I. Professional Independence and Professional Codes
A. History and Origins
1. Roscoe Pound: A profession is “a group . . . pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.”
2. Prof. Eliot Friedson: A profession has four requirements:
a. “That its practice requires substantial intellectual training and the use of complex judgments,
b. “That since clients cannot adequately evaluate the quality of the service, the must trust those they consult,
c. “That the client’s trust presupposes the practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good, and
d. “That the occupation is self-regulating – that is, organized in such a way as to assure the public and the courts that its members are competent, do not violate their client’s trust, and transcend their own self-interest.”
3. Lord Brougham: “An advocate, in the discharge of his duty, knows but one person, and that person was his client.”
B. Self Regulation
C. Professional Regulation and Choice of Law
1. Communications Concerning a Lawyer’s Services Rule 7.1
a.This rule governs all communication, no matter what the medium is. b.A lawyer must not make a false or misleading communication of his services, including:
i) omitting a necessary fact that would make the statement as a whole misleading ex: stating that you won a $100 million dollar trial verdict for a client, but failing to state that it was overturned on appeal. ii) statements likely to create an unjustified expectation about the results the lawyer can achieve ex: advertisements of results obtained on behalf of a client and record in obtaining favorable verdicts ex: client testimonials of high damage awards without reference to specific circumstances iii) implications that the lawyer can achieve results by unlawful means ex: stating that you contribute $1,000 to every judges’ campaign so you can be sure to get favorable courtroom treatment regardless of who is elected iv) comparisons with other lawyers that are not factually substantiated
2. Advertising (formalities) Rule 7.2
a. A lawyer may advertise through public media if:
a) he keeps a copy of the advertisement for two years; and b) includes the name of at least one lawyer responsible for its content b. A lawyer can not pay anyone for recommending his services,except a usual fee of a non-profit legal referral service. Also governs referrals between attorneys
c. Attorneys can advertise through written, recorded or electronic media
3. Direct Contact With Prospective Clients Rule 7.3
a. A lawyer must not make in-person or live telephone contact with a prospective client that the lawyer does not already have a relationship with if:
a) a significant motive for the contact is for the lawyer to make money; or b) the client tells the lawyer he doesn’t want to be bothered; or ex: if the lawyer sends the client a letter, and the client does not respond within a reasonable time, the lawyer may take the failure to respond as a desire not to be solicited. c) the solicitation is coercive or harassing. ex: an ambulance chaser visits the victim in the hospital and convinces her to retain him – clearly over reaching – Ohralik
b. Auto-dialing of telephone numbers and playing of a recorded message is permissible because the potential client can hang up.
c. The lawyer must put the words “Advertising Material” on any advertisements targeted to people known to be in need of legal services in a particular matter.
a) General announcements of a change of address or change in personnel do not fall under this rule of targeted advertising.
b) targeted mail is less susceptible to abuse and overreaching because the reader of the mail can end the influence by averting his eyes.
4. A lawyer may participate in a group legal service organization that advertises by direct contact with potential client organizations (such as fiduciaries and insurance companies, not individual clients), as long as the lawyer does not own or direct the organization.
II. The Advocates Role in an Adversary System
A. Neutral Partisanship – Conceptually
1. Zealous Advocacy
a. Code Canon 7: “A lawyer should represent a client zealously within the bounds of the law.”
b. DR 7-101(A) 2. Improper Receipt of Confidences
a. MMR/Wallace v. Thames (D. Conn. 1991): “The spirit of the ethical normsl . . . if not the letter . . . precludes an attorney from acquiring, inadvertently or otherwise, confidential or privileged information about his adversary’s litigation strategy.”
b. When a litigant participates in the invasion of the opposition’s confidences, courts may dismiss the litigant’s claim. Example: when X’s client steals papers from opposition’s lawyer and gives them to her own lawyer, who reads them, X risks having her claim dismissed. That’s what happened in Lipton v. Bender (NY 1994).
c. When attorneys receive confidences inadvertently (e.g., a misdirected fax), the ABA’s guideline is that the attorney should not read or examine the material but should contact the opponent, notify them of what happened, request instructions on what to do with the documents, and abide by those instructions; if the attorney already read part of the document, the ABA’s guideline forbids the attorney from using that info. However, Rule 4.4(b) says something a little different: the attorney is required to notify the opposition, but whether or not the attorney should comply with their instructions is a matter of substantive law, as is whether the attorney can use what he learns if he reads the document before realizing it was misdirected.
d. In the criminal arena, it’s uncertain what rights defendant has if Sixth Amendment rights have attached and then prosecution improperly obtains confidences. Indications are that the defendant has to show prejudice or that the government’s actions were corrupt in order to have a remedy. However, Tenth Circuit says that prosecution’s improper intrusion into defendant’s confidences presumptively creates prejudice, and Ninth Circuit says that gov’t has to show (by a preponderance) that it didn’t use the improperly gained info.
B. Neutral Partisanship & Role Morality
1. Truth-seeking and Zealous advocacy are best served (Unless the advocate “muddies the headwaters of decision, when instead of lending
D. The Adversary System
1. The Search for truth and the protection of rights
2. Comparative Perspectives
s the withdrawal “noisy.”4. Individuals
c. Self-defense against accusation of wrongful conduct i.e. to establish defense against civil or criminal claim. Rule 1.6(b)(5) (p.54)
a. Claim for Rule 11 FRCP sanctions might count. Applies whether charges made by client or 3rd party.
b. May reveal before commencement of action.
c. Circumscribed by rule of reasonable necessity.
d. Collection of fees (i.e. if lawyer sues). Rule 1.6(b)(5)
e. Waiver by client
i. client puts info in litigation but not waived if denying criminal intent
ii. revelation of all or part of the privileged communication (waives only part revealed)
c. “limited waiver”—info shared w/agencies can still be privileged in litigation (policy consideration: encourage cooperation w/administrative investigation)
d. NOT waived by communication w/agents of lawyer in relation to legal services
Spaulding v. Zimmerman (Minn. 1962) (Limits of confidentiality)
FACTS: P was injured in an automobile accident where the D was the driver. P had lots of injuries and went to the doctor. Before settlement, D wanted P to see a doctor of D’s choosing. P went to this doctor. This doctor concurred with the other doctors and in a report to the D’s counsel informed them that P also had aortic aneurysm, which is a life threatening condition mandating surgery to repair. P did not know of this condition and the D or his counsel never informed him. The sides settled for a far less amount of money than had the P known of the aneurysm. Later, the P undertook a routine physical where the aneurysm was discovered. The Doctor went back to the original X-Rays and verified that the aneurysm was from the accident. P sued D to nullify the original settlement. The Court found for the P.
RULE:The court may vacate settlement which court has approved on behalf of minor suing for injuries for mistake even though mistake was not mutual in sense that both parties were similarly mistaken as to nature and extent of minor’s injuries, but where it is shown that one of parties had additional knowledge with respect thereto and was aware that neither the court nor the adversary party possessed such knowledge when the settlement was approved.
B. The Crime Fraud Exception to the Attorney Client Privilege
C. Attorney Client Privilege: Organizational Clients
1. Entity clients
a. Problem: if privilege extends to all constituents of entity represented by attorney, corporation can effectively shield all evidence from discovery. On the other hand, preserving attorney-client confidentiality encourages candor and protects client autonomy. In order for a corporate officer to claim personal privilege w/ corporate