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Legal Profession
St. Louis University School of Law
Needham, Carol A.

Outline
Sunday, April 05, 2009
12:08 PM
 
·         Sources of Law Governing Lawyers
o    Court’s inherent power
·         Disqualify for conflicts of interest
·         Impose sanctions
·         Adopt disciplinary rules
o    Disciplinary rules
·         State by state regulations
·         Adopted by states highest court
·         Involvement of the bar
o    Statutes
·         Fed
§ Fair debt collection practices act
§ Securities regulations
·         State
§ UPL statutes
o    Common law duties
·         Liability to aggrieved clients
·         Malpractice (tort)
·         Violation of fiduciary duties (agency law)
·         Fee disputes (contract)
o    Restatement 3rd of the Law Governing Lawyers
·         Part of the ALI
·         Highly influential, but not mandatory
·         ABA
o    Discusses changes to existing standards
o    National input
o    Standing committee on ethics and PR
o    Some states adopt model rules…others tweak them
·         Secrecy
o    3 branches:
·         Ethics- can’t voluntarily tell other people anything about your client w/o your client’s informed consent
·         Evidence- generally cannot be compelled to reveal communications w/ you client
·         Procedure- generally cannot be compelled to reveal written material created in anticipation of or for trial
o    Competence
·         MO 4-1.1 Competence:
§ Provide competent representation to a client-requires legal knowledge, skill and thorough preparation
·         New Hampshire 1.1b
§ Legal competence requires:
·         Specific knowledge about the law
·         Performance of the techniques of practice w/ skill
·         ID of areas beyond the lawyer’s competence
·         Proper preparation and
·         Attention to details and schedules
§ Lawyer shall
·         Gather sufficient facts
·         Formulate the material issues raised, determine applicable law, and identify alternative responses
·         Develop a strategy
·         Undertake actions on the client’s behalf in a timely and effective manner
·         Remedies:
§ Clients
·         Don’t recommend
·         Don’t use again
·         Fire the lawyer
·         Bad-mouth
·         Report to disciplinary authorities
·         Malpractice
§ Employers, coworkers, support staff
·         Withhold raises, promotions, give out boring work, fire
·         Ask not to work with, kick out of partnership
·         Secretaries- give them low priority
o    Threshold Question: Who is a client?
·         MRPC 1.6 Test:
§ Whether the person believes that he is your client AND
§ Whether that belief is reasonable
·         MRPC 1.9- Once a person becomes a client, 1.6 protection lasts forever- doesn’t end w/ death
§ But after relationship ends, you can reveal info that has become general knowledge- 1.9(c)
·         Grey areas
§ Corporations
§ Trade assoc- if you are hired by a TA but you receive confidential info from TA members
§ Person tells you confidential info in hopes that you will take the case
§ You work for a client and fail to tell them the a/c relationship is over
o    Duty of Confidentiality
·         General rule: once the lawyer has learned info in the course of representing a client, he is not free to reveal that info to others unless an exception applies
·         1.6 does not define confidential info
·         Ethical obligation prevents you from revealing info voluntarily, but does not protect you when statutes, court rules or court orders require you to disclose info
·         Ethical obligation is limited in 2 ways:
§ Cannot refuse to testify unless protected by atty-client priv
§ Cannot refuse to produce docs or disclose opinion unless protected by work product
·         Model Rule 1.6
§ Can’t reveal info relating to the representation of a client
·         Unless:
·         Client gives informed consent to reveal
·         Disclosure is impliedly authorized or
·         Disclosure is permitted by (b)
§ Lawyer may reveal info related to the representation of a client to the extent he believes reasonably necessary
·         To prevent reasonably certain death or substantial bodily harm
·         To prevent the client from committing a crime/fraud that is reasonably certain to result in substantial injury to financial interests or property
·         You are allowed to reveal, not that you must
3.       To prevent, mitigate or rectify substantial injury to the financial interests or property of another due to the client’s commission of crime/fraud in furtherance of which the client has used the lawyer’s services
4.       To secure legal advice about the lawyer’s compliance w/ these Rules
5.       To establish the lawyer’s claim or defense in a controversy between the lawyer and client, a defense to a criminal/civil charge against the lawyer based conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
·         Allows you to establish a claim/defense to the extent reasonably necessary
6.       To comply w/ other law or court order
·         Only where the law requires disclose, not where it is merely permitted
·         Other exceptions:
§ Info that became generally known after a representation ended -Rule 1.9(c)
§ False evidence offered to a tribunal- Rule 3.3(a)(3)
·         1.6 doesn’t mandate disclosure
·         Can’t offer evidence that the lawyer knows to be false
·         If atty, client or his witness has offered evidence and the lawyer learns of its falsity, atty shall take reasonable remedial measures
§ Criminal or fraudulent conduct related to proceedings before a tribunal- Rule 3.3(b)
·         If knows, has to take reasonable remedial measures
·         Where remedial measures have failed, layers are required to report to the tribunal
§ When the client is an organization, a clear violation of law may be revealed to prevent substantial injury to the organization- Rule 1.13
·         Rule 1.6 is weaker than the atty-client priv
·         Corporations:
§ Dealing w/ a clear violation of law to prevent substantial injury to the org when client is an org
§ When an atty for an org knows that a corp officer or employee is engaged in illegal conduct that reasonably might be imputed to the org and is likely to result in substantial injury to the org then the atty must take steps to stop it
·         Report to the chain of command
·         Can also report to authorities outside of the org only to the extent that the atty is allowed but not required to report out
·         Trumps duty of confidentiality (1.6)
§ Rule 1.13
·         First: must “report up” under 1.13(b)-tell people higher up in the corp
·         Second: allowed to “report out” 1.13(c)-tell people outside the entity (SEC, regulatory agency, newspaper etc)
·         If the highest authority, insists or fails to address a clear violation of the law and an atty reasonably believes the violation is reasonably certain to result in substantial injury to the org, then the lawyer may reveal info related to the representation
o    Attorney-client Privilege
·         Is usually CL, not statutory
·         Includes everything communicated between the client and the lawyer-orally or in writing
§ Doc has to be made in confidence for purpose of seeking legal advice- can’t make it privileged just be showing to the lawyer
·         Privileges belongs to the client
§ So can only be waived by client
·         Privilege protects only communications, not facts
§ Can’t hide facts byt telling atty
·         Info that is not protected by the privilege:
§ Name of client
·         But protects client’s identity where disclosure of the identity would reveal the client’s motive for seeking legal advice
·         D’Alessio v. Gilberg- don’t have to reveal client’s identity where the crim has already been committed, there is no possibility of further criminal acts if the person is not identified and the disclosure sought would expose the client to possible criminal prosecution
·         Dean v. Dean- atty client priv can be used to prevent the disclosure of the identity of a person who had previously consulted an atty regarding the return of stolen bags belonging to one of the parties in a civil case
§ Client’s address
§ Fee arrangements
·         Applies only when have all 5 C’s
§ Client
§ Communicates
§ Confidentially with
§ Counsel (lawyer acting as a lawyer)
§ To obtain counsel (legal advice)
·         When doesn’t apply or is waived
§ Client (or lawyer) waives the privilege
·         Can intentionally or accidentally reveal privileged info by turning over privileged discovery or deciding not to object to a question
·         Look at whether the party took reasonably adequate steps to protect privileged docs against disclosure
·         Can waive if a stranger to the atty-client relationship is in the room
·         Can also waive by failure to object
§ Testamentary exception
·         When competing claimants are asserting claims under the will of a decedent, a court may compel the lawyer who drafted the will to testify to info shedding light on the testator’s intent
§ Deceased client exception
·         When the client has died and society’s needs for privileged info outweigh the likely harm to the deceased client
·         Most courts don’t recognize this
§ Crime-fraud exception
·         Client uses the lawyer’s services to commit a crime or fraud- not privileged, even if the lawyer did n

  After subpoena issued;
·         State law-can’t destroy
·         Fed law- can’t destroy
§ Civil liability for destruction of evidence (spoliation)
·         Willful destruction of evidence or the failure to preserve potential evidence for another’s use in pending or future litigation
·         Intentional spoliation
·         No tort remedy where the victim of the spoliation knows or should have known of the alleged spoliation before trial or other decision- Cedars Sinai Med Center v. Superior Court
·         Negligent spoliation
·         2 elements:
·         Duty to preserve evidence and
·         Intentional destruction of that evidence
·         If can foresee litigation, then can’t just destroy it
§ Hypo: client hands you a package, that might by the murder weapon
·         You cant destroy it
·         You shouldn’t move it
·         You can look at it, but then have less freedom
·         Can refuse to look at it
·         You can take possession of it, but cant destroy/alter the evidence or impair the other side from obtaining it
·         If you have material evid that you know is relevant in a criminal prosecution, after the reasonably necessary period of time has run out you must turn it over to the prosecution b/c once you are in the chain of custody you have to turn it over
o    Work Product
·         Generally protects only tangible things (not oral communications)
·         But protects the oral equivalent of a tangible thing
·         Civil
§ 2 categories:
·         Ordinary work product
·         FRCP 26(b)(3): includes info recorded by any atty or by the atty’s client or agent in anticipation of litigation
·         Doesn’t include accident reports made in the ordinary course of business or for reporting to the govt
·         Can obtain it upon a showing of:
·         Substantial need
·         Unable w/o undue hardship to obtain work product materials by other means
·         Opinion work product
·         Mental impressions, conclusions, opinions or legal theories or an atty or other rep concerning litigation
·         Will never have to produce- even if can make the showing for ordinary work product
·         But can be waived
·         If lawyer shows opinion work to a witness to refresh the witness’s memory the witness is preparing to testify at a deposition the work product may be waived and a court will have discretion to order their disclosure
·         Experts
§ Expert’s reports, opinions or other work product materials
·         Trial experts: open door
·         FRCp 26a2b- requires party to send a report to opposing counsel stating the expert’s opinions and basis for the opinions and data considered
·         Work product protection is waived when designate as a trial expert
·         Once a witness is designated as a trial expert all info is “open game”- i.e. if consulting witness changes to a trial expert is treated as such
·         Consulting expert (not expected to be called as a witness)
·         FRCP 26b4- allows discovery only upon a showing of exceptional circumstances under which it is impracticable for a party seeking discovery to obtain facts or opinions by other means
·         Criminal
§ Fed Rule Crim Pro 16b- except as to scientific and med reports, rules of crim discovery does not authorize the discovery or inspection of reports, memos or other internal docs made by the D or his attys/agents in connection w/ investigation or defense of the case or of statements made by the D
·         Physical Evidence (work product)
§ Civil
·         No obligation to turn over evid unless it is required under FRCP 26a1 or unless a party or govt agent makes a formal request such as:
·         Civil investigative demand
·         Subpoenas (FRCP 45)
·         Discovery requests (FRCP 34)