Feinberg Professional Responsibility Fall 10

7/30/2019 Feinberg Professional Responsibility Fall 10

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Intro

I. OPENING POINTS:

A. Themes and concepts:1. Nobodys perfect

a. avoid the major mistakes, learn from minor mistakes,b. but dont hide mistakes; cover-up worse than crime

2. Youre not in this alone:a. consultation is key;b. think about whom to consult before problems arise

3. Trust your instincts, whatever form they takea. aggressively spot issues,b. carefully analyze them

4. Ethics and morality are not the same thinga. the right thing to do is not always the ethical thing to do

5. Whats yourappetite for risk? (majority of ethics issues fall within one rule)

6. Always keep your cool, its just not worth it7. The Icarus Principle

a. feathered wings made with wax, flew too close to the sunb. more senior lawyers tend to ignore some of the ethical issues)

B. How do we know whats ethical?1. The Rulebook: issued by court or bar association applicable to a particular jurisdiction

a. ABA model rules (rarely adopted word for word)b. NY Rules of Professional Conduct

2. Rules do not have the same status as decisional law or statutesa. rules may be applied differently in court proceedings as opposed to disciplinary

matters)

3. Comments to rule (not binding): in NY, comments have not been accepted as law4. Treatises5. ABA/BNA6. Restatement 3rd of the Law Governing Lawyers (often cited by appellate judges)7. Example:

a. Candor to the tribunalb. What does tribunal mean?c. "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a

legislative body, administrative agency or other body acting in an adjudicativecapacity. ABA

d. Mediation is not mentioned in this definition

8. Ethics Opinions from bar associations (NOT binding)a. Pros:

i. research done for youii. good faith before discipline committeeiii. wide range of issues already covered

b. Cons:i. Built in biases on certain committees (trial: favors P; NYC: defendant)ii. No hierarchy in the different bar associations, and frequently disagree


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iii. Not binding on anyoneC. Issue:

1. Facebook:a. NY has said that judges can use facebook, but urged to stay on top of security

settings

b. Florida has prevented judges from using facebook for parties appearing before them

II. COMPETENCE, DILIGENCE AND TAKING GOOD CARE OF YOURSELF:

A. Diligence:1. ABA Rule 1.3 : A lawyershall act with reasonable diligence and promptness in

representing a client.2. Put another way: a lack of diligence is the failure to handle client matters and with

appropriate efforts under the circumstances.3. Put yourself in your clients shoes.4. Diligence might be loyalty to your client under the circumstances.

a. Plaintiff (seeking $ for medical expenses) or

b. Defendant (capital defendant- seek delay with a client facing the death penalty)B. Competence:1. ABA Rule 1.1: A lawyershall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness andpreparation reasonably necessary for the representation.

a. Comment [3]: suggests some basis for emergency advice; can give limited advicewhen reasonably necessary

2. Problems:a. Competence can be negated by stress, and not knowing how to say no to clients or

partnersb. Lawyers Assistance Program:

i. Helps with1. Substance abuse2. Gambling3. Mental health, depression

ii. Anonymous system1. Lawyers assistance program is exempt from reporting requirements

c. In re Discipline of Reynolds, (S.D. 2009):i. The attorney practiced commercial litigation in a South Dakota law firm. He

represented a client that had allegedly been forced to resign from hisemployment. The attorney advised the client to seek a revocation of theresignation. After the attorney failed to respond to the client's numerousrequests and failed to file the complaint within the statutory period, the

client filed a former complaint with the Disciplinary Board. The Boarddetermined that the attorney was overextended with a demanding legalcaseload. In a Private 60 Agreement, pursuant to S.D. Codified Laws 16-19-60, which allowed the attorney to continue practicing law under conditions, theattorney admitted that he violated S.D. R. Prof. Conduct 1.3, 1.4, 1.5, 1.7, 8.4(a),8.4(c). The attorney's pattern of non-response continued in two other clientcomplaints as well as to communications from the Board. The court, pursuant to


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its duty under S.D. Codified Laws 16-19-31, held that the attorney's neglect ofclients and the Board warranted suspension for three years. The court consideredthe attorney's potential for rehabilitation and his past service to the bar,community, and church.

ii. OUTCOME: The court suspended the attorney from the practice of law for three

years. Failure to meet certain suspension conditions would result in permanentdisbarment.iii. Class notes:

1. Issues:A. how much he didnt do for so longB. how he only got punished with 3 years suspension

2. Disciplinary committee did not do him any favors by giving him multipleextensions, allowed him to dig it deeper

3. How balanced was Reynolds workload? Family life, extrad. In re Young(Cal 1995): Thrown in jail for 5 days for asking for 20 extensions. An

attorney was granted 19 extensions of time to file an appellant's opening brief in a

criminal case. The attorney appeared before the court in response to an order to showcause why he should not be held in contempt for failure to comply with the court'sprior orders to file the brief, and was ordered to file the brief by March 1, 1995. Theorder was modified until April 4, 1995 and the attorney was further ordered toproduce a copy of that part of the appellant's opening brief, which had beencompleted by that date, if the brief had not been filed earlier. The attorney appearedon that date and the court found that he had not complied with the court's orders. Thecourt also found that the attorney was aware of and had the ability to comply

with the orders and failed to do so. The court held that willful failure to complywith an order of the court constituted contempt. The clerk was directed to notify theTexas State Bar by forwarding a copy of the judgment of contempt. The court

sentenced the attorney to a five-day jail term.e. Shall vs. Shouldi. ABA: A lawyer shall provide competent representation to a clientii. NY: A lawyer should provide competent representation to a clientiii. In practice, the language difference doesnt make a difference.

1. should is slightly closer to how the rules are actually applied.2. shall often means must and is therefore difficult to enforce.

f. Mistakes: when there is a mistake (unintentional), should there be disciplinary actionbased on competence?

i. Lawyer said it was $93 million mortgage when it was only $93kii. Sept. 1, 2008 when it should be Sept. 1, 2009 for the back out date; contract, $

millions for each party to the contractiii. There are mistakes that rise to the level that, if done once, deserve disciplinary

actioniv. Most mistakes are not subject to disciplinary action

III. LAW AS A SELF-REGULATING PROFESSION

A. Rule 8.3 :


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1. (a) A lawyer who knows that another lawyer has committed a violation of the Rules ofProfessional Conduct that raises a substantial question as to that lawyer's honesty,

trustworthiness or fitness as a lawyer in other respects, shall inform the appropriateprofessional authority.

2. (b) A lawyer who knows that a judge has committed a violation of applicable rules of

judicial conduct that raises a substantial question as to the judge's fitness for office shallinform the appropriate authority.3. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6

or information gained by a lawyer or judge while participating in an approved lawyersassistance program.

B. Rule 8.4 : It is professional misconduct for a lawyer to:1. (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or

induce another to do so, or do so through the acts of another;2. (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness

or fitness as a lawyer in other respects;3. (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

4. (d) engage in conduct that is prejudicial to the administration of justice;5. (e) state or imply an ability to influence improperly a government agency or official or toachieve results by means that violate the Rules of Professional Conduct or other law; or

6. (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicablerules of judicial conduct or other law.:

C. Wieder v. Skala, (N.Y. 1992): Attorney contended that he was wrongfully discharged as theresult of his insistence that a fellow associate's misconduct be reported as required by ModelCode of Professional Responsibility DR 1-103(A). Further, he contended that his terminationby the law firm was a breach of the employment relationship. The appellate court concludedthat attorney failed to state a cause of action because he was an at-will employee. The court

concluded that attorney had stated a valid claim for breach of contract based on an implied-in-law obligation in his relationship with his law firm. Intrinsic to the employmentrelationship here was the unstated but essential compact that in conducting the firm's

legal practice both attorney and his law firm would do so in compliance with the

prevailing rules of conduct and ethical standards of the profession. Insisting that as anassociate in their employ attorney must act unethically and in violation of one of the primaryprofessional rules amounted to nothing less than a frustration of the only legitimate purpose ofthe employment relationship. Next, the court concluded that recognition of the tort of abusivedischarge was to come from the legislature.

1. OUTCOME: The court modified the judgment of the appellate court by denying the lawfirm's motion to dismiss the attorney's cause of action for breach of contract. As somodified, the judgment was affirmed.

2. Class:a. Even though NY has strict employment at-will policies, lawyers cannot be fired if

they are reporting another attorney under rule 8.3; this is the Wieder Doctrineb. The bad acts of one lawyer tend to reflect badly upon the entire professionc. Doctrine includes a lawyer refusing to file a false affidavitd. Court expressly rejects the idea of same exceptions for those in the financial

industry;


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e. NY has only applied Wiederto lawyer cases, not doctors who are terminated forrefusing to disclose patient information;

3. Bohatch v. Butler & Binion, (Tex. 1998)Plaintiff, who was a partner in defendant lawfirm, was expelled from the firm after she reported that another partner was overbillingone of defendant's clients. The trial court found that defendant was liable for expelling

plaintiff, but the appellate court reversed the decision. On subsequent appeal, the courtaffirmed the appellate court's reversal of the trial court judgment. Neither statutory norcontract law principles answered the question of whether defendant had a duty not toexpel plaintiff, and recent amendments to the law on partnerships did not have retroactiveeffect and therefore did not apply. The partnership agreement did not specify or limit thegrounds for expulsion of partners. Although the relationship between partners wasfiduciary in character, it did not give rise to a duty not to expel partners who reportedsuspected overbilling. Permitting law firms to retaliate against partners who in good faithreported might discourage compliance with the rules of professional conduct, but itwould be impossible for partnerships to maintain the trust relationship necessary for theirexistence after such serious accusations.

a. Should a client be able to waive improper billing practices by their attorneyb. reason for 8.3: how else are going to correct behavior of attorneys?c. people have opposed the decision here

D. Applying Rule 8.31. what do you know/what dont you know factually?2. what rule/rules were violated?3. does the violation go towards honesty, trustworthiness, or fitness4. was it a substantial violation?5. are there intangibles outside the rule (i.e., policy) that should weigh in?6. is there any sort of exception (i.e., lawyers assistance program)?7. if you dont have to report, can/should you report anyway?

E. One Night At A Party1. Always ask yourself what you know and what you dont know

a. Here, you know what you saw: repeated use of recreational drugs (could beserious)

b. It matters that it was a social setting, at a party; outside the context of a law officec. What you dont know: what type of drug, how often it is done, whether it affects

their workd. Do you know enough? There are strong arguments that you dont know enough

2. What rules were violated?a. 8.4 (b) commit a criminal act that reflects adversely on the lawyer's honesty,

trustworthiness or fitness as a lawyer in other respects;i. Note: Conviction of felony typically results in disbarment, but there are some

exceptions for substance abuseb. 8.4 (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;c. 1.1 competence


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d. 1.3 diligence3. Does the violation go to honesty, trustworthiness or fitness?

a. 8.4(c) yes;b. 8.4(b) possiblyc. This analysis is subsumed in rule violation

d. Example: Going 100mph in a 50mph zone to get to a hearing on time; showsrecklessness, but does this reflect on fitness as a lawyer4. Was it substantial?

a. Tension in comments to rule:i. certain degree of importance is needed to be worth the timeii. but there are certain serious things that can be uncovered from an isolated

incidentb. Helpful to ask: would you want this person as your lawyer?

5. Policy considerations:a. tactical concern with reporting your adversary; if you see a lawyer commit a

violation mid-case, you probably dont want to report it right away; but give it some

timeb. drug and alcohol abuse is common; stop the problem before it gets bigger: substanceabusing lawyers commit most tow most common violations: theft of client funds andneglect of client cases

6. Exceptions? Probably not here, but some would bea. protected by rule 1.6 or if you are representing the personb. if reported to a lawyers assistance programc. 1-6 have to deal with whether you are required to report

7. If you dont have to report, should you still report?a. Normally, these cases flunk substantiality element, but there are enough violations

and policy implications that it should be reported

b. If you decide not to report when the court says you must, you are taking a riskc. If it turns out that the lawyer did not report when they should have, they would haveto convince the disciplinary committee that they did not need to

IV. CIVILITY

A. Do we need rules regarding being polite and courteous to clients and opposing counsel?1. common sense2. reminders

B. Rules: 1.2, 1.4, 4.4 overlap with rules of civilityC. Why does civility matter?

1. adversarial nature can break down civility2. civil lawyers are less likely to fall victim to the Icarus factor (fly high and mighty, senior

partner)3. reputation: being uncivil harms it; reputation is very important in the profession; civil

lawyers will have better reputations than uncivil ones4. Curtailing bullies: use incivility to get it out of hand5. Have a good poker face, even when other side is getting reprimanded by a judge

D. Fla. Bar v. Walton, 952 So. 2d 510 (Fla. 2006): The attorney failed to tell his clients oropposing counsel that the opposing party had tendered in satisfaction of judgment an amount


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short by 23 cents. After the shortage was rectified, he failed to record a satisfaction ofjudgment, as required by 701.04(1), Fla. Stat. (2005). He told the Bar that the opposing partywas a liar and had a mental disorder. After the satisfaction of judgment was recorded, he fileda frivolous motion in the trial court to try to create a defense for himself in the Bardisciplinary proceeding. The referee found that this conduct violated R. Regulating Fla. Bar 3-

4.2, 3-4.3, 4-1.1, 4-1.3, 4-8.4(a), and 4-8.4(d). The high court agreed. As the attorney forcedhis clients to wait six more months to be paid, he failed to provide competent representationwith reasonable diligence, and engaged in conduct prejudicial to administration of justice,contrary to R. Regulating Fla. Bar 4-1.3 and 4-8.4(d), respectively. That he had beendisciplined on three prior occasions confirmed the propriety of a 91-day suspension.However, the high court's policy precluded an award of restitution to third parties, such as theopposing litigant, in disciplinary matters.

1. OUTCOME: The court approved the referee's recommendation that the attorney besuspended for 91 days. It disapproved the recommendation that he be ordered toreimburse the opposing party for attorney fees and costs incurred as a result of theattorney's misconduct, and the recommendation that the attorney's practice be evaluated

by the Bar's Law Office Management Assistance Service. Instead, it order him to take theBar's professionalism course.2. Class:

a. Received a check for $0.23 shortb. Wanted to get back at this defendant who had given him a hard time in the casec. Walton never contacted his client to notify him that he was fighting over a small

amountE. Butler County Bar Ass'n v. Foster, 99 Ohio St. 3d 491 (Ohio 2003): The attorney was

involved in antagonistic collection proceedings with a pro se litigant. The attorney starteddirecting certain unprofessional e-mails and other correspondence to the pro se litigant's olderbrother. Examples included the attorney's e-mail that stated, "Your dear little brother only

serves to make my life more miserable. In turn, I will make his as miserable as possible" andan observation that the family's "gene pool was in serious need of a filter, at best, or has beenreduced to a gene pond." The attorney also described the pro se litigant in a letter as an"anencephalic cretin" with a "single operating brain cell" who made "brain-dead ravings" and"anal rantings." The attorney and county bar association stipulated that the correspondenceviolated several specified sections of the Ohio Code of Professional Responsibility. Inrecommending a sanction, a disciplinary panel expressed concern over the attorney's lack ofremorse and appreciation for professionalism rules. After considering the case, the statesupreme court adopted the panel's suggestion that the attorney be suspended from the practiceof law for six months, with the entire period stayed.

1. OUTCOME: The attorney was suspended from the practice of law in Ohio for sixmonths, but that sanction was stayed provided that he did not commit any otherprofessional misconduct during the suspension period.

2. Class:a. Attorney uses a lot of nasty language in an email to the brother of the opposing pro

seb. Why did he get the brother involved? Maybe he only had his addressc. Continued pattern of conduct here?


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d. Lawyer already won but collecting the judgment was the issue heree. Court seems to hold lawyer to a higher standard than pro se; lawyers are officers of

the court

V. PROFESSIONALISM

A. Rules 8.1, 8.4B. Rule 8.1:1. An applicant for admission to the bar, or a lawyer in connection with a bar admission

application or in connection with a disciplinary matter, shall not:a. (a) knowingly make a false statement of material fact; orb. (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 demandfor information from an admissions or disciplinary authority, except that this ruledoes not require disclosure of information otherwise protected by Rule 1.6.

2. Comment to 8.4: Lawyers holding public office assume legal responsibilities goingbeyond those of other citizens.

C. Professionalism : In addition to following the rules for conduct1. thoughtful, aware of reputation2. Sandra Day OConnor: learn how to care about people and there problems; weve

become too much of a business; less about how can I help the client3. Test for professionalism: -actions and words being reported by a newspaper for a day

without interviewing youD.In re Conduct of Carpenter, 337 Ore. 226 (Or. 2004): As a practical joke, the lawyer posted

an Internet message purporting to be from an acquaintance who was a high school teacher.The message indicated that the teacher had engaged in sexual misconduct with students. Thepolice investigated the prank, but no criminal charges were brought. The lawyer stated that hebelieved rumors about the teacher's sexual misconduct to be true. After a hearing, the trial

panel dismissed the complaint against the lawyer. The court found that the lawyer's conductdid not constitute misrepresentation within the meaning of Or. Code Prof. Resp. DR 1-102(A)(3) because there was no proof that the statements regarding sexual activity with studentswere false. The lawyer's conduct was dishonest, however, within the meaning of the rule. Thelawyer acted intentionally, knew that the teacher was vulnerable to the content of themessage, and did not indicate to other readers of the message that the teacher was not the realauthor or that the message was a joke. A public reprimand was appropriate under ABA Stand.Imposing Law. Sanctions 5.13 because the lawyer's conduct, although it adversely reflectedon his fitness to practice law, did not do so seriously.

1. OUTCOME: The court publicly reprimanded the lawyer.2. Class:

a. Outside the work context, what type of conduct is deserving of discipline?b. What do courts do? Determine how it reflects upon honestyc. Carpenter: Whether there is a nexus between the conduct and a lawyers task in work


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Forming the Attorney- Client RelationshipVI. RETAINER AGREEMENTS, FEES, BILLING

A. ABA Op. 93-379 (p. 59): billing issues

B. Fees:C. Rule 5.1: (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable

fee or an unreasonable amount for expenses.D.Brown, Rudnick(Mass. Super. Ct. 2003)

1. PROCEDURAL POSTURE: Plaintiffs, attorneys and others, sued defendant, theCommonwealth, seeking to enforce a contingency fee agreement relating to tobaccolitigation. The Commonwealth moved in limine seeking an order precluding plaintiffsfrom calling as a trial witness the Commonwealth's lead trial counsel.

2. OVERVIEW: The Commonwealth's lead trial counsel was employed after the feeagreements in question were executed and after the underlying matter was settled.Nevertheless, the Commonwealth designated the lead trial counsel as its Mass. R. Civ. P.

Rule 30(b)(6) witness, at least for the subject of providing testimony about the reasonsfor the Commonwealth's decision not to pay plaintiffs under the terms of their contingentfee agreements. Trial of this very complex and significant matter was just two weeksaway. Plaintiffs indicated that the Commonwealth's counsel would be called as a witnesson the subject of why the Commonwealth decided not to pay the fees under thecontingent fee agreements. If lead trial counsel were forced to withdraw, theCommonwealth would need considerable extra time to get new trial counsel in position totry a case that had over a billion dollars at stake. Further, any such change in the trial datewould result in a substantial continuance. The court found that a solution to the problemexisted in allowing plaintiffs to present lead trial counsel's deposition to the jury in aredacted form.

3. OUTCOME: The motion in limine was allowed, provided that, if the court determined onthe state of the evidence at the time that the matters to be read were relevant, plaintiffscould read a redacted version of the Commonwealth's lead trial counsel's deposition tothe jury.

E. Trap in 1.5(a): agreement for, charge, or collect an unreasonable fee1. here it was trying to collect that was unreasonable (by bringing the lawsuit), even though

they had agreed to/charged a reasonable amount2. even if youre not sending out the bills, you will be involved in billing and why the fee is

what it isF. What should have happened at the jury trial?

1. deal is a deal; contingency fees are enforced in contracts as written (clarity);

2. What about the word reasonable in Rule 1.5(a)G. Hypo:

1. best criminal defense lawyer, retired, charges businessman worth $25B a fee of $500M(not contingent)

a. Issues:i. should a lawyer be allowed to benefit from his own ethical wrongdoing?ii. charging such a high fee is ethically wrong?

H. Retainer/Engagement letters:


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1. A retainer agreement is a work for hire contract. It falls between a one-time contract andfull-time employment. Its distinguishing feature is that the employer pays in advance forwork to be specified later. Additional contracts regarding the performance of this workmay also apply.

2. It is common for a person seeking the services of a lawyer (attorney) to pay a retainer

("retainer fee") to the lawyer, to see a case through to its conclusion. In addition to theretainer fee, an agreement between a client and an attorney may provide for a "contingentfee". Retainer fee can be paid on a fixed, pre-negotiated rate or on a variable hourly ratedepending on the nature of retainer and also, the practice of the lawyer/advocate beingretained. Both models exist in the industry.

3. Advanced waivers for working with other clients is a heated issue; whether or not theyare ethical

I.Expenses versus fees1. The lawyer's stock in trade is the sale of legal services, not photocopy paper,tuna

fish sandwiches, computer time or messenger services.

2. If youre going to bolster the bill, this is not the area to do it.

VII. DUTIES TO PROSPECTIVE CLIENTS

A. Rule 1.18:1. (a) A person who discusses with a lawyer the possibility of forming a client-lawyer

relationship with respect to a matter is a prospective client.2. (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions

with a prospective client shall not use or reveal information learned in the consultation,except as Rule 1.9 would permit with respect to information of a former client.

3. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materiallyadverse to those of a prospective client in the same or a substantially related matter if thelawyer received information from the prospective client that could be significantlyharmful to that person in the matter, except as provided in paragraph (d). If a lawyer isdisqualified from representation under this paragraph, no lawyer in a firm with which thatlawyer is associated may knowingly undertake or continue representation in such amatter, except as provided in paragraph (d).

4. (d) When the lawyer has received disqualifying information as defined in paragraph (c),representation is permissible if:

a. (1) both the affected client and the prospective client have given informed consent,confirmed in writing, or:

b. (2) the lawyer who received the information took reasonable measures to avoidexposure to more disqualifying information than was reasonably necessary todetermine whether to represent the prospective client; andi. (i) the disqualified lawyer is timely screened from any participation in the matter

and is apportioned no part of the fee therefrom; andii. (ii) written notice is promptly given to the prospective client.

B. One night at a party hypo:1. make sure you're having the convo in a safe/secure place (1.6: confidentiality) and that

you and the client are both up to talking business (competency: e.g., ability to checkconflicts probably need the support of your office right state of mind; not drunk)

a. do not take the risk of allowing other people to overhear the conversation; dont tellme anything you wouldnt want other people to hear


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b. prevents others from hearing it and also less likely to involve exchange of info thatwould trigger the attorney-client relationship

2. absent an express waiver (unlikely to get at a party), limit discussion to minimal facts andconfidential info, focus on facts needed for a conflicts check

a. situation for waiver is where any thing you say would not leave the conversation

3. its less important that you have experience in the area than the firms experience4. express interest in the client, and tell them about your firm, so that its clear that youWANT to continue the convo once youve dealt with conflicts (practical issue)

5. Togstadissue: dont use loose langue that could confuse a statement on the mrerits oftheir case with a statement that you're not interested in their case (courts will use theclients interpretation)

6. you can use a declination letter so they no youre not their lawyer for this case7. Alert appropriate people in your office so that if there are screening issues, you can avoid

prejudicing other firm clients; make sure the people who need to know, know about it8. Note: with the exception of nailing down the conflicts issues, it might be possible to

perform everything at the party

C. Togstad v. Vesely, Otto, Miller & Keefe (Minn. 1980): Respondent clients were successful intheir action forlegal malpractice against appellants, attorney and law firm, as a jury foundthat appellant attorney was negligent, and as a result, respondents suffered damages.Appellants sought review of the trial court's denial of their motions for judgmentnotwithstanding the verdict, or alternatively, for a new trial. The court affirmed the trialcourt's denial of appellants' motions, holding that there was sufficient evidence in the recordthat established that an attorney-client relationship existed, that appellant attorney actednegligently or in breach of contract, that such acts were the proximate cause of respondents'damages, and that but for appellant attorney's conduct respondents would have beensuccessful in the prosecution of their medical malpractice claim. The court also held thatappellants were not entitled to a new trial under Minn. R. Civ. P. 59.01(5), because the trial

court acted within its discretionary authority in ruling that respondents' damage award was notexcessive. Appellants were not entitled to a reduction of that award for a hypotheticalcontingency fee.

1. Class:a. interest in taking the case vs. the merits of the case?b. balancing things like expressions of sympathy and interests in what happened with

explaining to her that its in her own interest to be protected by the conflicts ruleswill help in explaining why there are preliminary conversations about whether youcan take the case before you discuss the merits of the case

c. If youre meeting with a potential client who has already met with several otherlawyers, its not a good sign

D.Pellegrino v. Oppenheimer & Co., Inc., (N.Y. App. Div. 1st Dep't 2008)1. One of the former employees met with an in-house attorney to complain about sexual

harassment by the general counsel. The in-house attorney and the former employeeattempted to classify the substance of their communications as confidential because theywere afraid they would be fired. Due to the alleged pervasive discriminatoryenvironment, the former employee and the in-house attorney along with another in-houseattorney went to see an employment discrimination attorney to inquire as to how theycould notify their employer about the difficult situation. The appellate court found that no


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attorney-client relationship was established between the in-house attorney and the formeremployees' counsel or, by extension, between the employer and the former employees'counsel. There was no basis for the conclusion that the in-house attorney receivedconfidential information from the general counsel, or that the two had an attorney-clientrelationship since none of the information the general counsel related was privileged or

even pertained to legal issues. Therefore, disqualification under N.Y. Code Prof. Resp.DR 5-108(a)(1), (2), (22 NYCRR 1200.27(a)(1), (2)), was unnecessary.2. Class:

a. Disqualification motion:i. if a junior attorney approaches you at your firm and wants to talk about

something confidential, what would you do?ii. is it possible to hear the information without creating an attorney-client

relationship?iii. unlikely that a court would say she represented her against her own firmiv. do you have to keep it confidential if she asks you to?

1. you could say, I cant promise that I will keep this info confidential

b. Note: Screening is done rarely; ethics rules only allow it in only a few selectcircumstances, 1.18(e)(2)c. Tips to avoid 1.18 issues:

i. Think about an analogy to medicine; you would not go to a foot doctor with aheart problem; if you dont have the expertise, you shouldnt try

ii. you should never do a no thank you, but (unless you are pointing them to alawyer or resources to find a lawyer)

iii. if you dont have the time to give the client the time and attention the casedeserves, you should tell them

iv. develop a network of lawyers you know and have done business with to referpeople to

VIII. DECLINING AND WITHDRAWING FROM REPRESENTATIONS, AND CLIENTS

WITH DIMINISHED CAPACITIES

A. Rules: 1.14 (diminished capacity), 1.16 (withdraw), 3.1 (meritorious claims and contentions)B. Are you ever obligated to take a case?

1. if you do not like a client because of their business or personality, can you just deny them2. Griffin- black lawyer representing KKK

a. effects: lawyer is on the hook if they defend someone who does horrible thingsb. rights: lawyer is off the hook; if he hadnt done it, who else would? Also, protecting

constitutional rights, not necessarily peopleC. Attorneys are required to send a letter if they are rejecting a client

1. Clients can fire a lawyer at anytime, unless discriminatory2. Also if the court appointed the lawyer, the client must consult the judge

D. Withdraws under 1.16:1. There are situations in which a lawyer withdraws

a. Must: mental condition, or just overwhelmedb. May:

i. 1.16(b)(4): Fundamental disagreement with client; speak with judge ex parte tolet him know what happened


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ii. Hypo: You are an associate at the law firm of Sharp, Quick and Bright. TheAssigning Partner knocks on your door and advises you that youve been staffedon a major class action defense team. The client is one of several large tobaccocompanies with international sales and reach. You are very much an anti-smoker, having lost several relatives to lung cancer and want nothing to do with

tobacco work. On the other hand, you are an excellent class action litigator,enjoy working with the other team members, and could expect to get greatexperience doing the work. Do you take the assignment or try to duck it?

Within the Attorney-Client Relationship: Core Issues and

Challenges

IX. DIVISION OF RESPONSIBILITY AND COMMUNICATION

A. Communication: 1.4B. Scope of representation: 1.2

1. Where is the dividing line between a clients absolute autonomy about making decisionsand where attorneys step in?

2. There have been a number of disciplinary cases in which lawyers obeyed clients wishesin giving up appeals to quickly

3. Hypo: Client, on death row, decides to give up, even though there is new evidence thatyou believe would show the client is innocent; do you suspend work or proceed with thepending appeal?

a. 1.14(b)- taking action in the best interest in the client when they have diminishedcapacity? Beaten up by prison system?

b. Perhaps an opinion of therapists can help the lawyer dealing with this4. 1.14 rarely deals with death sentencing cases;

a. more likely, in will disputes- changing a will before dyingb. 1.14 is a very important counter-point to 1.2; however, under 1.14 there is no

disciplinary safety net if it turns out that youre wrong about diminished capacity(esp in NY, but probably in ABA too)

C. Unabomber case:1. injustice?2. attorneys failing to disclose their intent to use mental incapacity defense (1.4)3. 1.2: (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 consultwith the client as to the means by which they are to be pursued.

a. is the objective the best possible outcome for the client in this criminal case or is it

preserving the clients particular message/dignity in this case by not pleadinginsanity?

b. means are different for client and lawyer4. There may be some things that to a client that are more important than their life; biggest

crime the lawyers made was to assume that his life was the most important thing to himD. Hypo: can a practitioner say that he will never do plea bargains, inform clients in writing at

the time of retention?1. Competence: so many cases are bargained with plea


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2. Limiting: 1.2(c)- is this reasonable3. can he associate with a corporate negotiator to bring in as special counsel if a plea

bargain is offered? There may be issues of this negotiations competency in the case; theremay be a diligence issue

4. how would the client feel about this? Doesnt the client have to agree to let someone else

come in and negotiate; this is a 1.4 issueE. Communication:1. Dog client: calls every day to tell you about something2. How much info does the lawyer have to provide to the client in order to satisfy 1.4(a)4)?

a. when substantive information is ready to be given or material changes happen withthe case

b. if the client is likely to refer to you to the board for being inattentive to his mattersc. Two potential courses of action:

i. nebulous: put yourself in the clients shoes and ask what would I want to knowif I were them

ii. the moment you get the stack of messages, write the client an email or letter, and

bill them for itX. CONFIDENTIALITYA. Rules:

1. Rule 1.6, Confidentiality2. Rule 3.3: Candor to the Tribunal

B. Why is it so important? encourage opennessC. What is protected?

1. client telling you how he spent the money won from a judgment?2. reputation of client may influence: good or bad way to spend it

D. Does it matter who you tell? Spouse: protected information in NYE. Comment [16]: A lawyer must act competently to safeguard information relating to the

representation of a client against inadvertent or unauthorized disclosure by the lawyer or otherpersons who are participating in the representation of the client or who are subject to thelawyer's supervision. See Rules 1.1, 5.1 and 5.3.

1. Lawyer mistakenly gives out reply which was under seal to a newspaper, ethicsviolation?

a. is there an implied consent if the client signed the complaint, knowing it wouldb. the fact that it was unintentional does not matter

2. What if a paralegal mistakenly gives it out?a. It matters for whole team:

3. Other common ways lawyers mess up confidentiality (low-tech version)a. Elevatorsb. bathrooms (conversations or bringing in work)c. public transportation: black car driversd. restaurantse. your BFF youd trust with anythingf. people in their own firms

F. Exceptions: (1) to prevent reasonably certain death or substantial bodily harm1. Hypo: Your expert witness found a heart condition of plaintiff, plaintiff does not know;

your client, defendant, is an insurance company


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2. Reasons to tell plaintiff:a. could be in clients interest anyway since client is a minorb. PR nightmare for your firm if people find out you knewc. The whole idea of trying to do the right thing can be good no matter whatd. If you can convince the client to reveal the information, there is a chance that the

Plaintiff will be grateful that his life has been saved that he will walk away3. Argument for not revealing medical condition:a. He may find out some other way, but there are potential things that could happen to

hurt your careerb. subject to professional discipline (but it is unlikely that someone would be

disciplined for revealing information on this particular set of facts)c. Malpractice suitd. lose cliente. Diminished standing in the firmf. Reputational hit

4. Other options:

a. tell the judgeb. tell the other side they should ask for the reportc. 1.16(a)(4): you could walk if you cant stay in this positiond. If the disciplinary rule says you may, should you disclose information that is

detrimental to your cliente. appetite for risk will influence ones decision to disclose

G. If you know that someone you went to question in jail, upon the recommendation of a formerclient, has AIDS. He asks you not to tell the former client, his live-in girlfriend. Can you tellher?

1. 1.6 exception for bodily harm?

2. get more information about the relationship from him;a. you could withdraw for irreconcilable differences under 1.16b. difficult to tell judge why your are withdrawing

H. Revealing information about your client (admitting to a murder) that would exculpatesomeone else incarcerated

1. not allowed until up for death penalty in most states2. there is the potential that the client could be lying to get someone else out (esp if theyve

already been sentenced to life)3. both the attorney who held onto the secret for a long time and the attorney who tried to

divulge it had bad things happen to themI.You prepared an opinion letter to demonstrate that they are in good financial shape to go

through with a deal. Associate in mediation of your firm says theyre in a mediation for aconfidential sexual harassment case and its not going too well Disclosure?

XI. ATTORNEY-CLIENT PRIVILEGE

A. How do privilege and confidentiality differ?1. Confidentiality broader than privilege: all privileged communications are confidential,

but not the other way around


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2. Confidentiality is an ethics rule: communications can be used by lawyer to clientsadvantage: Cant waive confidentially protection, but can be ordered to forego it.

a. information you learn about your client during the course of your representation)b. you have to give up this information all the time in furtherance of your clients

interests (such as disclosing confidential information in a discovery proceeding);

c. however, if you divulge confidential information to someone during discovery, itdoes not lessen your duty to keep it confidential from everyone else3. Privilege is an evidentiary rule, can be waived. Courts typically dont order breach of

privilegeB. Scenarios:

1. If you learn information about your client from a 3rd party, but it relates to representationof the client, it is confidential (but it is not privileged)

2. Rule 1.6(a)- relating to the representation of the client doesnt have to becommunicated by the client

C. Conditions/elements of Privilege: (fromPriestcase)1. attorney-client relationship

2. confidential communication between an attorney and client3. for purposes of obtaining legal advice or services4. no policy-based exception trumps shielding the communication from disclosure5. burden on the proponent of the privilege

D. Purposes of either: to encourage frank communication1. privilege should not be read too broadly because it will block evidence that should be let

in and therefore prevent the disclosure of the truthE. Other factors to consider in determining privilege:

1. Indication- marked confidential (has little actual effect)2. Relating to the matter at hand (not an email lets go to lunch)3. nature of the question-answer: legal advice (not business advice or some other advice)

4. setting: other people in the rooma. strangers (probably not privileged because strangers are not expected to keep the infoconfidential);

b. business partner (depends- if there is an expectation that the 3rd party would notdestroy the privilege)

F. Underlying facts are not privileged, only the communication1. If your client says I invested in an oil well in Dallas.

a. If asked Did he invest? not privilegedb. If asked Did he tell you he invested? privileged

G.Swidler & Berlin v. United States, (U.S. 1998): Respondent, as part of an investigation of thedismissal of employees from the White House Travel Office, sought the notes petitionerattorney had made during an interview of his client, the Deputy White House Counsel, priorto the client committing suicide. Petitioner filed a motion to quash, arguing that the noteswere protected by the attorney client privilege and by the work product privilege. The lowerappellate court reversed the trial court which had found the notes were protected fromdisclosure by the attorney client privilege and the work product privilege. Petitioner sought awrit of certiorari to the decision. The court reversed finding that the general rule with respectto confidential communications was that such communications were privileged during atestator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation


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between the testator's heirs. The court held that the attorney-client privilege survived the deathof the client in this case.

1. Class: Privilege holder dies, does the privilege survive?a. Yes, unless it would further the clients intentb. Agreement between majority and dissent: a criminal defendants constitutional rights

are at stakec. Dissent: critical information unavailable by any other means in a criminal casejustifies breaking the privilege; this exception seems to fit a lot better for a defense asopposed to a prosecution

d. Issue is not who is right and wrong, but how far can you extend the majority andminority positions?

H.Priest v. Hennessy (N.Y. 1980): The trial court issued subpoenas directing the attorneys togive testimony and documents to a grand jury concerning fee agreements between theattorneys and certain clients who had testified before the grand jury, including payments madeby third parties on behalf of the clients. The grand jury was investigating the clients'involvement in prostitution. The attorneys moved to quash the subpoenas on the grounds that

they violated the attorney-client privilege. The court granted the motion and the Peopleappealed. The appellate division reversed the trial court's order quashing the subpoenas andthe attorneys appealed. The court affirmed, saying that the payment of legal fees on behalf ofanother was not a confidential communication within the scope of the attorney-clientprivilege. Paying legal fees on behalf of another did not create an attorney-client relationshipbetween the attorney and the payer because the payment was not made for the purpose ofobtaining legal advice for the payer. The court also noted that the burden of proving eachelement of the attorney-client relationship was on the party who asserted the privilege.

1. Classa. Information about who paid attorneys fees for former clients in a defense

representation;

b. Attorneys said information about 3

rd

parties was privilegedc. Court said they did have to disclose it:i. no attorney-client relationship created by payment of fees alone (dissent says the

majority ignored the context of the situation because they were potentiallyhelping someone get away with prostitution)

ii. could not meet confidential information factoriii. they were unwilling to give any more information about him; because they made

a conclusory statement that they were a client, the court rejected itd. Dissent: Relies on concepts more appropriate to confidentiality than privilege, result

oriented analysis

I.Upjohn Co. v. United States, (U.S. 1981): Responding to a claim that its foreign subsidiarymade illegal payments to secure a government business, petitioner corporation initiated aninvestigation and sent out a questionnaire to all of its foreign general and area managers todetermine the nature and magnitude of such payments. After petitioner disclosed suchpayments to the Securities and Exchange Commission, the Internal Revenue Servicedemanded a production of all the files relating to the investigation. Petitioner refused toproduce the documents. The court rejected the "control group" test applied by the lower


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appellate court, concluding that even low-level and mid-level employees could have theinformation necessary to defend against the potential litigation, and that Fed. R. Evid.

501 protected any client information that aided the orderly administration of justice .The court rejected the lower appellate court's conclusion that the work-product doctrine didnot apply to tax summonses, but remanded the issue because the work-product at issue was

based on potentially privileged oral statements. The doctrine could only be overcome upon astrong showing of necessity for disclosure, and unavailability by other means.:1. Class:

a. Should there be a privilege for corporations?b. policy based exception?

i. zone of silence: sweeps everyone in the corporation into the protected area; noone would be able to get any information from the corporation

c. justifications:i. there are a lot of grey areas in corporate lawii. running a corporation is a complex task; both internal and external legal services

needed

d. Upjohn contending both that the material was protected by attorney-client and work-producte. Court came up with a test to determine attorney-client privilege:

i. control-group not broad enough; employees outside the control-group couldalso have the protection

ii. fact that the lawyer needs to obtain information from more than just people atthe highest levels

iii. corporations seek guidance before problems actually ariseiv. Why did the Court not go further and define a specific test?

1. privilege should be decided on a case-by-case basis2. difficult to come with at test that could be applied in every case

3. concurrence comes up with a test (p. 107 bot right; factor test)J. LELS, KPMG tax-shelters:1. what would happen without attorney-client privilege between firms?

a. would have been more careful about exchanging informationb. would not have sought legal advicec. if they hadnt had legal advice, the could have come up with something even worse

2. KPMG having risk as to attorney-client privilege if the Burger concurrence in Upjohnwere the law of the land?

a. few rouge employees acting for the benefit of the companyb. would not be speaking with the attorney regarding conduct in the scope of their

employmentc. Burger test may not have covered this; flaw in the test is that it is underinclusived. lawyers at prominent law firms were willing to get involved in tax sheltering, and

their behavior was protected by the attorney-client privilegeK.In re Steinhardt Partners, L.P. (2d Cir. N.Y. 1993): While being investigated by the

Securities and Exchange Commission (SEC) for possible violations regarding the Treasurymarkets, defendant corporations voluntarily submitted a memorandum containing their legaltheories to the SEC. Subsequently, plaintiff investment broker sued defendants, alleging fraudand manipulation in the Treasury markets. Plaintiff requested production of documents


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previously produced by defendants to any investigating government agency. Defendantsrefused to produce the legal memorandum on the basis that it was protected by the workproduct doctrine. The district court granted plaintiff's motion to compel production.Defendants petitioned for a writ of mandamus to set aside the order. The court denied thepetition, holding that defendants' voluntary disclosure to the SEC, an adversary, waived the

work product privilege as to plaintiff. The court noted that it was not adopting a per se ruleand that determinations regarding voluntary disclosures to the government had to be made ona case by case basis.

1. What would you want to get from the SEC in the negotiation state regarding a productionof internal statements?

a. explicit agreement not to discloseb. case law showing what the common interest is that would be an exception; SEC

going after a third-party competitor and asking for your documents?2. No selective waiver: waiving the privilege in one adversary does not waive the right in

all casesa. policy: protecting the privilege even if you are going to share the information in

certain circumstancesb. D attempted unsuccessfully to argue that it was not adversarialc. Reasons why the court says selective waivers should not be allowed:

i. cannot have both sword and shield or pick and choose among its opponentsii. reason why we have the privilege to encourage open communications; if its

waived once, it reduces that purposed. Most circuits have followed the Steinhardt case

L. United States v. Kovel, (2d Cir. N.Y. 1961): Defendant, an accountant employed by a lawfirm that specialized in tax law, was called before a grand jury to testify against a client

for whom defendant had done work. A judgment holding defendant in contempt for failingto answer questions was vacated and remanded because defendant may have had grounds to

assert the attorney-client privilege. The presence of defendant while the client was relatinga complicated tax story to a lawyer would not destroy the attorney-client privilege, aslong as the communication was made in confidence for the purpose of obtaining legal

advice. Although defendant did not offer any proof supporting the privilege claim, theuncertainty as to the applicable legal principles, the fixed view of the judge, and the hastewith which the proceedings were conducted, extenuated failure of defendant's counsel tomake a proper offer of proof. The case was remanded for a determination of facts.

1. Kovel: it was Martha Stewarta. interpreter analogy; accountant in tax mattersb. physical therapist?c. IT specialist?d. psychologist?e. public reliations (PR) is about as far as it has been pressed

2. How would you advise KPMG if they wanted to defend the company both in the courtsand in the media?

a. every communication between the client and the PR be in the direction of thelawyers

b. have the lawyer present at communications


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M.It is very important that you are seeking advice on legal matters and not accounting matters(or PR matters etc) - #3 on the requirement for the purposes of obtaining legal advice)

N. In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. 2003).The court initially held that the documents withheld from production by the public relationsfirm that were communications among the target, her lawyers and the public relations firm, or

some combination thereof, for the purpose of giving or receiving legal advice, were protectedby the attorney-client privilege, but that two conversations and an e-mail between the targetand the witness were not protected by the attorney-client privilege because neither theconversations nor the e-mail were at the behest of the target's lawyers or directed at helpingthe lawyers formulate their strategy. The court then held that, although the documents claimedby the public relations firm to be protected work product were prepared in anticipation oflitigation, the government would be allowed to make an ex parte submission as to both itsclaimed need for the non-attorney opinion work product portions pursuant to Fed. R. Civ. P.26(b)(3) or Fed. R. Crim. P. 16(b)(2), and the necessity of preserving the confidentiality of itssubmission in order to protect grand jury secrecy.

XII. INADVERTENT DISCLOSUREA. Rule 4.4(b): (b) A lawyer who receives a document relating to the representation of thelawyer's client and knows or reasonably should know that the document was inadvertentlysent shall promptly notify the sender.

B. Themes1. anyone can make these mistakes2. lawyers are not always comrades

C. The Inadvertent Voicemail1. Is Rule 4.4 implicated (document or relating to the representation probably yes for

both)?a. document does not say privileged or confidential, but it is on the memo-head of the

other firm and the re: line is your case2. -appears to be a mistake, but the content is consistent with what you asked for3. What does Rule 4.4(b) say you have to do? Notify- thats it4. Are there reasons you might want to do more?5. Are there reasons you might want to go to court?

a. Philadelphia opinion, NY opinion, In re Meadorb. Prof believes the NY opinion is the right way to go

6. Examine privilege/waiver: is it privileged in the first place? It is most likely legal advice(not just business discussions)

7. Remember civility/policy reasons why not to exploit the adversarys errora. dont want to play hardball

8. Consider whether the error is a game-changer (or decider) or just a run-of-the-mill error?If it is a bigger error, it will be harder to justify taking advantage of the disclosure withoutinforming

9. Note: if the info was obtained through illicit means (cases we read, Meador), then there isa greater argument for disclosure?

D. Future crimes sent inadvertently likely not privilegedE. Reaction time of producing party in correcting the mistake; could be judged from time it was

sent or time receiving party notified


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F. Note: If you are the one who makes the mistake and you realize it (either by yourself or fromthe other side), let the people on your side know right away and the people know on the otherside as much as possible

G. Even if there is no intent on the receiving party, there are some things that are so prejudicialthat they would require disqualification

H. Differing Views:1. Texas- factors for disqualification (Meador)a. whether the attorney knew or should have known that the material was privileged;b. the promptness with which the attorney notifies the opposing side that he or she has

received its privileged information;c. the extent to which the attorney reviews and digests the privileged information;d. the significance of the privileged information; i.e., the extent to which its disclosure

may prejudice the movant's claim or defense, and the extent to which return of thedocuments will mitigate that prejudice;

e. the extent to which movant may be at fault for the unauthorized disclosure;f. the extent to which the nonmovant will suffer prejudice from the disqualification of

his or her attorney.2. Philadelphia- dont have to return: zealous advocacy3. NY Bar. Op (p. 151): notify, return, and refrain from review

a. Unless attorney-client privilege is waivedb. Or the receiving attorney has reviwed part or all before having reason to know it was

not intended for themI.In re Meador, (Tex. 1998): Defendants claimed that plaintiff's lawyer improperly used

privileged documents that the lawyer's client, in another lawsuit, had secretly removed fromdefendants' offices. The issue was whether the trial court abused its discretion by refusing todisqualify plaintiff's counsel. The court held that the trial court did not abuse its discretion byrefusing to disqualify the attorney. The trial court could have reasonably concluded that the

notebook possessed by plaintiff's attorney was not a copy of the investigation notebook anddid not contain any confidential information. The court stated that an attorney does notnecessarily have to be disqualified when, through no wrongdoing on the attorney's part, he orshe gains possession of an opponent's confidential information, without regard to thesignificance of the information or the other circumstances surrounding the disclosure.

J. Issues::1. Consulting the client before telling the other side: look good to the other side or mediator2. Does not have to be opposing party who inadvertently discloses; could be a mediator

accidently disclosing his opiniona. What if the judge receives inadvertent disclosure?b. Normally a judge did disclose an ex parte communication; the other party needed the

address to serve a default judgment, the judge should not disclose the address3. Sort of a civility issue; what goes around comes around

XIII. ETHICS AND TECHNOLOGY

A. Areas of concern :1. Facebook: separate work from play2. Blogs: Togstadproblem someone could comment and ask you a legal question


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3. Text messaging: if you change your number, make sure you notify all your clients towhom you had given your cell number

B.Stengart v. Loving Care Agency, Inc., (N.J. 2010): The employer provided the employeewith a laptop computer, which she used to communicate with her attorney about her workingconditions and a possible suit against her employer. She returned the laptop after she resigned.

After the employee filed suit, the employer hired a computer expert, who retrieved e-mailsbetween the employee and her attorney from the laptop's hard drive. The employer's counselread the e-mails and used information culled from them during discovery. The trial court heldthat as the employee was on notice that all e-mails on her computer were the employer'sproperty, they were not privileged. The intermediate appellate court and high court disagreed.The latter held that, under the circumstances, the employee could have reasonably expectedthat e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using acompany laptop did not eliminate the attorney-client privilege that protected them. By readinge-mails that were at least arguably privileged and failing to promptly notify the employeeabout them, the employers counsel violated Rule 4.4(b).

C. Scott v. Beth Israel Medical Center1. Doctor sending emails to lawyer on hospital server; hospital had a policy of not allowingpersonal use therefore, not privileged; no reasonable expectation of privacy

2. Unlike Stengard, where the policy was not clear; went into a yahoo account which waspassword protected (some courts have said that it doesnt matter about yahoo orcompany)

3. Other factors:a. IT review of informationb. constructive notice of the effect of the policyc. consistency of the enforcement of the policy

4. Stengardcourt wanted to find a balance between letting employers monitor their

employees use of computers and employee protection of privileged communication5. Does adversity between the employer and employee matter?a. Third party present in a communication is neutral (Strow v. GM; privilege may or

may not be waived based on the presence of a family)6. Most cases would follow Scott, not Stengard unless it is a secure site

D. Metadata: data about data1. Types:

a. System metadata: when it was created, etc.; demographics of an electronicallycreated document

b. Application/embedded metadata: formula for a spreadsheet2. Sending party responsibility: review documents to protect confidences of clients; basis is

in competency and confidentiality rules of ABAa. metadata scrubbersb. reasonable metadata removalc. if not confident that removal was sufficient, print it to paper and send it; redact it

with a marker3. Receiving party: If you realize there is metadata, different jurisdictions have different

rules:a. stop reading and notify party


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b. notify the other party (NY)c. do as you pleased. ok to mine for metadata (but the court may disqualify you apart from ethical rules)e. The same rules in each jurisdiction apply if it is a client, not an adverse party, or a

potential client

4. Cloud storing clients documents on the internet (not your own server)a. there may be multiple layers because one provider may contract with anotherb. you must take reasonable steps, and seek the support of IT if necessary

E. When a party knows or reasonably should know that there is a reasonable likelihood (crediblethreat) of litigation, that party has an obligation to suspend a policy of document destruction(retain relevant documents litigation hold)

1. Certain industries, such as tires or drugs, de facto require a company to retain itsdocuments

F. Qualcomm1. Sanctions cases for e-discovery are given 70% a case is brought2. Ways you can run into this problem:

a. no one is paying attention to you at the client to give you documentsb. there is a red flag in the documents and no one in your firm is paying attention toyour concern

3. Temptation is to find a way to make the documents not responsive to discovery requests;tend to parse these requests and construe them very narrowly

4. Between first and second opinions, lawyers fought sanctions by saying that they hadattorney client privilege opposing party could not get information about whocommunicated with whom in order to cover up the information

XIV. THE UNTRUTHFUL CLIENT

A. Rules:1. 3.3: (a) A lawyer shall not knowingly:a. (1) make a false statement of fact or law to a tribunal or fail to correct a false

statement of material fact or law previously made to the tribunal by the lawyer;b. (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known

to the lawyer to be directly adverse to the position of the client and not disclosed byopposing counsel; or

c. (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyers client,or a witness called by the lawyer, has offered material evidence and the lawyercomes to know of its falsity, the lawyer shall take reasonable remedial measures,including, if necessary, disclosure to the tribunal. A lawyer may refuse to offerevidence, other than the testimony of a defendant in a criminal matter, that thelawyer reasonably believes is false.

d. (b) A lawyer who represents a client in an adjudicative proceeding and who knowsthat a person intends to engage, is engaging or has engaged in criminal or fraudulentconduct related to the proceeding shall take reasonable remedial measures, including,if necessary, disclosure to the tribunal.

B.People v. DePallo, (N.Y. 2001): Prior to the defendant's testimony, defense counsel informedthe defendant that defense counsel could not participate in any kind of perjury, and that


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defendant should not perjure himself. Counsel elicited defendant's testimony in narrativeform, and defendant denied being involved in the crimes. Defense counsel told the trialjudge in chambers, outside the presence of defendant and the prosecutor, that defendant hadpreviously admitted that defendant was involved in the homicide. The appellate court heldthat a defendant's right to testify at trial did not include a right to commit perjury, and

the Sixth Amendment right to the assistance of counsel did not compel counsel to assistor participate in the presentation of perjured testimony. Therefore, an attorney's duty tozealously represent a client was circumscribed by an equally solemn duty to comply with thelaw and standards of professional conduct to prevent and disclose frauds upon the court. Theappellate court found that defense counsel first sought to dissuade defendant from testifyingfalsely. Defendant insisted on proceeding to give the perjured testimony, and counsel properlynotified the trial court.

1. Class:a. Narrative form: Defendant can say what he wants to say without questioning from

the lawyer; D testifies that did not commit the crimeb. It was within the right of D to be on the stand and testify

c. The attorney let him testify but then met with the judge ex parte and told him aboutthe perjuryd. letting him step out of bounds to show that he actually committed it (risk- especially

if the judge is a trier of fact)e. DePallo- you are not allowed to reveal client confidencesf. Rule 3.3 (ABA and NY)- you can reveal if necessary

C.People v. Darrett, (N.Y. App. Div. 1st Dep't 2003): Defendant asked to adjourn his N.Y.Crim. Proc. Law art. 180.80 deadline, knowing the case was being presented jointly with acodefendant. The prosecutor clearly instructed the grand jury that the charges against bothdefendants were to be considered separately. Defendant was not deprived of a meaningfulopportunity to testify before the grand jury. Defendant was advised that his Huntley hearing

testimony would not constitute a waiver of his self-incrimination privilege at a subsequenttrial, but would be admissible for impeachment purposes. The ruling was proper. At theHuntley hearing, defense counsel expressed her concern that defendant might commit

perjury. Such statements were unnecessary, as defendant had just testified in a manner

counsel had no reason to believe was perjurious. Counsel even told the court she

believed defendant had shot the victim. The right to a fair Huntley hearing was

compromised. The statements were premature and unnecessarily detailed. At sentencingthe court stated defendant had committed perjury because counsel had informed the court thatshe did not want to stay on the case because defendant perjured himself. A new Huntleyhearing was required.

D. From Rule 3.3: shall not knowingly1. Knowledge dealing with someone saying something falsely2. What you know the truth to be and when you know your client is fibbing (omission of

key facts)3. Can a lawyer play ostrich is it possible to know too much about your client:

a. The thing to ask your client is what the other side might claim.b. there could be a competence issue; not fully informed

4. Hypo: Expert gives an opinion on a set of facts at a deposition, the facts being falsewithout the expert knowing, lawyer finds out the facts are false


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a. Does the expert testimony trigger Rule 3.3(a)(3)?b. Someone offering facts vs someone offering an opinion of factsc. If the lawyer finds out after, should meet with judge ex parted. If lawyer finds out before, should probably not meet beforee. If you hear it from the secretary that it wasnt true, how do you know for sure that it

is not true? You should not tell the judge right awayi. Darrett- dont want to give more information than you need to or come toconclusions

ii. If you do meet with judge, you need to limit disclosure of information; onlyanswer what a judge asks generally

iii. Darrett: what did the lawyer do wrong?1. nothing problematic had happened in direct testimony, but the lawyer had

expected that there would be perjury in cross-exam2. spoke in detail about the substance of her strategy, said she thought her

client shot the victim5. What should you do once you try and fail to convince D not to testify if you think he will

commit perjury?a. Before D testifies, you alert the court there is a disagreement; let the D testify in anarrative form, do not ask them any questions you think will lead to perjury; cannotmake any reference to anything you think would be perjury

b. Use a Memo to File: what you know, when you knew it, what steps you took;c. Attempt to withdraw? No, this will just pass the problem on to someone else; they

might realize it; you can get dragged back into itd. Note: ABA duties of (a) and (b) to the conclusion of the proceeding, but no limit in

NY

XV. SUPERVISION

A. Rules 5.1-5.3: Responsibilities and Liabilities of Supervising and Subordinate LawyersB.Daniels v. Alander, (Conn. 2004): The associate appeared at an ex parte emergency custodyhearing with a partner from his firm seeking a temporary custody order for their client. Acustody trial had already taken place in New Jersey but no judgment had yet been entered. Intrying to determine its jurisdiction in the matter, the trial court asked the partner why theemergency action had not been filed in New Jersey. In response, the partner made falsestatements about a conversation the associate had with the client's New Jersey counsel.

The associate did not correct the partner's statements. New Jersey counsel later broughtthe false statements to the trial court's attention. The court affirmed, holding that (1) as theassociate was present when the false statements were made and could have corrected

them, both at the time and later when he testified under oath on the matter, his failure

to correct the statements was a violation of Rule 3.3; (2) the false statements werematerial to the issue of whether the trial court had jurisdiction to enter the custody order; and(3) the fact that the associate would have had to correct his employer did not create anexception to Rule 3.3's requirements.

1. Ex parte hearing- misrepresentation of facts; trying to get a restraining order in CT eventhough the joint counsel in NJ thought that if they were to seek one, they should get it inNJ


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2. Because he was an associate and not the person who made the statement to the court,should he not be held accountable? NO

a. should only the speaker be held accountable? Noi. the court gets around the rules language by using a comment to the rule that

failure to make a disclosure can be equivalent to making a false disclosure

ii. if the associate wasnt there at the ex parte hearing but later found out, he wouldprobably have a similar duty to discloseb. should only the partner, and not the associate, be held accountable? No

i. associates are lawyers tooii. tension between associates and partners as far as correcting the partner

especially in front of a judge or other counsel associates are concerned aboutlosing their job by correcting the partner

iii. Here, Daniels had a second opportunity to disclose the truth at a second hearing;they maintained that it is not material

iv. the court defines material: pivotal to the issues before the courtC. Hypo: tech/paralegal at firm puts false info about the firm on a website

1. is there an ethical problem under 5.3(c)?a. 5.3(c)(2): partner or someone of comparable managerial authority (chief operatingofficer) OR

b. someone who has direct supervisory authorityc. AND knows of the conduct

2. comment 5 would suggest that knowledge is required for either a partner or someone withsupervisory authority (?)

D. Who do you consult if a partner wants you to do something you know is wrong or you had tocall into question something they want you to do to another partner?

1. Partner wants you omit a fact (client is about to be sued) in clients behalf in an opinionletter because the client wants it

2. Asking another partner about it:a. dont go in with an aggressive stanceb. potential problem; ramifications as I see them; here are the alternativesc. if the partner completely objects, and there is nothing else you can do, you can write

a memo for your own file explaining the situation in case something comes up downthe road when fingers are being pointed

d. could even email the partnere. Do not be accusatory or inflammatoryf. You need to be aggressive in spotting issues, but careful and how you analyze and

present them

XVI. TRICKERY

A. Rules1. 8.4: Misconduct: It is professional misconduct for a lawyer to: (c) engage in conduct

involving dishonesty, fraud, deceit or misrepresentation;2. 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


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b. fail to disclose a material fact to a third person when disclosure is necessary to avoidassisting a criminal or fraudulent act by a client, unless disclosure is prohibited byRule 1.6.

B.In re Malone, (N.Y. App. Div. 3d Dep't 1984): Petitioner ethical standards committee soughtto confirm a referee's report that sustained in part a charge of professional misconduct against

respondent attorney arising out of his conduct in instructing a corrections officer whowitnessed an alleged beating of an inmate by other correction officers to testify falsely underoath at one point during the investigation in order to protect him from retaliation for breakingthe "code of silence." The court found that censure was appropriate given attorney's laudablemotive, lack of prior disciplinary problems, and his admission of the facts underlying thecharges. The court had disciplinary jurisdiction over attorney as he had offices in or wasemployed in the department. Further, some of the alleged misconduct took place there. Thecourt's power to discipline extended to attorney's conduct even though he was not acting as anattorney at the time because it reflected adversely upon the legal profession. Holding a publicoffice was not a shield hiding breaches of professional ethics. The ethical canons requiringcompetent and zealous representation of clients did not overcome the proscription against

directing another to give false testimony. The creation and use of false documents andtestimony in investigative and prosecutorial context was unethical even if it did not violatedue process. The means chosen by attorney was not the only alternative available. Theunethical conduct was not justified because it was performed by a public servant in thereasonable exercise of his duties. Finally, attorney was not immune from the disciplinaryaction.

C.In re Pautler, (Colo. 2002): A district attorney (DA) arrived at a gruesome crime scene wherethree women lay murdered. All died from blows to the head with a wood splitting maul. Uponarrival, he learned the identity of the suspect. When the suspect requested to speak to anattorney, the DA offered to impersonate a public defender. Ultimately, the suspect was

convicted of the murders and received the death penalty. Attorney disciplinary

proceedings followed. The hearing board properly concluded that the DA violated Colo.R. Prof. Conduct 8.4(c) and 4.3. Rule 8.4 prohibited the DA from engaging in conduct

involving dishonesty, fraud, deceit or misrepresentation. Rule 4.3 prohibited the DA fromimplying he was disinterested when dealing on behalf of a client with a person not representedby counsel. A probation period was properly imposed.

1. Could there be an accidental attorney-client relationship?2. Cover-up worse than the crime; he did not tell the actual public defender about the

incident, resulting in the defendant3. Imminent public harm:

a. hostage situationb. gun to head

D. In re Crossen, 450 Mass. 533 (Mass. 2008): The attorney was admitted to the bar in 1977 andwas employed by a private firm. The attorney was part of an intricate plan to discredit thesuperior court judge, who presided in a case in which he represented some of the

litigants. The aim of the plan was to influence the outcome of the litigation by forcing the

judge's recusal and obtain reversal of her prior rulings against the attorney's clients. In

furtherance of the scheme, the attorney, with his own investigators posing as corporate

executives, set up and secretly made a tape recording of a sham job interview for a

former law clerk of the judge, during which the law clerk repeatedly was questioned


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about the judge's personal and professional character and her decision-making process

in the ongoing matter involving the attorney's clients . The attorney then used the tapedinterview to coax and threaten the law clerk into providing sworn statements damaging thejudge. The court found no question that the case called for the attorney's disbarment,particularly as a result of the egregious and extensive nature of his conduct. The court noted

the attorney's lack of candor before the special hearing officer as an aggravating factor.E. Just because you cant get the evidence any other way, trickery will still put you on the hook1. arguments in favor

a. there is simple no other way to obtain evidence in question, andb. the deception is as to identity and purpose, and solely attempts to access evidence

that already exists, rather than using deception to get someone to say or dosomething that they wouldnt have otherwise done.

2. Can you make a fake facebook account to investigate the opposing partys witness if youthink they are not credible and lying in depositions

a. deception merely in your identity (purpose too)b. law review article we probably read would think you can

c. different states have different opinionsd. youre not actively asking questions, just seeking informatione. law review article: investigating facts that are already out theref. Philadelphia: anti-facebook policy- cannot use any trickeryg. NY state: you can view public info without violating ethics rulesh. city bar: you can friend someone as long as it is you

XVII. SETTLEMENTS

A. Rules: 4.1, 8.41. 5.6: attorney cant restrict right to practice as part of settlement agreement2. Hypo: Defendant offers you double the settlement amount you requested if agree to

forego ever suing the company againa. What makes rule 5.6 trump rule 1.2 (clients make the decisions)?i. Party making the offer also liable under the ruleii. Could drive a wedge between plaintiff and plaintiffs counsel

b. How would you address your client:i. emphasize that it has to do with them because the settlement agreement could be

held unenforceableii. you would need to tell your client about all material developments; you cant

just not tell them3. Other settlement provisions:

a. Non-disclosure agreement: cannot talk to the media for one year about thissettlement (this is ok)

b. Destruction of evidence as part of the settlement: probably okc. Parties issue a joint press release no indication of liability; put it behind them:

probably ok4. The defendant could attempt to hire the attorney as in house counsel

B. Ethics of negotiation1. Few violations but many accusations of violations2. Failing to disclose a material fact in a negotiation?


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3. Bluffing; clients say they dont want a protracted trial, but you say your clients want totake it to trial

4. Difference between saying: they will not accept less than $200,000 and they do notwish to accept less than $200,000

5. Candor to the tribunal: definitely a court but not a mediator

a. no 3.3 for mediatorsb. other duties to not falsely represent in front of a mediator6. Reasons not to go too far in negotiations:

a. Competence is also an issue for bluffing if you say an extremely high numberb. Also reputational damagec. Your own sense of values and personal moralsd. Fraud/material representation in negotiation real estate

XVIII. CONFLICTS

A. Rules 1.7 1.12:B. Issues:

1. What is a material limitation in Rule 1.7- if you receive a side benefit of a certainamount; does it matter if the fees would be the same2. Rule 1.8: entering a transaction with a client;

a. (a)(2): make sure they get outside input from independent legal counselb. (a)(3): informed consent confirmed in writing by the client; very few sections

where written confirmation by clientis requiredc. If you were the owner of multiple companies and didnt realize it, could still be

liable because the general application of 1.7 and 1.8 dont have a knowledgerequirement (mutual funds: not what you own)

C. Hypo: You make it onto Who Wants to Be a Millionaire, and your firm, but not youparticularly, represents ABC; is there a conflict of interest

1. could be a gift2. could be a business transaction3. What could you do?

a. disclose it to ABC, see what they thinkb. if you dont disclose, they might get upset with you for not disclosingc. You should have general counsel at ABC to talk to the partnerd. The general counsel for the production company confronts you at the show

D. Hypo:1. Dating someone who is in the middle of a divorce with one of the clients of your firm in a

matrimonial matter, but youre not representing this client; relationship started prior tolearning the fact

2. ABA: sexual relations are not imputed3. If it was non-matrimonial, it wouldnt matter for ABA but it is limited to domestic in NY

E. Kassis v. Teacher's Ins. & Annuity Ass'n, (N.Y. 1999) Plaintiffs appealed an order of theAppellate Division (New York), which affirmed the trial court's denial of plaintiffs' motion todisqualify the law firm for the defendants' and third-party plaintiffs from continuedrepresentation of its clients due to a conflict of interest. Plaintiffs retained law firm (firm one)to represent them in an action premised upon property damage to a building owned by anindividual plaintiff. A second law firm (firm two) was counsel for defendants and third-party


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plaintiffs. The primary issue on appeal was whether firm two should be disqualified fromcontinued representation of defendants on the basis that it hired a former associate of

firm one who participated in the litigation between plaintiffs and defendants while

employed there. The court found that the associate played an appreciable role as counsel

with firm one in the litigation. Consequently, the court held that firm two was

disqualified from further representation of defendants and third-party plaintiffs becausedefendants' conclusory averments that the associate did not acquire material confidencesduring his prior representation failed to rebut the heavy presumption that he did acquire suchconfidences.

1. OUTCOME: Order reversed; defendants' conclusory averments that its new legalassociate did not acquire material confidences during his prior representation on casewith plaintiffs' law firm failed to rebut the heavy presumption that he did acquire suchconfidences.

2. Class:a. switching sides from one firm to another

i. second firm had 26 members

ii. isolated him from the filesiii. prevent discussion with other members of the firmiv. What type of information being imparted to associate? Information that could be

material adversev. motivation on a motion to disqualify- litigation tactic; if there is an appearance

of impropriety to the party making the motion (subjective test), its a very easyrule to abuse

vi. Court was consi

Documents

Feinberg Professional Responsibility Fall 10