Spring 2014 Ratliff
Rules on Exam
I. Chapter One: Introduction, Preamble/Scope to the ABA Rules
A. Major Themes
1. Ethics, morals, and professionalism
(a) Morals- values that we attribute to a system of beliefs that help the individual define right v. wrong, good v. bad. Typically get their authority from something outside the individual–a higher being or higher authority (e.g. government, society). Moral concepts, judgments and practices may vary from one society to another.
(b) Ethics- also called moral philosophy, the discipline concerned w/ what is morally good and bad, right and wrong. Also applied to any system or theory of moral values or principles.
(i) Legal Ethics- principles of conduct that members of the profession are expected to observe in the practice of law.
(ii) Principles are an outgrowth of the development of the legal profession itself.
· Does conduct violate ethic codes?
· What is the right thing to do?
(c) Characteristics of a Professional
(i) Members of most professions are permitted to do work that is forbidden to nonmembers- they must be licensed.
(ii) Commitment to serving others and expectation to participate in the improvement of the legal system.
(iii) Requirement to do an unusually careful job; use of high degree of skill and care.
(iv) Adopts a defined role and agrees to comply w/ articulated standards of conduct; affects how individual makes moral choices justified based upon defined role.
2. Relationship b/t profession and society
(i) Dignified profession à money-driven enterprise
(ii) Lawyers in recent decades have undervalued collegiality, civility, mutual trust
(iii) Modern law practice has discounted the role of lawyer as counselor
(iv) The problems faced by lawyers can be analyzed in terms of broader society in general, but maybe more so
(b) Ethics Rules can be seen as helping/hurting image, b/c some Rules require you to be mean/comprise morals
3. Effect of Being Lawyer on Self
(a) Lawyers in practices that don’t fit, societies perceptions affect lawyers
(b) PALS / FRIENDS – groups to help lawyers w/ substance abuse or depression problems
B. Lawyer’s Role in Society: Enable society to resolve conflicts non-violently
C. Adversarial System vs. Collaborative System
1. Pro-Adversarial (Rifkind)
(a) Purpose of the adversarial system is not to find the absolute truth, but rather to resolve a controversy
(b) “Bad Results” can bring about reforms in the system
2. Anti-Adversarial (Frankel)
(a) Subverts truth in favor of other priorities; truth is valued too low
(b) The deciders too passive of a role in the process
(c) Inherently favors those with resources
3. Lawyer as Performer (Post)
(a) Lawyers put on performances, and the public doesn’t like this because it’s such an act and they have to conceal their performances
(b) The very things that people don’t like about lawyers are some of the same things that people like about lawyers in a different context
D. Confidentiality vs. Privilege
1. Privilege means that the court cannot require you to disclose it
(a) Only includes communications that are solely between attorney and client (NO ONE else present)
2. Confidentiality is from an ethical standpoint, things you shouldn’t reveal (much broader = information related to representation)
(a) Anything that you learn in the course of your lawyer/client relationship – including interviewing witness
II. The Duty To Protect Client Confidences: Chapter Three
A. Weakened in 2000 revisions; around the same time as Enron and Arthur Anderson.
1. Rule 1.13- Duties of lawyers representing entities also changed.
2. More exceptions added.
(a) Exceptions previously had to involve criminal act and death or bodily harm or protection in defense against suit brought by client.
Rule 1.6 Confidentiality of Information
(a) General Rule: 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) A lawyer MAY [never required] reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary [Exceptions to (a)]:
(1) to prevent reasonably certain death or substantial bodily harm;
(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;
(3) to prevent, mitigate or rectify substantial injury to the financial interests 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;
(4) to secure legal advice about the lawyer's compliance with these 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 upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
B. Rule 1.6 definitions, notes, and comments
1. Confidentiality and privilege are not the same thing.
(a) Confidentiality is larger than privilege.
(b) Privilege= communication b/t attorney and client.
(c) Conversations outside of communication b/t attorney and client confidential, but not privileged.
2. Informed consent- agreement after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct [Rule 1.0(e)] 3. Cmt. 14- Before making a disclosure authorized by 1.6b, a lawyer should try to persuade a client to take action that will “obviate the need for disclosure.” If a lawyer reveals information based on 1.6(b), the disclosure should be as narrow in content and should be made to as few other people as possible.
4. Cmt. 2- Rationale for rule is that “trust…is the hallmark of the client-lawyer relationship” and the client is “encouraged to seek legal assistance and to communicate fully and frankly with the lawyer.”
(a) Purpose to facilitate open honest communication b/t lawyers and clients b/c lawyers need accurate information in order to competently represent their client.
5. Cmt. 3- Provides that the rule extends to all information relating to the representation, “whatever its source.”
6. Cmt. 4- Provides that the rule prohibits a lawyer from revealing information that could reasonably lead to the discovery of confidential information by a third person.
(a) But, it allows a lawyer to use a hypothetical to discuss issues relating to the representation as long as it doesn’t allow for a listener to ascertain the identity of the client or situation.
(b) Info that must be protected as confidential:
(i) All info relating to the representation of a client unless it is generally known:
· If published in newspaperà potentially confidential, if person would not have gone looking for information.
· If law suit is filedà public record is not confidential
(ii) Personal info relating to the client that the client wouldn’t want disclosed
(iii) Info learned from the client or other sources
(iv) Info acquired before and after representation
(v) Notes and memoranda relating to the representation
7. Cmt. 6- For Rule1.6(b)(1), such harm is reasonably certain to occur it if 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 to take action necessary to eliminate the threat
¨ The client can prevent the disclosure by refraining from the wrongful conduct (comment 7 to rule 1.6).
· Rule 1.6(b)(3) refers to past crime or fraud
¨ The purpose of allowing the disclosure is to prevent, mitigate, or rectify substantial economic injury
¨ It covers a situation in which the attorney doesn’t become aware of the crime or fraud until after the client has committed it.
¨ It doesn’t cover a situation in which client is employing the attorney for representation concerning the crime or fraud. (comment 8 to rule 1.6)
· If client has not used and is not using the lawyer’s services to commit a fraud, the lawyer may not warn the intended victim of the fraud
¨ Cmt. 14: provides that pursuant to rule 1.6(b), the lawyer should always first try to persuade the client to take necessary action to obviate the need for disclosure by the lawyer. When disclosure is necessary, it should be limited in scope by what the lawyer “reasonably believes necessary to accomplish the purpose.”
(c) Ethics rules allowing or requiring revelation of criminal or fraudulent conduct
(i) Rule 8.4(c) – dishonesty
(ii) Rule 1.13(c) – duty to call attention to represented org.
(iii) Rule 3.3 – duty to reveal to tribunals
(iv) Rule 3.4 – duty to reveal to third parties
(v) Rule 1.16(a) – duty to withdraw
3. Enron and the Sarbanes-Oxley act:
(a) SarOx was passed to prevent massive corporate fraud
(b) § 307 requires lawyers who practice before the SEC or who advise companies regulated by the SEC to report any info about securities fraud to the highest officials of the corp. or report it to the SEC (if it will harm investors).
(c) § 307 is not really enforced against lawyers, except the Isselman case
(d) Ethics codes apply more broadly than the SarOx
4. Revealing confidences to obtain advice about legal ethics
(a) Rule 1.6(b)(4) permits a lawyer to reveal confidences to the extent necessary for the lawyer to obtain advice about complying with the rules of professional conduct
(b) Compliance with the rules is more important than protecting client confidence.
5. Using a client’s confidential information to protect the lawyer’s interests
(a) Rule 1.6(b)(5) allows lawyers to reveal confidential info to the extent necessary to protect their own interests
(i) Disclosure should be no greater than the lawyer reasonably believes necessary to accomplish the purpose
(ii) If a lawyer needs to reveal confidences to protect her own interests, she must take steps to avoid the need for revelation, to limit its scope, or limit dissemination
(iii) Third party claim – a lawyer may reveal confidences even if he is not alleged to be the primary wrongdoer and the allegation is by an injured third party and not the client. And, the disclosure can be made before the commencement of an action (comment 10 to rule 1.6).
(iv) Notification – the lawyer should notify the client before using confidential info in self-defense
6. Revealing confidences to comply with other law or court order
(a) Rule 1.6(b)(6) permits a lawyer to disclose confidential info to comply with a court order or with other law.
(i) The court order trumps the obligation to protect confidences
7. Use or disclosure of confidential information for personal gain or to benefit another client