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Theory or Uniformity?
No overarching theory rules arise from particular problems attorneys encounter. Rules reflect
consensus reached by professional community re: how situation should be handled. Empirical focus.
No uniformity No state has adopted all model rules. Most use as models (except CA). R 5.5
CHOICE OF LAW conflicts, lawyer admitted to state A doing work in state B, which rules govern?
Complicated! Probably most restrictive rule will be applicable. R 8.5
Politics?
Rules written by committee overseen by Supreme Court.
Rules often proposed by state Bar, promulgated by state Supreme Cout.
Fed govt could but they dont.
Rules today adopted by ABA in 1983 with relatively minor changes.
ABA has Committee on Pro Rep, as do state Bars. Attorneys can seek guidance from these
committees via ethics hotlines.
Model rules not intuitively obvious. Must learn them!
General rule about practicing outside your jurisdiction Team up w/local attorney.
Different rules for different specialties w/in the law? NO. ABA has resisted except in field of
prosecution b/c carries w/it the authority of the state.
WARNING: Restatement Law Governing Lawyers is one of the few Restatements not very well done. As
such, it is less authoritative than other Restatements. This is one is treated more like an ALI.
History
Before 1983 had totally different set of rules. NOW called Model Rules of Professional Conduct.
THEN called Model Code of Professional Responsibility (adopted in 1970, based on Canons of
Professional Ethics from 1908). Some differences important: New set more comprehensive, fills in gaps.
Some things have been taken out entirely. 1970s Law schools required to teach legal ethics.
Watergate!
Kutak Commission
1977 ABA inaugurated commission when Codes ambiguity and gaps became apparent. Adoption
of Model Rules very slow (especially compared to adopting the Model Code, which was pretty quick). NY
and Maine didnt jump on until 2009 (and CA still hasnt).
Ethics 2000 Commission
1997 ABA appointed commission to study and recommend amendments to Model Rules.
Charged to report in year 200, hence name (AKA E2K Commission). Reported Nov. 2002, then made
significant changes. House of Delegates adopted nearly all recommendations.
Task Force on Corporate Responsibility
July 2002 response to Enron, Tyco, Worldcom scandals. Fed govt told SEC to adopt certain
rules governing lawyers. Alarming to Bar-defensive effort to show SEC that profession could react.
20/20 Commission
2009 focused on adapting rules to new technology and globalization.
CONFIDENTIALITY
LOYALTY
DILIGENCE
Competence
R 1.1
What makes a lawyer competent? Legal knowledge, skill, thoroughness, preparation.
Generally, re: legal knowledge, shouldnt charge to research background knowledge that you
should have. But if particular expertise is required for this case, it is appropriate to charge CL for that.
Generally expect specialist to be held to higher degree of competence than non-specialist.
Competence Perfection
Confidentiality
R 1.6
Basic Rule: A lawyer shall not reveal information relating to the representation of a client.
Purpose: Full disclosure by client, to facilitate adequate representation.
Confidentiality Privilege
Exceptions aplenty.
Informed Consent (defined in R1.0)
Impliedly authorized to carry out representation
Permitted by 1.6(b)
Idea: Nothing in the rules prevents you from
adequately doing your job.
Right of confidentiality belongs to CLIENT!
Some revelation of info is inherent in representation and thus impliedly authorized (ex.
Communication of settlement offer). Discovery Rules = implied authority to disclose what is required.
Assumption of free flow of information. If you learn something from a client, you can tell other lawyers
in your firm - passing info on to other attorney is fine.
POLICY
Empirical Encourage client to trust attorney, allows attorney to do better job. Serves broader
public interest in the observance on law and administration of justice.
Normative Lawyers should respect CL confidences just b/c it is right to do so. Respect for CLs
autonomy and privacy.
ENTITY CLIENTS
Confidentiality duties are the same.
Difficulty arises when asking whose communications w/company counsel are privileged?
Who would you speak to if/when representing a corporation?
General rule president of corporation (who typically delegates the responsibilities re: legal
issues.)
Three tests have evolved in different states for determining who constitutes the client:
(1) The control-group test results in the most narrow application of privilege. It provides that the
client is only someone from the group of people who can control or be significantly involved in
the direction of the company.
(2) Under the subject-matter test, an employee is a client for purposes of attorney-client privilege if
the communication occurred at the direction of the employee's superior and the subject matter
of the communication falls within the scope of the employee's duties.
(3) The Upjohn test is similar to the subject-matter test but slightly more flexible. Under this test, an
employee is a client for purposes of attorney-client privilege if the employee made the
communication to in-house counsel at the direction of the employee's superior, the
communication related to the employee's duties, individuals within the control group did not
possess the information, and the employee knew that the communication was being made so
that the company could obtain legal advice.
Upjohn v. U.S. 1981
Corporate counsel represent the corporation, not merely the control group of officers and directors.
Any employee capable of making a decision that would substantially affect the corporations legal
position must be granted this privilege so that counsel may properly assess the corporations liabilities. If
attorneys are to be retained to represent the interests of an entire corporation, it stands to reason that
the corporations employees should enjoy the full benefits of attorney-client privilege in their
communications with counsel. Any other holding would have significantly chilled corporate counsels
ability to properly investigate possible liabilities and therefore impaired their effectiveness.
Privilege case
Control group test rejected
Privilege extended to employees who:
o Possess relevant info, or
o Are responsible for implementing corporate policy.
Protects only communications, NOT the info itself.
Government A-C privilege exists, but does not get as much protection as Upjohn.
RESTATEMENTs position on entity clients organizational client include communication b/t agent of
entity if it concerns a legal matter of interest to the organization. Says it is relevant who initiates the
contact.
Agency
R 1.2
Authority that lawyers have to act and speak for the client on the subject of the retainer.
*Avoid ambiguous retainers!
Apparent authority lawyers statements can bind CL
Managing a trial (w/a few exceptions) is completely w/in lawyers authority.
The law of agency applies
General agency rule a principal is bound by the acts of an agent w/in the scope of the agents
authority or apparent authority
Scope of agency A lawyer must have full authority to manage a trial, and conduct of a lawyer is
often imputed to CL
R 1.2
Fiduciary
Some fiduciaries have higher obligations than other fiduciaries, and lawyers have among the highest.
3 Reasons for imposing fiduciary duties on attorneys:
1. Client expects it; lowers guard, so to speak.
2. Lawyer may acquire info about client that gives lawyer unfair advantage in dealings w/client.
3. Many clients will not be in position to change attorneys.
Lawyer as fiduciary
What does it mean to say that a lawyer is a fiduciary of the CL?
Lawyers occupies a unique position of trust and confidence toward the CL
Among fiduciaries, lawyer occupies the highest level of obligation
CLs are very dependent on lawyers
Lawyers have expertise CLs lack
Lawyer must treat CL fairly.
Client Autonomy
o Determine the objectives of the representation
o Decide whether to accept a settlement offer (however inappropriate)
o Staffing with minority or female lawyers
o Criminal cases
Enter a plea
Testify
Counsel must advise CL whether CL testifying will help/hinder, but
decision to testify belongs to CL alone. Also CL has right to accept plea
offer, even over attorney's strenuous objections.
Abandon appeal (even if a death sentence is pending)
CL may not fire appointed counsel, but may ask court to assign new lawyer.
Too close to trial, court may not permit CL to fire counsel.
Withdrawal requirements in active litigation.
At termination of relationship, CL is presumptively entitled to entire case file - but attorney can make
argument to retain internal documents.
Attorney's retaining lien <-- in PA, can withhold documents until payment is rendered.
If CL has hired someone else to take over representation, general rule is have to turn over files
w/exception if practice in state w/retaining lien. Can (perhaps should?) make copies of everything for
your records, but copies are made at your expense.
Termination by Drift
Where work, or case, ends but relationship itself does not necessarily end w/work. Must fully advise
CL of future implications based on matter of representation.
EPISODIC CLIENTS Questions of fact, looks at frequency with which CL has called on firm and over what
period of time. Kind of like asking, Whose your dentist?
A client dissatisfied with a lawyer's representation can get a second opinion w/out anyone running
afoul of this rule.
Lawyer must know (or reasonably deduce) person is represented by another lawyer.
Members of uncertified class not represented by counsel.
Rule 4.2 prevents a lawyer from (through advising on communications b/t CL and OP):
getting a damaging admission from OP (client)
learning a fact or getting a document would not learn or get if OC were present
settling or winning a concession or learning OP's true position in negotiation
learning OP's strategy or gaining info protected by A-C privilege or work product doctrine
weakening OP's resolve by casting doubt on strength of his position
disparaging OC to OP
If it's another lawyer working for the same company, generally can speak w/client.
Speaking w/in-house counsel while representing an employee of the corporation not prohibited.
Rule 4.3 Dealing With Unrepresented Person
Rule 3.4 Fairness to Opposing Party And Counsel
Civil Matters
Different problems depending on whether OP is person or entity.
If person, key Q is whether communication was "communication" w/in meaning of rule - but there
should be no difficulty IDing the CL.
If entity, however, questions arise b/c entities only exist through actions of employees and not all
employees at all times fall w/in Upjohn.
implementing the advice of counsel. All other employees may be interviewed informally - i.e. not
covered by rule.
Result: Allows ex parte interviews with nonmanagerial witnesses employed by a corporate
defendant.
Privilege rule NOT same as no contact rule!
HOW LARGE THE CIRCLE OF SECRECY?
Is it wise to use the vicarious admission rule to define the no-contact rule?
The two rules are supposed to advance different policies.
Restatement says to permit interviews even with those who can bind via
vicarious admissions in order to facilitate candid and informal access to info.
Rule does NOT prohibit contact w/former employees. BUT most not seek "to elicit privileged or
confidential information from an opponent's former employee."
WHEN THE GOVERNMENT IS THE ADVERSARY
Competing interests: Gov't's interest as a litigant vs. First Amendment right to petition the gov't.
Generally, can consider rule is limited as to government parties
TESTERS
"sting" operation to learn whether prohibited action is being performed (discrimination, bad
references, etc.)
Accepted investigative technique or misrepresentation? Courts vary.
Criminal Matters
When you're a prosecutor, you don't really have a client. But prosecutors still have duties re: A-C.
U.S. v. Hammad 2d. Cir. 1988
Note Case
Using fake subpoenas during wired convos to
induce incriminating statements in appropriate - violates ethics rules.
U.S. v. Carona 9th Cir. 2011
Haidl was bribing Carona (Orange County Sheriff) for "the complete power of the sheriff's department"
and to not accept bribes from others. Federal investigation, Haidl admitted misconduct and cooperative
plea agreement. Haidl had conversations w/Carona while wired. Gov't gave Haidl some fake subpoenas
to induce Carona to say incriminating things.
Whether pre-indictment, non-custodial communications by federal prosecutors and investigators with
represented parties violate no-contact rules. <-- Case-by-case decisions.
Considerations in Carona:
- There were no direct communications between the prosecutors and defendant.
- The indirect communications did not resemble an interrogation.
- Prosecutors' use of fake subpoena attachments make their informant the alter ego of the prosecutor.
- The court noted that defendant's state of mind appeared to have involved both the intent to
"influence" a witness's testimony and the intent for the witness to "withhold" testimony, based on the
dictionary definitions of these words.
- Defendant intended to "modify" or "affect" the testimony by encouraging the witness to testify that
no bribes occurred, as well as to "omit" testimony regarding the bribes.
General rule: prosecutors do have a higher ethical standard.
Generally matter of state law whether confidential document(s) have to be returned to sender or
destroyed.
Metadata - states differ - know what your state has to say!
Unethical Fees
In re Laurence S. Fordham, MassSC 1996
CL had DUI - had spoken with a few attorneys, estimated range of like $3K - $10K. CL's dad did work on
Fordham's home, chatted about CL's arrest to wife, who facilitated discussion where Fordham was hired
after telling CL's dad that it wasn't his expertise, yadda yadda. Total bill for Fordhams services over $50K
Standard here: "clearly excessive." <-- had standard until model code was adopted.
Case brought by DISCIPLINARY COMMITTEE - not brought by CL, so no decision requiring fees get
reduced/paid back.
Public censure.
Factors for clearly excessive (in this case):
The novelty and difficulty of the questions involves, and the skill requisite to person the legal
service properly.
The fee customarily charged in the locality for similar legal services.
Contingent Fees
Special note: NO contingency fees permitted for domestic relations / family matters, nor for
representing a criminal defendant. R 1.5(d)
Rule 1.8 makes the contingent fee an exception to the general prohibition against a lawyer acquiring an
interest in the clients claim.
Petitioners challenged court of appeals ruling reversing a district court decision in favor of petitioners,
on grounds those respondents were immune from antitrust liability. The court reversed the court of
appeals decision because anti-competitive conduct by lawyers was within the reach of the Sherman Act.
The court noted that the fact that the state bar association was a state agency for some limited
purposes did not create an antitrust shield.
Hence, the court ruled that respondents were liable since their activities involved blatant price-fixing,
which restrained competition and harmed consumers.
Rule 6.1 Voluntary Pro Bono Publico Service Rule 6.3 Membership in Legal Services Organization
Rule 6.4 Law Reform Activities Affecting Client Interests