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Effect of ABA ploicies
Have no legal effect, only have persuasive force. Law is very much a self regulating profession, but the rules are promulgated by the supreme court of the state.-----commentary is there to provide guidance.
Violation of a rule should not itself give rise to a cause of action against a lawyer. Rules are not designed to be a basis for civil liability.
Requires legal knowledge, skill, thoroughness, and preparation reasonably necessary to provide proper representation.
Must have/provide: specific knowledge; gather sufficient facts; formulate the material issues raised; develop a strategy; and undertake actions on client's behalf in a timely manner.
Sanctions----Wys to determine appropriateness of Sanction
Disbarment; suspension; interim suspension; probation; fines; public reprimand; community service; CLE; private reprimand
Who was the victim? Was it intentional or unintentional? Liklihood of repetition? -----Look to the aggrevating circumstances
Admission to the Bar
Must be completely honest with the Character and Fitness committee.
Must be exposed to the common-law; and be exposed to American Law (Contracts, Constitutional Law)
Most frequent complaint about lawyers:
Neglect--failing to communicate with the client, including failing to communicate the basis of the fee.
Must be proactive your duty to is to make them understand their situation.
Cant have sex with a client unless you already had a prior relationship with them.
Overarching Rule regarding misconduct
8.4: Committ a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer.
Engage in conduct involving dishonesty, fraud, deceit or mis-representation.
Reporting Professional Misconduct
A lawyer who KNOWS that another lawyer has committed a violation of the rules of professional conduct that RAISES A SUBSTANTIAL QUESTION as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, must inform the appropriate professional authority.
Exceptions to reporting anything:
- If you learn about the information during your representation.
- You learn about the fact from someone you are representing...unless you get their consent.
Reporting your superiors
You become obligated when you have more than a mere suspicion but does not have to reach level of absolute certainty.
Supporting evidence is such that a reasonable lawyer would form a firm belief that the conduct in question had more likely than not occured.
Responsibilities as a subordinate lawyer
A subordinate lawyer does not violate the rules if the lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
A lawyer who is a partner who has direct supervisory authority over the other lawyer, and knows of the conduct at at time when its consequences can be avoided or mitigated but fails to take remedial action.
General rule is you cannot do indirectly what you are prohibited from doing directly.
Contracting to Limit your liability
You cannot contract to limit your liability unless the client is independently represented in making the agreement.
Claims of Ineffective Assistance of Counsel
Lawyer's conduct fell below the range of professionally acceptable conduct.
Client suffered prejudice in the sense that the verdict was probably affected by the lawyer's incompetence.
Principle of Adversary System
It is the responsibility of the lawyer to maximize the opportunity for your client to prevail.
It is not the lawyer's role to determine guilt or innocence---that is the role of the judge or jury.
American Lawyers do not follow taxi cab rules; only required to represent through court order.
Rules of disclosure
You may disclose info with the client's express or implied consent;
You may disclose information you reasonably believe necessary to prevent reasonably certain death or substantial body harm.
Three situations of mandatory disclosure:
When the lawyer has offered false testimony and comes to know of its falsity and the false testimony cannot be corrected without disclosure;
To remedy criminal or fraudulent conduct relating to a proceeding in which the lawyer represents a client;
When necessary to avoid assisting a client's crime or fraud.
Obligation as officer of the court:
Shall not knowingly fail to disclose legal authority in the controlling jurisdiction;
You must make full disclosure of a material fact if it would have an effect on a settlement which must be approved by the court.
How long does duty as officer of the court in regards to a client's misrepresenation?
Duty continues until the conclusion of the proceeding, once final judgment is rendered.
Ethical duty of confidentiality
Allows the attorney to keep all info private if the client has not approved and/or the disclosure would be detrimental to client.
Attorney-Client privilege is stronger but only applicable in certain circumstances.
Communication from a Client To Counsel in Confidence for the purpose of seeking legal Counsel. (FOCUS ON WHAT THE CLIENT INTENDED)
The privilege belongs to the client not the attorney.
Protects only the communications, not the facts.
Cannot turn existing, non-privileged documents into privileged communications simply by transfering them to the attorney.
Sanctions for destroying evidence:
Can dismiss the answer; preclude the defendant from introducing any evidence about the condition of the destroyed evidence; monetary sanctions; entering a default judgment against party that destroyed the evidence.
Can give instruction to jury that if they believed that info would have relevant to the case they can take that into consideration.
Exceptions to Duties of Confidentiality:
Client gives consent; to prevent reasonably certain death or substantial bodily harm; to prevent the client from committing a crime or fraud;
Deceased Client Exception
New exception that is far from widespread.
Can be subjected to a balancing test. (Privilege encourages full disclosure with attornies to therefore provide best representation---------Can serve the public good; avoidance of extreme injustice)
Control Group Test (Dominant Test)
If the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney...then in effect he is the corporation when he makes his disclosure to the lawyer.
Subject Matter (Upjohn)-----only controlling in Federal Courts
An employee, within or without the control group, can make a priviliged communication to corporate counsel if it is made at the direction of his superior and if the subject matter upon which the advice is sought is the employee's performance of his duties. More inclusive than Control.
Functional Test (Samaritan)
Where someone other than the employee initiates the communicaiton, a factual communication by a corporate employee to corporate counsel is within the corp's privilege if it concerns the employees own conduct within the scope of his or her employment and is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for the corporate client.-------------Excludes the privilege from those who, but for their status, are witnesses and not "the corporation."
"No Contact Rule"
A lawyer cannot "communicate" about the subject of the representation with a person the lawyer "knows" to be represented by another lawyer in the matter, unless that attorney has the consent of the other lawyer or is authorized to communicate by law or court order.
Definition of Know
Denotes actual knowledge of the fact in a question. A person's knowledge may be inferred from the circumstances. (Beyond a reasonable doubt).
Representation v. current/past clients
- A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
- The lawyer reasonably believes the representation will not adversely affect the relationship.
- Each client consents after disclosure.
Representation concerning past clients continued.
Shall not represent another person in the same or a substantially related matter in which the person's interests are materially adverse to the interests of the former client unless the former client consents after disclosure.
Three tests related to rep. with conflict of interest:
- Dealing with the same transaction that was the subject of the former representation.
- If there is substantial risk that confidential factual information will be disclosed.
- If the knowledge gained would materially advance the client's position in the subsequent matter b/c of secrets coming out of that prior representation.
Concurrent conflicts within a firm
Will disqualify every lawyer in the firm from undertaking the representations unless the conflict is a personal interest conflict that does not pose a significant risk of materially limiting the represenatation of the client by the non-conflicted lawyers at the firm.
Substantially Related Test
When they involve the same transaction or legal dispute OR there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation, would materially advance the client's position in the subsequent matter.
Substantially related Test
- There is a irrebuttable presumption that you recieved confidential information if you personally representated the client in a substantially related matter.
- ------You can rebut this presumption by saying you did not have access. For example at a larger firm if you only had access to files you actually worked on. Harder to rebut at a smaller firm.
Lawyers in a firm shall not knowingly represent a client when any one of them practicing alone would be prohibited from doing so.
Purposes for these rules:
Protecting confidences, maintaining integrity, and preserving loyalty.
Balances to former client test:
Right of confidentiality balanced with the right of lawyers to form new associations and take on new clients when leaving a previous association.