The lawyer has a duty of (fill in a duty) to (fill in a person or thing).
1. Fact Triggers of ethically questionable issues
2. Major Duties to each client
3. Conflicting duties for other clients or entities
What duties can be owed to each client?
(CLFC) Clients Love Fierce Counsel
Duties to entities other than your clients?
Candor/Truthfulness -> Court
Fairness -> Adversaries (parties & their counsel)
Dignity/Decorum -> legal profession
other reasonable things -> third parties/public at large
(CFD) Courts Feel Differently
Duty of Loyalty
A lawyer owes her client a duty of loyalty, and must exercise her professional judgment solely for the benefit of her client, free of compromising influences and loyalties.
concurrent conflict of interest exists when?
1) representation of the client will be directly adverse to the interest of another client; or
2) there is a significant risk that the representation of one client will be materially limited the lawyer's personal interest or the interests of another client.
When an actual conflict of interest arises, what must the attorney do?
must withdraw from representing ALL conflicted clients, since she will have confidential info from each client that she cannot use against any of them if she continues to represent one and not the others
If there is a concurrent conflict of interest, a lawyer may still undertake representation when?
1) lawyer reasonably believes he can competently and diligently represent each client
2) representation is not prohibited by law
3) representation does not involve the claim of one client against another client who is represented by the same lawyer
4) each client gives informed, written consent.
CA rules: differ in 3 ways!
a) no "reasonable lawyer" standard, as long as lawyer believes
b) applies to potential as well as actual concurrent conflicts
c) requires written disclosure, not informed written consent.
When can a lawyer accept compensation from a third party?
1) client gives informed consent
2) no interference with professional judgment or the lawyer-client relationship
3) info regarding the representation is kept confidential
4) (CA, consent must be in writing)
Traditionally, professional ethics rules banned lawyer advertising.
However, lawyer advertising is now recognized as commercial speech protected by the First Amendment.
The SCOTUS has held that a state may not flatly prohibit lawyer advertising unless it is false or misleading.
Financial assistance to a client?
ABA: a lawyer is subject to discipline for rendering financial assistance to a client in the context of contemplated or pending litigation. However, a lawyer may provide court costs and litigation expenses, as long as the client remains ultimately liable.
CA: A lawyer is forbidden from paying the personal or business expenses of a client. However, a lawyer may lend money to the client for any purpose, if the client promises in writing to repay the lawyer. A lawyer is also permitted to lend the client money to cover the reasonable expenses of litigation.
Mailings to prospective clients
Lawyer must not seek fee-paying work by initiating a personal or live telephone contact
But a lawyer may send truthful, nondeceptive letters to persons known to face a specific legal problem.
If the lawyer has actual knowledge that a person who received a letter did not wish to communicate with the firm, then the lawyer is subject to discipline.
Mailings that seek fee-paying work must be clearly labeled as advertisements
ABA Model rules require that all written communications with prospective clients include the words "Advertising Materials."
The phrase must appear on the outside of the envelope and on the first page of the communication.
A lawyer may not seek fee paying work by initiating contact with a prospective client who:
1) is not a lawyer, and
2) has no personal, family, or prior professional relationship with the lawyer.
Violation of these rules is an unlawful solicitation.
Duty of Confidentiality
Rule: A lawyer must not reveal anything related to the representation of his client.
Rationale: maximize trust and therefore candor, allowing the adversarial system to work
Scope: The duty of confidentiality applies regardless of whether the client requested it be kept confidential or whether its revelation might harm or embarrass the client.
Duty of Confidentiality & Timing? When does it attach?
Duty of Confidentiality can attach before a lawyer-client relationship is formed!
Or even if none is ever formed!
If no employment results, the party seeking to disqualify a lawyer bears the burden of proving confidences were actually imparted
Duration of Duty of Confidentiality?
Once attached, your duty of confidentiality continues, even after formal representation ends, and even after death!
Not Okay: I agree I am not forming an attorney-client relationship or a confidential relationship by submitting this.
The Duty of Confidentiality attached because this website disclaimer was not in plain enough terms.
Okay: I understand and agree that LawFirm will have no duty to keep confidential the information I am now transmitting to LawFirm.
Attorney-Client privilege vs. Duty of Confidentiality?
Confidentiality is broader than AC Privilege. Applies, regardless of the source of information to anything not generally known, to disclosures that go beyond the representation, including those that could lead to the discovery of information related to the representation.
AC privilege allows the client to prevent attorney from testifying about confidential communications from her to attorney. Although it overlaps with privilege, confidentiality is broader!
Exceptions to duty of confidentiality
1. Consent: if the client consents after consultation, lawyer may reveal otherwise confidential information. e.g., implied consent to reveal what is necessary to render your legal services (disclose invention to patent office)
2. Defending Yourself: (i) client sues you for malpractice, (ii) client brings disciplinary actions against you, and (iii) client refuses to pay you, forcing you to sue him for your fees, (iv) seeking an ethics opinion; you may reveal confidential information in these proceedings as necessary to establish your claim or defense
3. Compelled by court order, law, or other ethical duties. (e.g., client conflicts check when moving to a new law firm)
4. To prevent death of substantial bodily harm
5. To prevent fraud/crimes causing financial injury
Revealing confidential info when Defending Yourself:
(i) client sues you for malpractice,
(ii) client brings disciplinary actions against you,
(iii) client refuses to pay you, forcing you to sue him for your fees,
(iv) seeking an ethics opinion
You may reveal confidential information in these proceedings as necessary to establish your claim or defense
Revealing confidential info to prevent Death or substantial bodily harm.
You may reveal what is necessary to prevent the act if you reasonably believe it will prevent reasonably certain death or substantial bodily harm.
*CA distinction: you must first, if reasonable in the circumstances,
(i) make a good faith effort to persuade the client not to commit the act, and
(ii) inform the client of your decision to reveal his confidences.
Revealing confidential info to prevent Fraud or Crimes Causing Financial Injury
Your client tells you hes stopped distributing roids because he now bribes ball players to create even more lucrative betting on the games. May you reveal his confidences to prevent his future crimes?
Yes, if he used or is using your services to commit the crime, and the disclosure would prevent or mitigate substantial financial loss.
*CA distinction: no financial exceptions. you must keep the client confidence
Duty of Loyalty to your client
Rule: You have a duty of loyalty to your client.
What is a Conflict of Interest?
A conflict of interest exists when the interest of another client, yourself, or a third party:
1) will be adverse to the interest of another client; or
2) materially limits loyal representation of another client.
Flag and discuss POTENTIAL and ACTUAL conflicts.
Tip: Watch for evolving fact patterns, e.g., a potential conflict that becomes an actual conflict after representation begins. IRAC each as distinct issues, because the standards will shift and change.
What if you're ignorant about a Conflict?
Rule: You are ordinarily responsible even if you are ignorant about a conflict.
Exception: short term legal services under a court, agency, or non-profit program, where you are responsible only if you actually knew of a conflict.
Any group of lawyers that work together closely or share responsibilities share each others conflicts, e.g., private firms or corporate law departments.
*CA distinction: disqualifies, but does not discipline, a lawyer for imputed conflicts. not a violation that gets you sanctioned.
Exception: When one lawyers conflicts arise from previous government service or work for adverse parties at a previous firm, representation by her colleagues may be allowed with safeguards such as screening.
*CA Exception: also relaxes imputation of conflicts that are purely personal to the lawyer and for short-term legal services under non-profit or court programs.
Remedies for Conflict of Interest
Depends on the posture of the case.
1. Refuse to take the case
2. Advise multiple clients to get separate counsel
3. Withdraw from the representation
An ethical wall may screen off the lawyer with a conflict from colleagues to cure their imputed disqualifications. Client consent may also be required.
(just create an information block)
3 types of Gap-filling rules governing conflicts
1. Never: Some conflicts will always be violations, and representation is prohibited.
2. Always: Some facts might suggest a conflict, but fall outside of the rules or into an exception. You should flag and dispose of these.
3. Possible: Some conflicts may be tolerated depending on a case-by-case factual analysis of three elements:
a) you reasonably believe you can represent everyone effectively [*CA, just has to be subjective belief]
b) you inform each affected client [may not be possible if duty of confidentiality prevents you from fully disclosing needed info to understand the conflict]
c) the client consents in writing [*CA allows certain conflicts that are personal to the lawyer to be merely disclosed in writing to the client.]
d) Some imputed conflicts will also require screening to be reasonable.
Conflicts among clients on opposite sides of the same matter (Direct Conflict)
Hypo: Your law firm represents Texaco in labor matters, although you have done no work for it. Lundwall, a former Texaco employee, asks you to help him sue Texaco for cutting off his benefits.
Imputed DQ means you represent Texaco. L and T are in direct conflict. It is unreasonable to represent both.
Conflicts among clients: Opposing a current client in another (unrelated) matter.
Rule: a representation adverse to a current client in ANOTHER matter requires ALL clients' consent.
*CA exception: there is no conflict when a lawyer represents a policyholder and his insurance company as joint clients, where the insurers interest in each matter is only as an indemnity provider.
Hypo: NorCal InsCo retains your firm to represent Driver 1 in tort case. May you now represent Driver 2 in a different case against Driver 3 and NorCal InsCo, Driver 3s insurer?
Yes, because NorCal is only an indemnity provider in both. Falls into the CA Exception.
Conflicts among clients: Two clients with inconsistent positions
Usually ok. Positions usually don't create conflict.
However, if either would be disadvantaged, you must obtain consent.
E.g., you need to argue both for and against the health care law in two different appeals. likely okay.
Representing multiple clients in the same matter
Rule: OK if disclosure and consent, if reasonable (no confidentiality breach required for disclosure)
Representing multiple clients in the same matter raises significant risks that your service may become materially limited as a result the others interest. These potential conflicts generally require disclosure and consent. Examples are representing:
---A corporation and any of its directors, officers, employees, or shareholders;
---Both spouses in an uncontested divorce or drafting wills.
This presents a potential conflict, but is OK with reasonable consent.
Hypo: Kevorkian tells you he used medically unorthodox practices on the plaintiff that are not covered by his malpractice insurance policy. Now there is a direct conflict between Kevorkian and his insurance company over coverage.
Best remedy for the conflict: withdraw from both client representations. You must at least withdraw from representing InsCo because you have relevant, confidential information from Kevorkian that you cannot use in pursuing undivided loyal representation of InsCo.
Tip: Always look for confidentiality breaches in multiple client representation.
Dual representation/criminal cases?
In criminal cases, dual representation may also impede the 6th Amendments guarantee of effective assistance of counsel.
Conflicts among clients: New clients in matters related to former clients
If confidential information from a former client might be relevant to a new clients matter, you may be violating your continuing duty of confidentiality and your duty of loyalty to your former client.
Rule: Using non-public confidential information against a former client is unreasonable without consent.
Rule: You cannot take on a new client with interests materially adverse to a former client without the former's consent.
Hypo: What if your partner had only represented a real estate venture in which Britney was a limited partner? Okay. Because she was a limited partner, you know little about her.
Ask: Do the representations overlap in function, scope or information? [usually information creates the confidentiality violations]
Imputed disqualification: If you leave your firm, can it now represent a new client in her action against your former client?
(i) the matters are substantially related or the same, and
(ii) any remaining lawyer has confidential material information
At your new firm, your conflicts will not extend to your new colleagues if you:
(1) are timely and effectively screened
(2) receive no direct part of the fee, and
(3) your former client receives notice and
(4) periodic certifications of compliance with these conditions.
Former government lawyer now in private practice Rules?
Rule: The ABA bars a government lawyer who worked "personally and substantially" on a "matter" from working on the same matter later in private practice without the governments consent.
If govt agency gives consent, then possible.
Matter: specific dispute between specific people over specific issues. Regulations are NOT a matter!
Former govt lawyers and imputed disqualification?
Other members of your firm may represent the client, if the three ABA conditions for an exception to imputed disqualification of colleagues of former government lawyers are met:
1. Screened: You are screened off
2. Fees: You do not share any part of the fee in the matter (pre-arranged salaries or partnership shares are OK); and
3. Informed: Your former govt employer is informed
Judicial officers besides attorneys
What if you were a judicial clerk on the Ninth Circuit and worked on the EEOC v. Halliburton case?
Same rules apply to judges, clerks, arbitrators. Prohibiting work on the same "matter."
CA Law and Former Govt Lawyers?
CA cases also screen past public sector colleagues in civil cases.
CA law explicitly disqualifies a prosecutor in a case from later working on the defense side of that case.
Conflicts between lawyer and client:
1. Gifts to the lawyer or lawyers family
2. Limiting liability
3. Publication Rights Contracts
4. Loans and Advances to Client
5. Use of Information
6. Business Transactions
7. Board Service
8. Trial Counsel as necessary witness
9. Close relationship with adverse counsel
Gifts to the lawyer or lawyers family.
A lawyer may accept a gift from a client if the gift meets general standards of fairness.
You must not solicit:
1. a substantial gift from a client, or draft a legal instrument for a client
2. who is NOT your close relative, if it
3. provides a substantial gift to you or your relative.
Conflicts between lawyer and client: Limiting liability.
You cannot limit your clients right to report you for ethical or other professional violations. You cannot limit your malpractice liability when you enter into a relationship with your client, unless, under ABA Rules, the client is independently represented in making the agreement.
*CA bars malpractice limits.
If a client later does make a malpractice claim against you, you can only settle after written advice to the client to consult an outside lawyer first.
Conflicts between lawyer and client: Publication rights contracts
Halfway through his criminal trial, Defendant offers to sell his lawyer rights to his story to raise some needed cash. Can the lawyer accept?
ABA: Not before the representation has ended.
CA: Maybe. CA case law discourages contracts before the end of proceedings, but tolerates them if the judge is satisfied that the client clearly understands and consents.
Conflicts between lawyer and client: Loans and advances to your client.
ABA: forbids financial assistance, except for litigation expenses for an indigent client, and the advance of litigation expenses in contingent fee cases.
*CA: forbids promising to pay a *prospective* clients debts, but allows loans to a client in all matters for any purpose with a written loan agreement.
Conflicts between lawyer and client: Use of information.
Use of information covered by the duty of confidentiality to a clients disadvantage, without consent, violates the duties of both loyalty and confidentiality.
Conflicts between lawyer and client: Business transactions or adverse interests
You may enter into business with a client or obtain an interest
adverse to hers only if:
(a) the terms are Fair to the client,
(b) Disclosed in understandable writing,
(c) the client has an Opportunity to consult an Outside lawyer, and
(d) your client provides written Consent, or in *CA, written disclosure.
(First Discussed Over Coffee)
Hypo: In representing a start-up company, its law firm agreed to accept as payment shares of stock equal to the value of its services. Assuming that the work is valued reasonably, and the transaction is documented, may it do so?
Yes, if it is fair and reasonable under the circumstances known to the lawyer when the interest was acquired.
Be particularly cautious if the investment is by individual firm members, or if the acquisition represents a major asset that might distort the firms advice to the company, e.g., regarding disclosure of bad news. [personal portfolio might tank, might be conflict of interest]
Service on the Board of Directors of a *non-profit* legal services organization is allowed. There is also no bar to sitting on the Board of a *corporate client*, although that is strongly discouraged, because it is likely to compromise duties of loyalty and confidentiality.
Hypo: Attorney Shaha is a member of the Board of Directors of World Bucks, Inc. Paul, Worlds CEO, asks Shaha to defend him in an investigation of his alleged embezzlement of company money. May Shaha represent him?
No! Shaha has a fiduciary duty to the corporation in her personal capacity as a member of the Board. World and Shaha are in direct conflict, so attorney cannot be loyal to both.
Trial counsel as a necessary witness
The ABA Rules bar your appearance as counsel and witness in the same trial unless:
(i) your testimony is uncontested or
(ii) regarding the nature and value of services rendered or
(iii) if your distinctive value to the case means withdrawal would impose substantial hardship on the client.
If testimony might create prejudice the client, consent is required, and the conflict is imputed to colleagues.
*CA is less restrictive: you may testify in ANY bench trial, andif the client consentsin a jury trial.
Close relationships with your adversarys lawyer
You cant oppose a party represented by your relative without client consent. Close relations clearly include immediate family, i.e., your parent, child, sibling, and spouse.
*CA explicitly recognizes other intimates, e.g., shackmates, and requires only written disclosure. CA also requires disclosure of any legal, business, or personal relationship with any party or witness in the same matter.
This conflict is not imputed to colleagues, nor are sexual relations with the client (detailed later).
Conflicts due to Third Party interference.
General Rule: your sole duty is to your client, not to any third party
Payment for your services from a third party: permitted only with informed client consent.
Organizational clients: A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.
Federal laws govern securities lawyers:
You are in-house counsel at Reron. You discover that the Chief Operating Officer materially violated securities laws. You must report the matter to the CEO or Chief Legal Counsel of the company. If they do not respond, you must go to the Board or the highest authority in the company.
Finally, if you reasonably believe it necessary to prevent fraud, perjury or substantial injury to the organization or investors, or to rectify financial injury from a violation that involved your services, then you may disclose confidential information to the SEC without client consent.
ABA Rules similarly mandate reporting up, and permit limited reporting out.
*CA still prohibits reporting out, but federal preemption allows CA lawyers to comply with federal law.
Attorney fees (non-contingent fee)
In non-contingent fee cases, agreements must include:
1. how the fee is calculated,
2. what services are covered,
3. and the lawyer and clients duties.
*CA also requires: agreements must be in writing, unless
a. the fee is under $1000,
b. with a corporate client,
c. for routine services for a regular client, or
d. its an emergency or impractical.
Attorney fees In contingent fee cases:
Written fee agreements must be signed by the client and contain:
1. your percentage of the recovery
2. how costs will be handled
*CA also requires that agreements state:
4. How legal work not covered by the contingency fee will be paid, and
5. stmt that lawyers fees are negotiable
Fees must be?
1. reasonable (ABA); not unconscionable (CA)
2. communicated to the clients
3. CA, in writing if over $1,000
Attorney's Fees paid for by 3rd party?
Lawyer must not accept compensation from someone other than the client unless
1. Client gives informed consent
2. no interference with the attorney's representation
3. information relating to the representation of the client is protected
4. (CA, consent must be in writing)
Types of actions allowing contingent fees
Under ABA Rules, contingent fees may not be used in: domestic relations or criminal cases.
*CA rules are silent, but its case law allows contingent fees if they dont promote dissolution of a savable marriage.
Termination of representation before contingency / judgment
If and when client wins, then fired attorney can recover in proportion to the work he did (quantum meruit)
When are fees too high?
Fees must be reasonable. (taking into account the labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement, etc)
*CA Rule: Fees must not be unconscionably high
Double Billing Allowed?
Lawyer represents two defendants in a mass tort case, Company A and Company B, on an hourly fee basis. Lawyer attends a 2 hour status conference on the case representing both clients. May Lawyer bill 2 hours to each client?
*In CA only if:
a. The fee charged to each is not unconscionable
b. The attorney clearly disclosed the billing practice at the outset of the relationship, and
c. obtained client consent
Resolving fee disputes?
The ABA encourages arbitration in fee disputes.
*CA requires a lawyer to participate in fee arbitration if the client sues and requests it.
Fee splitting w/other attorneys?
1. It is generally OK to split fees with other lawyers in your law firm
2. You may split fees with lawyers outside your firm only if the total fee is ethical and there is written disclosure and client consent.
ABA: further requires the division be proportional to the work done by each attorney, unless each is jointly responsible for the action.
CA: fee sharing is allowed, provided: 1) full disclosure, 2) total fee is not increased, 3) not unconscionable, 4) consent
Are referral bonuses permitted when given to another lawyer?
ABA: cannot give referral bonus to another work because he did no work, and it's not proportional
CA: referral bonus ok, if the total fee isn't unconscionable, and the client consents.
Fee splitting w/non-lawyers?
Generally not allowed (protects your judgment and prevents the unauthorized practice of law).
(1) death benefits paid to a deceased lawyers firm or heirs for his work,
(2) fees passed on as salariesto non-lawyer employees, and
(3) sharing of court-awarded legal fees with a non-profit organization that employed or recommended the lawyer.
A lawyer may pay the usual charges of a qualified lawyer referral service.
Partnership with non-lawyers?
Partnership with non-lawyers in providing legal services is prohibited for any practicing lawyer.
Non-lawyers cannot be partners, shareholders, officers, or control or direct your professional judgment.
Referrals with non-lawyers?
Reciprocal referrals with other professionals are OK if they are not exclusive and you explain the arrangement to the client.
If you personally provide "law-related services, the ethical rules apply.
If they are provided by a separate entity that you control, you must tell the client attorney-client safeguards dont apply.
Client Trust Accounts
1. You have a duty to safeguard your client's property by labeling and storing it in a safe place such as an office safe.
2. Place money held for the client in a client trust account
This includes money received on her behalf, and her advances for costs, expenses and fees. Do not borrow or commingle funds with your personal money!
Normally, use an individual, interest-bearing trust account to hold client funds; the interest belongs to the client.
Smaller funds held for short periods of time for multiple clients can be deposited together in a "pooled client trust account." The interest (IOLTA) goes to the State Bar to fund legal services for the poor.
If you have a fee dispute or if a third party has a lawful claim over your clients funds or property in your custody, you must withhold the disputed portion in the client trust account until resolution of the claim.
3. You have a duty to keep good records for your client, render accountings, notify him of moneys received on his behalf, and pay promptly money due to him.
*CA requires you to keep records of client property for 5 years after final distribution.
Disclosure of Professional Liability Insurance
The ABA allows administrative suspensions (but not discipline) for failure to report whether you carry insurance on your annual registration.
*CA Rule: If you dont have insurance, required to, at the time of engagement, to DISCLOSE THAT FACT IN WRITING to any client needing more than four hours of work.
Exceptions are for government and in-house lawyers.
Duty of competence
You have a duty to render competent service to your client. If you dont, you are subject to:
(a) discipline by the Bar,
(b) disqualification in a litigated matter, and
(c) civil malpractice liability.
What does competence mean?
Using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
If you dont know the relevant law, you cant take on a matter unless you can learn it without undue expense or delay, or you associate with a lawyer competent in the area.
Distinguish malpractice from disciplinary action:
A malpractice action is a civil case brought by a plaintiff for money damages; a disciplinary action is administrative and brought by the State Bar to protect the public.
A malpractice plaintiff must prove a breach of a duty of due care, which for the general practitioner is the skill, care and judgment that a reasonably prudent general practitioner in the region would have used in the circumstances.
Incompetence may also cause ineffective assistance of counsel.
Duty of diligence
You have a duty to diligently, promptly and zealously pursue your case to completion.
Duty to communicate.
You have a duty to keep your client informed about the case, including settlement offers.
You have a duty to answer client communications.
If a settlement offer is made to joint clients, you must convey the offer to all and be sure they agree on the division of the settlement before accepting
When do you have to accept representation?
You are free to accept or to reject any case.
1. You should accept, as part of your duty to the public and profession:
(a) the case of the defenseless or oppressed if your only reason to refuse is selfish, and
(b) a fair share of work without charge.
2. Conversely, you must reject a case if you would violate a law or ethical rule to take it.
Typical problems are if you are not in the physical or mental shape to take the case (violating the duty of competence to the client).
Scope of representation
The client makes decisions about her substantive rights (e.g., whether to testify in a criminal case, accepting a settlement).
The lawyer makes decisions on legal strategy (e.g., choice of motions, what discovery to seek).
If you and client disagree, you may limit the scope of representation, with client consent.
Representation does not include assisting a client in conduct you know is criminal or advising how to act illegally and get away with it!
Mandatory withdrawal from representation
You must withdraw from a pending case if fired or if continuing would violate a law or ethical rule [e.g., requires assisting in a crime]
e.g., Knowingly pursuing a frivolous claim to harass another violates the duties of candor and fairness [violates FRCP Rule 11 as well]
Permissive withdrawal from representation
You may withdraw from a case if you convince the court there is good cause, and your withdrawal will not cause undue delay or disruption.
Recognized causes include a clients acting illegally, or his insistence on actions you find repugnant or imprudent.
The ABA also recognizes when the representation will result in:
a) an unreasonable financial burden, or when
b) the client substantially fails to fulfill an obligation to you after being warned [such as not paying you]
*CA: allows withdrawal if your client breaches a fee or expense agreement.
Procedures for withdrawal.
In order to quit, you must:
a. Provide timely notice to the client, and
b. You also must promptly return:
---1. Any unspent fee and expense advances
---2. all property and material papers of the client.
Include everything needed to pursue the case, even your work product.
*CA: forbids holding your clients materials hostage to get paid!
Other Duties (catch-all)
Be reasonable and sensible.
ABA: Duty of loyalty prohibits attorney from consenual sex with client unless you had a preexisting sexual relationship.
*CA: also excuses preexisting relationships, but allows new relations, with cautions.
Sex with client?
ABA: not allowed. even if consensual, even if client is not harmed.
CA: permitted, as long as lawyer does not demand it as a condition of representation, or got sex by coercion or undue influence. must not make lawyer incompetent.
Advertising & solicitation: duties?
Duty of Candor to the Public & Dignity of the Profession [analyze separately under separate headings]
Constitutional floor. A state can regulate attorney advertising and solicitation subject to the lawyers limited commercial speech rights under the First Amendment.
Constitutional requirements of a state regulation of commercial speech advertising of a lawyer?
State Bar Rule prohibits lawyers from solicitation, constitutional if:
1. Govt asserts a substantial interest (preserving the dignity of the legal profession, or citizen privacy)
2. Regulation directly advances that interest
3. It is narrowly tailored
[just the commercial speech test]
This refers to a lawyers communication with the public at large
1. Advertising must not be false or misleading.
2. Claims of legal specialties. You can explain your fields of practice, such as practice limited to federal courts. But you may not advertise claims of specialization unless you are a certified specialist.
3. Advertising must not harass or solicit someone who has said she wants to be left alone. Targeted direct mail is OK, but must meet exact guidelines for labeling as Advertising Material.
4. Every ad must be labeled as advertising and, if applicable, a dramatization or impersonation. It must identify at least one lawyer responsible for its contents. You must keep records of the content and placement of any ad for 2 years.
5. *CA presumptions. [dont worry about it] Additional specific actions presumed to be advertising violations, i.e., they shift the burden to the lawyer to disprove a violation.
False & Misleading ads?
a. Dont mislead or omit material information.
Ally advertises that she prepares simple wills for $300. However, 95% of the wills she writes involve complications that require additional fees. Is her ad misleading? Yes! Regular person expects to pay $300, but that almost never happens.
b. Dont raise unjustified expectations or make unverifiable comparisons.
*CA presumes improper any ad that contains guarantees, warranties, or predictions of a result.
No testimonials or endorsements may be used UNLESS there is an express disclaimer that they are not a GWP.
The CA Board of Legal Specialization requires the 4 Es: Experience, an Examination, Education, and Evaluations.
ABA Rules allow certification by approved organizations, which must be identified in the communications (in the ads).
Solicitation refers to individualized contact with a layperson.
1. Do not seek professional employment for pecuniary gain by
2. initiating a live or telephone contact
3. with a prospective client
4. with whom you have no prior professional personal or family relationship.
ABA: solicitation extends to real-time electronic contact
*CA: "live or telephone" is read narrowly
*CA: presumes improper communications made at:
1. the scene of an accident or
2. en route to a medical facility, and to
3. potential clients that you should know are not in the physical or mental state to exercise reasonable judgment.
Agents cant do anything that a lawyer cant do.
Hypo: A lawyer sent a friend into a hospital, dressed as a member of the clergy, to provide injured patients with comfort and the lawyers business cards in case they wanted to sue!
Not OK, solicitation by an agent taking advantage of vulnerable people, and it's dishonesty.
Duty of Candor to the Court & Fairness to your Adversary
Rule: You cannot engage in conduct involving dishonesty, fraud, or misrepresentation. Even within our adversarial system these duties can trump conflicting duties of confidentiality and loyalty to your client.
Duty to present facts and evidence truthfully
1. You must refuse to make a false statement of material fact or offer evidence you know is false to a tribunal, OR
2. fail to correct a false statement of material fact or law that you previously presented [continuing duty]
You must not knowingly facilitate client perjury.
In a CIVIL case, you must refuse to call a witness, including your client, if you know he intends to perjure himself.
However, CRIMINAL defendants have a 5th Amendment right to testify on their own behalf and a 6th Amendment right to the effective assistance of counsel. Counsel also has an ethical duty to protect client confidences.
Hypo: Bombing Defendant Ted tells you that he intends to testify falsely that he has never owned a typewriter to type manifestos against technology. What should you do?
How do you balance these rights?
Take Reasonable Remedial Measures:
1. Counsel Ted to testify truthfully or not to take the stand, then if that fails,
2. You may try to withdraw from the case, then if that fails,
3. ABA: tell the judge. The right to counsel and the duty of confidentiality do not shield perjury.
*CA case law: allow the defendant to testify in narrative fashion, but do not further the deception [by facilitating with questions, or argue points later to jury]
What if, only after the proceeding ends, client tells you that he lied?
Take reasonable remedial measures, e.g., counsel him to recant, but your duties end with the proceedings (after the time for appeal has run.)
Counseling Witness re Perjury
You must not counsel or assist a witness to testify falsely or to become unavailable.
Unless local law prohibits it, you may pay basic expenses of a witness and reasonable fees for expert witnesses, as long as payment is not contingent on the content of the testimony.
Hypo: The morning that Teds brother is to testify, you discover that he plans to lie and claim that Ted was with him across the country that day. If he refuses your advice to testify truthfully, what do you do?
Refuse to put him on the stand!
What if you're not sure if client or witness is lying?
If you do not know, but only reasonably believe, that testimony is false, these rules are PERMISSIVE.
Duty to produce evidence.
You must not suppress any evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty to your client.
You must not obstruct access to, or tamper with, fruits or instrumentalities of a crime.
Hypo: Neo comes to Attorney Morphius with a kilo of cocaine and a $100,000 cash retainer. He says, Im rich, but its all blood money. I want out.
What must Morphius do with the drugs? deliver to the authorities, on its face, contraband.
What about the money? If hes reasonably certain its the instrumentality of a crime, he should turn it over.
May Morphius disclose what Neo told him about selling the cocaine? NO! Duty of confidentiality.
Physical evidence of a crime is not insulated by confidentiality or privilege. You have a legal obligation to turn it over
But you may NOT disclose confidential information. You are under a duty of confidentiality.
Interference with evidence
Rule: attorney or her agent may be compelled to testify as to the original location or condition of evidence that she MOVED or ALTERED.
You can look, but don't touch.
A lawyer may retain evidence for a reasonable time to prepare his clients case, e.g., to conduct tests so long as they will not alter the evidence.
Prosecutor's duty to disclose evidence
Prosecutors have a special duty to timely disclose evidence favorable to the defense.
This ethical duty EXCEEDS the Constitutional Brady obligation, requiring disclosure without regard to admissibility or impact on outcome.
Ex Parte Proceedings
communications with the judge without your adversary present.
Your ethical duties of candor to the court and fairness to your (absent) adversary require you to volunteer relevant information, trumping the normal presumption that you not reveal facts harmful to your client.
Must be fair to everybody.
Duty to state the law truthfully
Knowingly making a false statement of law to the court is subject to discipline.
Be candid about the law and to cite to adverse authority if controlling and on point.
Presenting frivolous claims or defenses is subject to discipline.
Duty to uphold the law.
1. Assisting in a crime
MUST withdraw, if your representation requires you to commit or assist in a crime
MAY withdraw, if your client persists in criminal acts, but you are not assisting.
2. Preventing your client from committing a crime
If your client is going to commit an act reasonably likely to result in reasonably certain death or substantial bodily harm, your disclosure of confidences is permitted.
*CA: follow the III.C.3.a. safeguards [talk him out of it, tell him you're going to tell] before disclosure.
ABA: If your clients crime or fraud would only cause substantial financial loss, and if your services were employed in it, the ABA PERMITS disclosure.
*CA: FORBIDS any disclosure for these crimes.
Additional duties of fairness (candor to the public confidence and dignity of the profession)
Rule: You have a duty to behave honestly, in all dealings, both in and out of legal practice.
Even when there are no explicit rules you must act to promote public confidence in the integrity and efficiency of the legal system and profession.
General catch-all for bad behavior!
Dealing Fairly with Others: Documents sent inadvertently?
During litigation, you open an E-mail from opposing counsel and find an outline of your opponents strategy for deposing a key witness attached. May you forward it to your client? No!
Rule: if you knew it was inadvertently sent, you must stop reading and notify opposing counsel.
You must not copy, disseminate the document, or use it to your advantage; you will be disqualified!
In a document intentionally sent, may you mine metadata? Yes, thats just fully considering disclosed material.
Your duty of confidentiality includes reasonable electronic security and steps to prevent disclosure and to rectify errors.
Dealing Fairly with Others: Communication with adversaries and third parties.
You must not lie to people or mislead them as to your interests.
You must not violate the legal rights of a person to obtain evidence, or use means with no purpose but to delay, burden, or embarrass them.
Dealing Fairly with Others: Communication with represented entities
Unless authorized by law or in giving a second legal opinion, you must not communicate with a person you know is represented by counsel on the subject of your inquiry without consent of his counsel.
*CA limits this to parties represented by counsel.
Hypo: Your client claims that Beatrice Corporations chemicals gave her child leukemia. Must you have Beatrices corporation counsels consent before you interview its site manager?
CA: consent is required for interviews of an officer, director or managing agent.
The prohibition extends to any current employee whose communication might bind or be imputed to the organization or constitute an admission on its part.
Dealing Fairly with Others: Dealing with the press
You have a duty not to interfere with a defendants right to a fair trial.
You may respond to the press and publics right to know, but you and your agents must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case.
Exceptions are for:
a) matters in the public record or routine booking information,
b) warning the public,
c) informing them of an investigation, and
d) statements required to protect your client from substantial undue prejudice from recent publicity not self-initiated.
Special duties of prosecutors.
Prosecutors and their aides must not make comments that have a substantial likelihood of heightening public condemnation of the accused.
The basic duty of a prosecutor is to seek justice, not just to win cases. Prosecutors have higher ethical obligations than other lawyers.
Among special duties, such as providing exculpatory evidence, they must have probable cause.
Duty to preserve the decorum and impartiality of the tribunal
1. Dont try to influence anybody improperly. Before and during trial you must not talk to any prospective or empanelled juror.
After trial is over you may interview consenting jurors.
*CA: you must tell them they can refuse an interview and have a copy of any resulting court declaration.
2. No chicanery: trickery, pulling the wool over jury's eyes. E.g., referring to inadmissible material or matters unsupported by evidence, asserting personal knowledge of facts at issue.
3. Preserving tribunal decorum: Refrain from abusive or obstreperous conduct, belligerence, or theatrics. The rules state: A lawyer may stand firm against abuse by a judge but should avoid reciprocation....
Duty to expedite cases
1. ABA: affirmative duty to expedite cases
*CA: you must not delay cases to harass an adversary or for your own personal gain or convenience.
2. You have a duty to follow valid procedural rules or court orders, unless you are making a good faith challenge to their validity. Do not abuse or obstruct discovery.
Unauthorized practice of law
A lawyer must not engage in the unauthorized or unlicensed practice of law to protect the public from incompetence.
Practice in a state while suspended or not admitted is a violation unless:
a) allowed by law,
b) a pro hac vice order by the local court, or
c) under limited exceptions.
Unauthorized practice of law: program activities were "beyond the capacities and knowledge of laypersons."
Lawyers crossing state lines?
ABA rules on multi-jurisdictional practices allow temporary practice by an out-of-state lawyer in good standing if
(i) the lawyer associates with a locally admitted lawyer who actively participates in the matter, or
(ii) the services relate to alternative dispute resolution, or
(iii) the matter arises out of matters reasonably related to the lawyers practice in a state where she is admitted and the forum does not require a pro hac vice appearance.
*CA: did not codify the ABA!
CA structures its more restrictive rules governing out-of-state lawyers by practice area.
They generally require the lawyer to register with the CA Bar, pay dues, get continuing legal education, and be subject to CA ethics rules.
ABA rules: require lawyers to report to the appropriate professional authority any other lawyers or judges violation of the Rules in any legal or non-legal context if it raises a substantial question as to that persons honesty, trustworthiness, or fitness as a lawyer.
*CA: does not require external reporting, but can discipline you for knowing about a colleagues disciplinary violation and doing nothing to prevent it. (E.g., counseling the lawyer, or telling a supervisor.)
CA also requires self-reporting of:
a) being charged with certain crimes,
b) found civilly liable for fraud or breach of fiduciary duty,
c) disciplined in another jurisdiction, or
d) under certain conditions, sued for malpractice or sanctioned.
Duties of Subordinate Lawyers?
If you are under the control or supervision of another attorney, e.g., a senior partner, who ratifies, or orders you to take, an action violating an ethical rule, is that OK? It depends!
1. Your ethical responsibility if it is a clear violation: you are subject to discipline.
2. Your ethical responsibility if it is a debatable problem: the supervisor is solely responsible.
3. Your supervising partners ethical responsibility: If he ratified the action or knew of the conduct and failed to take action, he is in violation.
Managing partners responsibilities?
Managing partners must also make reasonable efforts to ensure that everyones conduct in a firm comports with the professional obligations of a lawyer, including non-lawyer assistants.