Professional Responsibility
Professional Responsibility
Fall 2002
Professor Uelmen
For exm: use only the ABA Model Rules for the exam- the new rules ONLY for conflicts of interest
I The Lawyer’s Role
What is legal ethics- Can it be taught?
(Intro: xiii-xxiii)
The “law of lawyering”
- the codes of ethics structure but do not limit our analysis
- the materials should permit informed reflection in an env’t where there are no real pressures: economic, job security, friendships, moral principals and consequences.
- Issue wher there are strong competing values/issues at stake
- Ethics- a narrower system of prof regulation governing lawyers’ conduct
- Theory-based morality/critical morality- systematically critiquing dominant moral traditions in a society
- Positive morality/Custom based morality- traditional ethical beliefs accepted on faith
- conscientious disobedience- sometimes the rules will dictate doing something you feel is wrong
- many rules leave it up to lawyer’s discretion
(Pp. 64-80)
Self-Regulation: Justifications and Critiques
- Only in the early 20th c. were the rules created
- Judicial sanctions were rare, and usually in response to breaking the crim or civil law
- Fifty Resolutions in Regard to Professional Deportment: the first summary of ethical considerations for the bar formulated in 1836 by Prof. David Hoffman.
- Etiquette + ethics
- Advertising, solicitation, unjust causes, bad tactics – anything affecting public image of lawyers
- 1854 Essay on Professional Ethics-influenced 1st state bar code of ethics Alabama- separated personal and prof ideas of morality.
ABA “Report of the Committee on the Code of Prof Ethics” 1906
- Committee meant to consider whether prof conduct rises to the high standards the influence on the country demands after a Harvard Univ. address by Theodore Roosevelt admonishing lawyers for helping corporations dodge regulatory legislation
- Sought to define what “good behavior” was to keep the admin. Of justice pure
- Evolution of he rules:
- 32 proposed Canons of ethics were drafted
- Approved by ABA in 1908, no debate
- 1920- all cts but 13 states and DC adopted, sometime local modifications
- Enforcement problems because rules too brief and general
- 1960- 47 Canons, 1400 formal/informal interpretations by ABA, many problems still not addressed
- ABA Committee on Evaluation of Ethical Standards created 1969 wrote new Code of Professional Responsibility to replace the Canons- not controversial- adopted everywhere but CA
- Three parts: Canons, Ethical Considerations, and Disciplinary Rules.
- Canons: axiomatic norms- general terms
- EC: aspirational in character- to strive toward
- DR: mandatory- minimal level no one call fall beneath
- Criticism began: confusion in enforcement with aspirational values, some aspirations seemed mandatory
- 1970’s SC ruled on advertising, solicitation, fees and group legal services forced reconsideration of professional competition. Bates v. State Bar of Arizona 433 US 350 (1977).
- Alternative set of standards in 1980’s made alternative code: Model Rules of Professional Conduct adopted 1983.
- 4/5 adopted it in large part, had much criticism
- NY retained the original Code with modifications
- Model Rules give black-letter rules with interpretive comments and little moral exhortation. Comments are only guides, the text is authoritative.
- Model rules and Code PR disclaimed as basis for civil liability, but have both been cited in malpractice actions.
“Good Judgement: Ethics Teaching in Dark Times”
- The trend to canons to code of ethics to professional resp effectively took the morals out of the rules.
- Geoffrey Hazard- lawyers should be subject to laws like everyone else
- Should be readily interpretable
- What is lost in a demoralized code?
- I.e. EC 2-27 “a lawyer should not decline representation b/c a client or a cause is unpopular or community rxn is adverse”
- EC 2-28 “the personal preference of a lawyer to avoid adversary alignment against judges, other lawyers, pub officials, etc. does not justify rejection of employment”
- Model Rules replaces them with 6.2: lawyer shall not seek to avoid appointment except for good cause
- Eliminates that lawyers should stand up for their profession, takes guts
- Restatement of the Law Governing Lawyers exists in draft now
- Will treat PR as any other type of law
- Ethics are now only one type of law that regulates lawyers:
- Rule 11
- Legal malpractice and insurance
- Antitrust regulation in regard to law firms merging
Minimal rules v. Aspirations Debate: Pp. 72 Notes
- If threat of sanctions is remote then aspirations only symbolic
- Socialization will sink to lowest common denominator
- Rules that set moral sights too high can be routinely violated and delegitimitize the aspirations?
- Not persuasive- Americans violate many laws but they don’t think them illegitimate- i.e. speeding
- Easier to justify the use of misleading evidence when there is nothing written against that.
- Can give attnys something to justify their behavior if they want to do good
What are Codes of Ethics For? Pp. 73
Who needs a code? Will it make a difference?
- Don’t we act ethically from within and not from imposed standards?
- Can legislate morality- can help someone decide to go a certain way
- Virtuous person would not need a code? Not that many virtuous people.
- Need to motivate people to do the right thing
In the Interests of Justice:
Lawyers have self-regulation
-Historical that lawyers can regulate law
-Preserves separation of powers and domination of the government on legal profession
-Claim to protect the public, but the public has no voice in them
-Only one non-lawyer helped draft the various codes and model rules
-Bar standards enforced by judiciary
-Lawyers’ justification: ultimate governance rests with judges who do not face same conflict of interest as practitioners. But most judges are sympathetic to Bar interests.
Russell G. Pearce: Teaching Ethics Seriously: Legal Ethics as the Most Important Subject in Law School
- How can you re-establish respect for the legal profession?
- Respect down despite recent push to promote professionalism
- The failure to match the law with actions enforcing it
- Three outdated ideological perspectives:
A. Prof and pedagogical practice ensuring ethical lawyers
B. Academia being a scientific project where ethics irrelevant
C. Adult moral development is static
A. Professional practice states lawyers can regulate themselves. But when the contract between lawyers and society is broken when unethical, then no justifications for ban on unauthorized practice of law and self-regulation. Academia does not teach ethics well. Official bar pronouncements and educational practices have a gap.
- Watergate undermined the public confidence in lawyers
- Ethics classes mandated then for all ABA schools
- Law schools resented it and offerings were “second class”
- Students hate it because it is not considered important or difficult- discussion methods
Why does academia wrongfully hate legal ethics so much?
- Cannot be taught
- Think that law students naturally good and do not need this class- false
- Legal education builds character on its own and legal community is self-policing
- “invisible hand of reputation” will work
- Formal procedures prevent unethical people from passing bar admissions examination
- FALSE: the profession’s self-regulation is failing, ethics are in fact down not up, teaching is thus essential.
B. Mistake to think ethics and science of law do not mix
- Facts, not moral values as important in the science of law
- Legal positivists separate law from morality
- Even when faculty admit that the law implicates values, they use “policy goals” that are worth pursuing and whether “the law provides an appropriate means of realization of those goals”
- Don’t want morals to be indoctrinated into the minds of lawyers
- Not many think this way today- have ethics in science now
C. Can legal ethics be taught?
- The idea that morals cannot be taught stems from ideas that only certain people should become lawyers in the first place
- Wrong to think not learning because need to apply ethics to the law in law school for the first time, so that can be taught
- Law school is a time where people’s values change
- Legal ethics education has mixed findings, but there is more evidence of prof resp education than effectiveness of professional education.
How to teach ethics seriously?
- Calls for a required 1st yr course 3 credits, advanced 3 cr, and teaching within the other curriculum.
- Establishes a foundation and every lawyer will encounter ethics problems
- Need to send a message to students with all the credits that ethics is important
- Bottom line: will never know if the teaching works, but its worth a shot because the goals are so important
The Morality of the Professional Role
Inadvertent Disclosure of Confidential Materials: (Pp. 91)
ABA Opinion
Under the Model Rules of Professional Conduct
- Materials on their face that appear subject to attorney client privilege
- The receiving lawyer should:
- Not examine the materials once the mistake is discovered
- Should notify the sender of the receipt
- Should abide by the sending lawyer’s instructions as to their disposition
- Committee places confidentiality above zealous representation
- Mistakes can happen on both sides
- Taking notes from a bag is wrong, so taking notes this way is wrong too for zealous representation
Freedman: The Errant Fax
Two state ethics committees read that ABA opinion and rejected it.
- Ohio- free to use it but must inform opposing counsel
- CA- can keep the document and not tell opposing counsel = Freedman agrees
- Confidentiality runs between lawyer and client- not lawyer and opposing counsel’s client
- Adversary was careless, so you should watch out for her?
- Model Rules replaced “zealous” with “commitment and dedication” but Geoffrey Hazard reports book that zeal is still fundamental to lawyering.
- Informing about the mistake: black letter rule covers this: Model Rule 1.6 says a lawyer shall not reveal info unless a client agrees. So need client consent to tell them of the mistake.
- Even a cover sheet for nothing usually has a warning on it so people may read it anyhow despite the warning.
- How far do you have to go to protect their client? If they miss a S/L? Protect them from malpractice?
- Freedman- zealous advocate- why should your client lose a case because you don’t want to be “unsportsman-like”?
- Some say different if you know its privileged for sure before you read it
Approval of Settlement: MR 1.2(a)
Lawyer must abide by the client’s decision to settle or not to settle a matter, plea bargain, etc.
Confidentiality: MR 1.6, DR 4-101
A Lawyer may not give out info w/o client’s informed consent
Except: to prevent a criminal act that imminently will result in certain death or substantial bodily harm, and to defend against a malpractice claim or other claims against him.
Reporting: MR 8.3, DR-1-103 (A)
DR 1-103
A lawyer who knows that another lawyer broke the rules is required to tell and start an investigation.
Belge and Spaulding cases:
Belge 183-186
Garrow revealed to his attnys th location of 2 other missing dead bodies. Belge and Armani, the lawyers, went to see if it was true and photographed the dead bodies. They kept the info to themselves and didn’t tell parents the truth that the kids were dead. 10 mo. Later at Garrow’s trial, the attnys tried to use Garrow’s public confession to help establish an insanity defense. During secret plea negotiations, told DA they could provide info of 2 unsolved murders in favor of good plea bargain.
Indocted for 2 violations of NY public health law. NY Bar Association Committee on Prof Ethics said they did not violate the Code of Prof Resp.
NY TC applauded the attnys for acting with zeal. Appellate div declined to reach the ethical considerations but pointed out the “serious concern” over attny client privilege by basic human standards of decency.
Spaulding
220-225
In the Civil context
2 years later the P discovered an aorta aneurism that the defense knew about at he time of settlement
Settlement vacated: reasoning:
-incomplete information
-wrong not to disclose to the party b/c no longer adverse at that point.
-here the lawyers did not even ask he client whether they should tell the P (in the practice, they tried to ask the client and they said no)
Thoughts:
-The report was discoverable. Malpractice for the attny?
-Does this decision make sense? Legal hook to justify why they should have disclosed the aneurism
-Duty to disclose danger to life?
DR 4-104- MR 1.6
Only deals with criminal acts (not civil)
The new provision in 1.6(d)(2) comment -does make allowances for civil liability in death.
-our system is where the client has the power and discretion and not the lawyer
Competing Visions of Professional Morality
1. Governing Class (Pp. 21-23, 3-4)
Democracy in America
-The lawyers are the aristocrats in America
-Monarch will always be able to use lawyers as tools for his power- greater affinity between the lawyers and executives than the lawyers and the people.
-Lawyers attracted to public order- and best security of order is authority
-When the wealthy and nobles are excluded from gov’t, the lawyers take over
-Lawyers belong to the people by birth and interest, and nobility by taste
Brandeis criticized lawyers for being too business-like and not “people’s lawyers” back in 1913. Every great statesman was a lawyer in the beginning of USA.
Russell G. Pearce: Retreat of the Elite: How Public Interest Law and Pro Bono Undermine Business Lawyers’ Commitment to the Public Good. AMERICAN LAWYER (July 16, 2001)
- It used to be that business lawyers incorporated their ideals of their job with the common good. Most do-gooders were business lawyers.
- Now, pro bono work is done by full-timers committed to pro bono
- Many commentators think that business lawyers just think of themselves as hired guns—but they do still think of heir impact on public good as their prob bono cases
- Business men always put their self-interest first. Lawyers were thus the perfect governing class in early America for the common good and rules of law.
- Governing class view vs. the hired gun perspective- thought that the lawyer was becoming more of a self-interested businessman with the advent of zealous representation valued above all else
- The rules of prof resp came to restore the view that lawyers have the public good as value #1.
- Examples of public good: telling client he is wrong and should stop, Brandeis tried to do what was good for all parties involved, not just his client
- There is a noted decline in the idea of governing class now as it is more of a business, with lawyer advertising, and there is diversity in the profession (somehow undermining white protestant ethics)
- With some lawyers being public interest lawyers, it forced the governing class to just be hired guns. The business lawyers no longer push for the public good as it is for their clients. Hence the public interest lawyers push their own version of the public good.
- But the aspiration of governing class can still be attained since business is like being a statesman. What can revive the feeling for being governing class despite pro bono lawyers?
- Litigation tactics delaying cleanup of a toxic waste site is a good example where governing class can com into play for business lawyers again, and should be.
2. Advocacy
87-91, 98-104, 134-136
Preamble to ABA Model Rules Professional Conduct: (Page 7 in book)
“A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibilities for the quality of justice.”
Preamble states how the interests are
-Usually harmonious but can conflict
The Neutral Partisanship Conception of the Lawyer’s Role (Pp. 87)
- Divorcing one’s own sense of right and wrong from zealous advocacy “principal neutrality”
- Pursuing the client’s ends vigorously “principle of partisanship”
Simon includes in his role a third principle:
- the justification of these 2 roles with the adversarial system and procedural norms- “principle of procedural justice”
- “Professionalism” is the idea that legal ethics are basically technical and can be answered only by trained lawyers- and in groups, not indiv. lawyers
Simon: The Ideology of Advocacy: Procedural Justice and Professional Ethics
Neutrality:
- lawyer remains detached from his client’s ends.
- no personal beliefs
Partisanship:
- employs means that he would not consider proper outside a professional context to satisfy his own ends.
- Includes deception, obfuscation, delay
- This is qualified unlike neutrality- there is a line he cannot go beyond
Do the model rules or the code employ neutral partisanship?
- Canon 7: “A lawyer should represent a client zealously within the bounds of the law”
- Several EC’s and DR’s expound on this
- DR 7-101(A)(1) “A lawyer should not intentionally fail to seek the lawful objectives of his client through reasonable available means permitted by law and disciplinary rules”
- EC 7-2 through 7-9-
- Only alternative is to withdraw representation
- But consider DR 7-101(A)(1) that a lawyer does not violate the DR by aceding to reas requests of opposite counsel
- And EC 7-8 and 7-9 that lawyer may raise ethical considerations to the client = stresses that lawyer not just hired gun
- The Model Rules-
- No requirement of zeal- only Rule 1.3 of “reasonable diligence” in pursuit of the client’s interest
- Comments to 1.2 and 1.3 state that lawyer need not do everything a client asks
- Lawyer = in charge of means
- Client = has the ends
- “warm zeal” advocated
Neutral Partisanship and Role Morality (Pp. 96)
Problem 2: Tactic to defend Dakon Shield was to make witnesses feel bad for testifying because they’d embarrass them wit their past sexual behavior.
Who should decide to use these tactics- client or lawyer?
Role morality- being able to do this in role as a lawyer that not able to do for oneself
Amoral technician = lawyer
Wasserstorm- People can’t just take their morals out
-Kant- would ask if it is right saying “What if everyone did it? OK?”
-Act to humanity as an end and never as a means only
-Dignity, not just a price and morality makes us give everyone dignity
-Response: should be revised to allow for special loyalties to some people
The Justification of Neutral Partisanship (Pp 103- 104) Notes
- Any defense of role morality must include a defense of the role itself: if my social role is wrong (concentration camp commandant) then its “professional duties” impose no moral obligations.
- Role must be justifiable
- Why is it justifiable?
- The client’s rights- autonomy- which is dependent on access to the law to know how to act- therefore lawyer is a social good. If lawyers can pick and choose who to help then rights become oligarchic and dependent on the lawyers. Need to get informed consent on any significant action prior to doing it.
- Moral interests of the lawyer- lawyer as a special purpose friend
- The needs of the legal system
134-136
Monroe Freedman: The Morality of Lawyering
Can you be a good lawyer and good person at the same time?
-The amoral Lawyer- common perception
-Moral control of the client- Choice of client not subject to scrutiny but lawyer can control the client and is thus responsible. Can threaten to withdraw thus harming the client if the client refuses to listen to lawyer’s morality in representing him. Criticized this view.
-Choice of client as a moral decision- the arg that the lawyer is morally responsible for deciding to represent someone = Freedman’s view.
Freedman rejects the notion that the lawyer is not accountabl morally for what he does. Is not amoral.
-Contrary to say that lawyers should not be accountable to the public for what we do because:
-Lawyers have a governmental monopoly on representation and in the administration of justice according to US SC.
Freedman feels that you can represent morally repugnant clients, for the constitutional process or public service values.
A Klansman’s Black Lawyer and a Principle: NY Times
An ACLU civil rights lawyer who was black agreed to represent a KKK leader’s right not to have to disclose his membership list. Statement on lawyer’s commitment to Bill of Rights. Would not represent him or criminal charges, just for his rt of free speech.
3. Feminist
- Carrie Menkel-Meadow, Portia in a Different Voice: Speculating on a Woman’s Lawyering Process
- Catherine MacKinnon, Feminism Unmodified 205 (1987)
- To be a lawyer is to be taught the lessons that have kept women down
- Why should women support pornography on the basis of free speech? It continued to put women down
- Law’s function has been to kep women out of it, and repressed, as it historically did, so following the legal notion that porn is free speech and thus should be protected ignores one’s feelings and values as a woman
4. Critical Race
148-150
- Why do black lawyers who are successful have a duty to “uplift the race”?
- Rejects Neutral Partisanship because lawyers must accept the moral accountability for their actions (to the black race)
- Certain relationships create moral obligations
- Blacks have predictable consequences to their actions- just his presence to a jury means something.
- Blacks in elite ranks takes away racial inferiority images and be a positive image.
- Can work actively to open up oppty for blacks
- Can persuade corporations to act less harmful to black communities
5. Religious
Christian:
- There are alternatives to just zealous advocacy and nonaccountability paradigm according to the code
- Different options:
- Drawing away from secular society completely for religion- problematic as a lawyer. (concept of bringing awareness to nations in Christ- but is that selling out?)
- Christian values are the same as civilization’s. When acting in the paradigm, you are fundamentally right and therefore can do it. Greater good of the adversarial system wins out. Also can view it as doing good for client alone = good.
- Risk that seeing God’s work through the individual and the society as a whole risks making the individual and society’s choices as attributable to God.
- The Christian lawyer in 3rd model is both: individually with God, publicly must fxn in society. Result is that she is a “amoral technician” not accountable for actions in her job, just Prof Resp rules.
- The last model is to combine religious ethics with one’s role. In the legacy of the Hebrew prophets.
- How does that affect zealous representation? Must redefine, especially when dealing with a client who is a corp or a board and not a person client.
Muslim:
- Dichotomy of trying to be fair in business and adversarial role
- Arrogance required v. modesty revered
- Some people take corporate law for the Bar, they really just want to “help people.” Why don’t we out these people in corporate America?
- Living as a religious person and a secular person: i.e. charging interest on loans, the concept of gaining wealth (to be able to do good), the ultimate goal for profit in corporation (and not to make workers happy).
- Author suggests that a balance must be found with religion and the law and that they cannot be separate.
Jewish:
- The concept of neutrality sounds good especially in light of the history of discrimination
- Stereotyped as overly aggressive in early 20th c.
- Many Jewish lawyers today who don’t want to be stereotyped
- Sandy Koufax- didn’t pitch on a particular day, not that he insisted on pitching differently
- Can cope by: being non-religious- and attributing discrimination to their desire o do certain “Jewish things” and not their religion itself. I.e. fighting for African American rights. Ethnic identity as minority, not religious.
- No concept of a lawyer in Judaism- people represented themselves in court. Lawyers seen as artful manipulators.
- States that real Judaism cannot separate itself from your everyday life. Can’t just practice separate from your job. Must devote your life to justice.
- Have “kavanah” in lawyering, lawyer with soul.
- The religious and professional roles need not clash
6. Moral Activist
127-130
Hegland argues:
- Should be against professional conduct for a lawyer to assert any legal doctrine for a client unless there is good faith belief that the assertion or doctrine will further a policy or doctrine behind the rule.
- Denies clients the quibbles of litigation
Simon:
- Loopholes would be acceptable when a law’s application would not be just. A lawyer should pursue justice.
Luban:
- The adversary system is too weakly justified to support a role morality that varies widely from professional morality
- Lawyers should be accountable in their lawyer role as much as an individual would be. Exception is in criminal defense, whee advocacy is stroingly justified by the ideal of protecting people from state power.
Rhode:
Client trust and confidentiality are entitled to weight, but must be balanced with other concerns such as: honesty, fairness, good faith.
All agree that neutral partisanship encourages a defective system of justice. Morally indefensible relationship between lawyer and client.
Cons: different lawyers will come to different answers, since personal accountability is in the picture.
A. Applying Competing Visions to Particular Problems in Practice
1. Who to represent
2. Corporate Counseling & Responsibility to the Public
Enron and the Corporate Lawyer: Professional Responsibility Issues
What should be the role of the lawyer when faced with a client fraud situation?
- When and what did the lawyer know at the time of action or inaction?
- What intent standard should be applied to the lawyer?
- Does a lawyer who knows of possible fraud have o inquire further to discover it?
- When the lawyer knows, should he go to the highest authority, the board of directors?
- If the board will not fix it, does the lawyer need to tell third parties or the authorities?
- A lawyer will not be judged on what they did know, they will be judged on what they should have seen and what was plain to he eye. Lawyers will convince themselves out of seeing things and thus will have to be judged based on evidence reconstructed.
- When a corporation goes bankrupt the client-lawyer confidentiality ceases to exist because all documents are available to the third parties and the corporation itself in a malpractice action against a firm.
- What should the intent be- reckless and willful blindness or actual knowledge?
- Actual knowledge. ABA model rule 1.2(d), a lawyer cannot counsel conduct he knows is fraudulent. Includes “ a person’s knowledge may be inferred from circumstances.”
- Duty of inquiry?
- Little precedent, but some cases state that there is a duty in some circumstances:
- Model Rule 1.13 (b) addresses the situation where lawyer knows the client is in breach of fiduciary duty to the org
- The rule does not require the lawyer to go all the way up the corporate ladder, but may be required when it is in the best interests of the org (defrauding the org)
- But ambiguous b/c discusses the steps a lawyer “may” take- discretionary-sounding
- If the lawyer does not, can be exposed to civil liability but most lawyers don’t realize that
- Duty to disclose to people outside of the org when higher ups refuse to stop the fraud?
- Model Rule 1.6 seems to say no, b/c breach of confidentiality
- But buried in the comments, states lawyers should disaffirm documents they know to be false
- Inferred from Rule 1.2(d) not permitting lawyer to further a fraud
- And 1.16(a) requiring a lawyer to withdraw when his service will be used in furtherance of a crime
- BUT most jurisd. Have not adopted 1.6. 37 states permit revelation of info, 9 require it, and 9 forbid it.
Lawyer Conduct in the Enron Affair
-In house and outside counsel Anderson lawyers must have known there were so many documents being shredded. Either they hinted to do it, ignored it, or acted carelessly in whether there was document preservation or not.
-In house lawyer failed to warn Enron in duty that destruction of papers was a federal offense
-The retention/destruction policy was ambiguous and a non-lawyer read it as destroy the papers.
-Davis Polk’s representation might have been so limited that it could not have known about the documents limited scope prevents Davis from fulfilling adequate representation. Rules 1.1 and 1.2(c) comment 5.
-Lawyer failure in not warning Anderson to save all files- preventative measures
V & E’s role:
II Special Privileges and Responsibilities
A. The Professional Privilege
1. Professionalism
Russell G. Pearce: The Professional Paradigm Shift
(Text 4-32)
2. Unauthorized practice
(Text 658-669)
3. Justifying the privilege
a. Admissions
Generally: Text 17-21, 24-32, 775-78
Legal Education: Text 859-881, 895-900
Bar Exams: Text 778-786
Character & Fitness: Text 786-805
b. Discipline and Malpractice
Text 64-80, 810-859
4. Reconsidering the Privilege
a. Multijurisdictional Practice
Text 80-86, 805-09
Report of ABA Commission on Multijurisdictional Practice
Introduction and Recommendations & Reports for 201A, 202B, and 201C.
Text 671-74
In Rules Book:
NY DR 1-106 (22 NYCRR § 1200.5-b)
NY DR 1-107 (22 NYCRR § 1200.5-c)
NY DR 2-103 (22 NYCRR §§ 1200.8)
On Virtual Curriculum (or Westlaw)
22 NYCRR 1205
Lawrence Fox Testimony
Russell G. Pearce, A Cautionary Tale from Multidisciplinary Practice Debate: How the Traditionalists Lost Professionalism, 72 Temple L. Rev. 985, 985-988 (1999)
Nancy B. Rapoport, Multidisciplinary Practice After In re Enron: Should the Debate on MDP Change at All? globals/tbj/may02/rapoport.asp
c. Non-lawyer Practice
Text 667-69
VIDEO: Next: The Future Just Happened (in class)
Russell G. Pearce, Law Day 2050: Post-Professionalism, Moral Leadership, and the Law-as-Business Paradigm, 27 Florida State U. L. Rev. 9, 9-23 (1999)
B. Professional Responsibilities
1. Generally
Preamble to Canons of Ethics; Canon 32
Preamble and Preliminary Statement to Model Code of Professional Responsibility
Preamble to Model Rules of Professional Conduct: A Lawyer's Responsibilities
1. Pro Bono
Problems of access
715-728
ABA Consortium on Legal Services
-Half of all households surveyed had legal needs in the past yr
-4/10 were handled w/o lawyers in middle income households
-Low income households- no action at all taken
-Least likely to use non-lawyer third party for both groups
-Why don’t people turn to the civil justice system?
-low = would cost too much and not help
-Moderate income = not really a problem, can self-help, and a lawyer would not help
- Issue of “apartheid justice” rich get a lot of legal services, poor get less
- Gap between the aspirations and the operation of the legal system
724-727
The right to legal services
- The right to be herd means little w/o the right to be heard with counsel
- Due process problem when attny not provided
- Court appointed counsel 1963 Gideon line of cases - established for criminal cases
- The rt to attny in civil matters never materialized
- $ problem- how can such rts be kept within manageable limits?
- Many European countries have been able to screen out some cases for legal counsel
Legal Services
- Integrity of the legal system depends on equal representation of all parties
- To what extent does the distribution of today satisfy that ideal?
- What reforms are proposed- and are they working?
761-775
The Ethical Obligations of Lawyers
- The professions separate themselves by claiming that they have a commitment to public service
- Although bar has long supported pro bono, the commitment in practice is less consistent
- EC 2-25 states that “the rendition of free legal services to those unable to pay reasonable fees continues to be the obligation of every lawyer.”
- Current Rule 6.1 states 50 hr pro bono per year to persons of limited means
- Not intended to be enforced through disciplinary means
- Some states have mandatory requirements (FL has a reporting obligation)
Pro Bono for Lawyers and Law Students
- Most lawyers don’t do it
- Lawyers are fundamental in the litigation process- lawyers have an obligation to provide that assistance
- Do we require grocers to donate food? Pharmacists to provide drugs?
- Lawyers have a greater monopoly on the legal system in US
- That has helped price services out of the reach of many consumers
- Young lawyers can get great training from it
- Great social change can be affected when lawyers get involved in an issue
- Compulsory charity? Involuntary servitude?
- Public duty that is publicly owed
- What about the services being incompetent and rude to low income people- not furthering the goal
- Requirements are worth trying, will encourage comps that are not into it not to dissuade their attnys
- Use adequate training to combat lack of competence
Court-Appointed Pro Bono Representation
- EC 2-29 states that when appointed by court the lawyer should not seek to be excused except for compelling reason
- 6.2 States cannot seek to avoid appointment except for due cause
- i.e. breaking the law, violations of the rules, impose unreas financial burdens on lawyer, or lead to impaired assistance due to lawyer’s repugnance for client or cause.
- Violation of the 5th Am- taking property w/o just compensation? Dicta stated that permissible in criminal cases
- Rejected in most cases 5th Am. Objection.
728-734
Problems
Public interest law can have conflicts
Environment v. minority workers
What Good is Pro Bono?
-The tradition of pro bono stems back a long way
-Lawyers view it as their penance for serving a capitalistic system
-Law firms give a lot of time and money to it now
-In the old days a small town had a lawyer and everyone had equal access to him. Not like in today’s big cities
-The truth is that big firms can make a lot of money off pro bono by taking in taxpayer money from the gov’t to fuel the cases, which in turn sue the gov’t.
III Lawyer-Client Decision Making
(Text: 562-596)
When lawyers are “altrusists” and want to pursue the best interests of their client but are convinced their clients misunderstand their own interests. Lawyers might want to act paternalistically by interfering with the client’s own choices for the client’s own good.
-Balance of authority shifts to the lawyer since they are more educated than client
-If lawyers are left to decide the best for the client, leaves the client passive in their own best interests
Wasserstrom: “Lawyers as Professionals: Some Moral Issues”
Professionlism = inequality
-Everyone not a professional in a bad position to determine how well the professional performed
--Having joined an elite group by hard work and learning the profession
-Simplifying legal language may help to make non-professionals less child-like and dependent
-Lawyer’s economic self interest keeps areas from being easier to understand on their own
-The system is inherently structurally flawed, placing too much power with the attorney
Does private practice power flow in both directions?
Lawyers have leverage which can be abused, but lawyers depend on their clients for the bills. Overall, then, the client may be the boss.
EC 7-7: “In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is is exclusively that of the client and, if made w/in the framework of the law, such decisions are binding on his lawyer.”
EC 7-12 states that a lawyer’s responsibilities increase when the client is afflicted with a “mental or physical condition . . . that renders him incapable of making a considered judgment on his own behalf.”
-How broadly should a lawyer consider “the cause”- obtain divorce settlement or obtain divorce settlement w/o harming the kids?
Model Rule 1.2 (a) states that a lawyer “shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued.” The comment explains that clients set objectives, lawyers assume “technical and tactical issues.” Comment says sometimes clear line between tactic and cause cannot be made.
Jones v. Barnes: Lawyer eliminated some issue on appeal he thought would not succeed. That is still representation to the best of his ability: need to emphasize key points and bury weak ones for appeal. Dissent said this is against rt to assistance of counsel, and the client should be able to decide to use everything, weak too if he wants.
US v. Kaczynski:
Counsel against his wishes presented info on his mental condition
DR 6-101, 7-101
MR 1.2, 1.6
Justifiable Paternalism: (Pp. 591)
1. The decision of the person who is to be constrained must be impaired
2. Restriction is as limited as possible- burden is on the paternalist to justify it
3. The restriction prevents a serious and irreversible harm
You must ask what on would consent to if one were fully rational. (Pp 592)
IV Confidentiality and the Attorney-Client Privilege
(183-195)
Revisits the Belge and Armani case with Robert Garrow
Loyalty to your client: confidentiality
- Revealed the location of the bodies only when they thought it was in client’s best interest
- Confidentiality arises out of two sources: attorney client privilege and bar ethical codes.
Evidence
- Old rule starting from 1600’s
- Attorney-client privilege is: Restatement of Law Governing Lawyers:
1) a communication
2) made by privileged persons
3) in confidence
4) for the purpose of obtaining or providing legal assistance for the client
- What kind of advice is legal? Is only lawyer professional legal adviser? What is communication? “At his instance”- what if the client is temporarily disabled?
- Most sign. Area- waivers. Waived if: according to privilege:
- Communication takes place with a third party present
- Client and lawyer fail to assert the privilege
- Client discloses info to unprivileged third party
- Client or agent implicitly or explicitly consent to disclosure
- Co-clients have no privilege between themselves- but the privileged parties must waive the privilege together as co-clients.
Ethically: even if third party is there
What is the difference between confidentiality and attny-client privilege?
- Confidentiality is broader than attorney-client privilege
- Attorney client priv is a rule of evidence- protects only communications in a proceeding in a tribunal. Developed by courts and legislatures. Has exceptions.
- Confidentiality bars info from being disclosed to ANYONE- bar’s self-regulatory structure (while nominally promulgated by state’s highest ct). No exceptions.
- I.e. future client frauds- fall within exceptions of the attny client priv, but not in confidentiality.
- Lawyers can be subpoenaed under attny client priv, and if they refuse to divulge info based on confidentiality, can be guilty of contempt of court.
- ABA Code of Prof Resp says “confidences” protected by privilege, “secrets” by the ethical rules. DR 4-101(a). The CODE protects both categories of disclosure to anyone (apart from exceptions DR 4-101 (c))
- Model Rule 1.6 protects “all info relating to representation of a client whatever its source”- broader than any 2 categories combined.
- Attny client priv only protects confidential comm from a client, and only from tribunal.
- Basic info is out of the privilege- client ID, the lawyer’s fee, name person paying the fee if not the client, the fact the attn privilege exists
- Some prosecutors have used this info to build a “net worth” case that a drug boss is spending more money than he can possibly legitimately have in lawyer fees.
- Fee disputes and if lawyer accused of wrongful conduct, court order DR 4-101 c 4 (why fee dispute but not in imminent harm?)
- DR 4-101 c 1 –consent to full disclosure
- 1.6 – informed consent
COMPARE DR 4-101 C 3 WITH THE NEW 1.6
Crime-fraud exception
V Lawyer Liability
226-241 Client Fraud
Kaye Scholer case-
Savings and Loan crisis scandal. Keating’s ACC acquired Lincoln and hired Kaye, Scholer. Lincoln retained Jones, Day to represent it to Fed Home Loan Bank Board but replaced with Kaye Scholer because of bad reports. The FDIC took over. FDIC was the receiver of Lincoln. The confidentiality that was Lincoln’s is thus now the FDIC’s because they are the new client. So the privilege belongs to the client- was transferred to the gov’t. And they waived it. So the privilege does not protect the attorney. Attorneys in trouble for misrepresentation and failure to disclose.
Ethics experts: they did not violate any ethical rules
They had duty to zealously represent their client, what they did.
(Role of ethics consultants: prob an assoc drafted it and Hazard signed it)
$40 mil penalty to the firm: insurance covered half, and $20 mil divided among 110 partners not much money- can think of it as an operating expense- cost benefit analysis
Hazard’s Argument: who are the players in terms of your own duty
Duty to client – Duty to Court – Duty to Community as Public Citizen
Court- the tribunal-
Community- a regulatory agency, others
The rules treat a tribunal different than others
|7-102(a) duty | |
|No frivolous suits to maliciously injure (3.1 and 4.4) | |
|Advance claims in good faith (3.1) | |
|Disclosing info (3.3)- new provision | |
|Knowingly using perjured testimony | |
|Knowingly make false statement of fact or law | |
|Creating/Preserving false evidence | |
|Assist illegal / fraudulent | |
|Contrary DR or illegal | |
|1.2 d – Gatekeeping- to avoid assisting of criminal acts | |
**Put together the 3 series and the 4 series to get a difference in the analysis
- Hazard says: adversarial relationship. 3.1 standard is operative. (7-102(a)(1) parallel). Args must be based in law and fact. In this case, not a proceeding.
- His arg is a stretch- to say that is the operative provision. ABA said in contrast another rule at stake- rule 4 series. Rule 3.3- Candor to the tribunal not to make a false statement.
- Political reality check: there is a lot of advocacy involved
- Lawyer liability- duties to these diff people- in code all together, but in the Rules is separate.
- Keep in mind duty of confidentiality- for NY 4-101 C amended
- Confidences (attny client priv) and secrets (ethical duty confid)
- Confidences can be revealed - crime fraud exception
- Rule1.6- bodily harm
Page 227 of the text outlines permitted and required disclosure- conflicts of law analysis
Based on the new provision in NY 4-101 C 5
DR 7-102 (b) call upon the client to reveal (crime fraud exception?) If they refuse, have to tell unless is a confidence or secret. (then see exceptions of confidences and secrets) So 7-102(a) is a list of all the obligations outside of confidentiality.
Noisy withdrawal provision as well
OPM case-
Ethics consultants gone wrong-ways that counseling advice distoted by ultimate goal. Massive fraud. Attny suspected it in pyramid scheme. Singer Hunter law firm. Advice was to terminate representation w/o informing the client they were doing anything wrong. $15 mil additional were stolen before anything discovered. Why didn’t they say anything? Frauds were in the past so could not disclose, and had no obligation to police client, and had no info positive that the fraud would continue. At a certain pt, they could not withdraw.
What is wrong with this? Crime fraud exception to the attn client privilege:
Past fraud? Some aspect of this ongoing.
Whose knowledge is key, the attny of the client’s? The client’s knowledge.
What about not being able to withdraw? DR 2-110
If withdrawal communicated the fraud- noisy withdrawal- 4-101(c)(5)
377. Supervisory & Subordinate Lawyers
Steven Brill: “When a Lawyer Lies”
- Kodak v. Berkey Photo- antitrust case where Berkey was trying to prove Kodak gained mkt share by buying out competitors early
- Got Yale expert to say their innovations got ahead, but could not say the buying up competitors not irrelevant.
- Kodak partner did not give those documents to Berkey in discovery
- Partner claimed he destroyed the docs, but associate knew he was lying. He gave in a sworn affidavit that he destroyed them, lying in court.
- Perjury came to light when Berkey lawyer asked probing questions
- Perkins told the judge, then resigned from the firm
- Kodak lost the case due to bad faith on Kodak’s part
- Perkins convicted of contempt of court and one month in prison
- WHAT ABOUT THE ASSOCIATE who knew he lied?
- Code Prof Resp states that when lawyer knows of a fraud upon a tribunal shall promptly reveal the fraud”
- Moreover, a lawyer who knows a lawyer has engaged in dishonesty, deceit, or misrepresentation must report the lawyer to the proper prosecutorial authorities.
- The associate never said anything to the judge
- Rule 5.1a makes partners in a law firm responsible for ensuring that firm policies make members follow the rules of professional conduct.
- New York is the only state that has an ethical rule that permits firms and individual lawyers to be responsible for ethical and legal violations. NY Code of Prof Resp DR1-102(2) What discipline is appropriate for firms?
ABA Informal Opinion
- Relevant provisions of the dilemma are: DR 1-102(A)(4), (5), 1-103(A), 4-101(A), (B)(1), (C)(2), (D), 7-102(A), (B)
- BUT The procedure to govern is DR 2-110(C)(2)
- If the views of the senior attny and the junior are irreconcilable, the junior attny should withdraw.
- If a violation happens for sure w/ unprivileged knowledge, then D 1-103(A) is relevant
The Inner Ring
- States the main idea that it starts a little and before you know it you are on the inside doing really bad things
On Being a Happy Ethical Member
- Cheating will start w/ your timesheets
- White lies for missing deadlines
- Use SC sentence to support something it does not support when read in its original context
The Ethics of Wrongful Obedience- Used Stanley Milgram’s experiement to illustrate
- Perkins- the Kodak lawyer- lied and perjured himself but was overall a good man
- Fortenberry did not reveal the lie- his boss was a good man!
- What guidance do the ethical rules give when a lawyer is instructed to do wrong?
- ABA Model Rule 5.2(a) denies the defense of a superior lawyer to an inferior lawyer ordered
- A subordinate may defer to an “arguable” point on prof duty to supervisory lawyer
- There is a slippery slope when to realize that a document is not included in document request and when supervisor is wrong
- Starts to feel more like zealous advocacy than deception
- No deception principle of 8.4(c) gets lost
- Subordinates under the model rules may be pardoned if they followed superior orders on a “close call” but there are no mitigating factors to following a superior.
147. Criminal Liability
US v. Cueto
-Cueto was a lawyer representing a comp that made video games for gambling
-Convicted for using his office as an attny to conspire and impede the function of the FBI who was trying to catch his client at the gambling business
-The lawyer had a stake in the businesses like a topless bar that depended on the gambling machines--- financial motive for obstruction of justice
- Government need only show for the obstruction of justice that the lawyer should have reasonably known his actions acted to obstruct justice
- While all motions will influence the law, cannot file in bad faith knowing they contain false misrepresentations
- Members of the cali cocaine cartel crossed the line between being lawyers and being coconspirators “criminal lawyer to lawyer-criminal”
- Robinson solicited a bribe- advised not to take the bribe
- Went to ct to expose corrupt officer of ILCC- filed a motion to get the investigation of client’s back. Normal thing.
- Why didn’t the prosecutors pursue a direct action against Cueto? Lack of proof. So use the disciplinary rules to get him.
- Focused on the intent of the attny
- Prison for 7 yrs= don’t need much on you, just intent. Mail fraud- need intent and a letter.
- DR 7-102(A)(7) applicable, plus other statutes as well.
Do articles that are in syllabus
Geoffrey Hazard, How Far May a Lawyer Go in Assisting a Client in Legally Wrongful Conduct, 35 U. Miami L. Rev. 669 (1981) – pages 682-683.
- Hazard’s formulation: question of circumventing problems of proof
- when do you cross the line? If the client is engaged in a course of conduct that violates the crim law or against civil obligation, except contract, etc. not whether they knew but rather what they should have known.
- Hazard is a good summary of what can get you in trouble
Stephen Gillers, The Flaw in the Anderson Verdict, New York Times Sec. A pg. 23 (June 18, 2002)
E-mails: Oct 9, 2000. No investigation yet. Accounting team got advice from Nancy Temple, in-house lawyer. Said would b useful to remind them of the document retention policy. The policy in place was as soon as the books were closed on a piece of advice all docs not supporting the position should be destroyed. One partner forwards the e-mail with the subject line “More help.” Something to go to jail for? Once an investigation starts, it is obstruction of justice to destroy any documents. Not clear that e-mail allows people to destroy things. Outside counsel hired already. Then, the investigation started. The measure for when can’t destroy: when is litigation anticipated reas?
Lynne Stewart
Indictment (S.D.N.Y. 2000)
-Defending terrorist Rahman tried for masterminding the WTC 1993
-They didn’t want him to communicate w/ his followers to send messages- in or out
-Any attny comm overheard by gov’t
-She promised not to give messages to followers in writing, translator was there too
-Sentenced 1995
-Allegations of communications Jan 2001, May 2000
-She affirmatively did something to distract guards so he could send message (allegedly) through the translator.
-Released statement to the press withdrawing support for a ceasefire
-False statement about his medical treatment- diabetic
-Indicted after 9-11. “SAM”
Steven Lubet, Attorneys, Too, Must Obey the Law, Newsday 4/24/02, pg. A35
Deborah L. Rhode, Terrorists and Their Lawyers, New York Times 4/16/02 pg. A27
VI. Conflicts of Interest
Fair representation- criminal 6th Am rt to counsel-
Schwarz- rt to conflict free counsel
In civil context- what concern would the cts have? Goes to fairness of proceeding
So not just about the ABA code- there is case law
Why is this important? Strategy, Liability, your interest in a case, reflects
Text 444-466
1. Simultaneous representation- Representing multiple clients in the same matter, some of whose interests conflict (problems: loyalty and zealous representation, confidentiality- where is info running between problems)
2. Successive representation- Representing one client against a former client (conflict is concern)
Some problems: Lawyer’s conflicts are attributed to their partners and associates.
- Therefore, one lawyer can “conflict out” hundreds in the firm
- Lawyers who change jobs “carry a virus”
- Powerful remedy available for tactical use- if there is a conflict, can get the conflicting lawyer disqualified
- Can use this threat to harass opposing counsel, run up adversary’s bills, etc.
-Simultaneous representation:
ABA Code- Canons 4, 5, 9 cover conflicts (particular topics- 9 is general,
-DR 5-105 states basic rules of conflicts NY Provisions “what a disinterested lawyer would believe” newer than the Code – more thought out
-No code rule expressly covers the problem of successive representation (Rule 1.9 covers)
-Code states use the “avoidance of even the appearance of impropriety” to resolve these cases Canon 9
-Model rules differ: Both require client consent, but the rules require MR 1.7: not that it is “obvious” but that the lawyer reasonably believes representation will not be affected. Model rules get rid of “the appearance of impropriety”
Class notes: November 25, 2002
Rule 1.7: text
|Simultaneous | |
|A v. B- Rule 1.7 direct conflict (unwaiverable- meaning the client cannot opt out- the admin of justice is up to the cts to |
|enforce) |
|6th Am concerns, admin discussion (shorts discussion) |
|Problems: |
|Loyalty and zealous representation, independent judgment |
|Confidentiality |
|(Representing H + W in will- directly adverse interest? Not automatic.) |
|Repr A + B in one matter- also rule 1.7 |
|A is suing B in another matter: |
|Simultaneous representation of adverse interests in a different matter. Generally no. Westinghouse. – Can conflicts rule be so |
|broad that when general economic interests clash you can’t work on both sides? interests generally adverse but not in the same |
|matter. The partners did meet and exchange info at one point- large part of analysis. |
|Also: was attny client relationship ever formed in the first place? Remember: may not have to be a direct conflict to be important!|
|Question of whether there was a relationship in the first place. |
|Problems: |
|Loyalty |
|Representing B $10 mil deal |
|A is westinghouse and want to deal with antitrust litigation, $3 bil. Can you withdraw B for A? |
|No. Rule 1.16- adverse effect – can’t leave client high and dry |
|Hot Potato doctrine- cts prohibit withdrawal |
|What if it is a tactic for A to get you to stop representing B. Even if it was done to be nasty, can’t drop small client for large |
|client. |
|New 1.7 : not adopted yet |
|1.7(a) Pp. 36 “concurrent interest” = simultaneous |
|(b) notwithstanding a conflict, the lawyer can represent if believes not related |
|Key: (b)(1)- conflict rules are too rigid- will the conflict be materially limited? Large firm influence. Some people may not even |
|talk in large firm. |
|Positional conflicts |
|Represent A + B- not similar litigation, but their positions are adverse. Problem 3 text 486-Memo. |
|Old 8- 1.7(b) |
|What values concerned about? |
|Can a lawyer that represents chem comps stand on a environmental board? 6.3 (6 series gives rules of intersection btwn pub interest|
|work and in law firm) |
|Can have pub interest perspective in firm- can’t be in a vacuum. |
|Key: if you have access to confidential info that is key. Not just loyalty. Impacts what the firm can do of a whole. Must |
|distinction between bus reasons and resp and ethics. Diff analysis. Firm disingenuous by framing as an ethics problem when it is a |
|bus problem maybe. |
|Represents A when lawyers own interests also in the mix |
|– Prohibited transactions |
|Loyalty- aspect of independent judgment |
|Not completely prohibited: material adverse effect?? |
|Successive Representation Rule 1.9 (a) |
|Problem: Sent termination letter to A. Now wants to represent B who was adverse to A in the past. |
|What are the values at stake? |
|Information- confidentiality – preserving confidentiality |
|Loyalty |
|Appearance of impropriety, being manipulative in taking on clients (hot potato doctrine) getting other lawyers opted out (but cts |
|not sympathetic to that argument) |
|Mobility and closing up the market of lawyers |
|Substantially related test is stated in 2 cases: TC Theaters Test CLASSIC |
|Look at the scope of representation and whether you can infer that confidential info would have been passed on to the lawyer. Look |
|at possibility of disclosure, not whether it was passed on since that is hard to prove. Look at: |
|Scope |
|Reas to Infer confidential info acquired |
|Info related to current matter |
|Gulf Oil Text: Analysis of confidential info > Loyalty in simultaneous repr. More precise than TC Theaters but same test. |
|Materially adverse- not just formal adversity. Question of degree. |
|In representing A, did lawyer gain info that is material to representing B (confidential info)? |
|Same or subst related to past representation of client |
|Materially adverse to the former clients? |
|Add questions of: is it materially adverse, and whether the info is materially relevant. Less technical, more substantive. |
|***Presumption is you had access to info, but is rebuttable. |
|What happens when you change firms? 1.9 (b) ACTUAL Confidential info makes the difference |
|F1- L1 represents A in A v. B |
|L1 in F2 represents B. |
|Can L1 represent B? L1 is personally disqualified is he has dad confidential info. |
|Can lawyers in F2 continue to represent B? No, because a personal disqualification is imputed to the lawyers in F2. |
| |
|Silver Chrysler- an associate in the case. Did he have access to confidential info? No. So he was not personally disqualified. |
|IMPUTED conflict- no confidential info. It matters whether he mig have had confid. Info- not actual proof needed. Makes sense when |
|you think about the value of lawyer mobility. |
P490-491 Problems
L1 to advise A on hostile takeover B. Can L1 advise now on- no. Reas to infer lawyer had confid. Info if topic is labor negotiations.
Several years ago drafted a petition. No lawyer has confidential info. Here is OK b/c no confidential info. Need to follow the info.
L1 drafted poison pill anti takeover laws. In representing A l1 might have to argue the alws vioated state law. No lawyer acquired confid. Info. Can you discredit your own work? Practically, this is a conflict of interest.
A to L1. Can firm withdraw from B to take on A as a client? No, hot potato. Maneuvering to minimum.
Problem 5 Pp 501
Imputed disqualification
Gets info about A in case but not confidential info
Associate at firm A who research purely legal issue- but no confidential info. Senior partner comes in and wants to be in place where subst related- Firm 2. Cannot do that. No imputed but personal conflict brings to FB. Cannot represent C2.
Same thing- junior partner goes from Firm B and wants to repsresent C2 against C1. No billing records. Analysis: follow the info. Have access to confid info, so not OK. He is a junior partner.
Associate- purely legal work has received no info – Silver Chrysler- OK b/c no info. Concern of excessively strict associate mobility.
US v. Bronston
-Lawyer convicted of mail fraud for sending 2 letters in violation of conflict of simultaneous representation
-Lawyer hid the fact he was representing a conflict of interest friend after the firm said not to
Look at this through the lens of lawyer liability. Concerned about disloyalty and lying to employer + mailing a letter = jail time.
Conflicts of Interest in Criminal Defense
Cuyler v. Sullivan
- Sullivan and 2 other criminals indicted for murder, and two lawyers represented all 3 defendants.
- Sullivan originally had own lawyer but could not afford to pay him anymore
- Evidence against Sullivan circumstantial- went to trial first
- Sullivan defense rested w/o presenting any evidence
- Held that the conflict of interest violated 6th Am rt to counsel
- Held that in order for Sullivan’s conflict of interest to overturn his conviction has to be more than just the possibility of conflict. Must establish actual conflict affected lawyer’s performance. The case was remanded to weigh whether there was actual change based on the other 2 witness’ having exposure due to him taking the stand or based on him not wanting to take the stand.
- What is the TC role in identifying a problem when the defendant does not?
- The possibility of a conflict is not enough- how much to prove whether it would’ve made a diff?
- Must show a missed opportunity to show made a difference.
Kenneth Mann, Defending White-Collar Crime
- Stonewalling is effective defense- one person defending keeps all defendants from talking to investigators and can coordinate defense statements (i.e. secretary who knows where inculpatory documents are)
- Unethical to tell one client not to plea when could be good for that client but bad for another
- While clients can waive the mult. Representation prohibition, cts can overrule it
- If advise one not to take a deal, may be risking certain success of one for the both
- If no one client willing to cop plea, then that is stonewalling
- If prospect for both clients success very high (each has info against the other, and the gov’t is off track) then less conflict
NOTES
Stonewalling effective- if someone considers testifying against them,. Cut them loose and tell them to get counsel. However, this can have effect on them testifying- will cost them money for counsel now.
Like prisoner’s dilemma in game theory.
Germany outlawed stonewalling and prohibits representing multiple crim D’s.
Adv: sharing info, unified front, control
Disadv: coercion, conflicting strategies
United States v. Shwarz (2nd Cir. 2002)
Best example of what can happen when the attny has a conflict.
PBA S,W,B, Volpe
Union was concerned with the case and potential conflicts for civil suit. Worth was hired for Schwarz and another for B Lauden. Schwartz didnlt call Volpe to stand b/c would implicate Weiss.
PBA hired Worth. Worth + Lauden made a firm together to defend this case.
Civil suit alleged conspiracy.
Volpe was willing to testify that Schwarz didn’t do it. But that means he would be admitting it was W. And it would have meant that there was a conspiracy if there was more than one person there. So Worth didn’t want to make it look like there was more than one person involved b/c that would be a conspiracy. Instead, insisted that Volpe acted alone to make a better defense for the second suit. $10 mil retainer. Personal financial stake in the litigation. PBA could have pulled out of retainer at any time.
-Need to show actual conflict
-Need to show it made a diff- missed oppty
2nd step: waiver analysis- can be unwaiveable conflict that no reas D would stay in. Money made the difference in this case. Then, if that is not the case, analyzing the validity of the waiver.
466 Problem of he Unwanted Will- Shaffer
-Have will both H and W make ea other beneficiaries
-Lawyer takes Mary aside and asks her whether she really wants to do it that way
-Mary wants ex-wife in the picture
See Comments 29-33 of MR 1.7
Read to 507-
Skim 541-561 for topics- not on the exam
In analysis, start with the rules. Actual v. reasonable knowledge of conflict
1.9(a)- P1 at F1 ten yrs ago, represented c1. Over now.
Same partner at f1 wants to represent C2 in matter that is adverse to C1.
Analysis- cannot in the same or subst. Related matter. Defined in comment 3 as: matters subst related if there is a subst risk the confidential factual info would advance the matter now.
8. (b) P1 foes to F2. What is the duty of loyalty to clients in F1? The analysis changes: subst related test and related requirement: in which the lawyer was formerly associated who represented client adverse and had confidential info. Actually inquired confidential info. Switch firms = materially adverse and whether actually got confidential info. Value of lawyer mobility seen.
Mortal threat to b in the situation- page 491 last hypo. Have to do an analysis of waivers- cannot presume the waivers are valid. Need to do analysis.
Allocation of resp between supervisory and subordinate lawyers:
359-377
Look at the rules: 5 series of the MR. 5.1 and 5.2-
NY DR- 1-104 (e) and (f)
Ambivalence in the rules in terms of how much resp associates have. Sense of indiv. Resp. But in 5.2(b) says subordinate lawyer does not violate rules if acts in accordance with the supervisory lawyer’s decision in a reas matter, reas judgment call.
1-104(b) the escape clause for lawyers – e and f. 499 rules book.
e- have to comply even though the lawyer acted at the direction of the supervisory lawyer.
f- escape clause
Idea that associates are not really representing clients and are not really involved. Judgment whether the analysis is reas can be faulty.
Equal Opportunity- look in text
Advertising- work closely with the rules. Illustrates how legal ethics is nested w/in other areas of the law. Little guy- makes less money and is subject to more rules. Maybe who cares about the advertising? Who has a stake in putting restrictions on adv?
Truthful adv is allowed- protected by 1st Am- Bates case charges for routine cases. Anachronistic to say that lawyers are beyond being a trade. In re: RMJ ct struck down content restrictions. States may impose restrictions if inherently misleading.
Can prohibit non-descriptive illustrations- the ad can be deceptive b/c said “no recovery, no legal fee” Misleading that clients may be liable for costs but not attny fees. The avg person prob doesn’t know the difference. So need to state the truth someone. “disbursements at the conclusion” who knows what that means? Tech compliance but not in spirit.
NY 2-101- basic principles, no false deceptive misleading. Names of clients ok, fees and contingent fee explanations.
Trouble with loaning clients money and advertising that they advance costs goes back to concerns about encouraging frivolous lawsuits. Making clients resp for costs is the root that we don’t want lawyers to encourage others to sue.
Another issue- 2-103 (solicitation and recommendation for employment- no compensation for referrals), 2-104 refers to qualified legal assistance orgs. Bar assoc programs that help to refer regual people to an admitted attny and are somewhat regulated. Doesn’t exert influence on the lawyer’s prof judgment . A rubber stamp on a system w/o close regulation.
Injury Helpline- disclaimer that not a law firm or lawyer referral service- can speak to lawyer near you for free. 2-103 describes no comp for referrals. Concerns about groups advertising that smaller firms will want to band together to afford it. This kind is OK as long as presents the names of firms and the lawyers in a meaningful fashion. Tiny rolling print- OK? Not sure if meaningful.
DR-101 an include public offices held. But the issue is whether inherently misleading
Testimonials- cannot use actors must use actual clients- no dramatizations
DR 2-101 b was repealed. B referred to no puffing and self laudulation. Concession to advertising culture we live in.
Read Problems Ex 490-491 Successive conflicts
P501- prob 5. 1.9 rule.
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