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Legal Profession
St. Louis University School of Law
Taylor, Aaron N.

Legal Pro Outline

Professor Taylor

Spring 2012

Saint Louis University

Hypo with two current clients

– Walk through 1.7(a), then 1.7(b) – (4 step process)

Role of Truth in Adversarial System

– Moving party must prove case, truth not necessarily the goal

– Getting guilty people off

o Equal protection

o Impossible as they were found not guilty

Unauthorized Practice of Law (UPL)

– Missouri Definition of the Practice of Law:

o The appearance as an advocate in a representative capacity, the drawing of papers pleadings or other documents for any case that might be litigated or is currently being litigated, or any such act in such capacity in connection with such cases.

– Missouri Penalty for the Unauthorized Practice of Law:

o Misdemeanor – $3,000 fine and also subject to suit for up to 3x the amount charged for service, if the client doesn’t sue you within in 2 years the state can bring suit.

– Both Lawyers and Lay People can engage in UPL.

o Ethical Rules don’t mean anything to lay people, they are governed by the law itself, the Ethical rules are a higher standard for which lawyers must abide by.

– Rule 5.5 – UPL

o (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

o (b) A lawyer who is not admitted to practice in this jurisdiction shall not:

§ (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

§ (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

o (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

§ (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

§ (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

§ (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

§ (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

o (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

§ (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

§ (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

o Comment 9 to ABA 5.5 –

§ Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule requires the lawyer to obtain that authority.

· If it’s the practice of the jurisdiction to allow lawyers from other jurisdictions to come in, then that’s okay, they don’t have to go about pro hoc vice unless the court requires it.

Trust

1. SECRECY

a. Attorney Client Privilege

i. Protects communications between client and lawyer

1. No one else.

a. Unless interpreter, co-defendant (but when cross claims occur it is terminated retroactively), parent/guardian, other members of the firm

ii. Does not apply if there is 3rd Party in a Room

iii. 5 Cs

1. Client Communicates Confidentially w/ Counsel to obtain Counsel

iv. Holds force in court

1. 1.6 Does not, Court can’t force you to disclose under 1.6, they can under Attorney Client.

v. The Attorney Client Privilege and Physical Evidence

1. People v. Meredith, Cali S.Ct. (1981)

a. When defense counsel removes or alters evidence, the attorney-client privilege does not bar revealing the original condition or location of the evidence.

2. 5 basic categories of physical evidence

a. Evidence given to you by a client

b. Evidence given to you by a third party

c. Evidence that you find on your own

d. Evidence that you see but do not touch

e. Evidence that you only hear about but do not see or touch

3. Spoliation of evidence – Rule 3.4

b. Exceptions to the Attorney Client Privilege –

i. Waiver – Two parts from Book

1. If the client waives the privilege as to a given subject, then the privilege no longer exists for information on that subject

2. Attorney client privilege = all or nothing à once it is waived as to any part of a subject, it is usually waived as to every part of the subject

3. Can be accidental rather than deliberate

a. A lawyer/client may accidently turn over privileged documents in response to a discovery request in litigation

4. Test –

a. Whether the party claiming the privilege took reasonably adequate steps to protect privileged documents against disclosure

ii. Crime & Fraud –

1. If the client uses the lawyer’s services to commit a crime or fraud, then the client’s with the lawyer are not privileged (even if the lawyer did not know the client was engaging in a crime of fraud at the time the communications were made)

2. Test –

a. Depends on the client’s intent to commit a crime or fraud, not the attorney’s knowledge of that intent

iii. Joint clients Exception

1. If two clients hire the same lawyer, and they later get into a dispute with each other, they do not have an attorney client privileged vis-à-vis each other

iv. “Advice of Counsel” Defense –

1. A client also waives the attorney client privilege if he defends a lawsuit by claiming that he acted based on advice of counsel

a. When a client puts the advice of a lawyer into issue, the client waives that attorney client privilege related to that advice

v. Lawyer’s Self-Defense Exception

1. A lawyer has the right to disclose confidential information (including information protected by the attorney client privilege) in self defense

a. Limitation = privilege only waived to communications bearing directly on the claims of malpractice

i. Client waives the privilege by attacking the lawyer

ii. Without this waiver the lawyer would be defenseless

vi. Deceased Client –

1. Only allowed in a small number of jurisdictions.

c. Rule 1.6 Ethical Duty of Confidentiality – Pertains to clients and potential clients. (Potential clients covered under 1.18)

i. Anything Pertaining to your representation of a client

1. From Client

2. From Witness

3. From any other source

4. Different from Attorney Client Privilege

a. Only protects information from client – communications between you and client

5. No force in court

d. Exceptions to Ethical Duty – Rule 1.6 – Never Requires Disclosure, An attorney MAY disclose – (NOT must)

i. 1.6(a)

1. Informed Consent – Acquiescence can be considered consent – not saying anything.

2. Implied Authority – Doesn’t Hurt Representation, in their favor.

ii. 1.6(b)

1. (1) Prevent Death or Substantial Bodily Harm

2. (2) Prevent client from Crime/Fraud reasonably certain to result in substantial injury to financial/property interest when client is using lawyer’s services

3. (3) Same as two but not preventive, after the fact

4. (4) To get legal advice about compliance with rules

5. (5) Lawyer’s claim of self defense

6. (6) Comply with other law/Court Order

iii. 1.9(c) Generally Known

1. Information Generally Known After Representation Over

iv. 1.13 Client as Organization

1. Illegal conducts that may harm the organization

2. Must Report Up, May Report Out

v. 3.3 – Candor Towards the Tribunal

1. 3.3(a)(3) False Evidence – Must

a. 3.3 prohibits from offering evidence knows to be false

b. 3.3(a)(3) Requires remedial measures if lawyer discovers false testimony

i. 3.3(c) requires disclosure even if info protected by 1.6

2. 3.3b Fraud Against Tribunal – Must

a. Is engaging/has engaged/will engage in criminal or fraudulent conduct relating to the tribunal

b. Remedial measures up to disclosure.

i.

3. Enhancing the Alibi

a. Must tell client can’t do that, duty to disclose to tribunal, or narrative method

e. Work Product Doctrine –

i. Generally tangible things prepared in anticipation of litigation cannot be discovered or compelled (opinions are absolutely protected and can never be discovered) FRCP 26(b)(3)

1. Test – Hickman v. Taylor

a. Protection applies to documents and tangible things prepared in anticipation of litigation by the lawyer or lawyer’s agents

i. Protects only tangible things, not oral communications (unless oral communication = oral equivalent of tangible work product)

ii. Two Types of Work Product – Hickman v. Taylor

1. Ordinary work product –

a. Includes information recorded by an attorney (or by the attorney’s clients, or by the attorney’s agent) in anticipation of (i.e. because of) litigation or in anticipation of trial.

i. Discoverable – forced to disclose if (2 prongs)

1. Party must demonstrate a substantial need for it to prepare for its case

2. Party cannot, without undue hardship, obtain the substantial equivalent

2. Opinion work product –

a. Consists of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation

b. Virtually absolutely protected against discovery/compelled production.

i. A court will NOT order a party to produce opinion work product even when the party seeking discovery has made the showing necessary to obtain ordinary product

c. Subject to waiver just as materials protected by the attorney client privilege are subject to waiver

iii. Work Product of Others – Experts who are used for trial preparation are covered here, experts who will testify at trail are not.

1. Trial experts – FRCP Rule 26(a)(2)(B) requires a party to send a report to opposing counsel stating the expert’s opinions, the basis for those opinions, and the data or other information the expert considered in forming those opinions

a. FRCP Rule 26(b)(4)(A) allows trial experts to be deposed

b. May generally answer questions about communications with the lawyer that would merit work production for a consulting expert

2. Consulting experts – an expert is merely a consulting expert when retained or employed in anticipation of litigation or for trial but is not expected to testify

a. FRCP Rule 26(b)(4) allows discovery only upon a showing of exception circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means

3. Witness statements – if you make notes about what a witness told the lawyer and never show the notes to the witness = protected

iv. Criminal cases – work product protection extends criminal cases

v. All 3 protections require the lawyer to have a

porations ‘alter egos’) or imputed to the corporation for purpose of liability, or employees implementing the advice of counsel. All other employees may be interviewed informally.”

7. Former Employees –

(1) Patriarca v. Center for Living and Working, Inc.

i. General rule –

1. Former employees are fair game unless they have a lawyer representing them in the particular matter.

a. You essentially must make your purposes clear to the former employees, you must not make statements to induce them to disclose information they generally would not have.

REASONABLE FEES 1.5(a)

– Can’t let market dictate as lawyer’s have responsibility to provide access to the courts.

– Unequal bargaining power; Cornered Market; Respect for the Profession; Self Regulating; Self Perception of Being Above Profiteering

– When an upfront fee is charged the primary check of firing is removed.

– Flat Fee Upfront

o Cant charge non-refundable flat fee

o If attorney client relationship ends before objective achieved client is entitled to refund, attorney can judge the amount of work done and charge a percentage of the fee

– Hourly – results don’t matter, no mentoring, possible incentivizing lazy work.

Termination of Representation – Rule 1.6

Contingent and Criminal Fees

– Not allowed.

o 1.5(d)(2)

§ Justification for contingent fee in civil cases not available – don’t need poor mans access to the court house, the state is bringing you there.

§ End goal for civil case is money, which what the poor person pays the lawyer from in the end

· In a criminal case the end goal is liberty, not monetary, so the only people that would be capable of paying the attorney would be rich people, so the poor man’s key to the court house doesn’t hold in the criminal sense.

· Incentive lawyers to cheat, use false evidence in order to get the result that will get them paid.

ADVERTISING

1. Must be truthful and not misleading. Practically gives a attorneys a wide bearth.

2. Blanket Ban Justifications Pre Bates and (Bates Response)

a. Makes lawyers look like profiteers – in it just for they money

b. Undermines public confidence in profession (Informs public of what attorneys do)

c. Encourage frivolous litigation (Encouraging law suits is a good thing)

d. Creates costs that would be passed onto clients (Advertising would create competition that would result in lawyer’s lowering prices; also a 1st amendment issue of right to communication vice state right to regulate legal profession)

Ohralik – allowed states to ban face-to-face solicitation

Zauderer – targeted adds are okay (mesothelioma)

Shapero – Targeted mailing of accident victims is okay as long as information is public record

30 day black out period for contacting victims is allowed; people who receive solicitation immediately after accident perceive lawyers negatively.

Intermediate Scrutiny

– Substantial government interest

– Restriction furthers that interest

– Restriction is narrowly focused to achieving that interest.

– Not strict scrutiny

Advertising Rules –

1. Rule 7.1. –

a. Can’t make false/misleading communication about lawyer or lawyer’s services. Communication is misleading if it contains material misrepresentation of fact or law, or omits a fact necessary to make the statement as a whole not misleading. Truthful + Not Misleading.

2. Rule 7.2 –

a. Allows attorneys to purchase marketing services, bans pay for referral conduct, gives policy reasons

3. Rule 7.3 –

a. Ban harassment, face to face solicitation, requires advertisements to have notice on them

b. Face to face banned. Harder to verify info through 3rd party unlike broadcast advertising that can be monitored by many.

Fees

– 5 Types –

(1) Flat Fee – the price for the entire representation.

a. Benefits –

i. Less administrative time figuring out charges

ii. Client knows that the price will be going in.

iii. Good marketing thing

b. Drawbacks –

i. Can end up costing a lot more than you estimated.

ii. If you end up getting fired, you have to give back some amount of money, whether it be a percentage or whatever, the lawyer is entitled to payment for the amount of work they have completed.

(2) Hourly fee – charge for each hour of completed work. Common for big law firms, general counsel members.

a. Disadvantages –

i. Focus on amount of time rather than quality of work.

ii. May lead to unnecessary work / unnecessary projects

iii. Less focus on mentoring, pro bono, because time is money.

b. What types of things would keep you from milking every minute out of the client?