Legal Professions- Kelley, Patrick
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 prot
The client has not waived the priv
· For Corporations:
§ Tests:
· Control group test
· Is the person communicating w/ the lawyer one of the officers and employees who actually control the company?
· Does the person play a “substantial role” in deciding and directing the company’s legal response
· Pre-Upjohn in most states
· Subject matter test (Upjohn test)
· Allows a larger number of employees communications to fall w/in the priv
· Protects as privileged:
· A communication
· Made by employee to counsel
· At the direction of employee’s corp superiors
· In order to secure legal advice when:
· The info is not availale from upper mgmt
· Its needed as basis for legal advice
· The communications concern matters w/in the scope of the employee’s duties and
· The employee is sufficiently aware that he is being questioned so the company can obtain legal advice
· Governs in fed courts (states have different standards)
· Functional test
· When someone other than the employee initiates the communication, it is privileged IF the communication concerns the employee’s own conduct w/in the scope of his employment and
· Is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for the corp client
· If employees own conduct is being asked about is privileged, but is about some other constituent is not privileged
· Restatement test
· Communication by any employee
· To an atty for the corp
· Regarding the matter as to which the atty was retained
· Is privileged
· Physical evidence:
§ Model Rule 3.4(a): a lawyer shall not:
· Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a doc or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act
§ Categories:
· Given to you by client
· Given to you by 3rd party
· You find on your own
· You see it, but don’t touch it
· You hear about it but don’t see or touch it
§ People v. Meredith: whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question
· The observation of the wallet in the trash is protected unless the D moves it/alters it/makes it more difficult for police to find it
§ Criminal Liability for Destruction
· If no subpoena issued:
· State law- usually a crime to destroy it even before subpoena
· Fed law- destruction of evidence before subpoena is issued is a fed crime if evid is relevant to a pending grand jury or criminal investigation and destruction was done w/ corrupt or evil intent
· After subpoena issued;
· State law-can’t destroy
· Fed law- can’t destroy
§ Civil liability for destruction of evidence (spoliation)
