Neville-Ewell
Professional Responsibility
Winter 2012
I. Lawyering and Ethics
a. Model Rule 1.2: Scope of Representation
i. 1.2(a) Lawyer shall
1. Abide by a client's decisions concerning the objectives of representation
2. Consult with the client as to the means by which they are being pursued
3. Abide by client's decision to settle
4. In criminal cases AND after consultation with lawyer, lawyer shall abide by client's decision
a. To enter a plea
b. To waive jury trial or not AND
c. To testify or not
5. NOTES: If the lawyer disagrees with client's decisions
a. Lawyer may withdraw OR
b. Document that you have advised your client contrary to what the client decided to do so the lawyer is covered
ii. 1.2(b) Representation of a client, including representation by appointment
1. Does not constitute endorsement of client's political, economic, social, or moral views or activities.
2. NOTES: Ethic of detachment
a. Everyone deserves a defense
b. Representation of clients, whether we agree with their views or not, prevents arbitrary practices by police and prosecutors
iii. 1.2(c): Limiting Objectives of Representation
1. A lawyer can limit the objectives of representation IF
a. Client consents AFTER consultation
2. NOTES: Practical reasons to limit representation
a. Lawyer does not want to be responsible for the client's acts
iv. 1.2(d): Crime or Fraud
1. A lawyer shall not knowingly
a. Counsel OR assist a client to engage in crime or fraud
2. A lawyer may
a. Discuss legal consequences of any course of conduct with a client AND
b. May counsel or assist a client to
i. Make a good faith effort to determine the validity, scope, meaning, or application of the law
3. NOTES: stay away from the borderline
a. Rule only talks about “criminal or fraudulent” conduct
b. ARGUABLY, lawyer can counsel or assist client to
i. Breach contract
ii. Violate environmental laws
iii. Violate regulatory laws
c. ON THE OTHER HAND, rule 1.16(a), relating to withdrawal, states that lawyers shall withdrawal for violating any other “law” which covers breach etc.
v. PA Model Rule 1.2 mirrors that of ABA Model Rule 1.2. Thus, in PA the analysis would be similar.
b. Model Rule 1.6: Confidentiality of Information
i. 1.6(a): General Rule—A lawyer shall not
1. Reveal information
2. Relating to representation of a client
3. UNLESS
a. Client consents after consultation OR
b. Disclosure is impliedly authorized in order to carry out representation (even without client consent)
ii. 1.6(b): Exceptions
1. A lawyer MAY reveal information
a. ABA is permissive not mandatory disclosure
2. IF Lawyer reasonably believes necessary
a. 1.6(b)(1): To prevent client from committing a criminal act
i. Criminal act must be likely to result in imminent death or substantial bodily harm
1. Reasonably likely that the client will commit the act
a. Client tells you AND
b. Client must be the one who will commit the act
ii. Criminal Act must be in the future
iii. Imminent is not defined, but look to the facts
b. 1.6(b)(2): To establish a claim or defense
i. On behalf of the lawyer if the lawyer sues the client
ii. To a criminal charge or civil claim against the lawyer based upon the client's conduct OR
iii. To respond to allegations in any proceeding concerning the lawyer's representation of the client
iii. PA Model Rule 1.6: Confidentiality of Information
1. 1.6(a) mirrors ABA Model Rule 1.6(a)
2. 1.6(b): A lawyer SHALL reveal such information if necessary to comply with the duties in PA Model Rule 3.3
a. Since 3.3 trumps 1.6, a lawyer is required to disclose to abide by 3.3
3. 1.6(c): A lawyer may reveal information to the extent the lawyer reasonably believes necessary
a. 1.6(c)(1): same as ABA model rule BUT
i. Takes out “imminent” requirement AND
ii. Adds “substantial injury to financial interest or property of another”
1. Includes theft, fraud, embezzlement, etc.
b. 1.6(c)(2): lawyer may reveal information
i. To prevent OR rectify the consequences of client's criminal or fraudulent act where lawyer's services were used
1. Past and present acts of client
4. Read 1.6 in conjunction with PA Model Rule 4.1: Truthfulness in Statements to Others
a. During representation, a lawyer SHALL not knowingly
i. 4.1(b): fail to disclose a material fact to a third person where disclosure is necessary to
1. Avoid aiding and abetting a crime or fraudulent act UNLESS
2. Disclosure is prohibited by PA Model Rule 1.6
b. NOTES: Although disclosure is permissive under 1.6(c), AP Model Rule 4.1(b) might REQUIRE disclosure
c. Model Rule 1.16: Withdrawal
i. 1.16(a): A lawyer shall not represent a client OR if already representing a client shall withdraw IF
1. 1.16(a)(1): representation will violate rules of professional conduct OR other law
a. Law is broader here than other parts of the code
2. 1.16(a)(2): lawyer is physically or mentally unable to represent the client OR
3. 1.16(a)(3): the lawyer is discharged from representation
ii. 1.16(b): Permissive Withdrawal: Unless required by 1.16(c), a lawyer MAY withdraw IF
1. Withdrawal will not adversely effect the interests of the client OR
a. 1.16(b)(1): client persists in course of conduct that involves lawyer's services and lawyer reasonably believes the conduct is fraudulent or criminal
b. 1.16(b)(2): client has used lawyer's services to perpetrate a crime or fraud
c. 1.16(b)(3): client insists on pursuing repugnant or imprudent objectives
d. 1.16(b)(4): client fails to fulfill obligation regarding lawyer's services AND client had notice that lawyer would withdraw if client did not fulfill obligation
e. 1.16(b)(5): representation will unreasonably burden the lawyer financial OR representation made unreasonably difficult by the client
f. 1.16(b)(6): other good cause shown
iii. 1.16(c): Court order to represent
1. Lawyer SH
3.3(a)(3), lawyer need not disclose independent facts
k. Ambiguities in the Law
i. Lawyers must interpret the law within a reasonable range of interpretation
ii. Matter of Krueger—lawyer advised client to stay in hotel for certain period of time so client could be considered a resident of that state for custody purposes. Although client legally was then a resident, the lawyer gave advice that fell outside the reasonable interpretation of the law.
l. Disclosing Incriminating Evidence
i. Stenhach—Criminal defense attorney must turn over to prosecutor any physical evidence relating to crime in possession of the D's attorney
1. Criminal defense attorney not required to turn over confessions
a. Attorney-client privilege attaches
b. 5th Amendment privilege against self-incrimination
c. Confidentiality rules apply
ii. Model Rule 3.4(a): Lawyer shall not
1. Unlawfully obstruct another party's access to evidence OR
2. Unlawfully alter, destroy, or conceal a document or other material
3. Having potential evidentiary value
iii. Other Applicable Rules:
1. Model Rule 1.6 may prohibit lawyer from disclosing information unless exceptions apply
2. PA Model Rule 1.6 would require disclosure because 3.3 trumps 1.6 (lawyer shall not fail to disclose anything that would assist client in committing a crime or fraud)
3. Model Rule 8.4(a): prohibits misconduct
4. Model Rule 8.4(b): prohibits lawyer from committing criminal act reflecting adversely on lawyer's honesty, trustworthiness, or otherwise fitness of lawyer
II. Conformity To Law
a. Model Rule 3.1: Meritorious Claims and Contentions
i. Lawyer shall not
1. Bring or defend frivolous claims UNLESS
2. There is a basis for doing so that is not frivolous
a. Good faith argument for an extension, modification, or reversal of existing law
ii. In a criminal case
1. Lawyer who cannot assert a nonfrivolous defense may
a. Defend by requiring prosecution to prove every element beyond a reasonable doubt
i. Lawyer cannot put on perjured testimony or
ii. Present fraudulent evidence
iii. PA Model Rule 3.1 mirrors ABA Model Rule 3.1 and thus the analysis is similar
b. Model Rule 3.2: Expediting litigation
i. A lawyer shall
1. Make reasonable efforts to expedite litigation
2. Consistent with client's interests
a. NOTES: no unreasonable stalling, but can delay for tactical advantage, financial reasons, or preparation of witnesses
ii. PA Model Rule 3.2 mirrors ABA Model Rule 3.2 and thus the analysis is similar
