Professional Responsibility Outline- Fall 2007
A. The Advocate’s Role in an Adversary System
Pursue the client’s end vigorously (Partisanship)
The lawyer will employ means on behalf of his client which he would not consider proper in a non-professional context even to advance his own ends.
These include deception, obfuscation, or delay
Unlike neutrality, the principle of partisanship is qualified
A line separates the methods which a lawyer should be willing to use on behalf of a client from those he should not use. Before the lawyer crosses the line, he calls himself a representative, after he crosses it, he calls himself an officer of the court.
For example, a lawyer shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules.
The model rules includes no requirement of zeal the closest is Rule 1.3 of “reasonable diligence” in pursuit of the client’s interest.
Comments of Rule 1.2 and Rule 1.3 explicitly provide that a lawyer is not required to do anything a client asks.
Model Rule 1.2(a) provides that decisions about the means used to further client objectives are up to the lawyer, not the client: the rule requires the lawyer to “abide by” client decisions about the objectives of representation, but it requires only that the lawyer “consult” with the client about means.
Comment to Rule 1.3 specifies that a lawyer “must… act with commitment and dedication to the interests of the clients and with zeal in advocacy upon the client’s behalf”
To include “zeal” or “zealous” in a rule signifies a commitment to Neutral Partisanship; to omit these words signifies, at the very least, greater openness to alternative visions of the lawyer’s role.
Divorce one’s own morality form that of the clients (Neutrality)
A lawyer must remain detached from his client’s ends.
He may not express his personal belief in the justice of his client’s cause
Term used to refer to the notion that there is an inherent value or legitimacy to the judicial proceeding (and to a more qualified extent, the entire legal system) which makes it possible for a lawyer to justify specific actions without reference to the consequences they are likely to promote.
The issues of legal ethics are basically technical and can only be answered by trained lawyers
Means that ethical questions about the limits of advocacy are to be resolved in terms of legal doctrine and that they should be resolved by lawyers collectively in their occupational capacity and not by lawyers individually in terms of personal or social norms or by broad-based political institutions.
United States v. Cueto
F: D, a lawyer, was convicted of conspiracy to fraud the US and three counts of obstruction of justice, because . The D.C. sentenced D to 87 mnths in prison and he appealed.
The Court of Appeals, held that: (1) even though Government’s theory was that defendant and not alleged accomplice was one who actually robbed bank, it was nevertheless proper to give jury instruction on aiding and abetting where there was ample evidence to support defendant’s conviction as aider and abettor, and (2) any confusion as to whether defendant was principal or aider and abettor was created by defense counsel in his understandable, and perfectly proper, efforts to create reasonable doubt as to who was actual robber.
United States v. Sattar
Defendants moved to dismiss indictment charging them with conspiring to provide material support and resources to a foreign terrorist organization (FTO), providing and attempting to provide material support and resources to an FTO, soliciting persons to engage in crimes of violence, conspiring to defraud the United States, and making false statements.
The Court held that: (1) statute prohibiting conspiracy and related substantive offense of providing material support or resources to FTO was unconstitutionally vague with regard to the statute’s prohibition on “providing” material support or resources in the form of “communications equipment” and “personnel.
Judicial Controls of Adversarial Abuses
FRCP 11 permits courts to impose sanctions, including financial sanctions, on lawyers and parties who abuse the adversary system
By presenting to the court a pleading, a written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances
This rule is directed at three abuses of the litigation process:
Pleading for an improper purpose
Pleading that is unwarranted by law
Pleading that makes or denies factual claims without appropriate support. By signing, filing, submitting, or later advocating the claim, an attorney, or party certifies that he has made a reasonably inquiry into the legal and factual basis of the claim.
An attorney may be sanctioned for insisting on a position that is no longer tenable.
If subsequent research of factual investigation reveals that the claim is insufficiently supported by law or fact, even though reasonable inquiry at the time of filing did not reveal the insufficiency, the attorney must withdraw the claim or face sanctions.
Important features of Rule 11:
Sanctions are discretionary- courts need not sanction lawyer who violate the rule
Section c(1)(A) of the rule creates a so-called “safe-harbor” provision: when adversaries move for sanctions, parties have 21 days to withdraw or modify the pleading with no penalty. Alternatively, parties can take their chances and do neither if they believe that one unmodified pleading does not violate Rule 11.
The current version no longer favors monetary sanctions paid to the adversary
Absent special circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
Clause (2) requires that pleadings be warranted by law or by a nonfrivolous argument for the extension, modification, or reversal of existing law. The word nonfrivolous makes it clear that the standard is objective, so attorney’s sincere but unreasonable beliefs in the plausibility of their claims will not satisfy the rule.
The Rule permits “fishing expeditions” where a plaintiff alleges wrongdoing without much evidence but hopes to develop evidence through the discovery process.
To most commentators and courts, a categorical prohibition on fishing expeditions seemed excessively harsh, particularly in actions where a plaintiff is required to show that the defendant knew or was aware of certain facts.
The language of Rule 11 parallels and to an extent replicated the language of disciplinary codes.
In addition to this rule, courts also have other statutory and procedural provisions to deter abuse.
Purpose of discovery is to assure “mutual knowledge of al relevant facts gathered by both parties that is essential to proper litigation.
Overproduction of information in response to discovery
Lawyers who employ these abusive tactics successfully receive tremendous amounts of publicity. They develop a reputation for being “tough,” exactly what many clients engaged in bitter business disputes want.
In response to complaints, the 1994 amendments to the FRCP instituted several important and controversial reforms in the discovery process. The most controversial was an optional “core discovery” system of automatic disclosure in Rule 26.
In jurisdictions that decided to adopt this rule, parfties must disclose certain categories of information to their adversairies without waiting for a discovery request.
This information includes the identity of each individual likely to have relevant discoverable information, copies, or decription, of documents, computations of any category of damages claimed, and insurance agreements.
Washington State v. Fisons Corporation
A court can sanction a party for discovery abuse
Lee v. American Eagle Airlines
Court held that attorneys were not entitled to fees for trial work due to misconduct; (2) 3269.54 hours claimed by counsel was excessive, and would be reduced by 40%
B. Confidentiality and the Attorney Client Privilege
· An advocate, in the discharge of his duty, knows but one person in the world, and the person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and amongst them, to himself, is his first and only duty, and in performing this duty he must no regard the alarm, the torments, the destruction which he may bring upon others.
· Elements of the Attorney-Client Privilege
o You establish an attorney-client privilege (Evidence Rule):
§ 1) Where legal advice of any kind is sought 2) from a professional legal adviser in his capacity as such 3) the communications relating to that purpose 4) made in confidence 5) by the client 6) are at his instance permanently protected 7) from disclosure by himself or by the legal advisor 8) except the protection be waived.
o Restatement of Law Governing Lawyers
§ The attorney-client privilege may be invoked…with respect to 1) a communication 2) made by privileged person 3) in confidence 40 for the purpose of obtaining or providing legal assistance for the client.
o The privilege is waived if: the communication takes place in the presence of a third party, the client an
· However, if the client has come to the lawyer to ask for advice about the safest way to quit a criminal conspiracy before the crime is committed, the conversation is not in furtherance of the future crime and the privilege remains in tact.
· In distinguishing between past, ongoing, and future events, it is important to remember that the baseline is the time that clients communicate with a lawyer, not the time at which they assert the privilege. If clients consult attorneys in furtherance of a crime or fraud before or during its commission, the conversation is unprivileged and remains so after the unlawful act is complete.
§ 4. The party attempting to pierce the privilege bears the burden of proving that the crime-fraud exception applies. When a party a party attempt to defeat the attorney-client privilege by invoking the crime-fruad exception, part of its evidentiary case that the crime fraud exception applies may include the contested document itself, reviewed in camera by the judge. To obtain in camera review, the party moving the crime-fraud exception “must present evidence sufficient to support a reasonable belief that in camera may yield evidence that establishes the exceptions applicability.”
o How much evidence is required to overcome the privilege?
§ Under the standard test, to overcome the privilege through the crime-fraud exception “there must be a showing of prima facie case sufficient to satisfy the judge that the light should be let it.”
· Courts disagree about what makes a prima facie case.
o Bersani v. Bersani
§ In dissolution of marriage action, husband filed motion to compel wife’s counsel to reveal whereabouts of wife and minor children, whose custody had been awarded to him. The wife’s counsel refused to disclose information based on attorney-client privilege. The Superior Court, Judicial District of New Haven held that attorney-client privilege did not apply to information imparted to attorney by client in the course of perpetrating a fraud on the court.
o The terminology section of the Model Rules states that “fraud” or fraudulent denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. Rule 1.0(d)
o Some courts have extended the crime-fraud exception to encompass abuse of the attorney-client relationship to commit torts as well as crimes or frauds.
· The Minnesota Tobacco Litigation
o One of the most dramatic examples of the crime fraud exception
o 3 waves of litigation over smoking-related injuries
§ From the 1950s until the 1990s the “first wave” of litigation
· The tobacco industry never lost a personal injury lawsuit. This was because juries regularly regarded smoking as chosen, voluntary behavior.
§ In the 1980s the “second wave” of litigation
· First meaningful disclosure of tobacco industry documents came during this wave.
· In Cipollone, the most notable second wave case, the court ordered the tobacco industry to release thousands of pages of confidential documents. A companion case to Cipollone provided the first indications of the extent of the role of tobacco company lawyers in shielding documents from discovery on debate claims of privilege.
o Individual lawyers invoked the privilege to shield documents that were sent to lawyers not to obtain legal advice, but merely to obtain the attorney-client privilege. On this basis, the Judge found a prima facie showing of crime-fraud against the industry and rejected the industry’s claims of privilege. However, the decision was vacated and remanded on other grounds.
§ The third wave came in 1994 with the AG v. Tobacco case
· In this case, Minny’s AG Hubert Humphrey filed suied against seven tobacco companies and two tobacco research institutes for alleged violations of state consumer protection and antitrust laws.
· The state refused the industry’s initial offer to comply with its discovery obligations by producing only those documents that it had previously disclosed in litigation elsewhere. The state argued that certain categories of documents were not protected in the first instance and that others fell under the crime-fraud exception