MARSHALL PROF. RESPONSIBILITY AUTUMN 2017
Professionalism
Lawyers as Professionals:
Esoteric knowledge requiring special training
Monopoly over legal services
Professional autonomy
Self-regulating
Public interest
Lawyer
Free from conflicting loyalties (MR 1.7-1.10)
Competent in matters involved (MR 1.1) (no gross negligence)
Dedicated to doing a good job (MR 1.3—reasonable promptness and diligence)
“No other duty” approach—oversimplifies things but is generally the principles courts adhere to
MR 8.4— Misconduct
Violation of the rules of professional conduct: violate/attempt; assist/induce; acts of another
Criminal act that reflects adversely on lawyer’s trustworthiness, honesty, or fitness as a lawyer. (Financial crimes, drugs/alcohol; not speeding/accident)
Conduct involving dishonesty, fraud, deceit, or misrepresentation (not necessarily criminal)
Conduct prejudicial to the administration of justice (discrimination/bias when representing client; Comment 3)
Bribery/improper influence to achieve results in violation of Rules
Knowingly assist a judge in violation rules of judicial conduct/law.
Advocacy and its limits: Neutral partisanship
Neutral: lawyer not accountable for views/ends of client (MR 1.2(b))
Exception: criminal lawyer. US v. Cuerto.
Facts: fed agent posing as briber. Lawyer exposes him and gets injunction. Lawyer co-investor in legal biz or his client.
Holding: Lawyer has become a criminal by obstructing justice. His personal financial interest is the heart of his corrupt motive to obstruct justice.
Representation is good; helping client avoid the law is bad.
Partisanship: aggressively advance client’s position.
Hypothetical: errant fax
Values
Preamble: zealous advocate
MR 1.3: Reasonable diligence
MR 1.6: Confidentiality
MR 1.2(a)/1.4: Deference to client decision making
ABA’s formal advisory opinion says preamble requires lawyer not to read and to return the fax (not a rule)
MR 4.4(b) requires notification. Return/read is professional judgment of lawyer (comment 2)
Friedman thinks lawyer must read content(zealous advocate)
Notice is required, but no rule about return. ABA comment says abide by sender’s instructions
Use it?
Majority: permissible if obtained in good faith
Minority: no, cannot use under any circumstances
Controversy: zealous advocacy versus reasonable diligence.
It is in the best interest of client to use info, but better for the reputation/conduct of the bar not to use.
MR 1.13 abandons zeal as standard of advocacy. It’s now “warm” zeal.
Reasonable diligence and promptness
Comment 1: zeal, but not taking every advantage
Allocation of decision making
MR 1.2—Client resolves ends; lawyer handles means after consultation
Lawyer must abide by all client’s decisions re: objectives of representation and reasonably consult with client about means to pursue them (MR 1.4(a)(2))
Exception: immediate decision to be made. Time sensitivity precludes fully informing client of all possible paths forward (MR 1.4, Comment 3)
Lawyer may limit scope of representation w/informed consent
Rationale: client autonomy, professional expertise, systemic fairness
Lawyers serve clients (neutral)
Lawyers know things
Gatekeepers and duties to legal system
Discerning means/ends: continuum. No rule to solve disagreement (MR 1.2, Comment 2)
Ends: settlements/pleas, waive jury, testify in own defense. Comment 2: Expenses to be incurred.
Means: Lawyers have latitude.
After consultation, clients defer to lawyers on tactics
MR 1.2, Comment 2: Lawyer possesses special knowledge that clients generally do not
Is this true? Depends on sophistication of client
Jones v. Barnes: No need to raise every issue.
Rationale: experienced counsel knows best arguments/professional judgment
Dissent: lawyers are to assist. Clients choose from available arguments. Constitution doesn’t require that all clients be wise.
Clients may care more about being heard than winning (law/society)
Maybe want default rule to force talking to client in close cases
Court prefers paternalism: expertise/duty to court and public.
Client (MR 1.2)
Adult
Not unsophisticated
Of sound mind (not suffering a mental defect, immaturity, or intoxication)
Not under adverse influence from others (spouse, employer)
Strong enough in mind and spirit to interact w/lawyer w/reasonable competence.
Incapacity
Kaczynski: The Unabomber wants the death penalty and not to appeal
Holding: Lawyers can present evidence of mental incapacity over client’s objections
Rationale: no suicide by trial
MR 1.14(B)
Diminished capacity
Risk of substantial financial, physical, other harm à atty may take reasonably necessary protective action
Comments: can include consultation with family, reconsideration period, voluntary surrogate decision-making tools, professional services. Try to get client to declare incompetence, give evidence of incompetence over wishes. Can disclose confidential information to means necessary (but must assess whether recipient of info will act adversely to client’s interest; Comment 8).
Factors
Client wishes
Client’s best interests
Goal of undermining autonomy least amount possible and respecting family/social connections
Discovery abuse, civility
Discovery abuse and the Bar’s desire for civility
MR 1.2(d): should not counsel client to engage in conduct the lawyer knows is criminal/fraudulent
MR 3.3(a)(1): Lawyer no false statement of fact or fail to correct false statement to tribunal
MR 3.3(b): cannot assist client in crime/fraud on court. May have to disclose to court.
MR 1.3: reasonable diligence
MR 3.4: Attorney cannot
obstruct/destroy/conceal information with potential evidentiary value
Disobey tribunal rules
Counsel/assist another to (is omission assistance?)
make frivolous discovery request or fail to make reasonably diligent effort to comply with discovery request
MR 8.4:
Can’t violate any other rule within the Model Rules
Can’t do dishonest/fraud/prejudicial to administration of justice
MR 8.3(a); must report other lawyer if misconduct goes to fitness (state bar; not firm ethics committee) à snitching reg.
FRCP rule 11: no harassment (but doesn’t apply to discovery: need to go to 26-37)
FRCP rule 26: discovery (harassment)
FRCP 37: comply with court orders
Privacy
MR 1.1 Comment 8: [Lawyers need to keep up with changes in technology.]
MR 1.6 Comment 18: [Lawyers need to act competently to prevent unauthorized access to clients’ data.] MR 1.6(c): take reasonable measures to protect confidential info
Qualcomm v. Broadcom:
[Qualcomm withheld 46,000 relevant documents during discovery.]
Problems:
No one took supervisory responsibility for how discovery was conducted. The lawyers didn’t understand the client’s computer systems, and the guide they were using turned out to be totally wrong.
Junior associate took client’s paralegal’s word, without further inspection, that the individual laptops didn’t need to be searched because everything was duplicated (not the case).
No one checked travel records
No one produced the emails
But court found no bad faith; it was just negligence, so didn’t impose sanctions. [Still takeaway not to do those things.]
For lack of civility: Court has inherent powers to sanction lit abuse (Qualcomm) and negate attorney’s fees (American Eagle—kick some ass/hang up on association/cou
they were seeking advice in their individual, not representative, capacities
Lawyer saw fit to communicate with them in their individual capacities, knowing conflicts could arise
Conversations with lawyer were confidential
Substance of conversations did not concern general affairs of the company or matters within the company
Even if subject matter pertains to general affairs of company, if it is the legal rights/obligations of the individual being discussed, this prong is satisfied.
Corporate Miranda Warning (MR 1.13(f))—In dealing with an organization’s directors/officers, a lawyer must explain that the corporation is the real client if he knows or should know that the corporation’s interests are adverse to the directors/officers.
Comment 11= This warning may not apply if officer is sophisticated/experienced with outside counsel
Corporate reporting:
MR 1.13: Organizational Clients & Misconduct. Mandatory reporting up; permissive reporting out. Trumps confidentiality.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.
Higher authority: typically CLO/top management/BOD
(c) Except as provided in paragraph (d), if (higher clarity of violation of law and higher certainty of injury)
(1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization,
then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
MR 1.13 compared to MR 1.6 confidentiality reporting exception
MR 1.6 is triggered by crime/fraud; MR 1.13 is triggered by a violation of law
MR 1.6 requires substantial injury to financial interests or injury to others; MR 1.13 requires substantial injury to the organization
1.6 requires the client to use the lawyer’s services in furtherance of conduct; 1.13 does not require that; just matters related to representation (broader)
