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Legal Profession
University of Denver School of Law
Wald, Eli

Wald_Legal Profession_Spring_2012

Rules are centered mostly on trial attorneys

Assumptions made by the rules about Lawyers
Solo Practioners
Rules are universal to every practice, but focus looks at criminal defense
Have a certain level of professionalism

Assumptions made by the rules about clients
Client is assumed to be individual and autonomous
Client is assumed to be vulnerable
Client is assumed to be seeking for maximum legal rights

Assumptions about legal advice
The law is assumed to be an autonomous discipline distinct from other things
The advice consists largely of formal rules and practices

Controls on attorney’s conduct
Disciplinary Controls
Liability Controls
Institutional Controls
Legislative Controls
Market Controls
Reputation
Insurance Companies
Peer Group Controls

Confidentiality
Rule 1.6
Rule 1.16
Rule 1.18

Rule 1.6
A lawyer shall not reveal information relating to the representation of the client
Exceptions
1.6 (a) unless the client gives informed consent
The disclosure is impliedly authorized
1.6 (b) A lawyer MAY reveal information if the lawyer reasonably believes:
1.      To prevent reasonably certain death or substantial bodily harm.
2.      Prevent the client from committing a crime or fraud reasonably certain to result in substantial injury to the financial interests, in furtherance of which the client has used or is using the lawyers services
3.      Prevent mitigate or rectify sub. Injury to fin. int.  that is reasonably certain to result from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services
4.      To secure legal advice about the lawyer’s compliance with these Rules
5.      To establish a claim or defense on behalf of the lawyer
a.       In a controversy b/w lawyer and client
b.      To establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved
6.      To comply with other law or court order

2 exceptions in 1.6 (a)
6 exceptions in 1.6 (b)
3 additional exceptions
3.3 (b)
1.13 (c)/1.4
4.1

Comment 10 of 1.6 is tested every other year on MPRE
The lawyer’s right to respond arises when an assertion of such complicity has been made.
1.6 (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion.

State law mandatory disclosure if privy to child abuse
If the question asks if the Rules of Professional conduct req… No
If the question asks if the lawyer is required to under law…yes

General rule of law
Confidentiality does not attach among co-clients

1.6 (b) (2) and (b) (3)

ALL 7 must be in place to have discretion
1.6(b)(2)
1. Only to prevent (future conduct)
2. The client
3. Crime or fraud
4. Reasonably certain
5. Substantial injury
6. To the Financial Interests
7. Furtherance of which the client has used or is using the lawyer’s services

ALL 7 must be in place to have discretion
1.6 (b) (3)
1. To prevent, mitigate or rectify
2. The client
3. Crime or fraud
4. Reasonably certain
5. Substantial injury
6. To the Financial Interests
7. Furtherance of which the client has used or is using the lawyer’s services

Rule 1.16
Withdrawing representation

1.16 (a) SHALL WITHDRAW
1. Shall withdraw if: the representation will result in violation of the rules of professional conduct OR OTHER LAW
2. Lawyer’s physical or mental condition MATERIALLY impairs the lawyer’s ability
3. The lawyer is discharged

1.16 (b) MAY WITHDRAW
7 reasons you may withdraw (factors)
1.      Don’t have material adverse effect on the interests of the client
2.      The client persists in a course of action involving the lawyer’s services that reasonably believes is criminal
3.      The client has used the lawyer’s services to perpetrate a crime or fraud
4.      The client insists upon taking action that the lawyer considers repugnant
5.      The client doesn’t pay
6.      Representation will result in an unreasonabl

exception
e

Rule 3.3
Attorney’s candor toward tribunal

A criminal D has the right to take the stand
Attorney cannot facilitate fraud

Rule 3.3 (a)(2) guaranteed on MPRE
Only refers to controlling authority

Freedman article
By requiring disclosure, you would have to tell the client at the outset which would lead you effectively chill the confidentiality and trust with the client

Frankel article
Paramount objective for lawyers is to discover the truth, not to win at all costs for your client

Rule 4.1
Truthfulness in Statements to Others


Conflict of Interest
Rule 1.7-1.11, 1.16, 1.18

United States v. Gellene
Mr. Gellene failed to disclose conflict of interest
Failing to disclose led to disgorgement of fees, and jail

You cannot drop a client like a hot potato i.e. without client’s permission

Rule 1.7
Conflict of Interest: Current Clients
(a)    A current conflict of interest exists:
1. directly adverse
2.materially limit lawyer’s responsibilities
(b) Exceptions
1. Reasonably believe lawyer will be able to be competent and diligent
2. not prohibited by law.
3. Representation not involve assertion of claim by one client against another in the same litigation or other proceeding before a tribunal
4. Informed consent, confirmed in writing.

CONFLICT OF INTERESTS
Rule 1.7 Current Clients
1. Client to Client: 1.7(a)(1), 1.7(a)(2)
Client to lawyer: 1.7(a)(2) (comment 10-12)
Lawyer to Lawfirm:
2. Conflict: 1.7(a)(1), 1.7(a)(2)
3. Cure: 1.7(b)(1)&(4)—-waiver
4. Special Cases
a. co-clients (this will likely be on the test b/c it deals w/confidentiality and conflicts)
b. Employee/employer (risk of coercion)