a. Spaulding v. Zimmerman (Minn. 1962): The court may vacate such a settlement for mistake even though the mistake was not mutual in the sense that both parties were similarly mistaken as to the nature and extent of the minor’s injuries, but where it is shown that one of the parties had additional knowledge with respect thereto and was aware that neither the court nor the adversary party possessed such knowledge when the settlement was approved. Because he was a minor the settlement could be set aside. The court said that there was no bad faith on the part of the defendants. There was no rule that would have required the defendant to disclose this information. Plaintiff’s lawyer was the one that made a mistake for not doing his job in requesting the records.
II. History and Sociology of the Profession, Professionalism and the Development of Professional Codes
III. Critiques of Self-Regulation: The Lawyer’s Role in the Adversary System I
a. Halt: focused on legal reform and protecting the public from lawyers.
b. CT Rule 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer
i. (a) Subject to subsections (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. Subject to revocation by the client and to the terms of the contract, a client’s decision to settle a matter shall be implied where the lawyer is retained to represent the client by a third party obligated under the terms of a contract to provide the client with a defense and indemnity for the loss, and the third party elects to settle a matter without contribution by the client.
ii. (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
iii. (C). A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. Such informed consent shall not be required when a client cannot be located despite reasonable efforts where the lawyer is retained to represent a client by a third party which is obligated by contract to provide the client with a defense.
iv. (d). A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
c. CT Rule 1.3 Diligence
i. A lawyer shall act with reasonable diligence and promptness in representing a client.
d. Rule 4.4(b) Respect for Rights of Third Persons
i. A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.
ii. Model Rule: A lawyer is not required to return the material, the decision of what to do is a matter of professional judgment
IV. The Lawyer’s Role in the Adversary System: The Requirement to Conform to Law
a. Neutral partisanship
i. Wasserstrom: lawyers routinely choose to be indifferent to a wide variety of things: role differential amorality. Concluded that rationales for it only work for the criminal defense system.
ii. Rule 2.1 allows a lawyer to counsel clients with respect to moral questions.
iii. A lawyer’s representation of a client does not count as an endorsement to the client’s moral, political etc. (Rule 1.2)
iv. When it comes to trial tactics (including dirty tricks) the client gets to decide the goal and the lawyer gets to decide the means of achieving the goals (Rule 1.2). However, if a client does not want lawyer to do something, they shouldn’t.
b. CT Rule 1.16 Declining or Terminating Representation
i. (a) Except as stated in subsection (c), a lawyer shall not represent a client, or where representation has commenced, shall withdraw from the representation of a client if:
1. (1) The representation will result in violation of the Rules of Professional Conduct or other law;
2. (2) The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
3. (3) The lawyer is discharged
ii. (b) Except as stated in subsection (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interest of the client;
1. (1) withdrawal can be accomplished without material adverse effect on the interests of the client;
2. (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
3. (3) the client has used the lawyer’s services to perpetrate a crime or fraud;
4. (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
5. (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled’
6. (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
7. (7) other good cause for withdrawal exits
iii. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
iv. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. If the presentation of the client is terminated either by the
sed to two murders and the lawyers found the abandoned bodies and took pictures. They concluded that under the Rules of Professional Conduct, they cold not inform families or anonymously tip off police because it would violate confidentiality.
d. Crime-fraud exception: The communication is not privileged if it was made with an intent to commit a crime or fraud and if it was made in furtherance of the crime or fraud. It doesn’t matter whether the crime or fraud actually occurred. It doesn’t matter whether the client had an illegal motive when making the communication.
e. The party seeking to break the privilege bears the burden of proof.
i. CT Rule 1.6(c)(1). The lawyer is required to reveal information that the client will commit a crime.
ii. U.S. v. Zolan: trial court may make a review of allegedly privileged information. Need an adequate showing to support a good faith believe that a reasonable person would believe that there is a crime-fraud exception.
iii. Bersani v. Bersani: the wife received temporary custody of the children and she left the country without permission. The court held her in contempt. The husband argued that the wife’s lawyer should reveal her location and break attorney-client privilege. The attorney’s present refusal to disclose her client’s whereabouts served to assist the plaintiff in her ongoing violation of the court’s order.
f. CT Rule 1.6 (Insert here)
g. Information that is not privileged: The identity of the client is not privileged information. Details of fee arrangements are not considered privileged. Descriptions of physical characteristics of the client are not privileged. What if there is a hit and run accident and driver sees lawyer and lawyer wants to get a plea agreement but not reveal client before agreement is made. Last link doctrine: if otherwise unprivileged information (client’s identity) would reveal privileged information, the court would sometimes consider that privileged information.
h. Privilege in Organizational Setting
i. Upjohn v. United States (1981): Communications made by Upjohn employees at the direction of Upjohn superiors in order to secure legal advice were protected.
VII. Confidentiality: Much broader than privilege: it encompasses any information relating to the representation of the client.
a. CT Rule 1.6 (a): a lawyer shall not reveal information relating to the representation of the client.
b. CT Rule 1.6 (b) says the lawyer must reveal information that the client may commit bodily harm.
c. 1.6 Model Rules
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized