Professional Responsibility: Winkler

Table of Contents1. The Bar and Regulation of Lawyers______________________________________________________________2

a. The Lawyer’s Roleb. Philosophies of Lawyeringc. Admission to the BARd. Duty to Report Misconduct

2. Establishing an Attorney-Client Relationship______________________________________________________4a. Formation of the Attorney-Client Relationshipb. Termination of the Attorney-Client Relationshipc. Allocation of Authorityd. Feese. Solicitation, Advertising, and Marketing

3. Secrecy in the Attorney-Client relationship________________________________________________________8a. Duty of Confidentialityb. Attorney-Client Privilegec. Physical Evidenced. Perjurye. Revealing Business Fraud

4. Conflicts of Interest__________________________________________________________________________13a. Current Clientsb. Joint Representationc. Former Clientsd. Conflict Avoidance

5. Responsibilities to Third Parties, the Public, and the Profession_____________________________________16a. Frivolous Claimsb. Communicating with 3rd partiesc. Public Interest Lawd. Pro Bono Servicese. Trial Publicity

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Professional Responsibility: Winkler

1. The Bar and the Regulation of Lawyers

1.1 The Lawyer’s Role

A. Fiduciary of the Client (3 duties)a. Duty of Competence

i. Competent Representation MR1.1: Legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation

ii. Diligence and Promptness MR 1.3iii. NOT WAIVABLE

b. Duty of Loyaltyi. Conflict of interest rules MR 1.7-1.9

c. Duty of Confidentialityi. Protection of communication between lawyer and clientii. Confidentiality MR 1.6

d. Take into account:i. Agency costs = Costs of separated interests + costs of monitoring agent

1. Lawyer is an agent for clientii. Client sophistication

1. The more sophisticated the client, the more capable of overseeing the lawyer’s activities2. Duties are somewhat dependent on how sophisticated the client is

B. Officer of the Courta. Adversarial System of justice

i. Neutral decision makerii. Advocates for zealous and vigorous representation of opposing partiesiii. Rules of procedure

b. Must be honest and openi. Obligation not to destroy evidence, lie to court & inhibit court system

C. Persons with Their Own Interesta. Avoiding repugnant clients or responding to the marketplace:

i. Right to decline representing a client – if afraid of losing clients, financial concernsb. At the end of the day rules recognize that persons have bills to pay and want rules to be effective

D. Determinants of the lawyer's rolea. Legal sources

i. Professional Standards: ABA MRs, Restatement, States professional responsibility rulesii. General Legal Principals: Tort, contract law, rules of evidence, Court rules (FRCP 11)

b. Non-legal sourcesi. General principles of ethics or moralityii. Marketplace

1.2 Philosophies of Lawyering

A. Neutral partisanship (a.k.a. zealous advocacy) a. Client’s interests predominate—Pursue client’s interests up to the limits of the lawb. No moral accountabilityc. Externalities: impact on 3rd parties is ignoredd. Costs: encourages litigation

B. Philosophy of morality (a.k.a. personal values)a. Morally accountable

i. Personal moral judgment is influentialii. Personal values as a guidepost

b. Attorney role: counselorC. Philosophy of social values

a. Social norms—more objective than personal moralityb. Attorney role: counselorc. Lawyer chooses which social norms to follow

1.3 Admission to the Bar

A. Graduated from ABA accredited law schoola. California:

i. Not required to be ABA accredited (can be just state bar registered school)ii. Can be an apprentice for a lawyer for 4 years before passing the bar exam

B. Pass the bar exam: MPRE, multistate, state bar exam (e.g. CA)

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Professional Responsibility: WinklerC. Good Moral Character

a. Applicant must meet the requirements of good moral characteri. Test: Whether a reasonable person could find that there were substantial doubts about the applicant’s

honesty, fairness, and respect for the rights of others and the laws of the state and nation. 1. Does this violation really mean that the individual is unfit to practice law? 2. Appropriate to have an inquiry if reasonable doubt

b. Rationale:i. Elevate the image/content of the professionii. Enhance the reliability/integrity of the judicial processiii. Standard for regulating the profession after admission

c. Most common activity leading to inadmission:i. Criminal activity , especially if engaged in criminal conduct that involves honesty and integrity

1. Acquittal from criminal conduct does not mean that a person can be admitted to the bar w/out problems

a. For the bar the applicant need to prove by clear and convincing evidence that he has GMC to practice law – burden of proof in criminal case is higher (beyond reasonable doubt)

ii. Academic dishonesty iii. Substance abuse or dependency iv. Dishonesty in the application process – treated more seriously than anything elsev. Financial Misconduct

1. In re Mustafa – DC circuit court denied admission to Mustafa who took money from moot court account to pay for bail for his sister

a. Reasoning: lawyers are always entrusted with client’s money (threat that would do financial fraud w client’s money)

vi. Ideology 1. Cannot deny admission for political beliefs (e.g. communist party membership)

a. Except: if refuse to serve allegiance to constitution; and those who actively affiliate with organization knowing of their illegal activities and/or have specific intent to further such activities

i. Ex: Mathew Hale, a white supremacist who preaches hate for minorities- the Illinois bar denied admission even though he had not done any harm yet. Wrote a letter indicating violence.

1.4 Duty to Report Misconduct

D. Rule 8.3: Reportinga. L who knows another L has committed a violation of the Rules that raises a substantial question as to that L’s

honesty/trustworthiness/fitness shall inform the proper professional authority i. Requires “Actual knowledge” that another lawyer committed a violation of rule of professional conduct.

1. Knowledge can be inferred from the circumstances. ii. Duty to report misconduct unless protected by duty of confidentiality

E. Rule 8.4: Professional Misconduct (default rule)a. Professional Misconduct for a L to:

i. (a) Violate or attempt to violate the Rules, assist/induce another to do so, or do so through acts of another; 1. If 3rd party violates a Rule for a L, L is equally culpable

ii. (b) Commit a criminal act that reflects adversely on the L’s honesty, trustworthiness or fitness as a L; iii. (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

1. Ex: calling up someone and pretending to be someone else; plagiarismiv. (d) Engage in conduct that is prejudicial to the administration of justice;

1. Ex: destroying evidencev. (e) State/imply an ability to influence improperly a gov’t agency/official or achieve results by means that

violate the rules; vi. (f) Knowingly assist a judge in conduct that is a violation of applicable rules of judicial conduct or other law.

b. Ex: It is professional misconduct to knowingly manifest by words or action bias or prejudice based on race, religion, etc – when such actions are prejudicial to administration of justice.

i. California:1. Extends this rule: it is a violation in CA to accept or terminate a client on basis of race, gender,

etc.F. California:

a. No duty to report misconducti. Encourages attorneys to seek counsel regarding professional conduct

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Professional Responsibility: Winkler

2. Establishing an Attorney-Client Relationship2.1 Formation of the Attorney-Client Relationship

A. Accepting representation a. Mutual Consent - Attorney may choose whether or not to accept a case

i. Exception : if a court-appointed attorney, no choice but to represent

B. Rule 6.2: Court Appointmenta. Attorney shall not seek to avoid appointment by the court

i. Exception: good cause1. Representation will result in violation of rules of professional conduct2. Client is so repugnant to the lawyer that it will impair the AC relationship (cannot be client’s zealous

advocate)3. Result in unreasonable financial burden of the lawyer. Financial burden has to be great – threatens

the continuance of practice of law4. Cannot fulfill fiduciary duties for other clients (e.g. too high of a caseload to handle more and do

competent work)

C. Restatement: Implied Formationa. A relationship between client-lawyer arises when

i. Person manifests intent AND EITHER1. Lawyer manifests to the person consent to do so2. Lawyer does NOT manifest intent BUT the attorney

a. Reasonably should know that the person reasonably relies on the lawyer to provide the services

b. OR Tribunal with the power to do so appoints the lawyer to provide the services

D. Declining representationa. Cases:

i. Togstad – Consults an attorney about a legal claim. Attorney does not think she has a case but tells her that he’ll talk to people.

1. Court took issue that lawyer was not explicit about not taking the casea. Burden on the attorney to NOT mislead clients

2. Ways that attorney can be held liable based on declining representationa. Failure to inform of statute of limitationsb. Advice without adequate investigation

ii. Case: Letter sent to L and gets misfiled, no L sees the letter; SofL runs and C sues for malpractice. Found that might be malpractice. RE changed after that - does not allow malpractice for such conduct.

1. Ex: C emails from the L website and no-one contacts the C; differs from letter bc the website itself is a solicitation of clients – so upon lawyer to answer timely.

b. Non-engagement letters (help to clarify that L does not represent)i. Recognize statute of limitations issueii. Advise to seeking counseliii. Clear statement of non-engagementiv. Advice client that have NOT done any adequate investigationv. Do not include reasons for declining case (more say more trouble)

c. Malpractice: Attorney may NOT limit lawyer’s liability for malpracticed. Duty to decline cases

i. Unable to vigorously representii. Client’s motive is harassment MR 4.4iii. Client is pursuing an unsupportable legal position MR 3.1

1. High burden to meet because an innovative legal challenge is supportablea. Unless no good faith argument for extension/modification/reversal or existing law

iv. If representation would lead to violation of professional responsibility rules or other law

2.2 Termination of the Attorney-Client Relationship

E. Dischargea. Absolute right (nearly) to discharge a lawyer (RE § 32)

i. Client has a right to discharge a lawyer at any time, with or without cause1. MR 1.16: A lawyer shall not represent the client when the lawyer is discharged (has to withdraw

from the case)ii. Attorney must file a motion for withdrawal with the court

1. Tribunal must approve the withdrawal. In some cases not allowed to withdraw – e.g. when trial is going on, right before jury verdict, etc.

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Professional Responsibility: Winkleriii. If the client is of diminished capacity, atty MAY take this to the court. (MR 1.15)

1. When client has diminished capacity, the atty has to make an effort to try to maintain normal atty-client relationship.

2. Lawyer may make reasonable action as necessary:a. Can disclose information when necessary – when protective action needed, e.g. to try to

appoint a legal guardian (MR 1.14) b. Compensation: Client is responsible for the reasonable value of services rendered

i. Court will look to the circumstances to determine reasonableness1. If attorney engaged in misconduct likely that attorney will get $02. If client engaged in misconduct likely that attorney will get more

F. Withdrawal - 2 Types under MR 1.16a. Mandatory (required to withdraw):

i. When client discharges a lawyer (MR 1.16); orii. Continued representation will result in a violation of professional conduct or other law; or

1. Example: Crime, fraud, client’s motive of harassment, client’s case based on unsupportable legal position, or if attys license gets suspended (MR 5.5)

iii. Lawyer’s physical or mental condition materially impairs lawyer’s ability to represent the clientb. Permissive:

i. May be done without material adverse impact on the interests of the client1. Even looking for another L can be materially adverse

ii. Lawyer reasonably believes client’s course of action involves criminal or fraudulent conduct1. Reasonable suspicion / level of knowledge of what Client is doing

iii. Client used lawyer’s services to perpetuate a crime or fraud 1. Has to involve lawyer’s services (e.g. burning house down would not count)

a. Ex: preparing docs, providing means by which the fraud is possible, etc.iv. Client insists on pursuing an objective that lawyer considers repugnant or imprudent

1. Action with what the lawyer has a fundamental disagreementv. Client fails substantially to fulfill an obligation to the lawyer AND given reasonable warning of intent to

withdraw (i.e., failing to pay bills)vi. Representation will result in unreasonable financial burden on the lawyer OR rendered unreasonably

difficult by the clientvii. Other good causeviii. EXCEPTION: if in court’s jurisdiction, then have to get court approval

c. Duties upon terminationi. Take steps reasonably practicable to protect client’s interest

1. Reasonable notice2. Allowing time for employment of other counsel3. Surrender any property belonging to client or 3rd parties (documents related to representation)4. Refund any unearned fees that may have collected

ii. Attorney entitled to reasonable value of services rendered but may not be entitled to full contractual fee

2.3 Allocation of Authority

A. Means vs. ends:a. MR 1.2—mandatory language

i. Means (lawyer decides) = technical legal issue (procedural) OR tactical strategic issue (jurisdiction) 1. Attorney must consult w/ client (ACTING AS A COUNSELOR)

a. May refer not only to law but other considerations like moral, economic, social, and political that are relevant to client’s situation

2. Do NOT have to follow client’s wishes (re tactics)3. Client must be well informed4. Examples of where courts have upheld attorney conduct

a. Deciding to call witnesses against client’s wishesb. Insanity defensesc. Summary judgment

5. EXCEPTIONSa. Where particular decision will be expensive to the clientb. Where there is an impact on a 3rd party that client is concerned about

6. Lawyer shall not counsel a client to engage, or assist a client, in conduct that lawyer knows is criminal or fraudulent

a. MAY discuss legal consequences of proposed courses of conduct with client /counsel or assist client to make good faith effort to determine the validity, scope, meaning or application of the law.

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Professional Responsibility: Winklerii. Ends (client decides) = Objectives

1. Objective: ultimate determination of the case, profoundly affects the substantive rights of the client2. Attorney must follow client’s wishes

a. EXCEPTIONSi. Objectives would involve the assistance to commit a fraud or crime

ii. Attorney-client may limit their objectives ex ante (at the beginning)1. Client must consent after consultation

3. Examplesa. Accepting a settlement offerb. Plea in criminal casec. Waive a jury triald. Whether to take a stand and testify

4. Remedy:a. If disagreement decline representation

5. Rationalea. Agency costs considerations

i. Contingent Fee arrangements may have an incentive to settle earlyii. Billing per hour incentive to go to trialiii. Repeat players v. one-shot players - Repeat players are less likely to take

advantage of their clientsb. Client dignity: client should make the ultimate choices and what will end their case

6. Criminal cases: A lawyer may discuss legal consequence of proposed course of conduct7. Settlement in Civil Cases

a. Client’s decision whether or not to accept an offer of settlementb. Duty on lawyer to convey information to the client about a settlement offerc. No apparent authority (Client can give express authority for a lawyer to accept)

2.4 Fees

B. Rule 1.5: Feesa. Fees charged must be reasonable (MR 1.5(a))

i. Factors in determining reasonableness:1. Time and labor2. Novelty and difficulty of the issue represented, skill requisite 3. Likelihood that it will preclude other employment4. Fee customarily charged in the locality5. Amount involved and results obtained6. Time limitations imposed by the client OR circumstances7. Nature and length of the professional relationship8. Experience, reputation, and ability of the lawyer9. Whether fee is fixed or contingent

ii. Preferably in writing1. California

a. Fee agreements in CA MUST be in writing for anything over $1000i. Exception : if client is a corporation; if repeat client; or if emergency

b. Failure to get it in writing, or setting fees that are unreasonably high, will void agreement; still get reasonable fees in quantum meruit (unjust enrichment) – determined by court.

iii. Atty has a duty to communicate to the client the basis in which the fee / expenses are determined

b. Contingent fees MR 1.5(c) – must be reasonablei. Must be in writing and signed by the client

1. Method by which the fee is determineda. The percentage that will accrue in the event of settlement, trial, appeal, litigation

i. E.g. 25% when settled before trial / 30% if trial / more if appealedb. Other expenses that will be deducted from recovery

i. Whether expenses will be deducted before or after determining contingent fee2. At conclusion, lawyer must provide a written statement

a. Remittance and the method of determination3. (Unreasonable when little or no work completed by attorney; e.g. settling case w/in a month for 5.5

mil)ii. Prohibited contingent fees

1. Not allowed in Criminal Defense (thought to discourage plea deals)2. In certain states not allowed in family law:

a. Domestic relations matter (custody, alimony, divorce)i. Rationale: Public policy to encourage reconciliation; Often the court will order

the spouse with assets to pay the attorneys feesiii. California:

1. Obtaining Contingency fee in domestic relations matters is ok in CA

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Professional Responsibility: WinklerC. Literary and Media Rights

a. Prior to the conclusion of representation, a lawyer shall not make/negotiate an agreement giving the literary or medial rights to a portrayal or account based in substantial part on information relating to the representation (MR 1.8(d))

i. Only applies to an agreement negotiated prior to conclusionii. Purpose: Prevent financial interest that would interfere with independent professional judgment (might

create an incentive to make a case more dramatic – distort lawyer’s incentive)iii. Prior representation: selling the rights to prior representation is ok

b. California i. Defendant can sell media rights as part of a fee arrangement IF necessary to secure first rate representation

(D must be able to seek other counsel before deal conducted – fair & reasonable)D. Fee Splitting: Division of a fee between lawyers not in the same firm

a. Allowed only if 3 requirements are meti. Either

1. In proportion to the services performed by each lawyer OR2. By written agreement with the client that each lawyer assumes joint responsibility

ii. Client is advised of and does not objectiii. Total fee is reasonable

b. Referral Feesi. Modern trend: Allowed if meet requirements (not exclusive, etc), including written agreement by client

E. Expenses and Client Moneya. Expenses

i. Witnesses1. Expert witnesses

a. Cannot be paid a contingent feeb. Can charge for their testimony + travel & lodging

2. Ordinary Fact Witnessesa. May pay expensesb. CANNOT pay a fee for testimony

ii. Actual cost1. Basic Rule: Only charge for actual costs

a. UNLESS: client consents otherwise2. Cannot charge for overhead (library, insurance, rent, utilities...) WITHOUT disclosure

iii. Litigation expenses (copying, filing fees, depositions, expert witnesses, travel, communications, research fees (Lexis/WestLaw)

b. Trust accounts and Client Propertyi. Client money must go in a separate account

1. CANNOT commingle client’s property with firm’s propertya. Can have money on account to pay for reasonable account fees

2. CAN commingle different client’s moneyc. Lawyers CANNOT make general advances or loans to clients

i. Lawyers MAY advance litigation expenses

2.5 Solicitation, Advertising, and Marketing

A. Three types of communications:a. General Advertising (MR 7.2): through TV, radio, print media (for general public)b. In-person Solicitation / Real Time Solicitation (MR 7.3): includes live telephone, and live chat on the webc. Targeted or Direct Mail Advertising: directed to group that is known or suspected to have suffered a particular type of

injury and are in need of legal services

B. Traditional bars on advertising and their demisea. Rationale

i. Protect integrity of the professionii. Protect clients from unfair pressure

b. Bates – Supreme Court held that attorney advertising had some level of 1st Amendment protectioni. Claims about the quality of legal services are NOT protected because inherently subjectiveii. States may ban false and misleading advertisingiii. Relied upon consumer need for additional information to make informed legal decision

1. Lack of advertising may have increased prices

C. Rule 7.1: No False or Misleading Communications about lawyer or lawyer’s services (applies to all communication)a. False or Misleading IF (3 different definitions)

i. Material misrepresentations or omissions1. Material misrepresentation of fact or law2. Omits a fact necessary for someone to make an informed judgment

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Professional Responsibility: Winklerii. Unjustified expectations

1. Likely to create an unjustified expectation about results the lawyer can achieve; ORa. Preclude advertising based on results obtained on behalf of a client because create

unjustified expectation without reference to the specific factual and legal circumstancesi. E.g. Cannot use nickname to create unjustified expectation: “heavy hitter” can

imply that L can win any case; “losing is not an option” etc.b. Assertions of quality of legal services is inherently subjective and potentially misleading

2. States or implies the lawyer can achieve results by means that violate profession conduct or other law

D. Rule 7.2: Requirements for ethical advertisinga. May advertise through public media

i. Can advertise w written recorded communication (subject to 7.1)ii. Must include the address and name of L responsible

b. If advertise, must keep a copy of the communicationc. Advertisement cannot contain a paid endorsement (cannot bay for recommendation)

E. Rule 7.3: In-Person and Targeted Solicitationsa. Lawyer CANNOT make in-person or live telephone/chat contact soliciting professional employment (In person

solicitation is rife with possibilities for “overreaching, invasion of privacy, exercise of undue influence, and fraud)i. EXCEPTION

1. Family2. Close personal relationship (friendship)3. Prior professional relationship (past client)4. Soliciting another lawyer

b. Pecuniary Motive Requirementi. If pecuniary gain is not a significant motive, then allowed to solicit (e.g. offering legal services for free)ii. In re Primus - Public interest attorney may solicit with a personally targeted letter (ACLU targeted letter for a

person in need of legal services)c. CANNOT solicit IF

i. Client has made known a desire NOT to be solicitedii. Involves coercion, duress, or harassment

d. Disclaimers: Must have a disclaimer that information is “ADVERTISING” on all written communications (outside of envelope or beginning and end of the message)

e. Targeted Solicitations: Absent knowledge that prospective clients does not want to receive, attorney is NOT prohibited from sending truthful, non-deceptive letters

i. Must be labeled as advertisingF. Additional Advertising Issues:

a. Certifications MR 7.4: May NOT state or imply that certified as a specialist UNLESSi. State allows use of certification OR

1. Cannot say certified unless approved by e.g. ABAii. If in state without regulations of certification, then must communicate that no procedure for approving

certifying organizationsb. California:

i. Any claim using a specialization can be made IF approved by the Board of Legal Specializationc. Firm Names and Firm Letterheads (MR 7.5)

i. A lawyer can’t use a firm name, letterhead or other designation in violation of Rule 7.1 (false or misleading advertising)

ii. The name of a lawyer holding a public office shall not be used in the name of the law firm during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

3. Secrecy in the Attorney-Client Relationship

3.1 Duty of Confidentiality

A. Background:a. Rule 1.6: Confidentiality of Information

i. Duty of confidentiality that attorney must respect in ALL information relating to representation1. Any information relating to the representation of a client is protected; applies to 3rd parties, research

about the case, etc.2. Extremely Broad duty and applies more broadly than Atty-Client relationship

b. Rationale for rule to protect these categories:i. Zealous advocacy – fiduciary relationship btw attorney and client (can be current or prospective client)

1. Opens up means of communication between lawyers and their clients for adequate representation

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Professional Responsibility: Winkler

ii. Conform with the law : Helps clients conform to the law – can ask advice from the atty w/out being afraid of being turned in by atty. Legal guidance to know what is allowed and not allowed

1. MR 2.4 : lawyer is an advisor, appropriate role is to give counsel, advice re issuea. BUT it is a violation of legal ethics to help to contribute to client’s fraud or crime (MR 1.2)

iii. Privacy : client does not want their info out thereiv. Constitutional concerns : Client had a 5th Amendment right against self-incrimination

1. Disclosure would undermine this rightv. Promotes the profession: more trust in lawyers; lawyer then more attractive option for clients

B. Contrasted with attorney-client privilegea. Fiduciary Duty : an ethical rule (more broadly applicable) b. Applies to all info relating to representationc. Always binding : owe confidentiality forever to your clientd. Multiple Exceptions : many exceptions, much broader than A/C privilege (self-defense, imminent death/substantial

bodily injury, etc.)

C. EXCEPTIONS to Confidentiality (MR 1.6)a. Informed Consent:

i. Client has to give explicit informed consent and the L must explain all of the reasonable alternatives and possible problems

1. McCure v. Thompson: lawyer did not discuss the harmful consequences w the client when got the consent to disclose the info about location of kids’ bodies

ii. Not required to be in writing (but better to have in writing)b. Implied Authorization:

i. Can use information relating to representation when required by law in order to represent, in order to do basics for the case.

1. E.g. Impliedly authorize that can file a complaint against the defendant in a tort casec. Reasonably certain death or substantial bodily harm:

i. A lawyer may reveal to the extent reasonably necessary (permissive)1. Disclosure is not mandatory

ii. Lawyer may reveal info if L reasonably certain that death or substantial bodily injury will occur1. ONLY applies to bodily injury (not psychological, etc.); does not have to be criminal

d. Harm to financial interest or harm to property:i. Prevent client from committing a crime or fraud reasonably certain to result in subst injury to the financial

interests or property of another when client is using lawyer’s services to carry it out or aid in it1. When client is using or has used L services to carry out or aid crime or fraud If C did not use L in

furtherance of the crime, then cannot reveal.2. Otherwise, would be a serious abuse of the attorney-client relationship

e. Compliance with the Lawi. E.g. court order to reveal the informationii. Some states have statutes reporting certain info, like child abuseiii. California:

1. Not mandatory to report child abuse

f. Self-Defense:i. Establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client

1. To collect fees (e.g. reveal that C has secret bank acct in Swiss) ii. Establish a defense to a criminal charge or civil claim against lawyer based upon conduct in which the client

was involved1. Give info to exonerate himself

iii. Respond to allegations in any proceeding concerning the lawyer’s representation of the client1. Once there is assertion of wrongdoing the lawyer can defend himself even f no charges are filed to

protect his reputation

D. California Duty of Confidentiality a. Only permitted to disclose info to prevent criminal act when there is reasonably certain death or bodily injury

i. Does not have to be a client’s criminal act, if learn about itb. Self-defense exception is part of a common law in CAc. Can only reveal C info if financial damages against a lawyer, NOT to other types of damages

3.2 Attorney-Client Privilege

A. Contrasted with the duty of confidentialitya. Evidentiary rule b. Communications in confidence : between attorney and clientc. In Court / Deposition : applies in much more limited circumstances when L requested to testify or give evidence; tied

into judicial processd. Few exceptions : e.g. crime-fraud, waiver

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Professional Responsibility: Winklere. Purcell v. Suffolk County – Client told attorney that he would commit arson. Attorney uses the exception to duty of

confidentiality to warn the police. In court, attorney could NOT testify to his client’s statements because of the attorney-client privilege.

B. 4 elements must be met to show that communication is privileged (RE):a. (1) Has to be a communication

i. Cannot be an independent discovery - can be confidential but not privilegedb. (2) Among privileged parties

i. atty/client; other people working w attorneys (e.g. paralegals, secretaries); also covers prospective clientsii. Many 3rd parties not covered

1. ASK: whether someone serving for purposes of underlying representation vs. not (case re atty communicating w accountant re accounting purposes, then not covered)

c. (3) Made in confidencei. When expectation that info would be and remain confidential then satisfied

1. If not intended to be secret then not applicable; if client believes info revealed to others not considered privileged

d. (4) For the purpose of seeking legal advicei. Applies any time the communication or information arises from atty/client relationship (very broad)

C. Work Product Doctrinea. Evidentiary rule that provides privilege to materials prepared in anticipation of litigation (e.g. memos, notes,

documents)i. Only applies to material prepared in anticipation of litigation (not necessarily to transactions)ii. Provides mechanism for free client attorney communication and allows atty to prep case adequately

1. Also applies to communication with 3rd parties, as long as docs prepared in anticipation of litigationiii. Can release part of the doc while withholding the part protected by work product doctrine

b. Exceptioni. A party can obtain information if

1. Substantial need by an opposing party and2. Undue hardship to obtain info from other source (does not apply to expenditure of money or

difficulty of interviewing a witness)D. EXCEPTION to Attorney-Client Privilege

a. Crime / Fraudi. Client seeks out legal advice for the purpose, later achieved, of committing a crime or fraud

1. This can be satisfied by an attempt to commit crime or fraudii. Can happen inadvertently: gets advice that opens up possibility in client’s eyes and uses that info to commit

crime or fraud1. Does not apply when atty talks client out of committing crime/fraud2. discourages criminal conduct: client knows that L possibly called to testify; protect abuse of L

services b. Waiver

i. Client holds the privilege so it’s client ONLY who can decide if to waive the privilege or not1. Atty must assert it in every situation where it applies2. BUT atty conduct CAN sometimes result in waiver of actions

a. Any atty conduct that results in waiver subjects the atty to a malpractice actionii. Express waiver (consent):

1. Client is the holder of the privilege; can tell atty that free to reveal infoiii. Partial waiver:

1. If a significant portion of a communication is revealed, the entire communication might be waived (atty conduct waving the privilege)

iv. Forced Waiver :1. Gov enforcing the corporation to waive the privilege for an investigation/prosecution

v. Inadvertent Waiver : reveal privileged info by mistake1. MR 4.4: atty who receives inadvertently disclosed material should notify the sender promptly (does

not say what to do w the evidence)2. Increasingly courts are saying atty can’t use this in court

a. California:i. Early cases: if info in the doc is helpful in your client’s case, have a legal duty to

use if for you clientii. More recent cases go the other way: if know or reasonably should know that doc

inadvertently disclosed, then have to stop reading the document, and return the doc to sender (not able to use this doc in any way) [decided in CofA only]

vi. Waiver by Successors: 1. If company taken over by other company then for some purpose have a reason to waive the A/C

privileged informationa. Case: trustee taking over the company; decided to waive the information – revealed law

firm’s info showing advice that they gave to company to commit fraudulent actsc. Death of a client

i. Death does not waive atty-client privilege; privilege then held by the estate

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Professional Responsibility: Winkler

3.3 Physical Evidence

A. Physical Evidence: any tangible item that could be introduced into evidence (e.g. books, contraband, docs)B. Possession creates duty

a. In re Ryder – Attorney goes to client’s safe deposit box and puts stolen money and gun into his own safe deposit boxi. Court holds that it is an abuse of professional responsibility to knowingly take possession of evidence of

a crime1. No reasonable relation to the privilege2. Became an accessory after the fact

C. Should attorneys take possession of physical evidence?a. Cases have held that required to turnover evidence after a reasonable amount of timeb. Advantage: authentication—prosecutor will not have corresponding testimony to authenticate the evidence

D. Rule 3.4: Fairness to Opposing Party and Counsel (Lawyer’s duty as an officer of the court)a. Can’t unlawfully obstruct opponent’s access to evidence or unlawfully alter/destroy/conceal a document having

potential evidentiary value. Can’t counsel someone to commit such an act (e.g. counsel client to destroy or materially alter the evidence)

b. Can’t falsify evidence, counsel/assist a witness to testify falsely, offer an inducement to witness that is prohibited (to get them to lie)

c. Can’t knowingly disobey an obligation under the rules of the tribunal, unless asserting that the obligation doesn’t exist;

d. Can’t make a frivolous discovery request or fail to make reasonable effort to comply with discovery request;e. Elude to irrelevant matters during trial, assert personal knowledge of facts when not a witness, or state other personal

opinionsf. Can’t request a person other than the client to refrain from giving relevant info unless (1) that person is a

relative/employee/agent of a client; and (2) the L reasonably believes the person’s interests won’t be adversely affected by refraining from giving the info.

g. applies in civil and criminal context (w crim cases, also 5th am right against incriminating himself)

E. Restatement § 179a. Attorney may take possession for a reasonable amount of time so long as no alteration of the evidence in order

to examine and test the evidencei. If alters or destroys, then violates MR 3.4ii. Allowed to test bc helps L to better prepare his case (testing changes evidence slightly but not materially)

b. Following possession: (1) return evidence; or (2) notify the prosecutioni. Atty has an obligation to take remedial measures if possesses: must notify authorities or turn it over to

authorities1. L can also negotiate to use immunity before turning over evidence2. L can turn in evidence anonymously

F. Attorney-client privilege once attorneys possessa. Prosecution should be aware of the existence of attorney-client privilege

i. State must make certain that the source of the evidence is NOT disclosed1. If 3rd party brings in the physical evidence (gun) – not a privileged party (might be info related to

representation – then confidential, but not privileged)G. California

a. If lawyer comes into possession of the evidence, CA requires immediate notification of the authorities (but can possess)

i. Differs from RE: does not require immediate notification

3.4 Perjury

A. Perjury: creates a conflict between lawyer-client privilege and lawyer as an officer of the court B. Right to testify: Lawyer must abide by client’s decision, after consultation, regarding testimony and plea - MR 1.2(a)C. Rule 3.3: Candor Toward the Tribunal

a. Lawyer must not knowingly offer evidence that knows to be falsei. If a lawyer later learns that has offered material evidence that is false remedial measuresii. Comment 7: Counsel client of duty to testify truthfully

iii. Lawyer can choose not to have a witness testify if L has reasonable suspicion that witness does not tell the truth (L does not have to actually know that W is lying)

1. BUT should resolve doubts in favor of client’s interestb. Knowledge: Determining whether client committed perjury

i. Criminal cases:1. MR: Actual knowledge needed, which may be inferred from circumstances

a. Requires very good actual knowledge (have to be certain) – just doubts about the story or no affirmative confirmation that will lie on stand (e.g. if I have to lie I will to save myself) is not enough certainty

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Professional Responsibility: Winklerb. Even if L believes C is lying – have to allow to testify bc have a constitutional right to

decide whether to take a stand in his defense. c. If L knows client is lying: cannot call client to take the stand; instead can say – my client

wishes to address the courtii. Civil cases:

1. L can refuse to call civil client to testify; if client does not like it, can fire the attyD. Remedial Measures

a. Remedial steps MUST be taken if client has committed perjuryi. Discuss with client to disavow evidence (that misspoke to the jury, etc)

ii. If client refuses Withdrawal from the case1. What if not granted?2. May require disclosure of reason for withdrawal (issue w atty-client privilege)

iii. If court does not allow withdrawal Disclose to the court to rectifyiv. Problem: Balancing duty of confidentiality and client’s right to effective assistance of counsel with duty of

candor to the courtv. After Proceedings: lawyer has no obligation to fix previous court cases

1. If appeals process, then case not terminated, and lawyer’s duty remains strongb. Narrative testimony (allowed in CA):

i. Allows client to testify while L not assisting in perjury1. Call client to the stand and open ended questions, e.g. “tell me what happened.”

ii. Narrative approach: Cannot make reference to perjured testimony in closing statement

3.5 Revealing Business Fraud

A. Rule 1.13: Organization as Clienta. Who is the client?

i. Attorney represents the entity and NOT any of its constituents parts1. Constituents include directors, officers, employees, members, and shareholders

a. No attorney-client relationshipb. IF a constituent is engaged in action that is a violation, the lawyer should proceed as reasonably necessary in

the best interest of the corporation – MR 1.13(b)i. Either violation of legal obligation to the corporation OR a violation of law

1. L shall proceed for the best interest of the organization – enables L to use his or her judgmentii. Knowledge requirement

1. L must have 100% knowledgeiii. Substantial Injury Requirement:

1. De minimis violations do not counta. L should give due consideration for seriousness of violation and its consequences

iv. Best Interest of the Organization (reporting up)1. Lawyer must refer a matter to a higher authority of an organization unless reasonably believes that

it is NOT in the best interest of the organization a. L has to have actual knowledge in order to have a duty to report up!b. L cannot assist client in committing a fraud

i. better err on the side of reporting: permissive reporting up the “ladder” Cmt 41. Risk: assisting C in fraud vs mistaken report

2. MR: duty usually ends once have reported up (differs in Fed Law)c. Duty to Warn Constituents

i. Lawyer must explain the identity of client when apparent that the organization’s interests are adverse to those that the member of the organization/constituent has

1. L has to explain that L represents organization not a member of organization, when L should reasonably know that the member has adverse interest (e.g. tell constituent that the conversation might not be privileged)

d. Higher Authority i. If all the other elements are satisfied, should report to a higher authority (e.g. head of division, CEO, etc)ii. If no satisfactory outcome, then can continue to go up to ladder until get to entity’s highest authority (usually

board of directors)e. Reporting Out

i. When highest authority has not acted appropriately after getting the information, the L may (not mandatory) report out if the action is clearly a violation of law and then report as L reasonably believes necessary to prevent reasonably certain substantial injury to the organization (differs under Fed Rules)

B. Federal Rules/ Sarbanes Oxleya. Under Fed Rules there is duty to report to supervisory lawyer – report up to your own ladder (mandatory). The duty

ends at that point (differs in MR – duty to go up within the entity, next person up in the latter)i. Fed Rules distinguish btw subordinate lawyers and supervisory lawyersii. Supervisory atty’s have obligation to report up to the entity’s ladder until get appropriate response

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Professional Responsibility: Winklerb. Under Fed Rules – supervisory L has to keep on reporting up until get appropriate response to the problem (e.g.

that violation, and next step)i. Appropriate response : L has to be persuaded that it is an appropriate response, if not have to keep going up

the ladder – can go to audit committee of the firm, or independent committee. ii. If go up to QLCC – then duty to report is ceased as a supervisory lawyer. Duty ends there.

1. Clear when the duty ends (more so than in MR)c. Mandatory reporting kicks in when atty can conclude that it is reasonably likely that violation has occurred (differs

from MR where actual knowledge is needed)i. Reasonably likely – more than a mere possibility that fraud will happen (but not to level: “more likely than

not”)d. Oxley permits reporting out if highest authority does not act appropriately re the misconduct L has specified (not

mandatory)i. May report to SEC – one’s supposed to be put in notice; supposed to go to regulatory agency

e. Criticism of the Oxley rule – driving the mack truck through confidentialityi. But similar conduct ok in trial court if L puts false evidence into a trial

C. Californiaa. Duty to report out

i. There is no duty to report out in CA b. Duty to warn

i. No duty to warn constituents about identity of client if adverse interests

4. Conflicts of Interest4.1 Current Clients

A. Concurrent Conflicts: Most frequently confronted in practice B. Vicarious Conflict:

a. No lawyer in a firm shall represent a client when one lawyer has a conflict with the clienti. Every attorney inherits others’ conflicts in a firm: If one member of a law firm is disqualified, then whole firm

is disqualifiedb. Many lawyers have to turn away clients bc of these conflicts (anywhere from 30-50% of potential clients)

i. Firms do conflict checks before taking on a clientC. Rule 1.7: Conflict of Interest - Current Clients

a. Analysis—Conflicts involving 2 or more current clientsi. Are they directly adverse clients?

1. Yes, NO representation2. No, is it reasonable to believe that relationship will remain affected?

a. Yes, NO representationb. No, Do BOTH clients consent?

i. Yes, Representation is OKAYii. No, NO representation

ii. No, will representation be materially limited by duties to other clients, lawyer’s own interests, or 3rd party?1. No, Representation is OKAY2. Yes, is it reasonable to belief that representation will be materially affected?

a. Yes, NO representationb. No, does the affected client consent?

i. Yes, Representation is OKAYii. No, NO representation

b. Determining if a client is a current clienti. Continuous Relationship

1. If currently doing work current2. Look to on-going relationship between firm and client

a. IBM – Court found on-going relationship because handled IBM cases prior and after accepting engagement

3. Fee Agreement—is there a retainer?ii. Reasonable expectations of client

c. Directly adverse interests i. Conflict exists when one client is directly adverse to another client

1. Direct adversity : atty advocates for one client and also represents another client, even in unrelated matter

2. Same matter: Attorney CANNOT represent both sides, even with consent of both partiesa. Impossible to comply with duty of loyaltyb. California: one atty can represent both clients in family law/divorce case as long as both

parties consent 3. Unrelated matter: A v. B – represent B; B v. C – represent C

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Professional Responsibility: Winkler

d. Materially limited by lawyer’s responsibilities to another client, 3rd persons, or lawyer’s own interests i. Does not require 2 clientsii. Not limited to litigationiii. Where own interests are a stake

D. Special Types of Conflictsa. Intimate relationships (MR 1.8):

i. Bars representing a client if intimate relationship arises during the course of a representation (have to resign)

ii. Exception : Allowed when intimate relationship pre-existed the representation1. There are diminished dangers when the intimate relationship pre-exist to attorney-client relationship

(otherwise worried about atty abusing his or her position)b. Positional conflicts:

i. A lawyer may represent parties having antagonistic positions on a legal position in different cases (e.g. L representing 2 clients in front of the same court in different cases and argue exact opposite legal positions)

1. UNLESS representation of either client would be adversely affecteda. E.g. may make the inconsistent arguments at different courts, different times but not when

precedent created would directly adversely affect another client 2. California: free to make inconsistent legal positions with no duty to disclose; not seen as conflict of

interest bc in today’s legal world impossible to avoid. c. Economic or political conflicts:

i. Economic, moral, political conflicts: NOT considered directly adverse (no conflict)E. Waiver – can wave when:

a. Lawyer has a reasonable belief that can maintain competent and diligent representation of a client; ANDi. When not fatal conflict & reasonable atty believes can represent competently

1. If cannot do the job, should stop representingii. The fact that the lawyer is materially limited does not mean that cannot be competent and diligent

representationb. Representation is not otherwise prohibited by law; AND

i. Can be waved:1. if sexual relationship pre-exists atty-client relationship

ii. Cannot be waved:1. if sexual relationship arises later then prohibited by rule of legal ethics 2. if both parties that u represent are parties to a case – prohibited 3. Fatal conflicts – representation must die

c. Obtain the consent of a clienti. Informed consent from both parties, confirmed in writing (have to be confirmed in writing – e.g. atty can

write down the process of getting informed consent)1. Informed consent:

a. Should not persuade a client but lay out and explain all the consequences, possible scenarios, etc. in order to get informed consent where the client makes an informed consent while understanding risk, potential consequences, etc.

4.2 Joint Representation

A. Litigationa. Civil Litigation

i. Can represent multiple parties if obvious that attorney can adequately represent the interest of each1. NB! Better not to represent both, e.g. problems with settlements

ii. Requires client consent – need to get a waiveriii. Exception: criminal case

b. Criminal Co-Defendants i. MR 1.7: should not ordinarily represent co-defendants (might be unethical and result in discipline)

1. Only allowed in extreme or unusual circumstances when know that conflict does not arise2. Problems: different pleas, settlement agreements; also one co-defendant can accept a plea and

testify against the other co-defendantB. Transactions

a. Joint representation : common representation permissible when there is common alignment btw the parties, can have some (small) differentiation

i. Have to assess whether the parties are fundamentally antagonistic – then should not representii. Need to be able to see the problems before they arise and get consent, or decide not to represent jointly

b. Pros : i. Lower fees; make the deal happen more smoothly, e.g. can more easily bring the parties together and deal

with conflicts betterc. Cons:

i. Information has to be shared - less protection ii. Attorney-client privilege :

1. There is none btw the 2 parties who are represented together – if there is a dispute btw the 2 parties, the lawyer cannot be stopped from testifying by either client (still effective to 3rd parties)

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Professional Responsibility: Winkler2. Effect on atty-client privilege: absolutely essential that discuss it w clients; also if conflicts arise

what would be the procedureiii. Threat to due care : the lawyer’s ability to take care of each of his clients is somewhat tenuous when

representing 2 partiesiv. Discharge : either party can fire, and even if just one fires, attorney has to withdraw from representing the

other party as well 1. Substantial relationship otherwise to the previous client’s representation2. Explain this to the clients in advance

4.3 Former Clients

A. Generallya. There is generally no formal ending of the relationship, so it is often unclear whether a person is a former clientb. Why limit : With regard to former clients can come to know the strategies the client uses, inside procedures, and it can

be an important part of informationc. Hot potato doctrine: when firm drops a current client in order to make them former clients, so that they can take a

new client with potential conflicts of interest – not allowed. i. Courts can step in and disqualify the representation of the new client.

ii. BUT if no intent to take advantage, then likely allowed (if interests are not adverse)B. Analysis: Material conflict between former client and current client

a. Does the former client consent?i. Yes, Representation is OKAYii. No, are the matters substantially related?

1. Yes, NO representation2. No, does the attorney have confidential information?

a. Yes, Representation is OKAY IF NO use of confidential informationb. No, Representation OKAY

C. MR 1.9(a): No representation of another person against a former client ina. Same matterb. Substantially related matter where the person’s interests are materially adverse to interests of former client

i. Exception: former client consents after consultationii. Substantial relationship tests: If 2 matters involve same or substantially related facts

1. No clear rules to determine substantial relationship: look at the duration of the relationship (the longer the relationship the more info L has), similarity of facts of the case, nature of legal claims (same legal issues), relationship btw parties, etc.

2. Ex: environmental matter in getting the permit for shopping center vs. representing a tenant in eviction proceedings in a shopping center (not substantially related)

3. Reason : most likely you have confidential info when same or substantially related case that can be useful to a new client (so should not acquire into the confidential info)

c. Confidential informationi. Cannot reveal confidential informationii. Cannot share confidential information to help current client

1. Exception: client consent

4.4 Conflict Avoidance

A. Prospective Waivers:a. Get a waiver when anticipate future conflicts bc once a conflict has arisen, hard to get a waiver from the client

i. Puts implicit social pressure on client once conflict arises not to fire an attyb. Controversial : the protection is much more limited than thought; courts do not look favorably upon them

i. Courts also look at sophistication of the client – if frequent consumers in the market of legal services then waiver might have more effect in court

ii. BUT can still use as negotiation tool later on when conflict arises (rather than foolproof protection)B. Screening of Lawyers Within a Firm

a. If one person in the firm has conflict of interest, he can be screened off from the case in the office (usually one lawyer’s conflicts are shared by every lawyer in the law firm)

i. Screening lawyers now seen as ok; most files electronic so more realistic to screen someone from the caseb. Must provide notice to the former client : provides them with info and they can police the screening to make sure

everything is done properlyc. Rationale: Reflect the dominance of confidentiality over other values, and speak to the power of big law firms

(became a real problem to national firms)

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Professional Responsibility: Winkler

5. Responsibilities to Third Parties, the Public, and the Profession5.1 Frivolous Claims

A. Rule 3.1: Meritorious Claims and Contentionsa. Lawyer shall NOT assert or defend an issue UNLESS

i. Basis for doing soii. That is NOT frivolous

1. Not frivolous : Good faith argument for an extension, modification, or reversal of lawa. Can bring a case in good faith to change the law

2. Lawyers MUST inform themselves of basic facts and applicable law, and determine whether there is cause of action based on law and facts

a. Do not need to have all the facts to prove the case BUT have to know that not frivolous claim filed in court

B. FRCP 11: a. Principle of reasonable inquiry

i. Lawyer must ensure that not done for improper purpose1. E.g. Harassing people rather than using legally appropriate redress not ok

ii. Warranted by the law or nonfrivolous argument for challenging the law iii. Must determine that factual allegation supportable after discovery

1. Can do reasonable inquiry under the circumstances, e.g. if statute of limitation runs sooniv. Denials for factual allegations must also be warranted

b. Benefit of FRCP i. Under this rule client can benefit from monetary sanctions (not available under MR) so gives bigger incentive

to complain under rule 11 (similar rule under state law); so more likely to bring Rule 11 motion than MR complaint

c. Rationale : i. People do abuse the court system and lie about the facts – creates an extra check on improper purposes to

bring a claim. 1. E.g. do not bring the case for wrongful death if do not know the cause of death

ii. Keeps a high level of standard in court proceedings: judiciary dependent on lawyers to bring the facts; can look up the law but cannot do independent fact investigation.

iii. Proxy for lawyer competence: challenge for frivolous claims is a measure to bring in to light incompetent lawyers

1. E.g. White v GM: slander case; atty failed to interview the employer who was alleged to have received this slanderous statement of person’s character. Just relied on client’s statement to file a claim. What made the claim frivolous was that atty was completely incompetent by not doing investigation before bringing the case.

C. Improper Purposea. Proper Purpose: Proper purposes limited to seeking redress of your legal claim

i. FRCP 11: 1. Requires independently that the case should not be brought for improper purpose

a. if case brought for improper purpose it is a violation of Rule 11 no matter if there are merits of the case

ii. MR – new comment:1. Improper purpose does not matter – if meritorious claim

iii. Split in the courts: 1. Some say if case brought for improper purpose (bad publication, to harass the party, etc.) not ok2. Others do not look into purpose if the claim is meritorious

b. NO Improper threats (threaten to reveal fraud in order to get settlements)i. Criminal Process

1. Traditional Rule: cannot threaten criminal prosecution for a favorable settlement2. ABA Formal Opinion: May threaten criminal process in certain circumstances

a. Where goal is restitution of embezzled funds (to get them back)b. If criminal prosecution is related to the civil claims (if not related, not ok)

3. Threat that constitutes a tort

5.2 Communicating with 3rd parties

D. MR 4.2: Communication with Person Represented by Counsela. The No Contact Rule: A lawyer CANNOT communicate

i. About the subject of the representationii. With a person the lawyer knows to be represented by another lawyer in the matteriii. UNLESS

1. Has the consent of the other lawyer OR16

Professional Responsibility: Winkler2. Authorized by law to do so

b. Application:i. Have to have actual knowledge that the person is represented by another lawyer

1. Once receive a notice, have a knowledge that person represented2. If the lawsuit not filed yet, most likely no representation

ii. Cannot have a 3rd party do for you that you cannot do it yourself (cannot instruct an investigator to question someone in your place)

iii. Clients CAN communicate with the represented parties BUT lawyer cannot advise the client about that conversation

1. Lawyer can protect client’s own interest when advising how to handle that situation - allow a lawyer to advise, and tell them to ask to settle the case, etc. creates a loophole in a way re 3rd party questioning.

E. MR 4.3: Dealing with Unrepresented Persona. Atty, in dealing with an unrepresented party, should NOT state that disinterested

i. Lawyer should correct any misunderstandingii. If unrepresented party with a conflicted interest from client, must advice that cannot advise because of the

conflict1. Advise that get separate counsel

b. Application:i. Disinterested : L cannot imply that he is on that unrepresented person’s side (implicit in that rule)ii. Correct Misunderstanding : If the lawyer knows or should have known that party has misunderstanding about

the representation of a lawyer even if lawyer is not really responsible for that misunderstanding, 1. Any kind of deceit, fraud, or misrepresentation is a violation of the Rules

iii. Lawyer cannot advise or give legal advice to the unrepresented party BUT can negotiate and sign a contract with a party who is unrepresented.

5.3 Public Interest Law

A. Public Interest Practice: a. Organizations that are seeking to vindicate some public policy – to promote a larger cause (often class action,

injunctive relief, test suits, etc)b. There is a tension btw individual client’s zealous representation and broader public interestc. What counts as a public interest firm? Tax exempt - IRS

i. IRS rules: Pursue cases with a broad public interest and not a private interest1. Private interest CANNOT be a substantial part of the representation

a. Private interest: actions between private persons where financial interest at stakei. Interests are private: when can get privately financed representation, rather

than public interest firm representation2. Requirements

a. Policies and programs must be decided by committee/board, not by clientb. Fees limited to the actual cost of litigation (no profits)c. No substantial lobbying or political activity

ii. Conservative legal foundations1. If funded by business2. Equality perspective

B. Ethical Dilemmas of Public Interest Attorneysa. Solicitation:

i. Generally: no solicitation for pecuniary claimii. BUT public interest firm can send personally targeted letter because there is no pecuniary claim

1. SCOTUS: ACLU case re solicitation b. Primary Problem: conflict of interest

i. Public interest firms have an agenda outside of servicing clientsii. Conflicts can arise between clients and firm

c. Settlement of claimsi. Scope of authority – MR 1.2: A lawyer must abide by client’s decision whether to accept an offer of

settlement of a matter1. Duty to inform client about a settlement2. Advice client about the choice of settlement

a. Problem : if C chooses to accept the settlement offer it is a problem in pub interest bc it is not for the broader public good (and goes against L’s goals)

b. Cannot limit the scope of representation to waive the C power to settle a case BUT can advise client on any issues that are relevant, including moral, political

ii. Confidentiality Agreements1. In settlements, defendants typically demand confidentiality2. May not restrict the lawyer’s ability to represent future clients

iii. Limited engagement agreements: May limit the objectives of the representation if client consents after consultation – so that if C accepts a settlement then have to pay for atty’s fees.

1. Cannot limit the right to terminate lawyer’s services or to settle

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Professional Responsibility: Winklera. No distinction for public interest firms

2. May provide for awarding feesa. If a client accepts a settlement waiving fees, then client is responsible for the fees

iv. Conflict of Interest: 1. L has strong personal interest to reject a settlement – if advises the C not to accept a settlement

then there is a conflict of interest. L may have to advise and get informed consent from C to represent C further.

v. Tax exemption: 1. Issue with tax exception from IRS: if accept too many settlements IRS may remove the tax-exempt

statusvi. Remedies:

1. Withdrawal : can withdraw from representation when fundamental disagreement or lawyer finds repugnant (both would be satisfied)

a. BUT : Often court’s approval that asserts jurisdiction over a case is needed2. Waiver: Prospective waiver of conflict of interest

a. Hard to know, to foresee conflict in advanceC. Fees:

a. Most public interest lawyers do not normally charge fees; if they do, then only charge actual costsi. Rather they seek court awarded fees or use statutes that shift fees to D

5.4 Pro Bono Services

A. Pro Bono Practicea. Usually constitute regular legal services (e.g. criminal cases, etc)b. Generally thought not to involve public interest at large but public interest indirectlyc. Do not involve charging of fees – seek to protect and serve the interest of individual client

B. Pro Bono Legal Services: a. Distinguished from public interest

i. Public Interest1. Seeks compensation from the opposing party 2. Designed to solve a larger social problem

ii. Pro Bono1. Not seeking any form of compensation2. Litigation for an individual problem

b. MR 6.1: A lawyer should aspire to render 50 hours of pro bono legal services per yeari. People of limited means ORii. Charitable, religious, civic, community, governmental and educational organizations in matters designed to

address needs of persons with limited meansc. Should pro bono be mandatory?

i. Alternative: require firms to do pro bono workii. If mandatory – problem with competenceiii. California: no mandatory requirement BUT much broader acceptance of pro bono work in firms

5.5 Trial Publicity

A. Free Speech and Fair Trials – Generallya. Fair trials are fundamental goals to US legal system BUT may be inhibited by media coverage of cases – can be

prejudicial to juries, etc.b. Issue: free speech and 1A rights balanced with a D’s right to fair trialc. Vast majority of cases not subject to any kind of media attention -- if there is such publicity, then it is generally about

public vengeance, or high profile parties, facts, etc.B. MR’s inspired by Sheppard v Maxwell Case:

a. Massive trial coverage in early ‘60s. Media presence was such that the SCOTUS said that he had not received a fair trial bc there was “carnival atmosphere surrounding the trial.” So, judge should do more to protect the courtroom from media to get a fair trial.

C. Rule 3.6: Trial Publicitya. Prohibition on extrajudicial statements—elements

i. A lawyer participating in an investigation/litigation shall NOT 1. Exempts attorneys who are not involved in the litigation – so only apply to lawyers who participate

or previously participated in the case (affects very few L)ii. Make an extrajudicial statement iii. That a reasonable person would expect to be disseminated by public communication iv. IF Lawyer knows/should knowv. Substantial likelihood of material prejudice

1. Critique: ambiguous and effect on freedom of speech2. Function of how much press coverage has already been

a. Lots of publicity less likely to materially prejudice

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Professional Responsibility: Winklerb. More publicity more likely to materially prejudice

D. Safe havens & prejudicial statements:a. Prejudicial Comments – Comment 5: Dangerous Harbor

i. Character , credibility, or reputation assertions ii. Criminal record of a partyiii. Referring to inadmissible evidence

1. Knows or reasonably should know that likely inadmissible and creates a substantial risk of prejudicing an impartial trial

iv. Any opinion as to the guilt or innocencev. Discussing possibility of a plea (of guilty) in criminal case vi. The existence or contents of any confession, admission, or statement given by defendant vii. Fact that defendant has been charged with a crime

1. UNLESS explain that it is an accusation and the defendant is presumed innocent until and unless proven guilty

viii. Performance or results on any examination or test (test results) and any physical evidence expected to be presented

ix. P.S. This list is not exhaustive b. Safe Harbor Comments – MR 3.6(b) – not prejudicial

i. Claim, offence, or defense involvedii. Identity of the partiesiii. Investigation is in progressiv. Information that is public recordv. Scheduling or result of any step in litigationvi. Make a request for assistance in obtaining evidence and information (e.g. hotline)vii. Warning of danger concerning behavior of a person involved if likelihood of substantial harmviii. Plus in a criminal case:

1. the identity, residence, occupation and family status of the accused;2. if the accused has not been apprehended, information necessary to aid in the apprehension of that

person;3. the fact, time and place of arrest; and4. the identity of investigating and arresting officers or agencies and the length of the investigation.

E. Right of reply – MR 3.6(c): loopholea. L may make a statement that:

i. A reasonable lawyer would believe is required to protect a client ii. From substantial undue prejudicial effectiii. Of recent publicity NOT initiated by the lawyer or clientiv. Limitation: Information necessary to mitigate recent adverse publicity

b. “The exception that swallows the rule” SINCE right to reply does not restrict L to reply only for statements made by opposing party; can reply to any “talking head” commentators.

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