· Approach this body of law in the role of a first person actor within the system
o Not as an advisor
· Must conform our conduct not only to the rules of professional responsibility but also other types of law such as criminal and tort law
o General working rule: The other law trumps the ethics rules
· Sources of law
o State ethics code – each state has adopted a set of mandatory legal rules that govern the conduct of lawyers admitted to practice in that state
§ Most states, it is the state’s supreme court that enact the codes
§ For the most part, all state codes are based on the ABA model rules of professional conduct
o ABA Model Rules of Professional Conduct – lawyers writing the rules for lawyers; private voluntary member organization that has no right to impose its rules on anyone
§ These rules, standing alone, have no force of law
§ Serve merely as a model for states to consider and adopt
· States may tinker with the rules to conform to each jurisdiction
o Comments to the rules
§ Not the law itself but important to look at for interpretation of the rules
o Court opinions/Disciplinary rules
§ Those that have interpreted and applied the rules and comments
o Ethics opinions
§ Advisory opinions that have been issued by special ethics committees
§ Formal ethics opinion
· Opinions that are generated by the ethics committee after a formal submission in writing by a lawyer asking for guidance in a particular set of facts
· Committee meets together to discuss and writes an opinion on the question
· Then publicly publishes the opinion for all lawyers to see
§ Informal ethics opinion
· Lawyers can call the ethics hotline with questions
· Only the lawyer who has called will get the opinion to the question
§ Not legally binding precedent on a court
· Persuasive authority
· If you sought guidance through and can prove that you acted in reliance of an ethics committee opinion, it will be very helpful to you
o Agency law
§ The lawyer, when acting on behalf of a client, are acting as an agent to the client
§ The lawyer who is an agent of the client is deemed to be a fiduciary to the client
· Fiduciary – a person having the duty to act primarily for another’s benefit in matters connected with the undertaking
o Duty to put the client’s interests first in matter connected with the representation
o Lawyer can be sued for breach of fiduciary duty if they do not put the client’s interests first
o Tort law
§ Lawyer can be liable to a third party for actions done behalf of client
§ When acting as an agent for the client, you can be deemed in concert with the client
§ Examples: malpractice, conversion, negligence
· What happens when the model rules runs counter to our ethical stances?
o Spaulding v. Zimmerman
§ FACTS: Plaintiff, David Spaulding, was a victim in a serious car accident. Insurance companies for both sides conducted examinations of him to determine the extent of his injuries, but only the defendant’s doctor discovered that his life was at risk from a serious brain aneurysm which may or may not have been caused by the accident. Counsel for Defendant Zimmerman decided not to reveal this information while negotiating settlement. Plaintiff did not become aware of this condition until two years later, and requested that the trial court vacate the prior settlement at that time.
§ ISSUE: Can a prior settlement be vacated on the grounds that defendant knew about plaintiff’s condition when plaintiff did not?
§ HOLDING: Yes. The lower court did not abuse its discretion in vacating the settlement.
While Defendant’s counsel had no specific ethical obligation to disclose Plaintiff’s life-threatening condition, they had reason to know that Plaintiff would not have agreed to the same settlement had he known of it.
§ NOTE: It is important to note that Plaintiff was a minor at the time of the settlement. Had he been an adult, it is more likely that he would have been bound by it, although he would have had grounds for a claim against both his doctor and his lawyer for malpractice.
§ IMPORTANT: Defense counsel had an opportunity to make known the risk of the victim’s condition to possibly save his life but there is a duty of the lawyer to work in the best interests of their clients
§ REMEMBER: It was the insurance company who hired the defense counsel and so it looks like the defense counsel is working for the best interest of the insurance company rather than the defendant. Perhaps a conflict of interest is present here for the defense counsel.
§ Should the lawyers have told Zimmerman about the aneurism?
· MRPR 1.4 & 1.2: an attorney must disclose all relevant information that may injure another and attorneys may not withhold information for its own convenience
§ What advice should the lawyers give?
· MRPR 2.1: in rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation
§ If for some reason the rules state that lawyers cannot disclose certain information, what should you do?
· Kordik’s perspective: Always following the rule is too rigid and formalistic. The essence of a professional career is to be able to make wise and sound decisions. Don’t abandon your own morals.
· Make decisions that you are comfortable living with for the rest of your life.
Duty to maintain secrecies and confidences
· Professional Rules à Rule 1.6: Duty of confidentiality
o What must be protected?
§ All information relating to the representation of the client
o Broadest duty
§ Can cover privileged information and other physical materials
§ Communications with third parties
§ Lawyer’s observations
§ Information from all other sources
o Exists at all times unless it is part of the exceptions or if the client waives it
o Owed to former, current, and prospective clients
§ Continues forever
o What is it that 1.6 requires?
§ Literal language would require that a lawyer not disclose your work with anyone
· Information must not be disclosed regardless of where and from whom you got it from because the rule does not state anything about where information is received
§ Comment 4 – prohibition of the disclosure of information that could reasonably lead to the discovery of such information by a third person.
· Further, there are multiple interpretations on the next sentence
o First, it seems to allow discussion with other professionals by using hypotheticals as long as the identity of the client cannot be ascertainable.
o Second, it seems to allow discussion
§ (b)3 may be applicable here; within attorney’s discretion to reveal information to prevent, mitigate, or rectify substantial injury to financial injury that is reasonably certain to occur
· Allows the bank to stop making further loans and collect on the loans given; greater chance for the bank to recover some or all of its money
· Reasonably certain if there is a present and substantial threat that the bank will suffer financial injury at a later date (comment 6)
· HOWEVER REMEMBER!!! Must use lawyers services to further perpetuate the financial fraud or crime as an element of (b)3
o Could be argued that since the lawyer helped draft the leases, but could also argue that the lawyer was not directly involved with the forgery since the letters drafted by the lawyer were true
§ (b)2 could also be applicable because the bank is continuing to rely on the previously forged invoices
· Fraud is ongoing until the fraud is rectified
§ Rule 4.1: truthfulness in statements to others
· In the course of representing a client a lawyer shall not knowingly:
o A) make a false statement of material fact or law to a third person, OR
o B) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 1.6
· Comment 3: ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it is necessary to noisily withdraw. Some cases, substantive law requires a lawyer to disclose information to avoid being deemed to have assisted. If the lawyer can avoid assisting a client’s crime or fraud only be disclosing this information, the lawyer is required to do so
o Even if you withdraw, can still face criminal and disciplinary actions against you for aiding and abetting the fraud when it occurred before withdrawal
o Rule 1.2 Comment 10: in some cases, withdrawal alone might be insufficient
· Law of Evidence à Attorney client privilege
o What must be protected?
§ Confidential communications between lawyer and client
§ From being compelled by a court to disclose communication between attorney and client
o Only applies in litigated matters, whether civil or criminal
o When does it attach to a communication between lawyer and client?
§ 5Cs (elements)
o Existing and prospective or an agent of the client
o Oral, writing, or in any other way
· Confidentially with
o Reasonable measures to ensure that what it says to the lawyer will be kept confidential
· Counsel for
o Lawyer or a lawyer’s agent
o To obtain legal advice