UW Law Student Bar Association
PR – Spring 2010 – StreitSpaulding v. Zimmerman – Before the current model rules or the predecessor, the model codeCourt set aside a prior order of a settlement P’s doctors have the minor examined, so do the D’sD’s doctors fail to disclose an aneurysm to the P’s P finds out about aneurysm, asks to vacate the settlementSo we forgive the plaintiff’s doctor for not finding b/c the technology isn’t too goodWhat’s the dilemma – for the D’s doctor?Doctor’s responsibility is to their patientBut they want $$ from the lawyerBack then, a simple examination didn’t develop a doctor-patient relationship – his client was the insurance companyNowadays, you have to report if it’s threatening Court vacated – they said there wasn’t mutual mistake, but they could still vacateMalpractice? Not then, but the rules of discovery now would make it clear that you have to read doctor’s reportsEspecially if you have a minor, you as a lawyer have an obligation in front of youState of OK Ex Rel Oklahoma Bar Ass’n v. Allford Mackey had a probate case – the case went on for years and yearsMackey terminated Allford’s services, but can’t – finally Mackey files a written grievanceIssues:Lack of diligence, lack of communicationsBut probably not really high stakesShe should’ve shopped it outThe bar sends out a letter normally, and if you can make good, then you’re usually OK, but Alford continues to promise she’ll work on itDoesn’t give an honest answer to the bar associationShe convinces the local sheriffs to modify the date on the subpoenaAnd she backs away from the facts when she goes in front of the PR commissionSarbanes Oxley – loosened up ethics so that whistle blowing in securities fraud is more allowableIt was a slap in the face by Congress to the ABA saying that you have to adopt some sort of new confidentiality rulesRule 11 – When you file a complaint, or respond to discovery, you certify that you’ve to the best of your knowledge … [lookup Rule 11 FRCP]Rest. Of The Law Governing LawyersThe Rulesused to discipline lawyers in the statesPrivate reprimand, public reprimand, short term & long term suspensions, and disbarmentIn re StuartJudge asks lawyer if he found witness, says noLawyer finds witness, judge asks again, says he can’t find the witnessWhat’s the punishment?Suspension for 2-3 yearsWhat should you do if you mess up?fess up, tell people ASAP 1/21/2010Model Rule 1.1competent representation, legal knowledge skill, thoroughness, preparation reasonably necessary for the representationIn Re Docking – Kan. 1994Koreans all charged w/ 2 counts aggravated kidnappingAttorney hired an interpreter, but did not do simultaneous translationArgued the Koreans couldn’t understand; later got an amended sentenceThere was a conflict of interest between Docking’s clients, which was not explained to them or waivedDocking had never handled a felony case, had only been out of law school for one year, did not seek or use a known witness, told them if probation was not granted, they could withdraw their pleas, failed to move they not deported…Result: sentences vacated; Koreans not reprosecutedThe investigation:He admitted he wasn’t experienced enough, agreed to public censure, which is exactly what they didCommittee On Professional Ethics and Conduct of the IA State Bar Ass’n. v. MillerAtty. Neglected two estates, refused to respond to letters of inquiry by the Committee, admitted all of this at a hearing.He was suspended for a minimum of 3 monthsProblems arose in title of 1 estate, made no effort to cure, received notice of delinquency and he still did nothingDuty of competence issues – Rule 1.1Lopez v. Clifford Law OfficesMalpractice ActionClifford told the client they couldn’t represent, but that the statute of limitations for wrongful death was 2 years, not 1 year (wrong)Client re-filed too late, and boom goes the dynamiteLoran, another attorney (2nd attorney ) v. Prindable 1st attorneyLoran says they were not clients yet, so it’s not his fault – it’s Prindable’s. He never agreed to represent themPrindable says the wrongful death action was still viable once the atty. Client relationship was terminated, so no problemIn IL it’s basically a negligence action so need atty-client relationship that establishes duty, negligent act or omission constituting breach, proximate cause, and damagesLower court dismissed malpractice – the appeals court reverses and remandsHolding: it’s prima facie negligent conduct for an attorney to misadvise on such a settled point of lawD’s cite to other cases where no malpractice when other attorney was haired, but in those cases the attorneys didn’t give incorrect adviceBarceloTX minority rule that beneficiaries can’t sue for malpracticeBrightline rule Leatherberry - p. 47 #2Leatherberry’s attorney doesn’t get settlement registered in time, so Green goes to trial, gets $1mBut Green doesn’t have the $$, so the insurance is off the hookIf Leatherberry agrees with Green to sue his attorney for malpractice, Green won’t attempt to obtain the first $100k from LeatherberryI: is this permissible? H: no. The idea of assigning legal malpractice claims is against public policyOne of the issues is selling to the highest bidder – looking for situations where we can sue anyone??Excess Insurer – Querry & Harrow - p. 47 #3Company is self-insured, and then has an excess insurerExcess insurer brought suit against company’s attorney for malpractice, claiming that if the first lawyer had done his job, they wouldn’t have had to payI: can the excess insurer sue for malpractice?H: no. No duty unless the first lawyer actually represents the excess insurer as a clientDruckmanWoman has breast cancer, dies, before she does, she sues the doctor for failing to diagnose and as a result, there was too long of a delay before interveningFirst lawyer files a lawsuit, doctor takes offenseSo when the case is settled, he sues the plaintiff’s lawyer for bringing the lawsuitH: can’t do this. The opposing lawyer can’t owe a duty not to bring a lawsuit – you’d never settleMazon v. Krafchick Two cocounsel represented a clientOne attorney sued the other for loss of prospective contingency feesLayouni was electrocuted, her claim was not filed before the SOL ran outBoth attorneys end up getting sued, Mazon sues Krafchick for lost contingency fee of $325kI: can one attorney sue the other for prospective fees like this?H: No. Public policy bars itR: If we allow attorneys to recover from one another, it will interfere with their loyalty to the clientCo-counsel may develop an impermissible self-interest in preserving the claim for the prospective fee, even when the client’s interests demand otherwiseTactical decisions could also be characterized as breach of fiduciary dutyDissent (probably right)Argues it will increase accountability in the legal systemAnd cites pretty impressive authority to back his position upNotes:There’s no strategic reason for missing a deadlineThere’s a good argument for the holding where there’s a responsibility for a client Ang v. Martin Wash. 2005 – criminal malpracticeD’s were indicted on tax evasion counts, their attorneys recommended they pleaD’s obtained a second opinion from another set of attorneys, withdrew their pleas, and sued the first attorneys for malpracticeThe standard for their recovery in the malpractice trial was that they had to prove by a preponderance of the evidence that they were not guiltyThat is, that they were actually innocentJury found that they were not actually innocentSecond attorneys said the government hadn’t met its burden of proofI: do plaintiffs have to prove their actual innocence or is some other standard permissible?H: The preponderance standard is permissibleThe court then lays out the same 4-pronged negligence test The angs argued that because they had received an acquittal, they had I guess not, because it’s to insulate defense attorneys against these suitsDoesn’t this lead to inconsistent results?Notes:What are the main problems with proving actual innocence?What did they sue for?A recovery of their fees and probably emotional damagesOdd idea b/c normally people in the criminal system don’t pay for their attorneys feesAdkins v. Dixon – Guy gets charged w/ 16 different offenses, Jurisdiction says he has to be charged w/in 5 months of prelim. Hearing dateThe judge schedules him too far outEven though he’s got an attorney, he makes a pro se motion to disimiss, which is deniedThey go to trial; he’s convicted.On appeal, the attorney only brings up the appeal on 12 of the 16, so the court rules that he wasn’t innocent on the 4 he didn’t contestThe court says even though the attorney was ineffective, too bad. Even if he’d gotten all 16, he’d have a difficult time of proving actual innocencePowerll v. Associated Counsel of the Accusedhe pled to a crime, max sentence was 12 monthsHe goes to court and gets 38 monthsAfter 20 months they realize the sentence max should’ve been 12 monthsSo they end up clearing him of any crime w/ punishment > 12 monthsSo he can sue his attorney for malpracticeIs this just an attorney problem?The #1 agent responsible is your attorneySangha v. LaBarbera – p. 84 #2pled, and then learned he wouldn’t be able to maintain his security dealer’s licenseI: malpractice?Maybe. Most other attorneys would’ve worked harder not to get a felonyp. 84 #4Firm gets hired by a bankTribe needs $ to build the casino. The collateral is the casino’s revenueIndian tribes aren’t allowed to build casinos unless they get approval from feeral agenciesDorsey & Whitney was to make sure this thing was legit.The originating bank did the front end work and then sold parts of the loan to a whole bunch of other banksThen the loans go out, and the federal agency doesn’t approve it even though D& W had given advice to the original bank that it would be approveSo the malpractice Whitney was that 90% assurance was not 100% assurance. All the other banks were the ones who were screwedDoes Dorsey & Whitney owe them anything?They’re not dorsey’s client, so they probably don’t have a malpractice actionSo do what you can to try and make Dorsey your representationIneffective Assistance of CounselStrickland v. Washington – SCOTUS - 1984D committed 3 groups of crimes that were heinous, waived his right to jury trial, confessedDidn’t listen to his counsel’s adviceThe main question was death penalty or life sentenceCounsel becomes hopeless because his client admits to everythingRight to counsel is the right to effective counselThe counsel fails to investigate a few leads, doesn’t get request a pre-sentence report, doesn’t request a psychologist’s reportI: criminal malpractice?H: no. You need to have failed to have done something and it has to be outcome-determinativeStrong presumption that the lawyer’s conduct falls within a reasonable decisionI.e. is there basically no explanation for what you’ve doneAnd it must be actually prejudicialIf the lawyer requested a PSI, it would’ve come out negatively for the defendantDissent:It’s a death penalty case. C’mon!Notes:In WI, it’s called a Machner hearing – they call in the attorney and ask him what he was thinkingHere they said that yes there was error, but it wasn’t enough to be prejudicialGoodman v. Bertrand – 7th Cir. caseGuy had already gone through state process of alleging ineffective assistance of counselAccused of committing a robberyFirst trial ended in hung juryTwo trials – In the second, the new counsel opened the door, failed to impugn witnesses on their motives to testify, failed to subpoena the right people, and get a jury instructionFiled federal habeas petition – initially denied, but 7th Cir. Overturned the convictionI: Malpractice?H: you bet your assNone of the individual errors were enough by themselves, but the cumulative weight of all the errorsR: Problem 1:- Problem 3: - Posner decisionCouple helping people get CDL’s2nd lawyer says you should fire first lawyer, and you owe $$Then he says I can’t help youI: malpractice? Breach of contract?Problem w/ malpractice? You have to prove actual innocence b/c it’s criminalFor the breach of contract, that can go forwardSort of a fraudulent inducement Why not go to OLR? Posner says you could’ve gone either way – OLR or courtHe says it doesn’t preclude you Problem 5:Lawyer retained to represent Client in a capital murder case. He worked as a cashier – his bloody palm prints were found at the sceneAt trial, there was evidence suggesting there was a struggle between the murderer and the victimThe lawyer didn’t order a blood test – didn’t understand blood testingDid not argue that the blood wasn’t his client’sHe only spent 35.1 hoursDefense said they would’ve introduced blood evidence if it was favorable to clientTehre was a special instruction of intentThey apply the Strickland test – In CA there must be “special circumstances”What’s the test for felony murder in WI?There’s a murder linked w/ a felonyCA it’s a capital crimeIn this case, they didn’t have enough evidence to prove he wasn’t there.So it wasn’t ineffective assistance counsel as part of his conviction, but because Problem 6:attorney represents a homeowners ass’n., helped them initially w/ their covenants, then wanted them changed, so the atty. Advised them they could just change them w/ o checking with the rentersThe unit owners sues and gets a judgment, and the homeowners insurer sues Was it malpractice? Yes, b/c he’s supposed to know the law, and he failed to correctly apply the lawIf there were a duty of loyalty to the insurer, it would screw up attorney client privilegeAt the time the atty. Gave the advice, they thought they were being responsibleFor subrogation – when an insurance company does subrogation, what’s that about? Generally subrogation rights let the insurance company sue the negligent partyProblem 10:car accident, hires attorney to sue the injurerThe attorney failed to file the complaint in a timely mannerThe defendant conceded liability, but he argued he was clear b/c the D was judgment-proof and regardless, the most he could recover was $100kThe jury returned $382k verdict against the attorneyThere was under-insurance coverage, so you get what you would’ve gotten had the case had gone to trial Chapter 5 – the Attorney-Client Relationship2 types of clients: intentional and unintentional (pretty obvious)Model Rules:1.18 : Prospective clients- What kinds of duty do you owe prospective clients?- talks about conflicts of interest- Your duty not to disclose their culpability or liability- Can’t represent the opposing party if you’ve had discussions with an opposing party1.2 – Scope of representation- Gives some of the factors involved in forming an attorney-client relationship- It’s all about whether the potential client has reason to believe they’re your client- Also depends on the sophistication of the client (e.g. Ford Motor vs. layperson)- The less the client has employed a lawyer, the more deference the courts give1.13 – Organization as a Client- A lawyer represents the corporation or organization as a client - If the lawyer becomes aware of illegal activity, and you as a lawyer know it, you’re supposed to act in the best interests of the corporation, and you should tell him he should get his own attorney1.16 – Withdrawal(a) – mandatory withdrawal: representation will result in violation of the prof. rules, lawyer’s physical or mental condition impairs his ability or is discharged– permissive – much harder to determine whether a lawyer may permissively withdrawTogstad v. Vesely, Otto, Miller & KeefeTogstad experienced severe headaches, was admitted to the hospitalThe doctor found a large aneurism applied a clamp that cuts off blood flowThese clamps can cause paralysis in some peopleTogstad becomes paralyzed as a result – possibly due to the negligence of the doctor or the nursing staffP’s wife hires an atty. Who says there probably isn’t a case, even though there was. He also said he was going to discuss it with his partnerShe says she gave all of her info to the doctor (45 min. meeting)She didn’t hear from miller, so assumed there wasn’t a caseMiller says he told her to seek other adviceThe med. Mal. Attorney Miller was supposed to call couldn’t remember ever getting a callOther attorneys testified that he should’ve looked at the hospital records and consult with an expert before rendering an opinion on the strength of the caseI: malpractice?H: yes. He was negligent. And they proved at trial that the plaintiff would’ve won her case anyway, so he gets nailed with damagesTake home message: tell people just that there is a statute of limitations listSo ordinarily you’d say you’re not versed in the field, that there is a SOL, McGlone v. Lacey Slip & fall case – the lawyer says he’ll get back to someone in two weeks b/c he’s a legislatorBy the time he communicates with her, the SOL has runHe never contacted her I: malpractice? H: noR: It was pretty clear he was pretty occupied as a legislator and he never initiated an attorney-client relationshipDeVaux v. American Home Assurance Co.Plaintiff Devaux took a fall, wrote an attorney requesting assistanceThe letter got lostThe lower court said that there was no privity between the lawyer and the client and so no attorney-client relationship and dismissedPlaintiff later called the attorney, and the secretary told her to write a letter to the store stating she had fallen and the secretary arranged a medical examination with the store’s insurance company.Plaintiff didn’t visit the attorney’s office, but made phone calls, which she was told would be returnedThe calls weren’t returnedI: atty-client relationship?H: possibly – at least it survives summary judgmentR: the secretary may have had apparent or actual authority and this depends on the reasonableness of plaintiff’s relianceManion v. NaginPosture: motion to dismiss on Nagin’s partManion sued attorney Nagin for breach of fiduciary duty, negligence, tortuous interference with K stemming from Nagin’s conduct representing a boat alliance (BDA)Manion came up w/ a plan to start a boat dealers associationNagin (attorney) said he was experienced w/ Buying groupsNagin was initially working at an hourly rate, but then suggested he take an ownership interest in the corporation.Nagin had concerns about the way the business agreement was being draftedManion gets terminated from the BDA, sues for malpractice b/c Nagin says he represents the BDAI: malpractice? H: No.R: Manion had committed fraud, so he was looking for a way to blame the lawyer for his malfeasanceNormally once clients turn into a corporation, the attorney represents the corporation, but here Nagin couldn’t represent Manion without violating professional rulesSo, at some point early on, you should recognize there’s a conflict of interestJesse – WI caseOne lawyer froma firm represents a doctor, another lawyer reprsents a defendant clientDoctor says there’s a conflict of interestI: So, did DeWitt represent the doctor when representing? Or the corporation the doctor ownsH: somehow the doctor has never been the client – only the corporation Streit thinks this is bizarrePine Island Farmers Coop v. Erstad & RiemerFarmland the insurance company brought malpractice against Erstad & Riemer, arguing they represented both the insured (Pine Island) and Farmland (the insurance co.)Plaintiffs did not notice that the K had disclaimed all liabilityBu the defendants failed to raise an affirmative defenseThe two parties settle for $1 millionSo Pine Island and Farmland sue the firmFarmer’s milk becomes contaminated, cows become infected, so they sue Pine Island CO-Op and their insurance takes overI: can they sue their own attorney for malpracticeH: No, it’s OK for attorneys to represent the insured and the insurer so long as there’s not a conflict of interest, and so long as there’s consultation then it’s possibleThe problem here is that the lawyer isn’t held accountableAC-RelationshipKriegsman v. KriegsmanAtty wants to withdraw in a divorce proceeding b/c P was then on welfareThe judge doesn’t allow him to b/c the file is so thick that another attorney would have a very hard time taking overH:When a firm accepts a retainer to conduct a legal proceeding it impliedly agrees to prosecute the matter to a conclusionAllison v. StateTaylor files an appeal on behalf of AllisonAllison won’t pay, so Taylor the atty. Does nothing – he doesn’t file a motion to withdrawThe court finds him in contemptOnce you file an appeal, you have to represent your client unless you get permission to withdrawFees on TerminationRosenberg v. Levin – Fla. I: should the attorney get quantum meruit or the amount his services are worth under the K theory?There are 3 rules:Quantum meruitContract RuleAnd Quantum Meruit Rule limited by the K priceH: They go with # 3Balla v. Gambro, Inc.I: should in-house counsel be allowed the rmedy of an ction for retaliatory dischargeBall, former in-house for Gambro alleges he was fired in violation of IL public policy, sought damagesTrial Ct. dismissed on MSJApp. Ct. reversed, it gets state cert.The court says that ordinarily as a lawyer, you don’t get retaliatory dischargeUnless in contravention of a public policy, Under rule 1.6: a lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious injuryBut they say a client can discharge his atty. At any time for any reason. It doesn’t matter whether he was a whistleblowerThey also say he should’ve withdrawnWider v. Skala – N.Y.P sues his fmr. Law firm, claims he was wrongfully discharged for his insistence in complying with governing disciplinary rules by reporting professional misconduct allegedly committed by another associateThis court reinstates his action that the lower courts have trashedThey say there’s an implied-in-law obligation for lawyers to uphold their duty to the court – so this is the opposite of GambroBinding the Client Through the Law of AgencyConway v. Brooklyn Union Gas Co.D’s motion to enforce terms of an oral settlement agreement w/ PTo enjoin P from filing further lawsuits and for attorneys’ feesThe judge agrees the settlement agreement be enforcedP Conway brought action alleging employment discrim.The two parties agreed to a settlement. The judge got the parties to agree that the only disagreement left was about $$The two parties agree on $$J gets a letter from Conway saying she would settle 2 cases, but not 2 state actions, but did not say that she’d discharged her attorneyAlso didn’t explain why she was writing directly to the courtConway stops responding to Bellovin’s phone callsThe court says that attorneys can bind clients w/ apparent authoritySo, he says: settle!Model Rule 1.2Decisionmaking in the Criminal Case – Rule 1.2Jones v. BarnesSCOTUS granted cert. to decide whether D counsel assigned to prosecute an appeal from a crim. Conviction has a constitutional duty to raise every non-frivolous issue requested by the DefendantOne Butts was assailed, identified his assailant as “Froggy”, i.e. David BarnesBarnes is charged, gets convictedHe gets appointed an attorney for his appeal, who declines to argue some of Barnes’s causes of action, because they’re not supported in the criminal recordMelinger, the app. Atty. Argues 3 points, and also submit 3 of Barnes’s pro se briefsAppeal gets denied by Ct. App., Barnes files for reconsideration, and Ct. App. Agrees that the atty. Must argue colorable pointsN.Y. Ct. grants cert., they reverseThey say if an atty. Uses professional judgment to winnow out some claism he believes are frivolous, then this is permissibleAttorney-Client PrivilegeHave to render legal advice, client can’t have waived his rights, etc.State v. BranhamFriend of the accused in a murder trial is a lawyerThe accused asks if the friend is his lawyer, he says “yes,” then says he wants to kill his wifeI: ACP?H: no. Because no legal services were renderedThe attorney never actually gave legal advice. Rather the defendant just blurted out that he wanted to kill his wife with no warning whatsoever.Exceptions to the Privilege – Testamentary Exception, Crime Fraud ExceptionThe lawyer can violate ACP to further the client’s testamentary intent (wills)But if no will is finished, then the exception doesn’t flyAlso if the client uses the lawyer’s advice to commit a fraudUnited States v. DoePrivilege not lost if the client proposes a course of conduct which he is advised by counsel is illegal, but is extinguished when a client seeks legal advice to further a continuing or further crimeHere, the State wanted to subpoena an attorney and use the crime-fraud exception to get at his knowledgeThe lower court quashed the motionGenerally there are really strict rules for law enforcement prohibiting them from The government must show the client was committing or intending to commit a fraud or crime and that the consultation was in furtherance of that crimeHere the target was an experienced federal law enforcement officer, so they say there’s a prima facie case, and the govt. can proceedPrivilege is not lost if a client proposes a course of conduct which he is advised by counsel is illegal, but is extinguished when a client seeks legal advice to further a continuing or future crimeThe rule is based upon what the intent of the client was, so if the client asks some questions about dodging taxes but you don’t know what their intent is, you probably have no dutyBut if you find out that the client hasn’t declared, you might be called into court to testify as to the defendant’s intentIn Re Sealed Case – p. 190- Waiver of the PrivilegeIn Re Qwest Communications Int’l Inc.Qwest was under investigation by the DOJ, produced some 220k+ pages of documents to investigators, which they claim were privilegedA bunch of civil suits were filed, but Qwest wouldn’t turn over the privileged info in those casesQwest said they did not waive their ACP and also signed confidentiality agreements w/ the govt.The court finds that Qwest waived its rights and that “selective waiver,” where they can reveal info to some parties but not others is not appropriateThey say that the way Qwest drafted these documents, they allowed the DOJ and SEC to do almost whatever they wanted, so However, the key point here is that this isn’t an adversarial proceeding. Qwest is just trying to cooperate with the governmentThe take home message is: do it in front of a judge and get him to keep things confidentialInadvertent DisclosureIf you thought you had a software program that worked, but that suddenly blew up you’d probably be OKIt’s about how much effort you put in on the front and how fast you tried to retrieve it, and how big a gaffe it was (i.e. how many items fell through the cracks)You have a responsibility to notify the other side Model Rule 1.6 – ConfidentialityOnly protects lawyer-client infoProtects “information relating to the representation of a client”If a judge requires you to spill the beans, do it, and you can bring the issue up on appealDoes not apply outside the context of judicial or administrative proceedingsThe rule reads: “the lawyer shall not reveal information relating to the representation of a client.”Not absolute – have to reveal info for settlementsOf course, client can give informed consentOR impliedly authorized by clientOR authorized by 1.6(b)Confidentiality continues even after client relationship has endedProspective clients can’t reveal anything eitherRule 1.8(b)Cant use client’s information to their disadvantage unless they give informed consentRule 1.9 – responsibilities toward former clients, confidentiality & keeping things quietRule 1.13 – dealing with organizational entities Is your client the middle manager or the company itselfAnd you should probably let the client know you’re not representing them foremostRule 4.4If you’re negotiating a deal and your client makes an outright lie, under the 4’s, you might have a responsibility to reveal confidential informationExceptions to Confidentiality Rule 1.6 implies permissive disclosure, but this is not soRules 4.1 and 3.3 require disclosureApparently though, they’re permissive - see p. 201If disclosure is not permissive, then It’s a violation of the rules Maria Kantazavelos, Following Professional Rules – And a Moral CompassLawyers were told by their client he committed a murder for which another man was committedThey were bound by ACP not to tell anyone about it until after his deathAnd there was a notarized letter saying he did itFinally, he died after the other guy (Logan) did 20+ years in prisonAnd they spilled the beansOn the one hand you’ve got ACP and on the other hand, you’ve got the innocent man stuck in jailFraudulent TransactionsCan’t do it under Rule 1.2(d) – lawyer shall not counsel a client to engage, or assist a client in conduct the lawyer knows is criminal or fraudulentFor entities, under rule 1.13, the lawyer shall refer to a higher entityIf nothing can be done, the lawyer can reveal to the extent he reasonably believes it necessary to prevent future injuryLawyer ProtectionWhat if a lawyer needs to consult another lawyer about an ethical issueWell, if disclosure is required by court order, you can do it…Meyerhofer v. Empire Fire And Marine Ins. Co.Appeal by Meyerhofer and Federman and their counsel from Dist. Ct. for So. Dist. N.Y. dismissing w/o prejudice plaintiffs’ action against defendants and enjoining and disqualifying plaintiffs’ counselEnjoined the counsel from disclosing confidential information about Empire Plaintiffs brought an action alleging the prospectus was materially false and misleadingPlaintiffs bought stock in empire at $17 a share, now worth $7 per shareOne partner of the firm who handled registration was worried about excessive fees that weren’t disclosed during the registration and prospectusThis partner, Goldberg, resigned from the firm over the disputeYet, he was named as a defendant. He tried to prove that he had no knowledge of the finder’s fee arrangement between empire and his firm (Sitomer)The District Court found Goldberg had violated Canons 4 and 9,The appellate court said he didn’t violate either, because he was entitled to his right of self-defense. They also barred Goldberg from working with that client in the futureProblems – p. 2276. Made a plea, then wanted to withdraw it, because he said his counsel didn’t explain the consequences of the pleaThe issue is whether or not ACP is waived when you move to withdraw your pleaThe court says there’s a partial waiver - attorney needed the file to recollect what he’d told his clientDestruction / Concealment of evidence and new technologiesPeople v. MeredithDefendants Scott and Meredith appeal from convictions of first degree robbery and murderMeredith’s Conviction rested on eyewitness testimony that he shot and killed WadeScott’s conviction depends on the theory that Scott conspired w/ Meredith and another defendant OtisProsecution sought to show the place where the defendant’s wallet was foundAdmissibility was the crucial issueFrick, a defense investigator said he’d seen the burnt issue in a trash can behind Scott’s residenceI: is Frick’s finding the wallet a privileged communicationH: it can’t be admitted by the defense unless it precludes the prosecution from making that same observationIn this case, the investigator removed the wallet, so the prosecution was precluded, and therefore the evidence was admissibleSchenk’s disclosure to Frick of the location did not waive the ACP, but the fact that it precluded the prosecution from finding it did.To hold otherwise would allow defendants to impermissibly sway thingsMetadataDisclosure of metadata is a breach of confidentialityThe Duty of LoyaltyModel Rule 1.7 – Conflict of interest – current clientsYou shall not represent a client if:Representation of one client will be directly adverse to another orThere is a significant risk the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.You can represent a concurrent conflict of interest if:The lawyer reasonably believes he’ll be able to provide competent and diligent representation to each affected clientIt’s not illegalRepresentation doesn’t involve assertion of a claim by one client against another in the same litigation or other proceeding before tribunalAnd each affected client gives informed consent in writingModel Rule 1.8 – Conflict of interestCan’t partake in adverse business interests to your client unless you get consentIt’s all about prohibited transactionsModel Rule 1.9 – Former clientsModel Rule 1.10 – Imputed TransactionsWithin law firms there is free exchange of informationWhatever I’ve learned earlier could be disclosed with my fellow attorneys1.0 Defines what a firm is. Public defenders are a firmSo, the issues that arise are typically to what extent do you owe temporary loyalty? Long-term loyalty?Iowa Supreme Ct. Att’y. Disciplinary board v. HoweHowe is a general practitioner and an assistant city attorneyHe prosecuted Mouw and defended him on another one of his chargesHe also asked the court to order the DOT to expunge the person’s convictionCould he defend someone against the city? You’d have to fully discloseWhat if they pick you out of the phone book?Possibly, but again, informed consent is keyWhat if someone knows you’re the city attorney? You have to get informed consent and fully disclose any issuesHe billed both the city and Mouw for his representationHe did a similar thing with one Larson and OlinThey suspended his law license for four monthsIowa Supreme Ct. Atty. Disciplinary Board v. ClaussHe represented two clients w/ competing interestThe first was the National Management Corp., which retained him to collect past-due rental payments from Class’s second client, Kay ClarkHe represented her on her violation of a non-compete agreementHe contacted a more experienced attorney who told him he needed to get informed consentBoth parties agreed to the waivers, but it wasn’t enoughClauss did not give full disclosure of his conflict of interestAlso, his representation of Clark resulted in National failing to receive any money for the past-due rentAlso, he wrote two different letters – one to each clientPerhaps he did this because he realized that they might respond differently and he’d be able to represent both sides Cuyler v. SullivanRespondent was indicted for first degree murderThere was multiple representation of the three defendants. At no time did Sullivan object to the multiple representationSullivan was found guilty and his lawyers decided not to present a defenseSo he claimed ineffective assistance because his lawyers didn’t put on a defenseThe strategic choice is: do they call him (Sullivan) and / or any of his co-defendants?The rule is:If the defendant says: “I have a problem with this joint representation,” the judge has to go through an extensive fact-finding or colloquy to determine whether or not this is going to workThe judge doesn’t have an obligation on to bring it up on their ownJudges in WI bring it up on their own to avoid sandbaggingI: whether a prisoner can obtain habeas corpus due to his conflict of interestSpecifically if the defendants didn’t object is habeas relief appropriate?And does the mere possibility of conflict of interest warrant the conclusion that the defendant was deprived of his right to counsel?Certainly representing defendants with competing interests is a conflict and renders counsel ineffectiveThey conclude that nothing requires a court to open an investigation as to whether multiple representation caused a conflict of interestDefense counsel have an obligation themselves, but that’s itAnd if a defendant doesn’t raise an objection, he has the burden of showing an actual conflict of interest that affected his lawyer’s performanceDemonstrating actual conflict of interest is enough to get off the hookDon’t have to show there was prejudice, whatever that meansThey vacate and remand to determine if there’s an actual conflict of interestAnd there was an actual conflict of interestJ. Marhsall dissent:If there a conflict of interest existed during the proceedings, that should be enoughThe client shouldn’t have to bear the burden of showing his attorney’s trial performance differed due to the conflict of interestState v. WatsonWatson was charged w/ 1st degree homicide for the murder of his fatherSon & father are living in a school busIn pre-trial proceedings a crucial prosecution witness was represented by the Watson’s and attorney, who later left Watson’s caseI: should the court have ordered a sua sponte hearing to deal w/ this conflict of interest?H: yes, they should’veReasoning: Watson’s 1st attorney had a duty to fully represent both clients, and he did not do thatThe court knew of the dual representationBringing up the key witness’s substance abuse issue would’ve hurt his client, Grunewald’s case, so he was burdened by this conflictThe attorney was also obligated to zealously represent Watson by impeaching Grunewald, the witness, which he did not doIs this a current client or former client?Former, but apparently there are still issuesSpecialized Conflict Situations: Insurer and InsuredUnnamed Atty v. Kentucky Bar Ass’n.Movant was employed by a husband & wife to conduct an investigation of the circumstances surrounding the fatal shooting of Mrs. Doe’s former husbandNeither were charged but were concerned they would beHe advised his clients that a conflict of interest could arise, but did not advise them that any and all information obtained during the joint representation or obtained in any communication to him by them would be available to each client and exchanged freely between the clients in the absence of a conflict of interestHe adduced information that one of the Does was involved in the shooting, contrary to what the Does had told himHe called the ethics hotline, and determined he should withdrawAnd he concluded he should nto disclose certain results of his investigation to either Mr. or Mrs. Doe without consent of each of them, which they declined to giveMovant encouraged each counsel to get new counsel, which they didI: violation of conflict of interest?H: Yes, because he did not properly explain joint representationHe should’ve told both parties that it could’ve cut against both of themIowa Supreme Court Board of Professional Ethics and Conduct v. WagnerWagner was a part-time judicial magistrateHe devotes at least 25% of his time to business and real estate matters and does some domestic and personal injury workOne Oehl & family operated a restaurant. Title was in the name of a corporation whose shareholders included Oehl & family. It had been open for 25 years, gift shop, specialty food lineOehl closed the gift shop and specialty food line and decided to sell the businessWagner said if he could find a buyer he’d pay him a commission of ten percent of gross sale as commissionListed it at $600k, included “assurance of a profitable operation” and “a low risk factor for new ownership” – apparently prepared by OehlWagner met w/ a potential buyer who’d never owned a business. He said he couldn’t be involved in negotiating the sale priceWagner said he could get the business appraised and charged the buyer Childres for his timeChildres signed a confidentiality agreement and received a copy of the sales brochureWagner inquired about financing, charged Childres one-half of the preparation time because it benefitted both partiesThe parties agreed, and then Wagner sends a congratulatory saying he can represent them so long as there are no controversies and they’re informed… and that he took no part in nailing down the purchase priceChilder’s financing fell through, and Wagner advised both parties to find additional counsel, which they didOehl never got his money, sold it to Wagner, who then re-leased to a family who ran the business successfullyOehl’s new attorney realized the arrangement and Childres sued Wagner and the parites settled.The court finds a conflict between Childer’s and Wagner’s interest (the commission)The court said his disclosure wasn’t full enoughThey suspended him for 3 monthsOther Consequences of Conflicts of InterestAndrew Corp v. BeverlyAndrew and Beverly are involved in a patent infringement suit about hangersBeverly’s lawyers had previously been with another firm and had written opinions about whether they infringed on Andrew’s patentsThen the firm merged w/ Andrew corp.’s firmThe opinion letters they were working on apparently did not list Andrew as the adverse partyAndrew does not want the opinion letters introduced into evidenceThey preclude use of the opinion letters because they say the attorneys weren’t competent counsel, and Beverly chose the lawyersWhat a load of shitHow doesn’t that undermine the public’s confidenceBusiness transactions with a ClientIn Re DatoRespondent was admitted to the bar in NJ.He was retained by one Cinque, a long-standing friend of respondent’s wife and family to represent her in a divorce action against her husband, the grievantShe asked the attorney to help find a buyer for property she got in the divorceHe offered to sell it to another client he’d known socially & professionallyHe prepared a contract for the two He never presented the contract to his friend, apparentlyHe wrote a new K where the ex-wife agreed to take a second mortgage so Mocci, the friend would not have to pay so muchHe said she was having difficulty selling the propertyAttorney realized it was going to be a good investment, so he flips itBuyers weren’t represented by separate counsel, the attorney got a $52k profitApparently he took the property and resold it to someone else for a big profit, and didn’t tell Mrs. Cinque, the divorceSo they discipline him by suspending him for one yearProblems: p. 313#1:- #2: Lawyer should’ve told his client the SOL should have run, so as to mitigate damages. This is clearly malpractice in letting SOL run. To do otherwise would be to prevent client from having his / her recourse.Consecutive Conflicts and Imputed DisqualificationFormer ClientsHow does rule 1.9(a) dealing with former clients differ from 1.8?The rule applies only to representation that is “materially adverse” to the former client “in the same or substantially related matter.”“substantially related” matters are those that involve the same transaction or legal dispute or if there is otherwise 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 matterAlso, there are no “noncontestable” conflicts under 1.9, compare w/ Rule 1.7 where you can’t waive certain conflicts by consentBrennan’s Inc. v. Brennan’s Restaurants, Inc.The Dist. Ct. barred appellants’ attorneys from further representing them b/c of conflict of interestBrennans are in the restaurant bus. In New Orleans, LAAll corporate parties are members of the familyAppellee runs the Brennans on royal st.Corporate appellants own & operate the other restaurants in LA, TX, GAPrior to ’74, all the members of the Brennan family were stockholders and directors of plaintiff, and some of them were stockholders and directors of the corporate defendantsCorporations didn’t hold stock in another, but were owned by members of the Brennan familyThey also had interlocking boards of directorsWegmann became general counsel for the family business and his retainer was paid pro rata by the corporations. He did this from ’71 – ‘73He prosecuted applications for trademarksIn ’73 a dispute arose. P became 100% owned by one group and defendants became 100% owned by the second group, composed of the defendantsWegmann elected to continue to represent the defendants and severed connections w/ P’sBoth sides claimed ownership of the trademarks after the settlementBoth parties sued for the trademarksWegmann retained an attorney to assist with the Defendants’ defenseP moved to disqualify both attorneysWegmann b/c his representation was at odds w/ PAnd Sprung by imputation of Wegmann’s conflictTrial Ct. disqualified both attorneysD’s argue that no conflict can occur between joint clientsThe court says the D’s confuse an evidentiary ACP privilege standard with the broad standard for confidence dictated by ethical standardsSpecifically, a fmr. Client seeking to disqualify an attorney who ppears on behalf of his adversary need show only that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him”But this rests on the presumption that confidences potentially damaging to the client have been disclosed to the attorney during the former period of representationThe court remands the determination of the second attorney They say if Wegmann represented the clients jointly, then there’s not COIIn joint representation, one client has to evidence a contrary intent to the joint representation and there can be no confidencesIf Wegmann didn’t represent jointly, it doesn’t mean Sprung should be DQ’ed either. Unless he learned info P’s intended not to disclosePresent Client or Former Client?Santacroce v. Neff“Hot potato Doctrine”- has evolved to prevent attorneys from dropping one client like a “hot potato” to avoid a conflict with another better paying clientGoldberg was a long standing client w/ Jaffe & AsherThey represented many of his lucrative corporationsGoldberg and Santacroce became romantically involved; Goldberg requested Santacroce abandon her business to care for him, provide companionshipJ&A were retained to represent Santacroce in a contractual disputeGoldberg paid the legal feesGoldberg dies in 2000, J&A are in charge of the estateThe will left nothing to SantacroceShe gets her own counsel and sues J &A withdraw over the Damiani suit she previously made due to COIThe court finds that Santacroce was a current client despite J&A’s argument that because Santacroce was terminated before she filed her suit, there was no conflict of interestThe court says the important date is when they fired her given they got wind of her intent to sue the estateSo she was a current clientThis is the exception to the rule that a current client is determined by the filing date of the complaint “hot potato doctrine”And the court says, under Rule 1.9 even if Santacroce was a subsequent client, their interests would still be materially adverse, so no goOxford Systems v. CellproJohns Hopkins licensed patents to Becton, sublicensed to BaxterCellPro filed a complaint against Baxter and Becton seeking declaratory judgment of non-infringement, invalidity, and unenforceability of the JHU patentsCellPro represented by Lyon & Lyon Becton hired a Boston firm and Perkins Coie to represent locallyStreit is talking about things being substantially related for former clientsIf you look at files of one client, you can have a conflict b/c you know of the other client’s interest and it’s assumed to be shared throughout the firmFeesModel Rule 1.5 vs. 1.8Model Rule 1.8 is about lawyers not entering into business transactions where they have a ownership, security or adverse pecuniary interestModel Rule 1.5 is more generally about feesSays you shall not make an agreement, charge or collect an unreasonable feeThen there are factors: …Lawyers can’t get a contingency fee where there is no contingency i.e. where payment is assuredIt used to be that you billed the fair market value up until the 50’sThen clients demanded hourly billing b/c they thought they were getting a better dealKeck & Associates v. Vasey – Lawyer represented clieint in a libel suitAnother attorney puts the attorney on retainer, and they loseDo they get anything? No.Then they go to plaintiff and say they want to appeal the case b/c their out-of-pocket is gone, and if they think they have a winnable issue it makes senseP gets an offer to pay all his fees, They want to force him to appeal, and the court says HELL NO. The client gets to make the decision about the settlementHauptman O’Brien, Wolf & Lathrop, P.C. v. TurcoLouis Turco hired the firm (P’s) to represent his daughter in a personal injury case in the death of her child unborn child resulting from a motor vehicle accidentLouis executed a contingent fee agreementAfter receiving a settlement offer, but before accepting it, Louis advised the firm he was terminating its servicesThe firm brought the action to enforce an attorney lienTurcos argued the fee was unreasonablyDist. Ct. granted MSJ for formTurco’s appealed I: MSJ allowed?H: No. Issues of material fact. RemandedThe parties met, agreed settlement wouldn’t be agreed on for 6-8 mos. Based on her injuries, both attorneys and client signed itAgreement included a provision that it could be billed hourly but the client chose not toAnd in the event of termination, the attorney has a lienThis was explained to the clientsOther side offers settlement of $194K. They Turcos did not say they accepted itTurco terminated feeling that they had not done a lot of work Firm argues the fee is owed b/c the Turco’s agreed to pay a specific amountThe standard for a “clearly excessive fee”A lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee And contingent fees fall under this standard as wellThe lawyer has the burdenAnd the firm didn’t show in any way that its services were worth what they said the client should pay.Also: a concurrenceNotes:You are supposed to tell the client beforehand under Rule 1.5 how many hours it should beAlso, you can get quantum meruit Brobeck Phleger & Harrison v. Telex Corp.Diversity suit brought by SF firm Brobeck… To recover $1,000,000 in attorneys’ feesThey had contingency fee, engaged them to prepare a petition for cert. after a $259.5 million judgment in Telex’s favor was reversedThey went in search of a new lawer, found one LaskyThe parties met in SFThey agreed upon 5% of the judgment or settlement and a ceiling of 5% of $100 millionAnd the attorney suggested a minimum fee of $100MNo final agreement was reached at that meetingA memo was drafted saying min $1M, max $5MLasky rejected this agreementThe orig. agreement was only if Telex collectedLasky drafted a new agreement which Jatras, the CEO signed and agreed toThe CEO then sent a letter w/ $$ amounts w/ hypotheticalsLasky clarified, no response from TelexTelex considers “wash” settlementLasky says you owe me $1MThe agreement was contingent upon “recovery” from IBM – is a wash recovery?The Court notes that because the firm is entitled to more $$ for doing more work on the petition for cert, they get more $$ especially based on the obvious readingAnd the Court notes that there was no imbalance of power, Lasky gave them the opportunity to renegotiateNotes:You look through 1.5, but the more sophisticated the legal services, the harder it is to say you got ripped offCluck v. Commision for Laywer DisciplineComm’n for Lawyer Discipline brought an action against attorney Cluck alleging he committed misconduct He represented Patricia A. SmithMSJ granted on behalf of comm’n.Cluck appealsDivorce case. Smith approached Cluck.Signed an agreement $15k retainer, $150 per hour monthly thereafterShe wanted to reconcile, then decided to continue proceedings. He made her sign another $5k agreement + $200 per hourAnd another for $20kShe demanded a refund, he says no refund; an hours worked dispute ensuesShe claims it was an unconscionable fee, Smith argues it was unrefundable, and that’s he lost his billable hoursRetainers are fees to compensate attorneys from accepting other clientsHe couldn’t prove he would’ve gotten other clients, so MSJ granted The issue is what’s the difference between a retainer and an advance paymentRetainers are supposed to be used b/c you can’t et other clientsShe put the $$ in the trust fund instead of putting it to work on the client’s caseA real retainer is not a payment for services, but money set aside for the lawyer’s loss for the opportunity to work on someone else’s caseAnd then if you work on the client’s case, that money can get turned aroundFiduciary Obligations: Taking care of Other People’s $$Model Rule 1.15Lawyers have the obligations to keep track of their clients’ fundsIt is the lawyer’s obligation to account for ht proceeds of the case, pay them to the client$$ must be kept in a separate account – a “trust account”Stiff penalties for comingling of fundsThe Rule governing WI safekeeping of property is SCR 20:1.15Brown v. Legal Foundation of WashingtonState of Wash. Uses IOLTA accts. Where the interest goes to pay for indigent services and not for clientsA group of non-lawyers who conduct real-estate transactions also had to put in if their clients were not going to generate net incomeThey challenged the IOLTA system as a taking b/c their clients couldn’t get I: regulatory taking under the Fifth Amendment?H:There was a recent holding saying that these sort of actions were regulatory takingThen they what just compensation isThe Wash. Legislature had not said you’re mandated to put your $$ in an accountAnd it’s the lawyer’s decision to put it into an account, so that lawyer has discretion. And if he can persuade the bank to setup an arrangement where they can do the accounting, then they’re free to do as they please with the proceedsOf course, the IOLTA account is far more efficient to calculate the respective interest amounts, so it’s effectively mandatedProblem 1:Attorneys put together joint venture, agreed to charge to Loveless reduced legal fees in exchange for a stake in a companyAnd at that point, you’re supposed to advise your client to get independent legal adviceClient terminated lawyer, lawyer sued for the stake in the companyWhat did the court conclude about the reasonableness of the fees?Problem 2:Personal injury fee agreement where attorney gets 1/3rd before the suit and 40% afterPart of the services in personal injury is reducing medical billsThis agreement provided the lawyer would get all the $$ they could represent the medical bills byThe court says this is both unreasonable and unconscionableAnd he didn’t explain the contract to the clientSo the problem here was intimidating the client not informing him / her of the expected cost at an hourly rateProblem 3:Lawyer agreed to represent client in locating assets belonging to her dead sisterInitially he refused to represent client and then insisted on an hourly feeAfter locating substantial assets, agreed to a contingency feeThen later he refuses to work w/o a fee agreement, says the thinks it will go to trialWhat if he believed in reality they were going to trial?Basically he go pwned because he wasn’t transparent with his clientProblem 4:Walton hires firm to get unpaid fees from gas & electric co.They enter into a contingency agreement where upon termination he agrees to pay immediately the firm the present value of the contingent feeThe firm says this value is $6M, but Walton doesn’t want to sell the land his oil is onSo Walton decides he wants to get rid of the lawyersHe hires new counsel and settles for $900k, a lot less than $6MThe first law firm sues him to enforce the termination clause of the K (% of the $6M)They say this is void due to public policy b/cThe immediate payment upon termination is unjustProblem 5:Divorce case provided that husband would retain community property and would purchase client’s interest in the property for a payment of $40k and a $600k promissory noteNote provided Client could demand annual payments of up to $50k of principalWhy no contingency fees?We don’t want people to get divorced, But here they’d been divorced for 25 years!Apparently WI sees the difference between before and after divorce w/ contingency feesProblem 6: - Problem 7:The issue of what’s fair in a contingency fee & what did the attorney know at the time and was he entitled to itAtty. Had much more reason this was going to believe this was going to be a tricky dealAnd the person who named the bank teller as beneficiary was infirmSo the attorney believed it was going to be contestedThey agreed to a contingencyThe atty. Got $450k but this was OK b/c we thought there was going to be litigationDuty to the CourtModel Rule 3.3 Lawyers owe a duty of candor to the courtE.g. can’t make false statementsCan’t offer knowingly false statementsCan’t introduce authority directly adverse to the client’s interestsAlso, cant’ introduce false evidenceAnd you if you know your client is going to do things that are illegal and related to the case, you have to disclose to the tribunal where appropriateIf a client tells you he’s going to give false testimony, you have to urge him to tell the truthIn a civil case, the lawyer can refuse to admit testimonyBut in a criminal case, the lawyer would have to know the client was going to testify falselyYou can’t tell the client no to testify in a criminal case, but you can say, that if he’s going to testify falsely, you can withdrawJudges won’t take it out on attorneys as long as he believes the attorney did a pretty good job screening his client What if you’re pretty sure the client is lyingCan you refuse to introduce a false alibi witness?Yes, you can apparently b/c the witness standard other than the defendant is a little bit lowerJudges really don’t like it when you put on other witnesses who are telling huge liesNix v. WhitesideWhiteside killed a guyHe told the attorney that he thought the victim had a gun but no gun was foundAfter a few weeks of counseling, Whiteside changed his story to his attorneys and said he’d seem something “metallic” in the victim’s handNo one actually found a gun, but the family might have found a gun; the police did not conduct a very thorough searchRobinson, the lawyer repeatedly informed whiteside that such testimony would be perjured, told him he would withdrawAnd that he’d inform the court that it was perjured testimonySo the defendant says he didn’t see a gunMust establish under Strickland v. Washington:(1) there was serious error(2) the error was prejudicialthe recognize Rule 3.3 might have been a driving force, but Whiteside testified truthfully and then moved for a new trial alleging ineffective assistance of counselI: IAOC ?H: NO.Reasoning: The Model Rules require disclosure, so this is OKAnd at most, it deprived him of his ability to commit perjury, not effective counsel@ Trial, the trial court didn’t know if his testimony was a lie or notThey say it doesn’t even cross the first Strickland factorConcurrence by Brennan:The Court doesn’t have the power to promulgate ethical rules for lawyersSo they wanted to allow leeway for other states to pass different rulesCrary – p. 372Lawyer knew he was lying at her deposition b/c he had been with her at those timesThe lawyer had been in illicit trysts w/ the clientUnited States v. MidgettMidgett robbed a bank, used gasolineHe wanted to present a 3rd person defense – that he didn’t do itLawyer said it was knowingly presented false testimony, moved to withdrawI: new trial?H: yes.R: Midgett’s lawyer did not atually know he was going to commit perjuryHe didn’t know to any certainty that there wasn’t a 3rd personIt’s possible that there was a 3rd person State v. MacDowellSexual assault in an alleyDNA evidence – mixed in w/ spit of the victim b/c oralIn the middle of defendant’s testimony the defense attorney says ‘switch to narrative approach’H: there should’ve been a request for adjournment The narrative approach : “tell me what happened” – deprives the client of the direct examiner to hit all the pointsSo it would give it away to the jury that the lawyer thought the client was guilty when this change of approach is takenThe ABA actually disapproves of the narrative approachThey say all you need to do is threaten the client with withdrawalBut if the attorney withdraws, mistrial, new attorney who might not know about the client’s lies – complete waste of judicial resourcesDuty of CandorIn Re WilkaWilka, the lawyer was representing Travis Van Overbeke in a divorceThe issue was that the client was alleged to have used methamphetamines and this was asserted as a reason for restricting visitation rights to their childThe lawyer for the client had a portion of drug test results that pointed to use of marijuana removedHe didn’t mention that he asked for the rest of the document to be removedThe other attorney noticed there was an issueThey say public censure is appropriateB/c honesty is part of the duty of candor toward the courtSo even that it’s technically not a lie, if you iknow it’s incredibly misleading, you’ll be called out under Rule 3.3GelleneBig Co. going through bankruptcy, Gellene wants to represent themBut he has to verify there aren’t any conflicts of interestBut he knows his firm is representing creditors but it’s hard to figure out who those creditors areLies on affidavits when trustee asks for all the possible conflicts of interestLies under oath, ends up going to prisonB/c he knew if he were telling the truth he’d be conflicted outPeople v. SimacAttorney Sotomayor was found in contempt in a lower courtHe substituted an invidual other than defendant at counsel’s table without his permission or knowledgeThe court holds the lawyer in contempt b/c he misled the court violating the duty of Candor Rule 3.3Masey v. Prince George’s CountyDog bite case committed by police officersThe plaintiff sues for various torts against the officersD’s file MSJ and don’t cite controlling authorityCourt gets pissed off at both parties b/c the P’s counsel didn’t submit much of anything, and the D’s didn’t cite controlling authorityThe judge says they have 60 days to show why D’s didn’t cite adverse controlling authorityDuties to 3rd PartiesLawyer not free to act criminally or to defraud third parties, or to mislead them as to the nature of his engagement or his relationship with his clientLawyers can’t speak to 3rd parties about a person who’s represented by a lawyerIn Re DaleRespondent befriended and cajoled Daryl Geyer, an incarcerated 22-year-old into giving a confession about an arson fireRespondent represented the tenants in a negligence lawsuit against het apartment owner arising from the same fire was facing owner’s MSJThe attorney exploited Geyer’s dissatisfaction with his attorneysAnd curried his favor so he could get him at civil trialThe inmate claims that the attorney added in lines about whether he knew it would affect his criminal appealRespondent also never helped Geyer on his appealHe files a disciplinary action against Geyer – You can’t talk to someone else represented by an attorney w/o their consentRespondent tries to persuade the defendant that the attorney’s advice are what got him there in the first placeHe argued that in re: the rule, that it was a civil case and that Geyer wasn’t represented at the time by a “party” that he asked him for infoThey look to statutory construction and say it’s only for a partyMuriel Siebert & Co. v. IntuitSiebert entered into a strategic alliance w/ Intuit to create an internet brokerage serviceThe relationship became strained when Siebert asserted that Intuit failed to promote the brokerage service to its customersSued for breach of K, breach of fiduciary dutyDermigny was part of the lit. team for P’s, participated in negotiations of the agreement and drafting complaint and response to interrogatories was privy to discussion concerning Siebert’s lit. strategyIntuit’s attorneys learned he was terminated, subpoenaed and contacted him, told him not to disclose any privileged or confidential information and that if e was asked question that could lead to disclosure, he should advise Intuit’s attorneys and decline to answer themThey questioned him about the facts of the case but did not elicit privileged infoSiebert’s counsel moved to DQ Intuit’s counsel and enjoin them from using any info he providedCourt granted Siebert’s motionSaid it wasn’t based on the rule, but on “appearance of impropriety”Appellate division reversedUnrepresented Strangers – rule 4.3Lawyers must not state or imply that the lawyer is disinterested in the matterWhen the lawyer knows or easonalby should know that the unrepresented person misunderstands the lawyer in the matter, the lawyer shall make reasonable fforts to correct the misunderstandingAnd the lawyer shall not give legal advice to unrepresented persons other than the advice to secure counsel if he knows the interests of such a person are or have a reasonable possilbity of being in conflict with the interests of the clientBarrett v. Virginia State BarTim Barrett and Val Rhudy married in ’90. He was admitted to practice law in VA they separated in 2001Pretty nasty e-mails saying he was going to litigate tooth and nailThese were intertwined with his reaffirmations of his love for herThe Board opined that Barrett’s e-mails were unauthorized adviceThe court says prior decisions are usually more egregiousAnd they note the comment saying apparently disinterested lawyers’ communiqués are the targetAnd they’re targeted at legal adviceThey say the communiqués may be intimidating, but they’re not legal adviceKensington Int’l Ltd. V. Republic of CongoP’s claim ‘d’s atty’s. attempted to dissuade their non-party witness from attending a post-judgment depositionThis guy from Congo agreed to give a depo w/o counselAnd then the attorney tells him not to go also b/c it could hurt the CongoThe Court holds that Cleary the D’s firm acted in bad faith and therefore should be sanctioned for attorneys’ costsIn Re GattiOregon State Bar Attorney represented several chiropractors who had been charged w/ racketeering and fraudFiled a complaint b/c opposing lawyers allegedly hired people to pose as janitors to find out about false workmen’s comp.They find no wrongdoingSo he impersonates a chiropractor and calls CMR so he can figure out how they do their insurance claims as a claims reviewerHe tried to elicit protocols and guidelines used in preparing our reports. IN the complaint they said that he said he was a chiropractorHe denied it said he was a doctor, which he is (JD)The trial court held that the bar was stopped from bringing a disciplinary actionThis court disagreesThe court then examines his violationsThey say that it’s misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentationAnd by misrepresenting himself, he did thisAnd they note it’s not limited to litigationAnd they note that there’s no requirement that the bar prove he misled themThe lawyer then asks for an exception solely for the purposes of discovering informationHeld:The court fails to create an exceptionIt should be handled by law enforcement agents insteadBosse’s CaseHe was a real estate agent and a lawyerAnd he contacted a seller of property, said he could offer them $10k for the property, put the listing on a websiteA potential buyer asked for authentication, he forged the seller’s name before the seller had agreedThe seller later went with a different realtor The court disciplines him for 2 years of disbarmentNote that this wasn’t even his client!Problem 3:Lawyer obtained $19k in cash advances in order to pursue gamblinb habitHe obtained 5 of them during a 3 day period in June, and then he filed bankruptcyI: did he violate the candor rule by not intending to pay them back?H: They say it’s moral turpitude and they Problem 8: Miller being investigated by police by corporate fraudHe called the police when he learned they had a warrant and told them not to interview w/o counselThe police compliedI: violation of no contact of parties rule?H: They say that a prosecutor can contact the other side if it’s a criminal investigation, but not a civil oneSo they suppress the portion obtained after the attorney for the corporation asked the prosecutor to stop interviewing the client without counselChapter 12 – Duties to the SystemCan’t act in ways prejudicial to the systemModel Rule 8.3(a) – Duty to reportLawyer who knows that another lawyer has committed violated a duty that affects substantially the lawyer’s fitness or RPC has a duty to report it to the appropriate professional authorityAlso, lawyers don’t have to self-reportMust have knowledgeDoes not require disclosure of information otherwise protected by Rule 1.6Though you should encourage the client to give informed consent to such disclosureModel Rule 8.4(d) – Conduct Prejudicial to the Administration of JusticeIn Re RiehlmannRespondent crim. Defense atty. Formerly employed as ADA He met w/ close friend , told him he learned he was dying of colon cancerAdmitted he suppressed exculpatory blood evidence in a caseFriend urged respondent to remedy the situationDeegan, the guy died, and respondent didn’t tell anyoneThe criminal was set to die of lethal injectionThe defense attorneys find out that the blood test was botched, Riehlmann comes forward and executes an affidavit saying he knew of thisAnd he testifies to their conversation and admits he should have reportedWhen asked why, he said it was the worst time in his lifeSo there’s a disciplinary actionThey conclude he didn’t’ violation 8.3(a) b/c he had no “knowledge”, but that he violated Rule 8.4(d)The test for violating 8.3(a)(1) possessed unprivileged knowledge of an ethical violation and (2) failed to report such knowledge to a tribunal or other authority empowered to investigate or act upon such violationThey say it’s not absolute knowledge but more than a mere suspicionThey say, that if he had done nothing wrong and had no suspicion, then why did he say it was “not right” or that he had to “rectify” what he had doneThen the board looked at the time between his learning of and reporting the incidentThey reasoned that the Rule served no purpose if there was no limitation on timeThe court reviews:They use a “reasonable lawyer test” to determine if the lawyer had knowledge of the violationWhen to report:Needs to be made promptlyAppropriate authority:Generally the bar disciplinary authorityAnd the court says that Respondent’s argument that b/c he reported to the tribunal is misplaced. He should’ve reported to the ODC or someone else promptlyB. – Duties of Supervisory and Subordinate LawyersThe duties under 8.3(a) are not delegable to another lawyerConcerning b/c consulting your senior partner might cost you your jobSee: Model Rules 5.1-5.3Managing partners have to take reasonable measure to ensure that lawyers in the firm follow the Model RulesSame thing for supervisory attorneysIf they order violations, they can be held responsible5.2:If you’ve been ordered by a senior lawyer, you’re on the hookA subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.5.3: non-lawyers – pretty much the same deal.Atty. Grievance Commission of MD v. KimmelThe firm handles lemon law casesThe firm of K&S hired a new associate in MD (Katz)Katz had no civil trial experienceShe was trained , esp. to use a “ Time Matters “ time mgmt. systemAcknowledged she was well aware of the requirement to input matters into itThey ran a volume-driven practice and she couldn’t keep upHer managing partner demands she send out substantive e-mail to opposing parties. This will make them settle, the partner saysHowever, instead of settling, Katz had a bunch of cases in active discoveryHowever, she missed deadlines in 47 of these casesAnd when motions for sanctions were filed, she responded with discovery answersApparently she also didn’t enter the discovery hours in the billing system, as she should haveThe hearing judge concluded the firm violated Rule 5.1The court agreesThey violated a bunch of jurisdiction l rules for filing, and b/c of her low experience, a more careful watch was in orderThey didn’t audit her or help her out even though she was far awayThe fact that other attorneys might have handled the issue better don’t matterThe rules contemplate the need to individuate supervision based on the “nature of the practice”They say that b/c she had singular power to override the firm’s system meant that their system was inadequateI find this to be hogwashCmt. 3 says that firms cant’ assume that all lawyers associated w/ the firm will follow the rulesConclusion:Respondents are suspended for no less than 90 daysSafe Harbors and Junior LawyersPeople v. Casey – Colo 1997State Sup. Ct. panel said 45 day suspension + have to take the MPRERespondent licensed to practice in CO in ‘89Complainant and respondent entered into an unconditional stipulation which the hearing board acceptedFindings of lower Ct.:Teenager, S.R. and her mother met w/ senior partner at the law firm where respondent was an associateS.R. attended a party, police called, charged w/ fake ID for her friendS.J. the friend didn’t know, failed to attendS.R. later arrested and jailedRespondent wrote to City Atty’s office, advised the City Atty. Falsely that he represented S.. when he represented S.R., got discovery using her nameAtty. Got the S.J. matter dismissedS.J. called respondent, told her he would get trespass dismissed, but sealing would be her jobAlso told her date + time of the hearingS.J.’s dad called his lawyer, started the disciplinary proceedingViolation of RPC 1.2(d) – counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulentRPC 3.3 – knowingly making a false statement to a tribunal8.4? - engaging in conduct involving dishonesty, fraud, deceit or misinterpretation and8.4(d) – engaging in conduct prejudicial to the administration of justiceRespondent seeks to invoke the status of a “subordinate lawyer”Reasoning:3.3(b) says that you have to be truthful to the tribunal even if it requires disclosure of confidential informationIn Re HowesWilson shot and killed Smith (d) was arrested, gave a lengthy videotaped statement, claimed it was someone else, one EppsPublic defender Gardner was appointedRespondent was an AUSA Respondent asks to speak to the client, which Public Defender denies b/c R won’t grant immunityD contacted detective , made statements about Wilson murder, othersDetective told respondent Respondent consulted with the chief of the felony section, who told him to advise the detective that if D were to initiate further contact w/ detective, he could listen, but not to initiate contact w/ D, no discussion about whether or not to notify the public defenderRespondent told that to detective, but also told him to take notes so inconsistent statements could be used for impeachment purposesPublic D complains, wants an order, which is not grantedThey say Respondent violated §16-502(b) – can’t immunize yourself from unethical conduct even if his superior ordered itTempering ZealLawyer is prohibited from giving legal advice when he knows it will be used to commit a crime or perpetrate a fraudNC State Bar v. Nifong – the Duke Lacrosse CaseAlleged rape incidentHe gets the entire team’s DNAHe makes a lot of statements to the press , says they’re not cooperating, etc.Took the defense counsel 300+ hours to figure out that there were inconsistencies in the evidence provided by the prosecutorHe violates Rule 3.8 – rules of a prosecutorExtrajudicial statements –You can make them if you want to inform the public You can’t make them if they’ll prejudice a juryViolates 3.3 – lying to the courtB/c he didn’t turn over all of the evidence to the courtHe fails to comply with a court order to turn over evidence under Rule 3.4(d)(3)3.4?3.6(a) – making extrajudicial statements that would be prejudicialAnd he engages in dishonest and fraudulent conduct – rule 8.4Violates 3.8 – by charging w/o probable causeNotes:Masters – they thought Masters did it, but the prosecutors didn’t turn over exculpatory evidence – DNA later cleared him. But the prosecutors used a forensic psychologist. The prosecutors were censured for failing to turn over physical evidenceGentile – Gentile represented Sander, who owned a corporationPolice investigated, and the detectives had been cleared after passing lie detector tests saying they didn’t steal the cocaineTwo ways: either the police, who have a key to the locker could’ve been involved or the owner of the warehouse could’ve been involvedThe police say the officers are cleared of wrondoingAnd Gentile, the attorney issues a statement saying that his client is “innocent” and was being used as a “scapegoat” and that the victims were “known drug dealers and convicted money launderers”State of NV tries to discipline him saying that there was too much trial publicitySCOTUS says no, that the rule has its place, but the attorney is allowed to respond to allegations that are already out there That is, to protect a client from prejudicial statementsIn re CurryIn the 20’s a guy and his wife start a grocery, then the sons run the storeThe grocery store blossoms into a billion $ co., and the surviving sun, instead of having it be a 50-50 split between the sons, Telly has gotten his brother into a 90-10 ownership.There are two suits, one for fraudulent stock transfer and there’s a shareholder derivative suitAn attorney, Curry, says the judge is biased and says the judge was biased, and he sets up an elaborate plant to turn the ex-law clerk against the judgeThey get the clerk to interview for fake jobs in a jurisdiction where one-party consent is permissibleThey also tried to blackmail the law clerk b/c they found out that someone he didn’t know wrote his letter of rec. for his bar review applicationAt this time, Judge Lopez had already listened to 200 days of testimony, so she probably had some preconceived notions of who was a good guy and who was a bad guyViolations:Knowingly making false statements8.4 – being extremely prejudicial to the justice system, perpetrating a fraudCircumvention of a disciplinary through the actions of another4.1 – being truthful to others1.4 – 8.4(a) – violating the rules through another Many times testers can be brought in to elicit to elicit information that would already be occurringThe difference here is that you have to have a predisposition or it’s a sort of entrapmentThe other person involved, Crossen, was disbarred, who had been a US assistant attorneyFor billing too much?YagmanYagman filed a pro se suit against insurnce companiesHe made all these statements slandering the judge , said he was drunk, He asked other lawyers censured by this judge to write his firmHe violates Rule 8.2(a) – making false statementsAnd he appealsAnd one Kaczinski, a huge first amendment judge takes the case on appeal to the 9th circuitHe goes through all the statements, and finds that the “the judge doesn’t like Jewish lawyer” is permissible, because it’s an opinionCalling him “dishonest” was one of a colorful string of adjectivesThey say the statement that he was “drunk on the bench” – the disciplinary committee couldn’t prove the judge wasn’t drunk, so 8.4? - fraud, dishonesty, misrepresentation8.4(e) – influenceing a government agency or officialHe appeals Do lawyers have the same rights as the public 1st Am.-wise?They say that they have narrower rights when it’s regarding to a case pendingSo because this was out of court, for First Amendment, Notes:FiegerThe state courts discipline the guy for saying bad things about the judges, The Fed. Dist. Ct. strikes down the rules, and he can say the outrageous things , and goes up to the Appeals Ct., and they say the speech is constitutionally protectedReview NotesModel Rule 1.2 – Lawyer-client relationship – scope of representation(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.(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.(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.Model Rule 1.4(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;(3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.Togstad – atty. Didn’t advise the wife of a two-year medical mal. SOLState of OK Ex Rel MackeyProbate case goes on forever, he doesn’t keep the client informedDeVaux v. American Home Assurance Co. et Al.P wrote a letter to atty. Requesting legal assistance, but didn’t discover it until the SOL had runSecretary advised the P to write a letter saying she’d fallen and arranged a medical examinationSecretary misfiled requests for legal assistanceImplied agency can exist, so it went to the juryManion v. Nagin – Atty. Represents Manion, who then turns around and represents the corporate clientAlso corporate clients generally don’t enjoy a A-C relationship with corporate counselConway v. Brooklyn Union gasBound despite 1.2 into a settlement agreement, lawyers have apparent auth.Jones v. BarnesLawyers don’t’ have to argue every point their clients want on crim. Appeal – 1.2Rule 1.1 competenceA lot of times the issue is : do you know what you don’t knowLegal knowledge, skill thoroughness, Probably will be slapped b/c you failed to ask a question – not a run-in in and of itselfAggravating factors for more experienced attorneysIn re Docking – represented 3 co-defendants, the KoreansMiller Case – doesn’t close the estate, keeps missing deadlinesRule 1.2 – Scope of representationHave to tell the client what’s going on Issue in civil cases is settling the caseIf they intend to perjure, If you tell me you’re going to perjure yourself, I have the right to tell the court that you’re lying and approach the benchJones v. Barnes – crim. Client has no right to raise every frivolous claimEsp. if it’s the lawyer’s opinionNo advising fraud or crime ! - Rule 1.3 – DiligenceMiller – letting the estates slipDeVaux – Togstad v. Veasely - Most frequently violated3 ways in which you can become an attorneyBig thing: when was the last time I worked on this case, if > 30 days, getting close to SOLRule 1.4Shall inform the client of all communications requiring informed consentConsult w/ client + inform client of statusComply w/ client’s reasonable requests of informationRule 1.6Shall not reveal information unless there’s consent or there are extenuating circumstancesInjury or death = auto-tellAfter that, you need to look at if it’s happening immediately or in the futureRule 1.7 – Conflict of interest: current clientsShall not represent clients with concurrent conflicting interestsCan’t represent if prohibited by law, can’t be for claims in front of the same tribunalInformed consent, in writingRule 1.8 – Conflict of interest: Specific RulesCan’t enter into adverse transactionTerms of representation have to be fairDon’t’ represent both sides of a transactionIf you’re in a firm, still don’t represent opposing clientsVery serious issues with representing multiple clientsCan’t use information to the client’s detrimentCan’t limit malpractice liability unless client is independently representedApplies to all members in a firmSex OK if it was going on before representationYou can enter into a business agreement w/ a client, but you’ve got to get it clearedAlso limiting malpractice liabilityLots of agency law underpinning these casesAggregated agreements Iowa Barr Ass’n v. Howe , Clauss– Assistand DA represents both sides in criminal cases, obtained to get rent payments from client, represents herManion v. Nagin – representation b/w boating association and the guy who started itUnnamed v. KY bar ass’n – guy represented the husband & wife and didn’t mention the conflict that representing them might poseIowa Supreme Court case – Guy did 25% of his work as a real estate agent and fraudulently Iowa SC Boar dof Professional Ethic and Conduct v. Wagner ^^Rule 1.9 – duties to fmr. Clientslittle less stringent than current clients rulesCan’t represent party that’s adverse w/o the two being substantially related3 parts:(1) don’t even bother going to the other party b/c the interests are so adverse(2) it’s consentable -- there’s some overlap. Perhaps they want a break from you later on(3) Are you stuck if you can’t get consent? Sign up your client and hope that your understanding of the law will be able to prove itThere’s a full spectrum, Ken saysRule 1.10Lawyers in firms – imputation –If one lawyer can’t represent, another person in the firm can’t either.HOWEVER: if you can show that the attorney is screened off, then it might be permissible assuming you get the client’s consentIf you were once with a firm, They say: at that time, did you actually work on that case, and if so, what if anything did you do?If you sat in on a depo, say, does that meet any client confidentiality stuff? No.Rule 1.13 – Org. as a clientYou are the org’s attorney and not any of the constituent’s attorneyUnless you represent one of them specificallyIf you think someone’s going to hurt the org, then you have to go up the ladder of the org. and there are sometimes when you can reveal the informationWhat are the ways that confidentiality becomes trickier?What if there’s a crime? Maybe you want to know the information, but you know that Rule 1.14Gives guidance on mentally handicapped peopleYou can represent kids, and old peopleGives guidance for those issuesThere’s a gray area where you don’t always need to get an analysis doneRule 1.16 – Withdrawingwho you shall not representIf it would result in a violation of the rulesIf physical condition And when it’s permissive If no material adverse effectIf services are being used for the client to commit fraudFundamental disagreementIf client Not getting paid is not a reasonRule 1.18 – Duties to prospective clientsLawyer + discussion = prospective clieintInfo from (a) = confidentialFuture prospective client = treat like a former client(d) can waive representationloyaltyRegulation of Advertising and SoliciationBates v. State bar of AZ – Scotus, ‘77AZ has a disciplinary rule that restricts advertising by attorneysTheir $ depended on volume b/c they were catering to low income people, so they advertisedI: violation of the first amendment?H: yes.R: it won’t hurt the profession – the reasons are basically irrelevantBut they hold that a complete bar is a violation of the 1st Amendment, while also allowing regulation on advertisingAlexander v. CahillAlexander isa tty. Of Alexander & CatalanoD’s are the chief counsels of various disciplinary committees who investigated the firm of Alexander & CatalanoThey had adverts. On broadcast mediaIncluded jingles, special effects, wisps of smoke, blue electrical current, fictional or comic scenesThey pulled their adverts with the slogan “the heavy hitters” others that showed them towering over buildings, running fast to reach clientsThis change occurred after NY put new rules into effectThose rules included:No testimonialsPortrayal of a fictitious law firmRelying on techniques to obtain attention that demonstrate a clear and intentional lack of relevance incl. exhibiting characteristics clearly unrelated to legal confidenceUtilizing a nickname, moniker, motto or trade name that implies an ability to obtain results in a matterTest for advertsing(1) substantial State interest to be achieved by the restriction(2) the restriction materially advances that interest; and (3) the restriction is narrowly drawnThe court then finds:The attorneys find that the rules do have a state interestThey find that the amendments that use judges and trade names advance that interestBut the amendment about using characterizations because they’re already permitted under one county’s Bar Ass’n. GuideAgain, they boot the endorsements and testimonials amendment and the techniques that demonstrate an intentional lack of relevanceThe narrowly tailored inquiry (3):They say the ban on trade names is overly broad, as is the ban on judgesSolicitation of ClientsModel Rule 7.1Shall not make a false or misleading communication about the lawyer or the lawyer’s services….Model Rule 7.2Generally a lawyer may advertise services through written, recorded or electronic communication, including public mediaDon’t give anything of value to a person for recommending the lawyer’s services except : Handled under rule 7.3Lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:is a lawyer;or has family, close personal, or prior professional relationship with the lawyerCan’t solicit if they don’t’ want it Can’t use coercionFor electronic, or recorded communications, the word “advertising material” should be on the outside of an envelopeOhralik v Ohio St. Bar Ass’nAppellant lives in Montville, OH. Until recently he practiced law in Montville and Cleveland.He got his mail, learned about an accident that took place where Carol McClintock, whom appellant knew, had been injured.He called McClintock’s parents who said she was in the hospitalHe suggested he might visit her, and they assented after he agreed to show up at the ‘rents homeHe visits the one in the hospital, tells her that there’s a provision to get $12.5k , gets her to sign a KHe visits Wanda Lou, the other injured party, tells her he’s got a “little tip”, she says she doesn’t know what’s going onWanda’s mother attempts to repudiate the oral assent, and confirms it in writing. He Won’t let one of them out of A-C relationship, ends up paying the lawyer for breach of KH: the lawyer violated ethics rules for soliciting clients in personAlso, the states are allowed to pass such rules b/c they’re prophylacticFlorida Bar v. Went For It Inc.Florida bar prohibits personal injury lawyers from sending targeted direct-mail advertising for 30 days after injury for prospective clientsFlorida bar had a 2-year study commissionedWent For It files a motion for declaratory judgment and injunctive reliefSCOTUS applies intermediate scrutinyThey say there’s a definite state interest in protection the dignity of the lawyering profession, and regulating the practice of professions, and client’s privacyThen they look at the survey, and find that it points in the direction of the 30-day bar on direct-mail advertisingAnd they ban every sort of mailing to personal injury casesSlip and fall cases, etc.Who are they protecting?On the one hand, the individual, On the other hand, the lawyering community as a whole (the bar)They dismiss Shapero, which prohibited a ban on all direct mail marketing b/c it asserted no evidenceSo basically she says states can do this sort of thing, so long as it’s flagrant, and you can provide some sort of statistical justificationKennedy, Souter, Stevens, Ginsburg DissentThey say it doesn’t comport w/ Shapero, and interferes w/ first amendmentAlso, the study has really bad methodologyAnd perhaps those injured really do need to be contacted within 30 days by lawyers, esp. b/c they’re the ones who’ll best be servedAlso, the journey from the mail box to the trash can, cited in Shapero isn’t too high of a burdenProblems:#1 lawyer had retired to FL, had been the face of the firm, made some “hyperbole” in their statements, saying experienced, ‘aggressive’ etc.In reality he hadn’t practiced in NYThe Ct. said his statements were false and misleading, because the guy wans’t qualified at all#2 Can a lawyer have an advertisement that s/he’s a “super lawyer” . They held that a statement is misleading if it compares one lawyer’s services to another’sThis has been updated in NJ their 7.1 has an exception so the “top lawyer” magazines can continue to do their work3. Organization operated website which collected information about attorneys and based on a formula devised by Organizatoin, rated and displayed a comparative numerical ranking of lawyers…- Lawyer complained that the website used an inaccurate system, that the org. isled the public, sough an injunction- The court said that he couldn’t prove the rankings were demonstrably wrong or false and basically it was an opinion question, so no go on the injunction.- They filed under the consumer protection act- Alleged that the damages are too remote from the asserted cause4. Ads where they have actors playing insurance adjusters and they ask who the lawyers are, and they find out it’s Keller & Keller The court rejects 1st degree challenges, saying this sort of commercial statement isn’t protectedThe implications was that very few cases settleIn fact, the case in Indiana, 98% of cases settle5. An attorney who would advertise for free consultations and $$ off legal services. The court says you can offer this sort of thing, but it has to be accurate6. Lawyer went on a chat room after a mass disaster, then stated he was a lawyer and could provide legal services. Court looked at whether this was a prohibited solicitationViolated 2 PR rules: victims weren’t in the mental state to expect a lawyer to solicit themThe lawyer should know or reasonably should know they weren’t in a mental state to figure out if they needed counselHe should’ve known this could’ve been made under duress or coercion7. Company claims they’re not a referral service, but they have atty’s that pay membership fees to be included in listings. Potential clients go online, fill out a questionnaire, the system pairs them with attorneys in a geographical area and with particular expertiseIf the atty is interested, they send their info, and the client decidesHow does the law firm initially qualify? They have to pay a membership fee. This generates a profit for the referral agencyAgency would also do “verified” sealWash. Said it’s no good b/c it violates the referral rules b/c it’s for profitAlso potentially violates the rule for advertising specialization or RI didn’t see it as a referral. They saw it more as advertising and the membership is the cost of advertising their info on the websiteAnd it’s the same company So, Wash. St. is always about consumer protection. And they put the screws to lawyersRules for referringLawyers can’t make an agreement to refer all certain types of one case to anotherThey don’t even ban the agreement of profit sharing Model Rule 8.1 Bar Admission And Disciplinary Matters- (a) knowingly make a false statement of material fact; or- (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.Criminal HistoryIN RE HammHamm killed a guyHe was a model prisoner, got out, got his JD, passed the barThey wouldn’t admit him b/c he murdered someone, was unrepentant about it, and didn’t pay child support paymentsFlorida Board of Bar Examiners Ex REl. M.A.R.he violated an order about his child support, failed to timely file his taxesLied on his application to law school w/ regard to his prior arrest for DUIHe’s not admitted to the barHale v. Committee on Character and Fitness for the State of IllinoisHe was the head of a white supremacist groupAnd he’d been arrested numerous times, had an order of restraint I: can he be admitted to the bar?H: No. R: Well, he’d refused to repudiate a racist letter he wroteModel Rule 1.5: FeesNeed to be reasonable Should communicate w/ client the scope of your representation and the basis of the rate, preferably in writingExcept in criminal cases or domestic casesWhere will there be surprises?Really complex casesContingency fees so often involved in personal injury, where clients not experienced in rules of lawOften times people don’t have the up front cashRemember the guy who filed the writ of cert., and they commissioned the guy to do just thatWouldn’t have flown in a regular caseIn contingencies: what triggers the event of the contingency?Or what if the person think he’s getting 2/3rds and there’s expenses? If you don’t know the tax implications, you need to disclaim that up frontModel Rule 1.15Keep clients’ $$ in separate accountsMake sure retainer fees are deposited in a trust account, and only withdrawn when expenses incurredModel Rule 3.1Only good faith allegations or defensesNeed to do your due diligenceCourt will assign costs to you if you keep being a jerkModel Rule 3.2: Lawyer shall make reasonable efforts to expedite litigationModel Rule 3.3: (one of the harder ones)Lawyer can’t make false statements or present false evidenceGets more complicated when the client is going to make false statementsThe lawyer Is supposed to take remedial measuresTest: criminal vs. civil? No constitutional right for your party to testify in the civil caseHow much do you have know how much they’re not telling the truth?Doesn’t have to be absolute certainty, but if there are a variety circumstances but a reasonable certainty? Seems to be enoughYou also have to disclose controlling authorityModel Rule 3.4 – Fairnessdon’t destroy evidence, withhold Case w/ wallet at the crime scene, they moved itAlso, don’t manipulate the evidence in any way where it loses its significanceModel Rule 3.6can make statements to combat prejudice, about public information, that an investigation’s in progressSpecial rule in crim. Cases if there’s a public need – But DON’T make prejudicial statementsModel Rule 3.8 – Prosecutor ResponsibilitiesCan’t go after someone w/o probable causeCan’t seek waiver of any statements before letting them know they can consult an attorneyTimely disclosure of any mitigating factors Can’t subpoena an attorney if you’re going after privileged informationModel Rule 5.1Also, banks will rely on your expertise in judging the quality of the client’s financesModel Rule 4.1, 4.2, 4.3, 4.4Model Rule 4.1: In the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person; or(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.CasesIn Re gatti – investigator claimed he was a doctor even though he was an investigating attorneyThere’s considerable debate on this point – perhaps we should have attorneys not do the investigative workIf you discover that you made a false statement, you need to take steps to correct itAnd with employees of a company, you have the burden of initiating the conversation that you’re not giving them adviceRule 4.2 Communication w/ person represented by counsel:In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.CasesIn re Dale – the lawyer cajoles a guy in a criminal case to get him to testify at a civil trial Not found to be a violation of 4.2 because the person in question wasn’t a party in the actionMuriel Siebert & Co. v. IntuitThe attorneys for Intuit contact the former attorney. They cautioned him not to give confidential information and to tell his own attorneys as well as Intuit if any info was privilegedHeld: not to be a violation of the ruleRule 4.3:In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.Barrett v. VA. St. BarHusband and wife had split up, he was a lawyer, said he would litigate against her tooth and nailI: is this giving legal advice to a person not represented by counsel? Held; no.Kensington Int’l Ltd. V. Republic of CongoP’s claim ‘d’s atty’s. attempted to dissuade their non-party witness from attending a post-judgment depositionThis guy from Congo agreed to give a depo w/o counselAnd then the attorney tells him not to go also b/c it could hurt the CongoThe Court holds that Cleary the D’s firm acted in bad faith and therefore should be sanctioned for attorneys’ costsHewlett Packard case ??Rule 4.4 – Respect for Rihts of Third persons:(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.Rule 5.1 – If you’re the head of a firm, you have to put compliance mechanisms in placeIf you’re supervisor, you need to make sure your subordinates are following the rulesAnd there’s some vicarious liability provisions tooModel Rule 7.1 – Communications about a lawyer’s servicescan’t be false or misleading Omissiosn count too7.2May advertiseCan’t pay for referrals (except in certain circumstances)Someone has to be responsible for the ad7.3 – No direct contact solicitation unless prespective clientslawyer, family etc. consent2.5hrs, 6 questions, 4 of which will be shorterOLR stuff ................
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