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Professional Responsibility
University of North Carolina School of Law
Haskell, Paul G.

Professional Responsibility

Prof. Haskell

Spring 2011

Intro Material

I. Discrediting Truthful Witnesses

a. The Lawyers DUTY is to Maximize gain or minimize lose for the client

i. 3.3(a)(3) – A lawyer may present evidence that he Reasonably believes is false-as long as he doesn’t actually KNOW it is false

1. PROSECUTOR is not supposed to discredit a W, if knows the W is telling the truth

ii. Duty to Probe—Comment 8 to 3.3—Lawyers cannot ignore an obvious falsehood—But there is NO GENERAL DUTY TO INQUIRE

1. Since Knowledge can be inferred from circumstances (1.0(f)), the court would infer the lawyer knew of an obvious falsehood

iii. Pleadings- FRCP 11 requires a lawyer to make reasonable inquires into the accuracy of pleading he files in court

II. Stating the Law Before the Facts

a. RULE: The Lawyer may state the law before getting the facts first, if he is asked by the clients

i. Hypothesizing specific facts with specific legal results before you get any facts is most likely prohibited

III. Dilatory Tactics

a. EXAMPLE- Drug company has a large stockpile of a drug that will be banned by the government. The lawyer says he can delay it for a few months by getting scientists to refute the science, though ultimately he does not think they will achieve anything

i. Just b/c the lawyer doesn’t believe he will be able to achieve anything doesn’t mean that the testimony isn’t serious

1. Comment 2 Section 3.1- This action is not frivolous even though the client does not believe it will not prevail

2. 3.2/4.4- RULES AGAINST DELAY- Even if the motive is to delay, If there is a substantial other purpose in what the lawyer is doing, it can be done

a. As long as another purpose is being served, it is not a violation of section 3.2 or section 4.4

b. ISSUE: In response to a request for documents, the party hands over the documents that are called for and throws in a lot of other irrelevant material

i. Is there any substantial purpose in mixing in deliberately irrelevant material

1. It should be a violation of the Rules

IV. Describing the Consequences of Criminal Conduct

a. A lawyer tells the client the enforcement practices which are involved with various chemical discharge regulations

i. Client asks for the enforcement information, and the lawyer gives it to him

1. The enforcement information allows for leeway in the

b. RULE 1.2(d)- A lawyer shall not assist a client to engage or consul a client to engage in an action which he knows is criminal

i. IS THE LAWYER DEEMED TO BE ASSISTING THE CLIENT BY PROVIDING ENFORCMENT PROVISIONS

ii. The enforcement of the law is part of the law, and the client is entitled to know that

1. So the lawyer can provide information about the relaxed enforcement without being asked

V. Counseling to Breach a K

a. Manufacturer has a 5 year K with a supplier. At the end of 2 years, Manufacturer finds a cheaper supplier. Lawyer clearly advises and helps Manufacturer break K

i. 1.2(D) only goes to fraud or criminal acts- Breaking a K is not fraud or a criminal act

1. A lawyer can consul a lawyer to violate the law as long as the violation is just civil(and not fraud)

a. Efficient Breach (HASKELL’S INTERPRETATION)- Seller K’s with Buyer for goods. Seller finds second buyer, and seller finds the goods are more valuable in the hands of the second buyer. Seller sells to Second buyer and pays damages to the first buyer

i. As a result of the violation certain inconveniences exist, and damages are difficult to negotiate

VI. Inserting an Illegal Clause

a. Landlord has lawyer insert an unenforceable clause in a lease about not being responsible for repairs

i. It is done all the time

VII. Lawyer taking advantage of another Lawyers Ignorance

a. This is the Comparative negligence idea, where the P’s lawyer was not aware of the change that it was no longer contributory negligence but was comparative negligence. Does D have to tell of the change in the law

i. Fraudulent nondisclosure- In certain transactions, particurally consumer transactions, where it is obvious that the consumer does not know all the relevant facts to the transaction, them the failure to disclose is treated like a false statement b/c there is a duty to speak

1. NEVER APPLIED TO A LEGAL SITUATION

ii. 3.3(a)(2)- A lawyer shall not knowingly fail to disclose adverse authority to the COURT that the opposing side has not disclosed

VIII. Dealing with an Unrepresented person- The lawyer only needs to let the unrepresented person know that he does not represent him or is not looking out for his interests

a. MAY ONLY ADVISE THE UNREPRESENTED PERSON HE NEEDS A LAWYER, but he is not required to—4.2

Confidentiality

I. Attorney Client Evidentiary Privilege

a. Restatement (p. 240)- The attorney-client privilege may be invoked . . . with respect to (1) a communication (2) made by privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client

i. Provides for Testimonial Immunity only

1. Extends only to communications between the lawyer and client concerning legal matter

b. What it protects: Communications made in confidence from a client to lawyer for the purposes of obtaining legal assistance

1. Privilege is limited to communication language

a. If client tells the lawyer the facts, and the lawyer goes out to check out the facts, the lawyer may be compelled to testify about what he has learned independent of the communication

2. A writing to the lawyer is included in the privilege, even if it is made before or after the start of the representation

a. The privilege also extends to agents of the lawyer engaged in the matter (such as experts and paralegals)

b. If a third party, other than the lawyer, the client, or an agent of the lawyer, who is working with the lawyer in the representation, is not privileged

i. EXCEPTION: People who are necessary to the client to protect him or assist him in the discussions with the lawyer (i.e. a guardian, translator, also if the matter requires the knowledge of a accountant, and the client brings his accountant is included)

3. Quasi-Public Information-Information that client has already told other 3rd parties before meeting with the lawyer, will be deemed quasi-public, and is not included in the privilege

4. If the client, discloses the information that was privileged, after the communication to a third party, the privilege was waived

a. The lawyer may disclose to 3rd parties privileged information within the scope of the representation

i. If it is done party, it is considered to be impliedly authorized, and if it is impliedly authorized, it is deemed to waive the privil

PTION

i. General Ruleà Several ethics rules prohibit a lawyer from advising or assisting a client to commit crimes and frauds (Rule 1.2(d); Rule 4.1; Rule 3.3). If the lawyer’s services were used to assist in the client’s crime/fraud, a lawyer may disclose the fraud and often must withdraw

ii. Lawyers Prohibited from Advising or Assisting Clients’ Crimes and Frauds:

1. Rule 1.2(d) à A lawyer shall NOT counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal or fraudulent.”

a. Comment 10à Lawyer is required to avoid assisting the client by drafting documents that he lawyer knows are fraudulent or suggesting how the wrongdoing may be concealed.

i. A lawyer may NOT continue assisting a client that the lawyer originally supposed was legal, but then discovers is criminal or fraudulent

ii. The lawyer must WITHDRAW and may be necessary for lawyer to give notice of withdraw and to DISAFFIRM any opinion/document he made.

2. Rule 4.1 à Truthfulness in Statements to Others

a. In the course of representing a client, a lawyer shall NOT knowingly:

i. Make a false statement of material fact or law to a third person; or

ii. 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.

b. Comment 3 à If continuing representation is “assisting” client fraud:

i. Firstà Lawyer must withdraw from representation

1. First action must be least detrimental to client.

ii. Secondà Lawyer must disaffirm documents client is using in fraud

1. If withdrawal is not enough, lawyer must disaffirm any documents or legal work you supplied that client is using to commit fraud.

iii. Thirdà In extreme cases, disclose what is necessary to stop fraud

1. Substantive state law may require that the lawyer disclose information to avoid assisting with crime/fraud.

3. Butà Rule 1.6 trumps Rule 4.1

iii. Rules 1.6(b)(2) and (3) à Allows lawyer to reveal client crimes/fraud IF:

1. (1) reasonable certainty client’s conduct will result in substantial financial injury

2. (2) Client is using or has used lawyer’s services in committing crime/fraud

3. (3) Purpose of revealing confidences is to prevent, mitigate or rectify harm.

a. Rule 1.6 does NOT allow a lawyer who has NOT assisted a client’s financial crime or fraud to make a disclosure to protect another person from injury.

b. Compareà A lawyer may reveal confidences to prevent “death or substantial bodily harm” REGARDLESS of whether the lawyer’s work contributed to harm.

iv. AT HIS OPTION, THE LAWYER IS FREE TO DISCLOSE KNOWLEDGE OF FUTURE CRIMES