Spaulding v. Zimmerman
Zimmerman’s attorney was not in ethical violation for not turning over docs sua sponte because it is an adversarial system
He could have with clients approval
Modern day legal ethics: Model Rule 3.4 – Fairness to Opposing Party and Counsel
Still no obligation to disclose report to other side if they are sleeping at the wheel.
Rule 1.1 – Competency:
One possible consequence of incompetence is Civil Liability
When you have a malpractice trial you are trying the case that you would have had at the same time as trying the attorney
Breach of contract
1. Duties to the Client
Basic Elements of a malpractice claim.
Breach of Duty
Don’t just have to prove that the attorney made a mistake, but must also prove that you would have won the case if properly represented
A “case within a case” because you are basically arguing the merits of your case.
Damages – π receives what would have at trial.
Criminal Malpractice Elements (Ang v. Martin)
Breach of Duty (standard of care)
Damages (trial within a trial/ attorney’s fees)
+ Successful post conviction challenge
+∆s were actually innocent
Why make the ∆ prove actual innocence?
Goes to causation – not a proximate cause of lawyer’s actions if ∆ is not innocent
Ineffective Assistance of Council
Two prong test Strickland Test:
Counsel’s performance was deficient
Client prejudiced by it.
Reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different.
If no other attorney could have done a better job, no deficiency in assistance of counsel.
Goodman v. Bertrand – convenience store robbery, manager originally identified wrong person then identified correct, cashier never identified. Second trial, attorney failed to subpoena cashier, though prosecution would.
2. Duty to protect information
Model rule(s): 1.6, 1.8(b), 1.9(c), 1.18(b), 4.1(b)
Elements: (1) A communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance to the client.
Privilege does not protect the underlying facts from disclosure
Can’t ask, “what did you tell your attorney?” or “What did you ask your attorney?
But you can ask them about facts of what happened.
Survives death of the client.
Formation of the privilege
State v. Branham: Drinking buddies, not for the purpose of obtaining legal advice
Upjohn Co. v. U.S.: Upheld privilege between corporate attorneys and executives AND lower level employees (in certain circumstances)
There doesn’t have to be a formal and ongoing relationship to create the privilege.
Work Product: Court said “the court shall protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representations.”
But Disclosure of work product IS permitted upon showing of “substantial need and inability to obtain the equivalent without undue hardship.”
Defeating the Privilege
Exceptions to the Privilege (Pg. 200)
The testamentary exception
After the death of the client
Disclosure furthers clients testamentary intent
The crime-fraud exception.
When a client consults a lawyer for the purpose of using the lawyer’s assistance to commit a crime or fraud.
US v. Doe
Client using the attorney to commit the crime or fraud.
Duty of Confidentiality
a. a lawyer shall not… Unless
b. a lawyer may reveal info when…
In course of representing a client a lawyer shall not
Help in assisting in a crime.
Rule 1.18(b) – duty of confidentiality with prospective clients
Exceptions to the Duty
Bodily harm or injury
Client’s crime or fraud in which client is using or has used the lawyer’s services.
Meyerhofer v. Empire Fir and Marine Ins. Co.
Lawyer may reveal confidences or secrets necessary to defend himself against accusation of wrongful conduct.
Distinguishing Confidential information from physical evidence.
People v. Meredith
Issue: is ∆ telling attorney where the wallet was located privilege?
It is an issue of continuum
∆ tells attorney where wallet is: Privileged
∆ tells investigator where wallet is: Privileged
Investigator goes and looks at wallet: Privileged
Investigator picking up the wallet
ibility actually say death or bodily harm (Rule 1.6), can this be considered bodily harm?
The attorneys say they were so tormented over Logan's imprisonment that they convinced Wilson to let them reveal that Wilson was the real killer after Wilson's death. Late last year, Wilson died. The two attorneys finally took their affidavit out of the lockbox, and they called Logan's lawyer, pubic defender Harold Winston.
3. Who is the client
Formation of the Attorney-Client relationship.
Model Rule 1.2
The accidental client: Accidental client is okay when the alleged client had a reasonable belief (Togstad v. Vesely)
Terminating the Attorney-Client relationship
Rule 1.16: the When, May, and Shall withdraw and How.
a. shall withdraw
When representation will result in violation of ethical rules
Lawyer physical or mental condition materially impairs lawyer’s ability to represent
lawyer is discharged
b. may withdraw
can be accomplished without materially affecting the interests of the client
Client insists on action lawyer believes is criminal or unlawful
Client has used lawyer’s services to commit crime or fraud
Client fails to fulfill obligation and has been given warning
Representation will result in unreasonable financial burden or has been made unreasonably difficult by the client.
Other good cause for withdrawal exists.
c. but follow court orders
Rule 1.2(c): lawyer may reasonably limit scope of representation.
Ethical rules concerning withdrawal
Kreigsman v. Kriegsman: Can’t get out of representation if know of possible complications ahead of time.
Allison v. State: For criminal appeal, can’t perfect the appeal claiming representation and then decide on your own that you are done.
Must ask court for permission to remove himself.