons, they have to unanimously waive the privilege - 19-13-3.3. Rule 1.7 says basically don't represent more than one criminal defendant in the same case at the same time... Even though the prosecutor might testify that the conflict would not be resolved by virtue of the fact of different counsel, it doesn't necessarily mean that the defendant's lawyer can be representing his co-defendants too... 1) When a lawyer can take on multiple clients with the same/related criminal charges... Rule 1.7(b) f. Wheat’s Harvest: A lawyer might be disqualified under the Wheat test if he or she has previously represented, but no longer represents, a witness who will testify against the defendant. g. Criminal Case Disqualification and the “Automatic Reversal” Debate: pretrial orders disqualifying criminal defense counsel are not subject to immediate appeal. The defendant can raise this issue on appeal after the judgment of conviction. 1) US v. Gonzalez-Lopez (2006): (5-4) decision. Pro hac vice (not a member of bar but admitted for this case). Judge erroneously thought the lawyer had violated no contact Rule 4.2. So D was not allowed the counsel he wanted. Scalia said the right to counsel of your choice is more important than a fair trial. 3. Criminal Cases (Prosecutors) i. Young v. United States Ex Rel. Vuitton Et Fils S.A. (1987): Vuitton settled trademark dispute with defendants. Settlement enjoined Ds from further trademark violations. When Ds violated the injunction, V’s counsel was appointed special prosecutors and the D’s were convicted of contempt of court. a. SC upheld the district court’s power to appoint private counsel to prosecute a contempt charge. It concluded that V’s counsel should not have been appointed. b. The Court finds that there is a conflict of interest in this case: private counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order. 1) Injunction was backed up with a contempt order. If you violate order, you can get damages. 2) Same lawyers get appointed to be federal prosecutors. Court doesn’t allow this – they had a money interest in the case. 3) One of the lawyers got sued for defamation. Another personal interest in the case. Rule 1.7 (a) (2). The lawyer’s interests are furthered by successfully prosecuting this case. c. Rule 3.8, Comment: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. 1) This is the philosophical essence of 3.8. 2) *The prosecutor’s client is the “people” or the “state” 3) This duty to seek justice is important, as the prosecutor does lots of things to the detriment of the D that is unsupervised. Lots of prosecutorial discretion. 4) Court is worried about investigatory power of prosecutor. They can use the information for their own case. 5) Immunity offers also cause problems. 6) In S.D., there are part-time state’s attorneys. So this is when we might be in this situation. 30 Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 7) Underlying principle of CoI is confidentiality. d. Court concludes that it cannot trust the private attorneys in this case to put aside personal interests in search of those loftier goals. ii. Prosecutors Avec Deux Chapeaux: Early cases—judges seized on “appearance of impropriety” language in conflict of interest cases. The Model Code had this as a basis for a disqualification action—Model Rules consciously ditched this. iii. Contributions to Justice a. Rule 1.8 (f)—provides some guidance in this case. Also Rule 5.4 (c) helps with this problem. This is a situation where someone else pays for the representation. b. 1.8 (f)—get something in writing showing that there is no unity between the two parties. Get it in writing and get approval by the Attorney General that you can go forward with this case as a States Attorney. c. A few Gateway employees left. Gateway suggests they stole company trade secrets. Gateway approaches prosecutor and offers $25,000 to pay experts for prosecutor to investigate. Is this OK? 1) County commissioner has control over the budget. 1.8 (f) is arguably relevant. Doesn’t prohibit taking the money. 5.4 (c) – can’t let someone influence the case. BV argues that you can satisfy both of these rules. There is no rule against this, but he wouldn’t do it. 2) Buying justice? 3) Why not just have Gateway hire their own investigators then hand the info over the States attorney? iv. Conscientious Objectors