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Professional Responsibility
Wayne State University Law School
Mogill, Kenneth M.

Case

Topic

Rule

Gentile v. State Bar of Nevada

Free Speech Rights of Lawyers – Public Comment About Pending Cases

Public utterance by an attorney need not present a clear & present danger to the public to be prohibited.

Feiger v. Mich. Sup. Crt.

Free Speech Rights of Lawyers

Criticism of Judges – MRPC 8.2 A lawyer cannot make false statements or statements that recklessly disregard the truth.
Impartiality & Decorum: MRPC 3.5 A lawyer cannot: (1) seek to influence a judge (2) communicate ex parte with a judge about a pending matter OR (3) act in an undignified or discourteous manner towards the tribunal .
Professional Conduct: MRPC 6.5 Courtesy & Respect towards everyone (loose rule)

Bates v. State Bar of Arizona

Marketing Legal Services – Defining the Borders

Says that advertising by lawyers is considered commercial speech and therefore is entitled to First Amendment Protection. The Court disregarded the six reasons the state put forth in arguing the speech should be prohibited. The Court said that a state can prohibit false, deceptive, OR misleading ads, and may be able to require a warning or disclaimer in legal ads, AND could possibly restrict quality claims because they were hard to verify or measure.

Ohralik v. Ohio State Bar Assn.

Marketing Legal Services – Defining the Borders

In person solicitation for pecuniary gain is not allowed to protect vulnerable (e.g. poor or uneducated) individuals from a lawyer overreaching.

Edenfield v. Fane

Marketing Legal Services – Defining the Borders

Accountants and non-persuasive professionals are the exception to Ohralik rule.

In Matter of Ravich, Koster, Tobin Oleckna, Reitman &Greenstein

Marketing Legal Services – Defining the Borders – A Prophylactic Rule

Sometimes simply being near a scene of an event may be enough for the court to consider it in person solicitation and punish you for it. (E.g. setting up a mobile office in an RV near the accident site complete w/ banners announcing your presence.) Clients must be able to make a reasonable judgment about legal representation.

Zauder v. Office of Disciplinary Counsel

Marketing Legal Services – Defining the Center – Targeted Advertisements

This is the Dalkon Shield Intrauterine Device (Picture, ad and Contingent Fee Issues). Picture: it and the rest of the ad is okay. Caption: “no recovery, no legal fees are owed by the client” This is misleading and would deceive a lay person.
Truthful and non-deceptive speech is protected by the 1A.

Shapero v. Kentucky Bar Assn.

Marketing Legal Services – Defining the Center – Targeted Mail

Lawyers may send truthful non-deceptive letters to potential clients who they know are facing particular legal problems.

Florida Bar v. Went For It, Inc.

Marketing Legal Services – Defining the Center – Targeted Mail- Response to Shapero

States can regulate the time frame in which lawyers can send the targeted mail to a potential client. (e.g. the state can place a 30 day wait before contacting accident victims or surviving family members).

Revo v. Disciplinary Board of the Supreme Court of New Mexico

Marketing Legal Services – Defining the Center – Targeted Mail- Response to Shapero

The court invalidated the state’s permanent ban on solicitations of accident victims.

Ficker v. Curran

Marketing Legal Services – Defining the Center – Targeted Mail – Response to Shapero

The court ruled the state could not have a ban similar to that in Went For It but for criminal clients. Instead the court invalidated the rule. The court reasoned that helping the criminal clients didn’t tarnish the profession the way seeking accident victims did.

In re Primus

Marketing Legal Services – Solicitation by Public Interest and Class Action Lawyers

Solicitation offers of free legal services are permitted because they are made without the hope of pecuniary gain.

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Perez v. Kirk & Carrigan

Defining the Client-Lawyer Relationship – Elements of the Client-Lawyer Relationship – Confidentiality ( Implied Assent & Reasonable Reliance)

A lawyer may breach his fiduciary duty to his client either by wrongfully disclosing a privileged statement or by disclosing an unprivileged statement after wrongfully representing that it would be kept confidential.
o The lawyers were not clear with Perez about whether they were going to personally represent him. Perez reasonably relied on his belief that they were when he gave his statement about the accident.

Hooser v. Superior Court

Defining the Client-Lawyer Relationship – Elements of the Client-Lawyer Relationship – Confidentiality

The attorney-client privilege and the duty of confidentiality protect information gained from a potential client even if no retention ensues. The privilege applies to all confidential communications made to an attorney during preliminary discussions of the prospective professional employment, as well as those made during the course of any professional relationship resulting from such discussions.

Upjohn Co. v. United States

Defining the Client- Lawyer Relationship – Elements of the Client – Lawyer Relationship – Entity Clients

The attorney-client privilege between a corporation and its counsel extends to communications between the counsel and non-control-level employees. Two Tests: (1) Control Group – Attorney client privilege extends only to executives of the corporation. (2) Subject Matter Group Test – even mid or low level employees are protected by attorney client privilege. The court rejected the control group test and the subject matter test wins out.

Samaritan Foundation v. Goodfarb

Defining the Client- Lawyer Relationship – Elements of the Client – Lawyer Relationship – Entity Clients

An employee’s communications to corporate counsel are within the corporation’s privilege if they concern the employee’s own conduct within the scope of her employment and are made to assist the lawyer in assessing the legal consequences of that conduct for the corporation. The statements in this case were not within the corporate attorney-client privilege because these employees were not seeking legal advice in confidence. Since their actions did not subject Defendant to potential liability, their statements were not gathered to assist Defendant is assessing or responding to the legal consequences of the speaker’s conduct. They were employee-witnesses, not employee-clients (i.e., speaking as individuals and not corporate clients). Therefore, they’re discoverable. AZ later passed a statute overruling this decision (Pg. 39 of text)

Restatement 73

Defining the Client- Lawyer Relationship – Elements of the Client – Lawyer Relationship – Entity Clients

Many forms of an organizational client. This section would privilege communications that satisfy the other criteria for privilege if the communication is “between an agent of the organization” and a lawyer (or the lawyer’s agent) and the communication “concerns a legal matter of interest to the organization.” Comment – it doesn’t matter if the lawyer or client initiates the conversation.

In re Grand Jury Subpoena Duces Tecum (aka Office fo the President v. Office of Independent Council)

Defining the Client- Lawyer Relationship – Elements of the Client – Lawyer Relationship – Entity Clients – Government as a Party

The Eight Circuit opinion assumes that the government enjoys attorney client privilege in contests with other litigants. Nevertheless, the court held that no government attorney-client privilege could be asserted to avoid a federal prosecutor’s grand jury subpoena. One reason the court gave for giving the White House less protection than Upjohn gave private companies is that the actions of White House personnel in whatever capacity cannot expose the White House to criminal

current Conflicts of Interest – Client-Lawyer Conflicts – Related Lawyers and Significant Others

Lawyers who are related as parent, child, sibling, or spouse may represent direct adversaries only if the clients consent after consultation. There is not a rule that automatically disqualifies a lawyer based on their marital status in the model rules as long as the lawyers closely follow the other ethical guidelines set out. However, some states extends the imputation of conflict to cohabiting lawyers (Michigan) and such. Note: Difference, there is a per se rule of disqualification because of martial status. MRPC 1.8(i). If after consultation the client consents to the representation it would be permissible.

Michigan Opinion R-3(1989)

Concurrent Conflicts of Interest – Client-Lawyer Conflicts – Related Lawyers and Significant Others

Extends the prohibition against direct adverse representation to lawyers in a “cohabitant relationship.” This opinion also directs lawyers “in a dating relationship” to disclose it if the relationship could raise questions in the minds of their clients. Finally, the opinion points out that Rule 1.7 might require disclosure and consent where a lawyer represents a client against a close relative’s law firm even if the relative is not representing the opposing client.

Cuyler v. Sullivan

Concurrent Conflicts of Interest – Client- Client Conflicts – Criminal Cases (Defense Lawyers)

The mere potential of a conflict of interest in representation is not sufficient to invalidate a conviction. The potential for a conflict of interest exists in every situation involving multiple representations so to hold that the mere potential for a conflict of interest is sufficient to invalidate a conviction would end multiple representation. In many situations however, multiple representation benefits the client. Prejudice is assumed when a conflict exists, but it should not be when one is only possible. Defense council have an ethical obligation to avoid conflicting representation and to advise the court promptly when a conflict of interest arises during the course of trial. Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.

Strickland v. Washington

Concurrent Conflicts of Interest – Client- Client Conflicts – Criminal Cases (Defense Lawyers)

The test for determining ineffective assistance of counsel asks whether counsel’s performance was reasonable considering the circumstances. If not, the defendant must show that there is a reasonable probability that but for the counsel’s unprofessional errors, the result of the proceeding would have been different.

Burger v. Kemp

Concurrent Conflicts of Interest – Client- Client Conflicts – Criminal Cases (Defense Lawyers)

Connects Strickland & Cuyler making it easier for a defendant who claims ineffective assistance of counsel based on conflict to prevail than it is for defendants asserting other kinds of ineffectiveness.

Holloway v. Arkansas

Concurrent Conflicts of Interest – Client- Client Conflicts – Criminal Cases (Defense Lawyers)

It can lead to reversal of a conviction without the need to show any harm at all or any effect on counsel’s performance. The Supreme Court held that the trial court’s failure to investigate the alleged conflicts required reversal without any need to demonstrate prejudice.