Don’t look at Model Code, just Rules.
Make CHART of all the Rules to keep straight (in categories; i.e. physical harm)
(stolen baby adopted from foreign country)
1. What did the lawyer REALLY know?
2. Rule 1.4: keep client reasonably informed. Should he tell client what he found out? Meant to benefit client, but what if client is better off not knowing?
3. What does the lawyer need to do about the INS papers? (Rule 3.3: lawyer cannot knowingly fail to disclose material fact to tribunal when assisting fraudulent act)
(young lawyer who doesn’t know what’s going on & thinks of her as confidant)
1. Does she have a duty to tell the other lawyer’s client or can she take advantage?
(sexual harassment by his boss to a paralegal)
1. 1.13 (when you for an organization your company is the client)
2. What does he actually know?
3. What else does he have to do? He’s already gone to the President. If he knows it’s a walking employment suit, he should go to BOD or public.
(holding a floppy disk that was a client’s)
1. Did she have a duty to look and see what was on it? Was she obligated? Should she asked her client first?
2. A lawyer’s job is not a storage facility.
3. Does she have to turn it over to the prosecution/authorities or not? Cannot obstruct evidence.
4. If she had given the disk back to the friend (knowing he would probably destroy it, she might be obstructing justice)
CHAPTER 1: Lawyers, Role, & Law
What is the proper role of the lawyer?
Filing a claim on behalf a client when you know SOL has run.
1. Argument for doing so:
a. In the client’s best interest
b. Chance you might get by with it
c. SoL must be raised as an affirmative defense or it’s waived
d. Can win by default
2. Arguments against doing so:
a. Lowers the “quality of justice” by disregarding the law in order to take advantage of an uninformed / unrepresented D
3. Freedman & Smith – would say you need to discuss this with the client & let the client make the final decision
4. FRCP Rule 11 – can’t make an argument w/o a legal basis
5. Bottom line – as long as filing meets client’s goals & client understands the risks, there is no rule ag’st filing
6. Friedman & Smith model on 1-1:
would focus on client’s interests. Give them decision, fully informing them on the law.
As far as morality, they believe you have freedom to refuse to take a case (which you could do if the SOL had run). But otherwise, it should be the client’s choice.
ZEALOUS ADVOCATE on behalf of the client.
Ethics rules side with this model. No rules (unless specific jurisdiction) punish lawyer for filing after SOL have run.
7. Rhode model:
Shouldn’t file if it would be a detriment to the profession
Look at whether or not it would be detriment your reputation, community in general.
Lawyer bears responsibility for his own decisions.
Role of the lawyer is to do justice.
Focus on not just the client’s goals, but also the ends of society & for the public.
Lawyer agrees to pay extra b/c mistaken on zoning. You know he’s mistaken.
· Downside – there may be litigation re: validity of the K
· Should talk to your client re: possibility of not correcting now v. letting it go and arguing over the mistake later
· Rhode will look at whether or not it is fair / just to close a deal w/such a mistake
· Note – If M&F had lied, would violate rule 1.4 which prohibits false statements
Thinks alimony can later be negotiated after divorce settlement on opposite side, but you know law will bar such a claim. What if other lawyer is your best friend?
Conflict of interest w/ best friend, maybe shouldn’t take it.
Mistake of law:
1. Rhode would be concerned about legal justice. Effect of the family.
2. Gillers would just correct the other lawyer’s mistaken to be professional. Withdraw from negotiations & not say why.
3. F&Smith would say don’t say anything, just do what’s best for your client. Take advance of mistake.
Should lawyer give client probability of getting caught?
Friedman & Smith: lawyer has obligation to give this information
Rhode might say don’t provide the info b/c lawyers could collectively nullify the law & harm society.
Sources of Law Governing Lawyers
1. Rule 1.2(d): lawyer can’t assist a client in breaking the law. Yet, Rule 4.1 requires truthfulness & statements to others.
2. ABA has passed these rules (states have their own version similar to the rules). When you violate a Model Rule you are subject to discipline. (public reprimand, suspension, disbarred)
3. Still, other substantive law applies to lawyers (i.e. make a K for fee w/ client, K law applies to you). Accordingly, one wrong act can subject you to 2 different kinds of consequences
4. § 6: Judicial Remedies Available to a Client or Non-client for Lawyer Wrongs
5. Case law interpreting the rules & restatement also govern, as well as ethics opinions
6. Ethics opinions are from the bar (lawyer writes to bar with a quandary & committee looks at it & writes an opinions with a view).
§ Not binding, but if lawyer follows it, won’t get into trouble probably.
CHAPTER 2: Judicial & Professional Regulation of Lawyers
Bar gives lawyer substantial power, so bar admission requires numerous requirements to get license.
1. Can’t require residency, citizenship.
2. Applicants must prove good, moral character. (honesty, reliability, doesn’t regularly break the law)
3. Only profession that is governed by the judicial branch, not the legislature.
In re Application of Converse
1. Law student applied for admission to bar – admission denied based on previous, legal conduct
2. What did he do wrong?
a. Took all criticism personal, sought revenge outside legal system, had problems following rules, didn’t follow est. appeals procedures, etc.
b. This is not the kind of lawyer we want.
3. How is good moral character tested?
a. Law school questionnaires (Dean reported Converse)
b. Bar applications asking about criminal record, academic misconduct, etc.
i. ADVICE – don’t lie on application
4. Summary: principally concerned that he didn’t know how to be a civil, rational arguer. Every attack became personal (not the kind of lawyers we want).
5. He was also not able to use the rules/system in place to get to where he wanted (he wrote the press, yelled at people, etc).
6. Lawyers need to play within the rules they are given.
7. As to 1st Amendment: you can ask someone about their membership in a particular party if it’s relevant.
(a) Plagiarized: but did she know?, was it early in her law school days?, was it a one time thing?
1. Maybe – the Bar will likely look to many other factors including whether this is an isolated incident or just one of many infractions, whether she has a criminal record, how the bar learned about the plagiarism, i.e. whether she voluntarily disclosed the infraction v. the dean disclosing the information to the Bar
2. If isolated & fully disclo
i. Medicine has disorder under control, but may need some sort of oversight by partners to ensure firm’s and clients’ best interests
(c) Duty to disclose under Rule 8.3?
i. YES, M&F know of conduct that violated rules of prof. conduct
ii. Substantial misconduct = stealing client’s money
iii. C: This should be reported – leave it to the Bar to decide whether or not to pursue / punish for this incident
(d) Duty to disclose incident to the client
i. YES – Rule 1.4(a)(3) – a lawyer shall keep the client reasonably informed about the status of the matter
(e) Are M&F subject to discipline for associate’s conduct?
i. Rule 5.1 – Responsibilities of partners, managers, and supervisory lawyers:
(f) There’s no automatic vicarious discipline, but if they know & fail to inform client/report they are responsible.
1. (b) ensure the other lawyer is professional. (ethics training). Firm would be responsible if ordered associate to steal the money.
ii. Whether or not M&F are subject to discipline probably depends on whether or not M&F are taking reasonable measures to mitigate damage done, etc
(g) Associate would also be liable. Rule 5.2. “they told me to is not an excuse”
(h) Rule 8.5: lawyer is subject to discipline is any jurisdiction where they are licensed to practice. Rules are different in different jurisdictions so both apply
*CHAPTER 3: Beginning the Client-Lawyer Relationship
Should you represent Credit Suisse who wouldn’t give money to Holocaust victims families whose ancestors deposited money in bank before the war?
1. You make the decision on what case to take or not. You get to decide who your client is. NO obligation to take on clients.
2. Can you be non-biased & give your all to the client? If not, do not take case.
3. Would it reflect on your morals to take the case? Rule 1.2 (b): representation doesn’t constitute an endorsement (doesn’t really practically help though because of press)
4. Limiting representation to certain circumstances (settlements, etc.) if reasonable & get client’s informed consent.
5. Rule 1.16 deals with situations in which you may withdraw.
6. Conclusion: no, you don’t have to take every client – you have discretion as to who your clients are, and you should say no if you are going to have a problem with being a zealous advocate for your client/
Should you represent anti-gay/lesbian group who pickets funerals of deceased soldiers from Iraqi War to protest “don’t ask don’t tell” policy?