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Professional Responsibility
University of North Carolina School of Law
Ratliff, Alice A.

1) Introduction
a. Major focuses
1. How to stay out of trouble
– North Carolina Rules are very close to ABA Model Rules of Professional Conduct
2. Relationship b/w profession and society
– Problems:
a. Dignified profession à money-driven enterprise
b. Lawyers in recent decades have undervalued collegiality, civility, mutual trust
c. Modern law practice has discounted the role of lawyer as counselor
d. The problems faced by lawyers can be analyzed in terms of broader society in general, but maybe more so
– 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
– Lawyers in practices that don’t fit, societies perceptions affect lawyers
– PALS / FRIENDS – groups to help lawyers w/ substance abuse or depression problems
b. Definition: Enable society to resolve conflicts non-violently
c. Adversarial System vs. Collaborative System
1. Pro-Adversarial (Rifkind)
– Purpose of the adversarial system is not to find the absolute truth, but rather to resolve a controversy
– “Bad Results” can bring about reforms in the systemCaptures the dominant view of litigators very well. Truth is not necessarily the goal of a trial. The point of a trial is to resolve a controversy, by the principled application of the rules of the game.

2. Anti-Adversarial (Frankel)
– Subverts truth in favor of other priorities; truth is valued too low
– The deciders too passive of a role in the process
– Inherently favors those with resources Marvin Frankel: Takes a less optimistic view than Rifkind. Many attys subvert the law by blocking the way to the truth.
a. Murray Schwartz: Probably believes the rules should be changed even more than Frankel does, especially in civil cases. He’s willing to refashion the adversary system to encourage discovery of truth.
b. Milner Ball: Sees the trial as a performance, says the atty is producing a play. He believes that, w/in some limits, there’s an enormous amount of discretion in how the story is told –and that’s ok, b/c truth is not an entity we dig for, truth is performed.

3. Lawyer as Performer (Post)
– Lawyers put on performances, and the public doesn’t like this because it’s such an act and they have to conceal their performances
– 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 Asks why people distrust attys, suggests that one reason for distrust is that attys pretend to be what they’re not, just like actors – but everyone knows when actors are acting.
– Attys fake sincerity, and when people do that we don’t like it.
– He says we know intuitively that we pretend to be what we’re not – we are our performances, which is scary. We dislike attys b/c they float that scary idea home.
From Rifkind’s point of view, misrep. is fine, b/c the point of a trial is to resolve the dispute. Frankel, by contrast, thinks it happens more than we should tolerate.

d. Confidentiality VS. Privilege
1. Privilege means that the court cannot require you to disclose it
– Only includes communications that are solely between attorney and client
2. Confidentiality is from an ethical standpoint, things you shouldn’t reveal
– Anything that you learn in the course of your lawyer/client relationship
2) Privilege vs. confidentiality theory
a. Privilege:
1. evidentiary doctrineà statutorily defined in most places
2. Allows lawyer, doctor, etc. to refuse to answer questions without being held in contempt
3. Shield against sanctions for refusing to answer questions under process
4. Scope: Communications from clients or their representatives
b. Confidentiality
1. arises from law of agency, fiduciary duty
2. Don’t reveal principal’s confidences w/o wishes; Don’t use principal’s confidences to its disadvantages
3. Fiduciary duty
4. Codified in rules: Rule 1.6, one of the most variable across jurisdiction
5. Scope: broader than privilege
– everything protected by privilege
– everything else a lawyer learns from any sources that relates to that representation
6. Can’t revel information relating to representation, use that information to the disadvantage of the client, pplies to former clients
7. NOT A PROTECTION AGAINST PROCESSà can’t refuse to honor a subpoena to reveal information, unless it’s also privileged
8. Can’t disclose deliberately or negligently (i.e., discuss in crowded place; cell phone on the bus)
c. Reasons for Privilege:
1. Utilitarian reasonàLawyer needs info to adequately advise client
2. Normative reason à person should feel secure in seeking counsel; space in which they can communicate with a legal advisor (less compelling for large entities)
d. Q that seriously divides the bar = what should be the exceptions to confidentiality?
1. Academics generally want less protection than practicing lawyers do.
2. Exceptions vary widely around the country.
3. Subsidiary Qs:
– Should there be exceptions to protect 3rd persons from physical harm? What about to protect 3rd persons from financial harm? Should lawyers be req’d to give these warnings, or should it just be optional?
– What if the client is using the lawyer for an underlying fraudulent plan, and the lawyer is an unwitting participant? Can lawyer warn the person then?

e. Confidentiality Rules:
1. Rule 1.6(a): 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
– “relating to” (broad)
– client has to give informed consent.
2. Rule 1.8(b): A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
3. Rule 1.9(c)- above rules apply to former and potential clients as well as current clients
4. Rule 1.6(b) exceptions:A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
– To prevent reasonably certain death or substantial bodily harm (until 2002, the harm or death had to be “imminent”, the actor had to be the client, and the act had to be a crime)
– 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;
5. 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;
6. To secure legal advice about the lawyer’

e court found that the lawyer failed to inform about other remedies, even though the lawyer said that he did what he was Ked to do.
a. Aside: Need to get written retainers that are specific to the client. This tells the client what you are/not taking responsibility for.
– Under Rule 1.2, you have to communicate ALL settlement offers for a civil case, and ALL plea bargains for a criminal case.
– You also have a duty to inform your client of malpractice that you have discovered that you committed.
b. Do you have a client?
1. Perez v. Kirk & Carrigan – lawyer for Coke interviews driver and then hands statement over to DA Office; 1.6 violation.
– Lawyer/Client relationship formed b/c lawyer told driver that everything would be kept confidential and they were lawyers for both
– The absence of payment doesn’t negate lawyer/client relationship
– If there’s a question over whether there’s a client or not, almost all of them go in favor of them being a client
– If it turns out that Perez is a client, and the interests of Coke and Perez are not the same, then you have a Conflct of Interest Problem — Rule 1.7. They would either have to get out of the case entirely or maybe get informed consent. Perez v. Kirk & Carrigan
a. RULE:tellingsomeone you’re their atty implies an atty-client relationship; an atty breaches his fiduciary duty to his client when he wrongfully represents that material will be kept confidential
b. Facts – Coke truck driven by Perez hit a school bus. K&C lawyers came to Perez’s hospital room and questioned him – and then gave Perez’s statement to the DA. K&C was representing Perez’s employer, and claimed no atty-client relationship ever existed between themselves and Perez.
c. Holding – An atty-client relationship may have existed here, since K&C told Perez that they were his attorneys (as well as his employers) and that they were going to help him. K&C breached their fiduciary duty to Perez, regardless of whether an actual P existed, b/c they wrongfully represented that the statement would be kept confidential.
d. K&C argued that the communication was given to them in the presence of 3rd persons, and so there was no P
i. might work if the docs. had been subpoenaed and there was a P, but that argument doesn’t cover the ethically protected material – had duty not to turn it over.
ii. Lawyers might have been liable for incompetence – shouldn’t have interviewed him w/3rd parties around.
iii. Even had the lawyers not told Perez they were his lawyers too, a court might have inferred an atty-client relationship – would ask whether a reasonable person in this scenario would’ve thought.
e. Short of K&C actually saying “we’re not your lawyers,” Perez would probably get to a jury.