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Legal Ethics
SUNY Buffalo Law School
Milles, James G.

Ethics Outline

Milles – Fall 2012

Conflicts of Interest

· Conflicting interests and obligations

Truthfulness

· Prohibit deceit, fraud, misrepresentation, and withholding info.

Duties to Client v. Duty to Justice System

· need to protect client and system as well

Lawyer Personal and Professional Interest v. Fiduciary Obligations

Self-Interest as Theme in Regulation of Lawyers

· rules drafted by lawyers (they do what is best for them)

Institutions that Regulate Lawyers

1) Highest court (adopts rules and enforce)

· must know rules in each State and be licensed in every state you practice

2) State and local Bar Associations

3) Lawyer Discipline Agencies

· sanctions, disbarment

4) American Bar Association

5) American Law Institute

6) Federal/ State Trial Courts

7) Legislature

· Apply to everyone but can include jobs lawyer engage in

8) Administrative Agency

9) Prosecutors

10) Malpractice Insurers

11) Law Firms and Other Employers

12) Clients

Ethical Rules for Lawyers

· 1908 Canon of Ethics (old)

· 1969 Model Code of Professional Responsibility (MCPR)

· 1983 Model Rules of Professional Conduct (MRPC) (present)

· 2009 NY Rules of Professional Conduct

Character and Fitness Inquiry

Whether the person will practice in an honest and competent manner

Examples where you would not be found to be fit:

· International drug smuggling

· Sexual relations with minors

· Declaration of Bankruptcy

· Cheating on law school exam

· Pattern of hostile and disruptive conduct

Examples where you would still be fit:

· Declaration of Bankruptcy

· Plagiarism of a scholarly article in university

On the application

· You should be scrupulously honest in everything you say

· Nothing in more important than being honest and candor

· Use you common sense as to whether you think you will be denied

· Information on law school application and bar application must be consistent (so if omitted something, make the disclosure to your school)

Mental Health Applicants

· They can end up disserving client, or be a danger to others

Misconduct in Law School

· They look at how long ago it occurred

· Usually ask about any sanctions imposed in law school

Grounds for Discipline

· Any conduct that is dishonest, prejudicial to administration of justice or reflects lack of fitness (even if outside scope of law)

· Disciplined: if acting on behalf of govt, even if not charged criminally yet (illegal act is not threshold), on behalf of ee

· Reciprocal Discipline: if barred in one state, likely will be in all (not matter which state occurred in)

· For a crime if shows dishonest, untrustworthy, lack of fitness to practice

· Discriminatory actions

· Conduct in law school

· Malpractice

Misconduct rule 8.4

· Violation of the rules (attempt to violate)

· Crime

· Dishonesty/fraud

· Prejudice administration of justice

· Improperly influence govt agency

· Assist judge in a violation

· Includes conduct Outside Practice of Law

Reporting Misconduct rule 8.3

· The Himmel Rule

o Whistle blowing

o Make lawyers come forward, but some abuse

o Not off the hook if just report to senior lawyer

o Can be disciplined if not report

o For ee at will cannot fire for complying with “rules”

· Required to report all serious violations that involve trustworthiness, honesty or fitness

o Exceptions: Confidentiality and information given in lawyer assistance program, or can wait until proceedings over so don’t harm client

Responsibilities of a Partner or Supervisory Lawyer rule 5.1

· If know a violation and didn’t prevent then responsible

· If ordered conduct then responsible

· Ensure everyone complies with rules (make reasonable efforts)

Rule 5.2 Responsibility of Subordinate Lawyer rule 5.2

· Off hook if instructions given were wrong (acting in accordance with lawyer)

o Need to: do research, seek advice, not breach confidentiality

o The subordinate lawyer can argue that did not know was a violation

Responsibilities Regarding Non lawyer Assistants rule 5.3

· Work is supervised

· Responsible for them if supervise the, know/should have known there was a problem

Note: Usually discipline is only imposed on the individuals who are involved, but in New York the whole firm can be disciplined for certain misconduct (ex: failure to supervise employees)

Note: Although many lawyers are employees at will, there is some protection for whistle blowers, can sue for breach of K —Weider case (valid claim for ee trying to get lawyers to comply with ethical rules)

Confidentiality rule 1.6

· Cannot reveal info:

o Relating to matter (not generally known)

o Info that could reveal who the client is (ex: names)

o Personal Info.

o Client info, interviews, documents, photos, observations, other sources

o Before/after representation

o Notes memorandums (attorney work product)

o Only reveal if have informed consent, or impliedly authorized in order to carry out representation, or falls under exceptions

o Don’t have to reveal past criminal conduct

o To disadvantage client

o Restatement: More broad, cant reveal anything that would harm client interest

· Exceptions (may reveal):

o Prevent death or substantial bodily harm (imminent)

o Prevent crime or fraud resulting in injury to financial interest or property where lawyer service used (future plans)

§ (ex: if a person tells lawyer that going to burn a friend’s house down, cannot reveal information because didn’t use lawyers services to commit crime)

o Prevent, mitigate, rectify injury to financial interest or property that resulted from clients commission of crime or fraud where they have used lawyer services (past and trying to help)

§ (ex: helped client fill out insurance papers, and then find out injury was fake, need to tell because helped used legal services to fraud)

o Get advice about compliance with rules

o Defense to criminal or civil claim based on relationship with client

§ Unpaid fees

§ Malpractice

§ Disciplinary proceedings

o Comply with law or court order

§ Court trumps obligation of confidence

· If a lawyer thinks they should violate rule

o Consult rules and other sources

o Consider consequences

o Get legal advice from someone else

· Can reveal info if get informed consent and then disclosure is implied authority to carry out representation

Note: The rational for confidentiality is to facilitate open communication

Note: Restatement– whether there is a reasonable prospect of harm depends on if a lawyer of reasonable caution considering clients objectives, would regard use/ disclosure creates an unreasonable risk of adverse effect…would a careful lawyer see a problem

se documents are privileged and cannot be revealed

· Tangible material or intangible equivalent (ex: oral form) prepared by lawyer for litigation in process or in anticipation

· Not underlying facts (only actual communications)

· Opinion work (opinion sand mental impressions)

· Work product immune from discovery or compelled disclosure

· Must show documents were selected for their strategy to get protection

· Exception:

o Judge can order disclosure if other side can show the substantial need for document because can’t obtain equivalent without undue hardship

o This rule does not close off the sources (ex: the other side can interview same witnesses) it just stops lawyers from copying off one another

Section 88 Ordinary Work Product

· Is also immune from disclosure unless show:

o Substantial need for the material in order to prepare for trial

o Unable without undue hardship to obtain the equivalent of the material by other means

Section 89 Opinion Work product

· Immune from discovery or disclosure unless immunity is waived, exception applies, or there is extraordinary circumstance

Section 82 Client Crime or Fraud

· The privilege doesn`t apply when:

o Client getting assistance to later commit crime or fraud in aiding a third person to do so (but if just asking if crime illegal, then it is privileged)

o Regardless of client`s purpose at time, if they use the advice to engage in crime or fraud

o The crime needs to happen (if lawyer talks them out of it, then that’s is good and it is privileged)

o If the crime is attempted and not accomplished (this is privileged)

o Does not apply to past crime (as long is really in the past)

o Even if client doesn’t know the act is criminal

o If the lawyer not know it’s a crime, it’s okay, all that needs to be considered is the criminals intention, and if it is criminal then the information is not privileged

Note: Challenging a privilege, if a lawyer think privilege not apply, they make request of documents based on guesses, what information they think the layer has, and then judge will review

Corporate Attorney-Client Privilege (*exam*)

Subject Matter Test

Limits privilege to communications from persons in the organization who have authority to mould organizational policy or to take action in accord with lawyer`s advice (ex: those in high position)

Control Group Test

Privilege communication as long as communication relates to subject matter of representation (ex: can be in high or low position)

Relationship between Lawyers and Clients

Rule 1.1

Can still except clients even if not expert or knowledge on area of law (but although can change client for research time, it can’t be excessive)

· But the ethics committee urges that lawyers turn down legal assistance if have not expertise