relationship of law, lawyers and ethics
Who Among Us Will Do the Right Thing?
Adversary Ethics [p3] Spaulding v. Zimmerman [p3] – minor’s injuries were diagnosed as a severe crushing chest injury, a cerebral concussion, and bilateral fractures of the clavicles. The defense’s expert, who also examined the minor, reported that the minor had an aorta aneurysm, which may have been caused by the accident. At settlement negotiations, the minor’s parents were not aware of the report received by the defense. The parties settled and the trial court approved the settlement. 3 years later new doctor spots aneurysm from previous photo. Minor asks for judgment to be set aside and vacated to enable pursuit of greater damages. Court affirms decision to set aside settlement for failing to disclose information to the court.
Rule – absent special circumstances, such as mutual mistake, fraud or concealment from the court, courts will not set aside a judgment because a lawyer has concealed adverse evidence from the opposing party.
Thus, an 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, lawyers are obligated to make full disclosure of their knowledge of an adversary’s medical condition.
Pre-2002 version of M.R. 1.6
1) Prior to 2002, lawyer could not reveal information unless the client consented. Only 2 exceptions: (1) to prevent the client from committing criminal act (2) defend a claim brought against the lawyer.
Current version of M.R. 1.6 – “(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) a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm.”
1) Under current version of M.R. 1.6, defense attorney would be required to disclose information about (P) health. Same result under Georgia Rule 1.6.
2) Note – lawyer should still talk to client first before disclosing information.
Introduction to Ethical Codes and Other Sources of the Law of Lawyering [p13] Canons of Professional Ethics (1908) [p14] Adopted in 1908.
First effort to adopt rules to guide lawyer’s conduct.
The Canons were brief and were written in broad language with a high moral tone.
Model Code of Professional Responsibility (1969) [p14] [p124 of Supplement] Adopted in 1969.
Divided into 3 parts:
1) 9 Canons which function as chapter headings.
b) Ethical Considerations [ECs] 1) Aspirational in character and represent the objectives toward which every member of the profession should strive.
2) They illustrate and interpret the rationale for the canons.
c) Disciplinary Rules [DRs] 1) Mandatory in nature. State the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.
Model Rules of Professional Conduct (1983) [p15] [p6 of Supplement] Format – black-letter rules followed by explanatory comments. Rules also reflect a more modern concept of a lawyer’s role.
47 states and the District of Columbia have adopted some version of the Model Rules. Note – the rules do not have the force of law, unless adopted by a state.
January 1, 2001 – Georgia Supreme Court adopted the Rules of Professional Conduct which is based on, but not identical to, the 1983 Model Rules of Professional Conduct.
1) Shall – mandatory rule
2) May – discretionary rule
3) Should – aspirational rule, not mandatory
b) Example of distinction:
1) Georgia Rule 1.6 – “lawyers may [subject to their own discretion] disclose information in certain situations”
2) M.R. 1.6 – “lawyers shall [mandatory] disclose information in certain situations.
Ethics Opinions and Advisory Boards
The ABA has a standing Committee that issues formal advisory opinions interpreting the Rules of Professional Conduct; persuasive authority.
Georgia has a Formal Advisory Opinion Board (FAOB)
a) Charged with writing formal opinions in response to written questions deemed to be within jurisdiction of the board.
b) Opinions are published in the back of the Georgia Bar Directory
c) Opinions are binding on lawyer who requested opinion and on the general counsel of the state bar.
d) Opinion may go to Georgia Supreme Court for review
1) If it decides to adopt the opinion, it will be binding on all lawyers who are licensed to practice in Georgia.
e) Non-binding advisory opinions can also be issued when lawyers call the ethics hotline at the State Bar.
ABA Ethics 2000 Commission [p17] Commission took a look at Model Rules and made recommended changes.
In 2002, the 1983 Model Rules were revised in light of recommendations from the Ethics Committee. These were approved in 2002.
Restatement of the Law Governing Lawyers [p19] Covers some of the same topics as the Model Rules. However, covers more stuff on professional discipline. Likewise, ALI Restatement is not binding law. Good source of law when you have a problem and need guidance.
Other Sources of Ethical Guidance [p19] Tort law, agency law, contract law, family law, criminal law, FRCP
Morality of Lawyer’s Role
A Lawyer’s Own Conscience
Sources of law do not create an exclusive realm, so of course a lawyer’s conscience comes into play.
ABA Canon 15 (1908) states that the client is not the keeper of the lawyer’s conscience.
Model Rules suggest more than a “Bad Man Theory”
M.R. 2.1: Advisor – “…a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” See also cmt 2 and cmt 3.
Preamble to the M.R.
a) cmt 7 – a lawyer is also guided by personal conscience and the approbation of professional peers.
b) cmt 9 – difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in maintaining an ethical person.
Client comes to you with legal problem that could result in lawsuit. You’re aware of a recent case in your jurisdiction about when the statute of limitations begins to run on this type of claim and you know that the statute has tolled by the time the client came to you. You also know that the lawyer who represents the opposing side is not aware of the statute of limitations. Do you file suit?
a) Statute of limitations is an affirmative defense, but Rule 11 sanctions could be imposed for filing a frivolous claim.
b) Therefore, although the Model Rules wouldn’t preclude the lawyer from filing this claim, there are other rules out there that guide a lawyer’s professional conduct.
You’re engaged in negotiating the sale of real estate. Based on nothing you said, you realize that the other side believes the tract of land can be subdivided into 20 small lots and you know that’s not possible. Do you tell them or close the deal?
a) Brown v. County of Genesee [p8] supports the conclusion that you don’t have to disclose.
1) Absent special circumstances, such as mutual mistake, fraud on the court or concealment from the court, courts will not set aside a judgment because a lawyer has concealed adverse evidence from the opposing party.
b) Therefore, if you represented that the land could be subdivided, that would be a misstatement of a material fact (liability for potential fraud).
c) Should at least talk to your client about the other side’s mistaken belief.
Pitfalls for the Unwary
Shaping and Using Law and Facts [p25] In re Krueger [p25] – lawyer publicly reprimanded for filing a petition for divorce on behalf of his client and making representations to the court that were inaccurate. Stipulated that client, while living in IL, retained attorney who counseled the client to rent a room in WI to satisfy the residency requirements for a divorce action under WI law. Client did so for two weeks, but the attorney commenced a divorce petition that alleged that the client was a resident of WI for more than 6 months. Rule – permissible to tell clients how to take advantage of the law, but not okay to make false representations to a court when the lawyer possesses knowledge contrary to what he asserts.
M.R. 3.3 – Candor Toward the Tribunal– “a lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement or material fact or law previously made to the tribunal by the lawyer;(3) offer evidence that the lawyer knows to be false.
Are Lawyers Immune From Law’s Prohibitions? [p26] Commonwealth v. Stenhach [p27] – lawyers represent client for murder charge. Client details what happened to lawyer who then asks for directions to where he can find piece
terpretation as being too narrow. Fraud = intent to deceive. Court therefore rejects Gellene’s argument on 2 grounds:
1. Gellene flunks the test he asked the court to adopt. What was gained here as a result of this lie to the court?
· Gellene got the chance to represent the client with the potential for a fat paycheck. The creditors were deprived of a disinterested lawyer.
2. Court looks to the plain meaning of fraud. Fraud = deceiving. Why take the more expansive view?
· There is a common understanding this is what fraud means and court also points to dictionary definition.
Perjury under 18 U.S.C. § 1623
a) Gellene tries to raise as a defense that what he stated in the declaration was literally true.
1) Relies on the Bronston v. United States bankruptcy case. Bronston had a Swiss account but answer he gave was that company had Swiss bank account. Supreme Court said that wasn’t perjury.
1. If lawyer had been listening, he would have been alerted that witness was not quite answering the question. Therefore, Bronston spoke the literal truth, it was just misleading. Can’t convict someone of perjury if they speak the literal truth.
2) Gellene tries to use that to say he spoke the literal truth here, but court says Bronston is inapplicable here. In that case, witness made a mishap during the flow of cross-examination. Here, Gellene provided false testimony during direct examination.
M.R. 3.3(a)(1): Candor Toward the Tribunal clearly speaks to Gellene in this case.
Other lawyers in this case who may be exposed to criminal or professional liability:
a) Senior partner Lederman who assigned the Bucyrus representation to Gellene.
1) If Lederman knew that Gellene was testifying falsely, possible he could be charged with subornation of perjury if he encouraged or induced him to commit perjury.
2) Lederman could still be held liable under M.R. 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers
1. If you know someone under your supervision has violated a rule of professional responsibility, you have a continuing obligation to take remedial measures to correct it until the case is over. When the matter ends, obligation ends. Matter ends when there’s been a final judgment and appeal process is over or has passed.
· See M.R. 3.3 cmt 13: Duration of Obligation
b) Partner Gelfand who put on Gellene’s testimony and presented his sworn declarations to him on the stand.
1) May be guilty of subordination of proof (illicit false testimony à subornation of perjury)
1. To prove that, must show the he did so “knowingly.”
· M.R. 3.3(a)(3) would speak to Gelfand in this case – lawyer puts on evidence he knows to be false. Perjury on criminal side and also violates rule of professional responsibility. However, again, a question of whether he has knowledge.
o M.R. 1.0 definition of “knowingly or knows” – means actual knowledge. However, knowledge can be inferred from the circumstances.
Document Destruction and the Andersen Case [p83] What did Andersen do that led to charges that they obstructed justice?
a) SEC begins to whiff around and Nancy Temple (in-house counsel) makes a note saying that an SEC investigation is highly likely. Andersen aware that client Enron might be informally investigated by SEC. Few days later, she sends e-mail reminding them of Andersen’s document retention policy (which is a euphemism for document destruction). Nothing wrong with having a policy for how long they will retain docs. On the other hand, as a lawyer, you would tell client not to destroy docs. That didn’t happen here and docs were shredded at Andersen.