Professional Responsibility
Kordik
Fall 2015
Lawyers, Law, and Ethics
1. Ethics, Morals, and Professionalism
2. The Law Governing Lawyers
a. Most important source of guidance for lawyers can be found in their State’s own ethics code. Those trump the rules of the ABA, but are often based on the model rules.
b. Always begin with the applicable state ethics code
3. Professional Rules v. Moral Values/Doing the Right Thing?
a. Spaulding v. Zimmerman
i. Facts: During discovery, defense counsel found information regarding minor P having a potentially life-threatening condition and chose not to share this information during negotiations. P settles for less than what they otherwise would.
ii. Court vacates the settlement because while D’s counsel had no specific ethical obligation to disclose P’s life-threatening condition, they had reason to know P would not have agreed to the same settlement had he known of it
iii. No duty to disclose adverse facts
1. Absent special circumstances, such as mutual mistake, fraud on the court or concealment from the court, courts will not typically set aside a judgment because a lawyer has concealed adverse evidence from the opposing party
2. Attorney probably does have a duty to disclose the condition to his client
3. Rule 1.4(b) Communication: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation”
The Duty to Protect Client Confidences
4. The Duty of Confidentiality
a. Rule 1.6(a) Confidentiality of Information
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. Duty requires lawyers to protect as confidential all information “relating to representation of a client” à this covers any information the lawyer learns in connection with a matter the lawyer is handling for that client
5. Limits on the Duty of Confidentiality
a. Exceptions to the duty to protect confidences à the duty to protect “information relating to the representation of a client is very broad,” but it is not absolute. The Rules identify several situations in which a lawyer may or, under certain circumstances, must reveal confidential information.
b. Rule 1.6(b) Confidentiality of Information – Exceptions
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;
i. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails tot take the action necessary to eliminate the threat
(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;
i. The client can…prevent such disclosure by refraining from the wrongful conduct. Also, the rule does not require revelation, but other rules bar the lawyer from counseling or assisting the conduct in question, and may require the lawyer to withdraw from representation
(3) To prevent, mitigate, or rectify substantial injury to the financial interest 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;
i. This paragraph addresses the situation in which the lawyer does not learn of the client’s crime or fraud until after the act occurred, and in which the loss can be prevented, rectified, or mitigated. This paragraph does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense
(4) To secure legal advice about the lawyer’s compliance with these rules;
i. This provision allows a lawyer to reveal otherwise confidential information to secure legal advice relating to compliance with the rules
(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 on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
i. A lawyer may reveal confidences to the extent needed to collect a fee. Also, a client or a third party may allege that a lawyer has committed some wrongful act. In that event, a lawyer may reveal confidences to the extent necessary to respond to such an allegation. The lawyer need not wait for a complaint to be filed before the right to defend applies.
(6) To comply with other law or a court order.
i. A court order or other law may require a lawyer to reveal a confidence. If so, that other law trumps the ethics rules, and the lawyer may reveal the information.
6. Attorney-Client Privilege
a. Privilege is “evidence law” à privilege rules provide that neither lawyer nor cli
iv. Waiver as to a conversation by disclosure as a part of it
v. Compliance with court orders
c. Swidler & Berlin v. United States
i. It is generally accepted that attorney-client privilege survives the death of a client
8. Work-Product Doctrine
a. Protects notes and other material that a lawyer prepares “in anticipation of litigation” from discovery in pretrial civil proceedings. It applies to documents that a lawyer prepares or collects while working on pending litigation or on a matter in which the lawyer knows that a lawsuit is about to be filed.
b. Not absolute à judge can order disclosure of oral or written information if the opposing party can show “substantial need” for the material and that the opposing party is “unable without undue hardship to obtain the substantial equivalent” of the material by other means
9. Other Rules:
a. Rule 3.3 Candor Toward the Tribunal
i. Attorney shall not knowingly make a false statement of fact or law to a tribunal
b. Rule 3.4 Fairness to Opposing Party and Counsel
i. Attorney shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document having potential evidentiary value
c. Rule 4.1 Truthfulness in Statements to Others
i. Misconduct for a lawyer to engage in conduct…involving dishonesty, fraud, deceit, or misrepresentation and that is prejudicial to the administration of justice
Self-Regulation of the Legal Profession
10. Who Regulates Lawyers?
11. Admission to the Bar/Character and Fitness
a. Rule 8.1 Candor in the Bar Admission Process
(a) A lawyer shall be subject to discipline if, in connection with the lawyer’s own application for admission to the bar previously filed in this state or in any other jurisdiction, or in connection with the application of another person for admission to the bar, the lawyer knowingly:
(1) has made or failed to correct a false statement of material fact; or
(2) has failed to disclose a material fact requested in connection with an lawful demand for information from an admission authority
