Legal Profession Outline – Fall 2006I. The Relationship of Law, Lawyers, & Ethics a. General: i. Most states have adopted the ABA Model Rules Governing Lawyers (previously ABA Model Code) ii. Rules are embodied within Restatement (Third) of Law Governing Lawyers b. Adversary Ethics: 1. Spalding v. Zimmerman: P & D in car wreck, D riving car and P is passenger. Several persons killed in car crash. P (father of injured son) sues D. P goes to three sets of doctors. D’s doctor discovers that plaintiff has aortic aneurysm. Doctor discloses this information to D’s lawyer. D’s lawyer does not disclose information to client, P’s lawyer, or the court. Case is settled even though information is concealed by D’s attorney. 3 years later new doctor spots aneurysm from previous photo. P asks for judgment to be set aside and vacated to enable pursuit of greater damagesa. Holding: Court affirms decision to set aside settlement for failing to disclose information to the court. 2. Rule: Absent special circumstances, such as fraud, mutual mistake, or concealment from the Court, a court will not set aside a judgment because a lawyer has concealed adverse evidence from the opposing party. a. Attorney does not have to tell adversary about physical injury during negotiation of a settlement, but once the settlement has been agreed to and presented to the court for court approval (b/c plaintiff was a minor), lawyers are obligated to make full disclosure of their knowledge of an adversary’s medical condition (such a proceeding is a joint presentation to a tribunal to approve a settlement) i. The penalty for failing to disclose information is a vacation of the settlement. ii. Lawyer does not have to inform plaintiff immediately about medical information between he is representing the defendant in the adversarial process. 3. Rule: Absent a request from the adverse party, a lawyer has no obligation to disclose information unless requested by the other party a. General Rule against requiring disclosure stated in Brown v. County of Genesee: “absent some misrepresentation or fraudulent conduct, [the defendant] had no duty to advise [Brown or her counsel] of any such factual error” b. For Medical Information: i. FRCP Rule 35(a) provides that upon motion showing good cause a court may order a party to submit to a physical or mental examination ii. FRCP Rule 35(b) provides that the medical report from any such examination shall be supplied to the party examined upon that party’s request. 1. After 2000, the Federal Rules concerning discovery were changed to require proactive disclosure only of the existence and location of documents and identity of people that the disclosing party might use “to support its claims or defenses” – therefore general rule is that documents must only be produced at the request of the opposing party. 4. Lawyer’s Professional Obligation to Disclose Information a. Communicating with Clients i. Lawyers assess goals of the client (because lawyers are agents of the client)1. Lawyer has a duty to tell clients about an adversary’s medical information and client then makes decision of whether to disclose that information to the other party. a. A lawyer should NEVER assume a client’s priorities/values ii. Who is the client (i.e. insurance company?)1. In every jurisdiction, the client is the person insured and not the insurance company. i. Conflict of interest created b/c lawyer is dependent on insurance company for future business; had interest in getting more business from insurance company, therefore he had an incentive to settle for a lower amountb. Some states may require a duel obligation to the insurer iii. ABA Model Rule 1.41. (a) A lawyer shall: a. (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;b. (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;c. (3) keep the client reasonably informed about the status of the matter d. (4) promptly comply with reasonable requests for information; ande. (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.2. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. iv. ABA Model Rule 1.2 – Scope of Representation And Allocation of Authority Between Client and Lawyer 1. (a) Subject to paragraphs (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 peal to be entered, wehether to waive jury trial and whether the client will testify.2. (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 activities3. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.4. (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. ii. Pre-2002 ABA Rules Governing Lawyer Disclosure1. Prior to 2002, lawyers were prohibited from disclosing information about their clients without consent, w/ two exceptions: a. Where a lack of disclosure will result in the client committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm iii. Post-2002 ABA Rules Governing Confidentiality of Information: 1. Rule 1.6: Confidentiality of Informationa. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).b. (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: i. (1) to prevent reasonably certain death or substantial bodily harm;1. After 2002, lawyer in Spalding would be obligated to disclose information about the plaintiff’s health 2. In Georgia, lawyers may reveal confidential information to prevent criminal conduct or to prevent serious injury or death. ii. (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; iii. (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; iv. (4) to secure legal advice about the lawyer’s compliance with these Rules; v. (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or vi. (6) to comply with other law or a court order. 2. Procedure: a. First, get a client’s consent to reveal matters to the opposing partyb. Then, if a client does not consent, then the current version of GA and ABA rules allow lawyer discretion to reveal the info to save a life (preserving life is more important than preserving confidentiality) iv. Appropriate conduct for a lawyer who is considering disclosing disputed information about an adversary: 1. Talk to the client, keeping him appraised of the situation 2. Try getting the client to agree to disclose the information a. By arguing that it’s the right thing to dob. By arguing that the settlement may not be valid if certain information is disclosed from the court and the other partyc. Possibility of liability if the plaintiff dies from hidden medical condition (wrongful death suit) i. Wrongful death suit may be against either the lawyer or the client for withholding important medical information v. Other lawyer negligence liability in Spalding: 1. Spalding’s lawyer might be negligent for not requesting a copy of defendant’s X-raya. Merely had to ask doctor for a copy of the X-ray2. Defendant’s attorneya. Failure to consult with client about plaintiff’s medical information rendered the settlement invalid, this was possibly a lack of due care on the part of the attorney b. Torts Restatement 876: i. Someone who assists a tortfeasor in doing a wrongful act becomes liable along with the tortfeasor ii. “Liability exists for harm resulting to a third person for tortous conduct if1. that person is acting in concert with another person2. that person knows that another’s conduct is a breach of duty and encourages that other person to conduct themselves in a certain way (Advice to a tortfeasor is the equivalent of physical assistance in the commission of the tortous act) a. While a defendant’s attorney would not ordinarily have a duty to a plaintiff, in this circumstance the attorney could be considered the tortfeasor and therefore would be subject to liabilityb. Tort liability would trump lawyer ethics lawsc. Lawyer Rules of Professional Responsibility i. ABA Rules of Legal Ethics (1908): 1. Adopted in 1908 as ‘Cannons of Legal Ethics’2. Based on rules adopted by Alabama Bar from a series of lectures containing aspirational statements, effort to put into compendium statements about what lawyers ought and ought not to do ii. ABA Model Code of Professional Responsibility (1969)1. States adopted codes of professional responsibility,2. More detailed code governing professional conduct of lawyers3. Divided into three parts: a. Cannons: i. Blackletter statements about lawyers’ professional conduct. ii. These are the title headings for each chapter b. Ethical considerations i. These followed after the cannons and were designed to explain the rationale for the cannons. ii. They illustrate and interpret the rationale & aspirational tone of the cannonsc. Disciplinary Rules i. State level of conduct below which no lawyer can fall without being subject to disciplinary action (similar to blackletter law) ii. Standards 1. Disciplinary rules – w/ maximum punishment for violation 4. Even when the Code was adopted, it was out of date and not in-sync with the reality of modern legal practice: code dealt with lawyers are litigators more than lawyers as transactional/office lawyers. iii. ABA Model Rules of Professional Conduct (1983)1. Update of cannon to reflect the modern nature of legal work (i.e. working in larger offices, transactional work)2. 47 States and the District of Columbia have adopted some form of the Model Rules in their states a. Rules are generally adopted by state courts b. GA Supreme Court adopted Model Code of 1969 i. Code included disciplinary rules and standards 1. Standards include a maximum punishment for the violation of the rules (disbarment, reprimand, suspension) c. On January 1, 2001 the Georgia Supreme Court adopted the Rules of Professional Conduct (based on, but not identical to, the 1983 ABA Rules of Professional Conduct) i. Language: 1. shall: mandatory rule2. may: discretionary rule 3. should: aspirational rule, not mandatory ii. Example of distinction: 1. GA Rule 1.6: Lawyers may (subject to their own discretion) disclose information in certain situations2. ABA Rule 1.6: Lawyers shall (mandatory) disclose information in certain situations. 3. Code is divided into (1) Blackletter Rules and (2) Comments a. Blackletter Rules: i. Enforceable rules b. Comments: i. Meant to explain rules or provide a rationale ii. Similar to ethical considerations iii. Cannot add to or take away form the effect of blackletter rules iv. ABA Ethics 2000 Commission 1. Commission took look at Model Rules and made recommended changes 2. In 2002, the 1983 Model Rules were revised in light of recommendations from the Ethics Committee. These were approved in 2002. v. NOTE: ABA Model Rules are not law anywhere: 1. ABA Model Rules only become law when they have been adopted by a sovereign that has the power to regulate lawyers.2. These are usually adopted by the highest court in the state3. States frequently use the Model Rules as a basis of their own Codes of Professional Conduct a. California Exception: Legal Code developed through legislation vi. Rules of Professional Conduct for Lawyers/Advisory Panels: 1. The ABA has a standing Committee that issues formal advisory opinions interpreting the Rules of Professional Conduct a. These are only persuasive authority used by courts (like law review articles)2. Georgia has a Formal Advisory Opinion Board a. Advisory Opinion Board publishes opinions interpreting Georgia Rules of Professional Conduct b. Opinions are published in the back of the Georgia Bar Directory i. Previously, a Committee was authorized to draft an opinion which when submitted to the court and approved by the court would be binding on all members of the bar1. GA Supreme Court changed this procedure, ending advisory opinions ii. Today, Committees draft opinions and publish them in the Georgia State Bar Journal1. Court may use its discretion to decide to hear oral arguments; then the opinion is binding on everyone iii. Non-binding advisory opinions can also be issued when lawyers call the ethics hotline at the State Bar d. Other Areas of Law Governing Lawyers 1. In addition to rules of professional responsibility, other areas of law govern the practice of law ii. Agency Law1. Agency Law governs the lawyer-client relationship (lawyers are agents and clients are their principles)2. The client is a special kind of principle a. Agency & Principle help inform the lawyer-client relationshipb. Rules require the client to make basic decisions about objectives of representation i. This comes from agency law; where a lawyer is acting on behalf of a client 3. Lawyers can often be exempted from agency law b/c they are empowered with more autonomy in acting for their clie
availability in any pending or imminent investigation or proceeding. a. Otherwise, he must deliver it to the prosecution on his own motion. b. In the latter event, the prosecution is entitled to use the physical evidence as well as information pertaining to its condition, location, and discovery but may not disclose to a fact-finder the source of the evidence. i. Protection from disclosure of a source is not applicable when the source is a third party. 3. Summary: Criminal defense attorneys with physical evidence incriminating their client can hold the evidence for a period of time before they MUST turn it over to the prosecution If the evidence is obtained from a non-client third party who is not acting for the client, then the privilege to refuse to testify concerning the manner in which the evidence was obtained is inapplicable. i. A lawyer must not act or assist in the destruction or unlawful concealment of evidence ii. If a lawyer leaves evidence where she finds it, she cannot be compelled to reveal information gained from a privileged communication iii. Once physical evidence is taken from its original resting place, the lawyer must not do anything that would conceal or destroy either the evidence itself or evidence of its location or condition iv. Once a lawyer possess physical evidence, she must not return that evidence to its source if she has reason to believe that the evidence will be destroyed or unlawfully concealed or that the chain of evidence will be broken v. The majority of jurisdictions require the lawyer to hand over to the proper authorities all physical evidence b. The attorney has the right to take evidence temporarily to make an inspection i. Both sides are entitled to the evidence, but neither side should be a participant in destroying that evidence. c. However, they must return it in way that does not destroy its veracity as evidence OR they must turn it over to the authorities i. Rationale: 1. One side should not alter, conceal, or destroy evidence in the case2. If a rule allowed attorneys to take possession of evidence in a crime, it would be harder to prosecute cases; creating a “race” to the evidence a. (i.e. defense counsel told of location of incriminating evidence must race to the scene to collect the evidence before the police and arrive and collect it themselves)3. Lawyers should not be turned into warehouses for contraband/instruments of a crimea. This prevents lawyers from hiding relevant evidence ii. Note: Attorney-client privilege does not apply to physical evidence (instrumentality of crime/contraband); even if the information is obtained from a client 4. Exceptions: a. Evidence created as part of a defense i. Such evidence falls under the attorney-client privilege and does not need to be turned over to authorities as physical evidence ii. If evidence is prepared for any reason other than defense, it qualifies as physical evidence and is not protected by the attorney-client privilegeb. Evidence that the state could not compel a defendant to produce against his will5. Other Sources of Authority: a. State v. Olwell: Criminal defense attorney held in contempt of court following refusal to answer questions or produce weapons at coroner’s inquest, in defiance of subpoena i. Appeals court reverses, holding that subpoena was defective on its face for invading confidential relationship b/w attorney & client . b. People v. Meredith: Client tells lawyer where victim’s wallet can be found, investigator finds victim’s wallet and retrieves it. Lawyers determine that wallet must be turned over to authorities, court agrees. i. Court: Testimony regarding location of evidence DID NOT violate attorney-client privilege. c. Bar Committee Recommendation: Defense attorney has a legal obligation to turn over evidence to the prosecution i. “it is simpler and more direct for defendant’s attorney to turn the matter over to the state as long as it is understood that the prosecutor may not mention in front of the jury the fact that the evidence came from the defendant or his attorney” 6. Law Requiring Disclosurea. Criminal laws in all jurisdictions make the concealment or destruction of evidence criminal although the circumstances that trigger the statutes vary from one state to another i. Some state prohibit destruction only when a person “knows” a legal proceeding is ongoing or about to be instituted ii. Other states prohibit destruction when a person “believes” a proceeding is pending or about to be instituted iii. Other states prohibit destruction with intent to prevent the production of the evidence.b. Federal Obstruction of Justice Statute: i. Provides some protection for lawyers where the activities are “lawful” and “bona fide”7. Reasons for limited protections of lawyers regarding disclosure of physical evidence:a. Most evidence statutes require proof of “specific” or “wilfull” intent b. Prosecutors tend to exercise their discretion against bringing charges against one who acted without malicious intent or bad faithc. Some prosecutors share assumption that lawyers are immune from liability 8. Attoreny-Client Privilegea. Items Protected under the Attorney-Client Privilege i. If an item is protected under the attorney-client privilege, then that evidence does not have to be turned over to authorities (any time information is obtained during the process of the attorney providing legal advice to the client) 1. Examples of items protected under the attorney-client privilege:a. Map drawn to show location of the bodiesb. Extensive timeline of criminal activities c. Description of where to find weapons i. BUT: If client gives description of location where HE WILL commit a crime, the lawyer must immediately turn that information over to the police. b. Items Not Protected under the Attorney-Client Privilege i. Restricting the prosecution’s disclosure of the source of the evidence protects a privileged communication, however the physical evidence itself is not privileged.
