1
Q
Cannot reveal confidential info UNLESS
(ABA)
A
Lawyer has informed consent or Implied authorization.
OR to:
- Comply with court order or law
- Prevent reasonably certain death or SBH
- Prevent or remediate crime or fraud resulting in substantial financial injury ONLY IF lawyer was used to commit it
- Secure legal advice about compliance w/rules
- Establish lawyer’s claim or defense against client
Lawyer must make reasonable efforts to protect info
2
Q
Lawyer shall not reveal confidential information, UNLESS
(California)
A
Lawyer has informed consent or implied auth
OR (ONLY)
- To prevent criminal act resulting in reasonably certain death or SBH
- Must do everything in power to remediate and persuade. Only then may breach
- and must tell client about breach. Unless precipitates criminal action
- HOWEVER, maintains evidentiary privilege. Do not have to reveal in court
- Must do everything in power to remediate and persuade. Only then may breach
(No item re securing legal advice about compliance w/rules, but probably covered, not clear)
3
Q
Confidentiality
Consequence of violating 1.6
A
- Consequence of violating 1.6
- Bar will discipline
- Malpractice because of fiduciary duty
- Confidentiality even covers the identity of the client
4
Q
Attorney Client Privilege
is a rule of….
A
Evidence.
Cannot be forced in court to reveal conversations or communications between atty and client.
Covers text, email, etc.
5
Q
NOT covered by Attorney Client Privilege
A
- Documentary info gathered during case
- communication with witness
- contact with adversary
- If 3rd party present that is not facilitating conversation is present, no ACP
- DEATH in California: ACP disappears upon death
6
Q
If a translator is present, is there still attorney client privilege?
A
Yes
And probably a support person is also covered under ACP, because view in california is expansive
7
Q
Confidentiality in Entities
A
- Obligations are to the ENTITY as a distinct legal organization
- not the board of directors, CEO, workers
- But they may think of you as their lawyer. Lawyer has affirmative duty to disabuse them of confusion
- not the board of directors, CEO, workers
8
Q
Attorney Client Privilege
Entities
What communications are privileged?
A
- Federal rules of evidence: as long as an employee is speaking to an attorney about the subject of representation, it is privileged
- California Rules of evidence: if an employee is speaking to a corporate attorney, only protected if it relates to that specific employee.
- But if another employee witnesses the conduct, the witness’s communication is not privileged.
9
Q
Work Product Doctrine
In general
A
- Broad but weak protection… privilege only stands as long as the party can get access to the info some other way. If not, they get access to the work product.
- HOWEVER, An attorney’s ideas (mental impressions) are never discoverable: Called core work product
- Does not cover BUSINESS advice. Only Legal advice.
10
Q
Inadvertent Disclosure of Attorney Work Product
A
- If an attorney comes across privileged information, must immediately stop reading and alert the other party’s attorney that it was inadvertently received (by that attorney).
- Does this break the privilege? No- it was not knowingly given by the other client. The client always controls the privilege.
- Controversy: What if the client inadvertently forwards privileged info to the opposing party? If the client was negligent in the revelation of the info, then the privilege is broken
11
Q
Is a client bound by the decisions/choices that a lawyer makes?
A
Yes.
This includes tactical decisions
12
Q
If asked to grant an extension where my client’s case could be killed…
A
- Ask the client, if they are against it, obey the client because of fiduciary and agency duties to client.
- However, if I grant the extension, the client will be bound to it.
- However, may be subject to future consequences.
13
Q
Is it okay to advise a client about moral, non-legal consequences?
A
According to MR, it is not wrong to advise client re the moral, non-legal consequences about the decision they are about to make.
14
Q
No Contact Rule
A
- Lawyer cannot contact a represented adverse party in any way. Must go through their lawyer.
- Keeps the lawyer from influencing the vulnerable party in ways adverse to their interests
15
Q
Can the adverse party waive the No Contact rule?
A
No, but the adverse lawyer can consent to it.
16
Q
Can a lawyer send someone to talk to an adverse party?
A
- What a lawyer is forbidden to do herself, it is also forbidden to do through an agent.
- For example, cannot send a private investigator or law clerk to talk to adverse party.
- Does not limit communication outside the subject of representation, though
17
Q
What happens if the No Contact rule is violated?
A
- Lawyer is professionally sanctioned
- Info gathered during a “no contact” violation is subject to an exclusionary rule
- However, Prosecutors are not bound by this rule, See Carona
18
Q
No Contact Rule
Opposing Entity
A
- Cannot talk to those with board or managerial authority.
- Cannot contact any employee whose conduct gives rise to the subject of representation.
- But mere witnesses can be contacted w/out going through attorney. But if it turns out that the witness has tortfeaser liability, must cut off contact.
- A FORMER employee is not part of the entity.
19
Q
Conflict of Interest
general rule 1.7
A
It is a conflict of interest if my service to a client would be materially limited
by my responsibilities to myself or another person.
20
Q
Conflict of interest
A client walks in… ask myself:
A
- Do I owe any loyalties that materially limit my representation?
- Am I competent to take this case?
- Will my workload allow it? (diligence)
21
Q
Are conflicts of interest prohibited?
A
No. But they must be managed.
22
Q
Cannot waive this moral conflict of interest
A
If suit goes against your core beliefs and would materially affect the representation
23
Q
A lawyer shall not represent a client if the representation involves a concurrent conflict of interest.
A concurrent conflict of interest exists if:
A
- (1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to- another client,
- a former client
- a third person
- a personal interest of the lawyer.
24
Q
Conflict of Interest
a lawyer may represent a conflicted client if:
A
- (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
- (2) the representation is not prohibited by law;
- (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation; and
- (4) each affected client gives informed consent, confirmed in writing.
25
Do economic conflicts represent a conflict of interest?
* Smith can represent both google and apple as separate plaintiffs/defendants even though they are competitors.
* BUT can be a bad business decision!
26
If I have identified a conflict of interest, I still may be able to take on the representation if:
* _If I have concluded reasonably in good faith that I can overcome the conflict of interest_
* Must advise all affected clients, confirmed in writing
* For example: I have google stock and client wants to sue google. Can still take representation if I advise client of conflict in writing
27
Which conflicts are imputed to a firm?
* Client conflicts are imputed
* Personal conflicts are not automatically imputed
* (for example, if Smith feels google is morally repugnant, Smith can’t represent them, but other attorneys in Smith’s firm can)
28
Can my firm represent clients across the V in litigation?
* No, a firm can never represent clients across the V in _litigation_. Imputed to ENTIRE firm.
* However, if not litigation, but _in transactions_, do analysis. May be okay.
* Eg. formation of a corporation
29
Can I drop a current client to stand adverse to them?
No.
30
Can a firm do preliminary interviews with adverse clients?
Yes.
Anything said is confidential and subject to attorney client privilege
However, the attorney for the adverse case that is not accepted must be screened.
31
Conflicts in Criminal Defense
When liberty interests of an individual are involved
Smith cannot represent co-defendants if their interests are in conflict with each other
Intensely fact dependent to determine
32
If a criminal defendant can show that his attorney was acting under a conflict of interest...
...and that his conviction was infirm, he can get a new trial.
The consequence is the attorney gets disciplined.
33
Conflicts of interest
criminal defendant
THE COURT
* Defendant does not have the absolute right to waive a conflict of interest problem. _It’s at the discretion of the court_.
* OR, If the court believes that the conflict is not sincere, or that it is manufactured, they will allow the “conflicted” representation, and possibly sanction the prosecutor for trying to manufacture a conflict.
34
Successive Conflicts
Can you sue a former client?
You can sue a former client on behalf of a new client, as long as it’s not substantially related.
DON’T need a waiver.
35
How do you know if someone is still a client?
* If they no longer think that they are your client, they are not your client
* Perspective of the reasonable client: decisive in determining whether you have a client or not
* If you want to be decisive, send a letter saying “I am no longer your lawyer”
* Otherwise it’s a fact-intensive inquiry
36
Conflict of interest
Did Smith learn something in a previous representation that would be useful against the former client?
Unethical, conflict of interest.
37
Conflict of Interest
Business Transactions
Before entering into transactions with a client
* Advise to get another lawyer
* Terms (adverse) must be disclosed
* Deal must be substantively fair
38
Conflict of Interest
Gifts
ABA
* A lawyer may not solicit gifts, but may receive them.
* A lawyer may not draft a will for a **non-relative client**, where the lawyer or lawyer’s family is named in the will as a beneficiary. Hard and fast rule.
California
* Distinction: Can do the will with a personal gift for a non-relative client, _if the client has been advised by another lawyer_.
39
Conflict of Interest
Can you have sex with a client?
* Cannot disclose and waive. Just can’t do it.
* HOWEVER, if the relationship pre-dates representation, it is okay.
40
Withdrawing from Representation
Mandatory Withdrawl
Responsibility:
Transition client to another attorney
Transfer files, work product
41
Withdrawing from Represntation
Voluntary withdrawl
Responsibility: Voluntary withdrawal
* If there are no adverse consequences, may withdraw
* EVEN IF If there are adverse consequences, may still withdraw
* If client insists upon taking action that the lawyer considers repugnant
* BUT court may require permission if case has been filed. Follow court’s rule.
42
Attorney Migration
May I stand adverse to my former clients?
Yes, if the matters are not substantially related.
43
Attorney Migration
I want to stand adverse to my former client but the matters are substantially related.... Can I?
* if I can show that I was _not personally involved_ in the matter
* If I WAS personally involved, I can be _screened_ and my firm may take the case. Must send notification to other side about the screening.
* Can only screen the migrating attorney at a new firm. Cannot screen attorneys that are left at a firm, so that a firm may stand adverse to a former client.
44
Migration
From Govt to Private
* If Smith moves to private practice, can sue same clients that govt is suing if he was not involved in a substantially related matter when working for the govt.
* If he was, however, working on a substantially related matter, Smith will need to get the govt’s permission.
45
Migration
from Private to Govt
* If Smith moves from private to govt, and is suing the same adversary on a substantially related matter, must get govt permission, or be screened. Smith should self-screen if he has continuing obligations to former private client (that was also suing adversary).
* Standing adverse with govt to former client on a substantially related matter: Smith may never do it personally
* BUT Govt could screen smith and continue matter
46
Regulation of Billing
California
* Lawyer may not bill an unconscionable fee
* If bill will be over $1,000 it must be in writing.
* lawyers don't have to have malpractice insurance
* but they must inform their clients
47
Regulation of Billing
generally
* lawyers must bill a reasonable fee
* Bills must be itemized. Even flat billing.
* No contingency fees in
* criminal defense
* divorce proceedings
48
Regulation of Billing
No Comingling of funds!
* Client’s money must be segregated from lawyer’s money.
* Personal property held for client must also be kept separate
* If lawyer receives funds from adversary, affirmative duty to segregate funds and to inform clients that money is available
49
Regulation of Billing
Pre-payments
* Some lawyers require pre-payment and the money is held in trust. The lawyer bills against it.
* If the client fires the lawyer, then the client gets the balance of the money back.
* Disputes: mandatory fee arbitration (then can sue). Disputed funds must be left in client’s account. They are left there until the matter is resolved.
50
Regulation of Billing
Retainer
* Client pays a sum to make the lawyer/firm available for all of their legal needs.
* Does not get left in a client trust account.
* The lawyer begins billing when their services are needed.
51
Regulation of Billing
Fee-Splitting
* Within a law firm, the fees may be split however the firm decides.
* When splitting across law firms, rule is that fees must be split according to the proportion of the work done.
* Unless both firms agree to be fully responsible for the matter. Then they can split fees however they want.
52
Regulation of billing
May a lawyer split fees with a non-lawyer?
NO!
However, a lawyer may hire an (accountant) and pay them from the fees.
Exception: if a partner dies, his portion of fees can go to his non-lawyer spouse.
53
Regulation of Billing
Working with Non-Lawyers
* A lawyer may not work for a corporation that is owned in any part by a non-lawyer.
* A non-lawyer cannot have a director position in a law firm.
* Office managers are okay.
* Exception: civil rights organizations like NAACP can employ lawyers that serve the public
54
Malpractice Liability
If a lawyer is negligent in handling a matter, it is the tort of malpractice.
All partners are responsible for all of the malpractice damages across a partnership.
However, now lawyers can form a corporation. A lawyer is on the hook for their own malpractice.
55
If client is going to lie...
* Dissuade them
* Withdraw
* If they do lie, must remediate
* MR: impeach the testimony or making a revelation to the tribunal
* California: up until violating client confidentiality
56
6th amendment ineffective assistance of counsel claim.
2 components:
1. Misconduct.
Did the lawyer engage in misconduct? Did the lawyer behave unreasonably? Was the lawyer’s behavior beyond the pale?
2. Prejudice.
Did the lawyer’s misconduct result in an outcome that would have been different if the lawyer had not behaved wrongfully? Was the lawyer’s conduct related to the outcome? Does the lawyer’s conduct undermine our confidence in the verdict?
57
Can you put your client on the stand if you think they are going to lie?
Yes. If you don't "know" that they are going to lie.
In a criminal matter, you have to allow your client to take the stand. If you know they are going to lie, you don't ask them questions, just let them address the jury.
If you "know" a witness is going to lie, you cannot put them on the stand.
58
Meritorious Claims and Contentions
* Can’t bring a claim to harass
* Can’t bring a claim for collateral political purposes
* Must sincerely in good faith believe that there is a real claim
59
It is misconduct for a lawyer to:
* commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
* engage in conduct involving dishonesty, fraud, deceit or misrepresentation
* Could be fiduciary, anything that does not rise to a crime.
* Disciplinable to lie
60
If you KNOW your client is lying
you must remediate. If you only suspect that your client is lying, you are forbidden to remediate (because of confidentiality).
61
May a lawyer offer evidence that the lawyer reasonably believes is false?
A lawyer _may or may not_ offer evidence that the lawyer reasonably believes is false (but does not **know**)
62
What does it take to be perjury?
If answer is merely evasive… might not be perjury
But if answer is intending to mislead, but technically correct... probably perjury
63
Ethical duties of a Prosecutor
* 1. **Have probable cause**;
* More likely than not. Reasonable suspicion.
* California: facts sufficient to support a strong and abiding suspicion that a person is guilty of a crime. Very low standard, but not a hunch.
* Can’t be strategic- for example indict in order to flip a witness.
* 2. **Protect the accused’s right to counsel**, including not subpoenaing a lawyer to present evidence about a client unless it is essential and unprivileged; and
* 3. **Timely disclose evidence** favorable to the defense.
64
prosecutors should not subpoena a lawyer as a witness because:
Lawyers cannot be witnesses and advocates in the same proceeding. It disqualifies them from being an advocate.
Exception:
* The info is not privileged
* Evidence is essential
* No other feasible alternative to reach the info
* Note: If the client uses a lawyer to commit fraud, the info is not covered under the attorney client privilege and can testify.
65
Prosecutor must not impugn the defendant in public statements
True or False?
True.
Except in California.
California does not have this rule
66
If prosecutor knows that D has been wrongfully convicted...
... there is an ethical duty to disclose
67
Advertising
There are rules in California
* Can’t have reenactments
* If a lawyer is depicted, they must be a lawyer (not actor)
* Can’t be misleading
* Can’t advertise as a “legal clinic” if you are a for-profit law office
68
Restrictions on Speech
* May not speak to the press in a way that characterizes the witnesses or evidence in a way that bears a substantial risk of prejudicing the proceedings
* However, if an extra-judicial statement has been made against your client, you may refute it. (exception)
69
Can a lawyer solicit in person?
Prohibited. Can’t do it through an agent, either.
70
Advertising: Targeted Mailings
Falls in between general advertising and in-person solicitation.
* Permitted, but bar associations can make restrictions
* Must be clearly marked as advertising material
71
Electronic Communications
* Real-time communication (like chat room) is prohibited. BUT
* Email is okay, as long as it clearly is marked as an advertisement
* Default / presumption is that law firms website is subject to lawyer advertising restrictions
* But a standalone blog section is different
72
Organizations with non-pecuniary interests. Can they solicit?
NAACP, NWA, NRA, etc, can solicit in order to bring cases that further their organizations’ interests. Because primary motivation is non-pecuniary.
73
Pro Bono Work
* A lawyer should aspire to do 50hrs of pro bono work/year.
* But in california, there is no mandatory rule.
74
Unauthorized practice in California
* Birbrower (1998): Even if you aren’t in california, but have enough contact with a client in california, it’s still unauthorized practice in california if the lawyer is not licensed in california.
* Cannot require lawyer to be a resident of california, but must be licensed in california
75
California Bar and Disciplinary measures
* standard: Clear and convincing evidence
* California supreme court must sign off on disbarment or suspension
* Self-reporting obligation
1. If judgment has been issued for malpractice
2. If a sanction for over $1000
3. If 3+ malpractice suits filed w/in 12 months
* Malpractice Insurance
* Not required in california, but must tell clients
76
Referral Fee
* Not allowed to give anything of value in exchange for a referral. No kickbacks.
* However, it is permissible to engage in a reciprocal non-exclusive referral agreement with other attorneys.
77
Ex-parte Communications
Cannot communicate with the judge/jury w/out adversarial representation
Exceptions
* Clerical
* Emergency
78
Lawyer as mediator
* Regulated as acting as a lawyer and a judicial officer
* Must not take adversarial attitude
* If mediation falls apart, lawyer cannot represent one of the parties in substantially related matters. UNLESS, the parties sign a waiver.
79
Can a lawyer stand adverse to a former client?
Yes. if the matters are not substantially related.
HOWEVER, If there was info from the first rep that will help with the 2nd rep, it is not okay. You’ve already broken the rules if you take on the representation.
HOWEVER, you can get written waivers from both clients to proceed if you believe that you can reasonably take on the representation.
Legal Profession
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Decks in class (3)
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