Professional Responsibility Admission to the Bar Model Rule 8.

8.1 Bar Admission and Disciplinary Matters An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) (omissions) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6 (confidential client information)

Character and Fitness vague; no real absolute definition Honest Respect for the law Respect of others Major intent is protecting clients NOT political affiliation NOT moral judgments Prevent Admission to the Bar Recent criminal conduct Fraud (especially in financial dealings) Dishonesty on bar application

Attorney Grievance Commn v. Myers disbarred for lying on bar application about a number of traffic tickets he had even though the driving record itself would not have justified denial of admission. (Rule 8.1)

Application of Taylor shoplifting; at trial ct denied ever intending to steal items and charges were dropped; before bar committee admitted that he intended to steal items; denied application to bar for misleading testimony in the criminal case Factors that typically determine the impact of past acts on the Bar admission Amount of time since the offense (no statute of limitation) Nature of applicants offenses Current mental state Community service; achievements Candor Age at time of offense Educational Requirements Graduation from ABA-accredited law schools (except in 8 states) for a law school that gets accreditedit is retroactive for past students Passage of bar examination (including ethics exam) Requirements that are and are not permissible State cannot require Bar applicant to be a US citizen Griffiths (US 1973)

State cannot require Bar applicant to be State resident Piper (US 1985)
Can require special skills course Can require office in the State

Lawyer Discipline Model Rule 8.3 Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program Comments:

(1) An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. (1)Reporting a violation is especially important where the victim is unlikely to discover the offense (2) A report is not required if it involves Rule 1.6, however, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the clients interests (3) If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense (3) the term substantial refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware

(4) The exception with the lawyer assistance program is made so lawyers will not hesitate to seek assistance, if otherwise then there may be additional harm to their careers and the welfare of their clients and the public Rule 8.3 cases are rare:

In re Himmel (Ill. 1988) (text p.56) - first case to discipline lawyer solely for failure to report another lawyers misconduct

In re Riehlmann (La. 2005) (text p.57) - public reprimand based on lawyers failure to report a prosecutors suppression of exculpatory evidence in capital casepital Model Rule 8.4 Misconduct It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take (cmt 1) (b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects; Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate a lack of mentioned characteristics relevant to law practice (ex. Violence, dishonesty, breach of trust)(Cmt 2) A pattern of repeated offenses, even ones of minor significance when considered separately can indicate indifference to legal obligation Cmt 2) Atty. Grievance Commn v. Protokowicz divorce atty. helped former client break into clients estranged wifes house and killed a cat (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; a lawyer who in the course of representing a client knowingly manifests words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or economic status, violates D when such actions are prejudicial to the administration of justice (Cmt 3)
2

 anything that undermines the integrity of the ct system ex. bribes offered to any member of the justice system; lying or misrepresentation to a member of the justice system (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law Examples: Rule 1.1 competence Iowa SC Bd. Of Prof. Ethics & Conduct v. Hill revoked license from atty. handling interstate adoptions when he knew or should have know that he was incompetent to do so Rule 1.3 diligence and competence dont take on too many clients Model Rule 8.5 Disciplinary Authority; Choice of Law (a) Disciplinary Authority.

A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyers conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. Ex. May FL discipline atty.:

Member of FL & GA Bar, practices only in GA and misconduct in GA YES Member of FL Bar and commits misconduct while working pro hac vice on legal case in TX YES Member of TX Bar, and commits misconduct while working on pro hac vice on legal case in FL YES

Member of FL Bar but not practicing law and lies on an app for real estate brokers license in CA YES Can discipline anyone who has a FL Bar license (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyers conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. (3) A lawyer shall not be subject to discipline if the lawyers conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyers conduct will occur. Comments: Part Bs premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and its profession (Cmt 3) Any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct (Cmt 3) If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, identify the same governing ethics rules. They should also avoid proceeding against a lawyer on two inconsistent rules (Cmt 6)

State Bars typically regulate atty. conduct with: Private or public reprimand Suspension Disbarment anything from 1 3 yrs and can reapply; or can have permanent
3

Hypos: May a State Bar discipline a lawyer for: An alleged criminal act where there is no criminal conviction? Yes, even if not found guilty. An alleged criminal act where there is no criminal prosecution? Yes An alleged dishonest act that is not a crime? Yes Criminal or dishonest acts not done in the lawyers legal capacity? Yes NOTE: The bar has their Own Fact-Finding Process and will look into the situation. They make their own decisions and are not bound by any other tribunal and so they can still look into a crime where there was no conviction Aggravating factors in lawyer discipline Prior offenses Obstruction of the disciplinary process Mitigating factors in lawyer discipline Disability or impairment Inexperience Restitution Remorse Sanctions imposed on a lawyer based on misconduct or discipline in another jurisdiction: An atty. has a duty to report disciplinary action to every other jurisdiction where the lawyer is admitted Other jurisdictions may but need not impose reciprocal discipline Report sanction have a hearingtypically dont accept the sanctions but may accept the facts

LAWYER-CLIENT RELATIONSHIP Undertaking Representation

Model Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer (a) Subject to p. (c) and (d),

a lawyer shall abide by a clients decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may revoke such authority at any time (cmt 3) A lawyer shall abide by a clients decision whether to settle a matter

In a criminal case, the lawyer shall abide by the clients decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify (b) A lawyers representation of a client, including representation by appointment, does not constitute an endorsement of the clients political, economic, social or moral views or activities (c) A lawyer may limit the scope of the representation IF the limitation is reasonable under the circumstances and the client gives informed consent Ex: A clients objective is limited to securing general info about the law the client needs in order to handle a common legal problem, the lawyer and client may agree that the service will be limited to a brief telephone consultation. It would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely (cmt 7) (d) Criminal or Fraudulent:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law
4

 Does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a clients conduct (cmt 9) there is a critical distinction between presenting an analysis of legal aspect of questionable conduct and recommending the means by which a crime or fraud might be committed (cmt 9) If was legally proper but then discovers is criminal or fraudulent, may not continue assisting a client in conduct that the lawyer originally supposed was truthful. (cmt 10) It may also be necessary for the lawyer to give notice of the fact of withdrawal and disaffirm an opinion, document, affirmation or the like. (cmt 10) Makins v. DC negotiated a settlementreduced to writing; when took to client refused to sign; apparent authority may be found only when the principal places her agent in a position which causes a third person to reasonably believe the principal has consented to the exercise of authority the agent purports to hold. Client Can: Make decisions that are comparable to the decision to settle or plead guilty in criminal case Ex. entering stipulations, waiting defenses, selling real property, consenting to summary judgment Lawyers can: introduce evidence, forgo cross examination dont have to consult w client or ask for permission for this

The lawyer must then withdraw from the representation. (cmt 10)

Model Rule 1.18 PROSPECTIVE CLIENTS Becoming a prospective Client

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client NOT a prospective client: who communicates info unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, (cmt 2) Usually the line is drawn if you are in your office or you use your office email. Measured by a reasonable person std Confidentiality

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal info learned in the consultation, except as Rule 1.9 would permit with respect to info of a former client Info collected by legal assistant during an interview of a prospective client is protected to the same degree as if collected by a lawyer Conflicts

(c) A lawyer subject to p.(b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter IF the lawyer received info from the prospective client that could be significantly harmful to that person in the matter, except as provided in p.(d). In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose (cmt 4) Law Firm Disqualification

(c) If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in p.(d) Exceptions

(d) When the lawyer has received disqualifying info as defined in p.(c), representation is permissible if:
5

 (1) BOTH the affected client and the prospective client have given informed consent,
confirmed in writing, OR:

(2) the lawyer who received the info took reasonable measures to avoid exposure to more
disqualifying info than was reasonably necessary to determine whether to represent the prospective client; AND

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; AND

(ii) written notice is promptly given to the prospective client. Note: A screened lawyer may still receive salary but may NOT receive compensation directly related to the matter which the lawyer is disqualified (cmt 7) Generally no Duty To Accept Representation But lawyer must accept ct appointment to represent clients (Rule 6.2) No duty to accept ct appointment if: Representation would violate law or ethical rule cant provide adequate representation (usually they will try to assign you a mentor) Representation would be unreasonable financial burden, or Client or cause is repugnant to lawyer; would impair representation When does the Formal Lawyer-Client Relationship begin? Relationship exists when:

person manifests intent for lawyer to provide legal services, AND EITHER Lawyer manifests consent OR Lawyer knows or should know the person reasonably believed relationship formed Best practice: After consultation write either engagement letter or declining letter You can limit your representation and liability if you get in writing

Tagstad v. Vesely statute of limitation ran out for med-mal claim; atty. said he didnt think she had a case and said would discuss with partner; client waited a yr for atty. to contact her before she contacted another atty.; ct held first law firm liable for the potential amount would have one in a jury case; atty. should have told her about the statute of limitations at a minimum

DeVaux v. American Home Assurance Co. lawyers secretary misfiled a letter requesting for legal assistance; atty. never saw letter and statute of limitations ran up; concluded jury could have found an atty.-client relationship BILLING for Legal $ervice$ Model Rule 1.5 Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. Factors to be considered in determining the REASONABLENESS of a fee include the following: (1) the time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent Note: If the client had a free and informed choice before adding entering into the agreement and the fee was in reasonable rage, then the fee is almost always reasonable (b) The Scope Of The Representation and Basis of the Fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation,
6

Except when the lawyer will charge a regularly represented client on the same basis or rate.

Any changes in the basis or rate of the fee or expenses shall also be communicated to the client CONTINGENT FEES:

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by p.(d) or other law. Requirements of Contingent Fees: A contingent fee agreement shall be in a writing signed by the client and state the method by which the fee is to be determined, including the percentage(s) that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) Cannot have Contingent Fees for: (1) domestic relations matter the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) defendant in a criminal case Dont want to incentive criminal atty. to not accept a plea FEE DIVISIONS (not in same firm) (e) A division of a fee between lawyers who are not in the same firm MAY be made ONLY IF: (1) the division is in proportion to the services performed by each lawyer OR each lawyer assumes joint responsibility for the representation; and (2) the client agrees in writing to the arrangement, including the share each lawyer will receive (3) the total fee is reasonable Allowed with referrals as long as costs are proportional or if each lawyer assumes responsibility for the representation as a whole (cmt 7)

Other Fee Rules: Before or soon after representation begins, lawyer must inform client of: Fees and how they are calculated Expenses that will be separately billed to the client Lawyer must promptly communicate any changes in fees Lawyer can receive property instead of money from clients as payment, but this is subject to more scrutiny if there is a dispute must be proportionate to the fee being charged Fees can go up once they are your client just have to give notice

Up-front retainer fees are OK, but usually these must be refundable if work not performed. Fees in kind OK instead of money, but this is subject to more scrutiny if there is a dispute. This
is not unusual to corporate lawyers to take stock from companies as payment or for real estate lawyers to take a percentage of a development, provided that It does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i) A fee paid in property instead of money may be subject to the requirements of 1.8(a) because such fees often have the essential qualities of a business transaction with a client
7

Fees agreements in writing: Rule encourage but do not require hourly fee agreement to be in writing Contingency fee agreement must be in writing 1.5(cmt2) A written statement reduces the possibility of misunderstanding Contingency fee agreements: Fee agreement must be in writing Must include method of fee calculation Must include expenses and costs client must pay After recovery in contingent fee case, lawyer must make written accounting to client Client Property & Withdrawing Representation Model Rule 1.15 SAFEKEEPING PROPERTY (a) A lawyer shall hold property of clients or third persons that is in a lawyers possession in connection with a representation separate from the lawyers own property. Funds shall be kept in a separate account maintained in the state where the lawyers office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded.

Complete records of such account funds and other property shall be kept by the lawyer and
shall be preserved for a period of [five years] after termination of the representation. Securities should be kept in a safe deposit box. (cmt 1) Should maintain, on a current basis, books and records in accordance with generally accepted accounting practice and comply with any record keeping rules established by law or court order (cmt 1) Client Trust Account

(b) A lawyer may deposit the lawyers own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose accurate records must be kept regarding which part of the funds are the lawyers (cmt 2)

(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. Receiving Funds (d) Upon receiving funds or other property in which a client or third person has an interest,

shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person,

shall promptly render a full accounting regarding such property. Dispute of Claimed Interest (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests:

the property shall be kept separate by the lawyer the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interest are not in dispute Lawyer may not hold funds to coerce a client into accepting the lawyers contention (cmt 3) Lawyer should suggest means for prompt resolution of the dispute, such as arbitration (cmt 3) lawyer may file an action to have a court resolve the dispute (cmt 4)

Model Rule 1.16 DECLINING OR TERMINATING REPRESENTATION (a) Shall not represent OR, shall withdraw, IF (1) the representation will result in violation of the rules of prof. c. or other law; (2) the lawyers physical or mental condition materially impairs the lawyers ability to represent the client; or
8

(3) the lawyer is discharged (b) May Withdraw From Representing A Client If: (1) withdrawal can be accomplished without material adverse effect on the interest of the client;

Ex. lawyer agreed to represent in medmal case; held case for six months and only three weeks before
statute of limitations up sent client termination letter; told client of statute of limitations; P didnt find another atty.; the lawyers late withdrawal had a material adverse effect on Ps interest Gilles v. Wiley, Malehorn & Sirota

(2) the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyers services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists Withdrawal is also permitted if the lawyers services were misused in the past even if that would materially prejudice the client (cmt 7) May withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation (cmt 8) (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. Note: Once filed a notice of appearance have to file a notice that you are no longer atty. Withdrawal is not permitted if controlling ct requires lawyer to continue, notwithstanding good cause for terminating the representation (c) Upon termination of representation, (d) a lawyer shall take steps to the extent reasonable practicable to protect a clients interests, such as giving reasonable notice to the client allowing time for employment of other counsel, surrendering papers and property to which the client is entitled refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Fee collection; may: Accept credit cards Charge interest and/or late payment penalties Sue client to collect unpaid fees, but arbitration is preferred What liens may an attorney assert to ensure fee payment? Common law options arent always allowed; Retaining Lien: (most states and FL) Atty.s lien on client papers or funds in atty.s possession Pomerantz exception to the atty.s retaining lien when the client had an urgent need for papers to defend a criminal case and lacked the means to pay the lawyers fee. Charging Lien: (most states and FL) Atty.s lien on recovery in a case Less useful in contingency case because if new atty. doesnt win then there is nothing to charge or recover Payment if Lawyer Is Fired Fired lawyer may be entitled to quantum meruit recovery
9

Generally no entitlement to quantum meruit if atty. voluntarily withdraws If FL client must pay both quantum meruit + subsequent atty.s full contingency fee -------------------DUTY OF CONFIDENTIALITY------------------------

Model Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal info 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 p.(b) May Reveal Information

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (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 lawyers 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 clients commission of a crime or fraud in furtherance of which the client has used the lawyers services; (4) to secure legal advice about the lawyers 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, 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 lawyers representation of the client Note: does not requires the lawyer to wait the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion (cmt 10) (6) to comply with other law or a court order. The rule of confidentiality applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source (cmt 3): Cannot reveal information that could reasonably lead to the discovery of protected information by a third person.(cmt 4) Lawyers in a firm, may in the course of the firms practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers (cmt 5) Purposes of Lawyer-Client Confidentiality To encourage clients to make full disclosures to their lawyers, so that lawyers give clients fullyinformed advice (cmt 2) To assure clients that their lawyers will not make embarrassing or harmful disclosures To keep an attorneys work and opinions from litigation opponents Confidentiality Doctrines (3 separate bodies of law)

Attorney-client privilege
classic basic idea is can tell lawyer and anyone privy, i.e. staff, something in confidence and it wont be used in court Clients right to prevent disclosure of communications concerning legal advice Source common law; state statutes Work product immunity judge weighs and decides in the interest of privacy Applies to trial preparation material and atty. opinions Source common law; FRCP 26
10

 Duty of Confidentiality Rule 1.6

Lawyers obligation to keep broad scope of client confidence Source Model Rules of Professional Conduct Summary: Rule 1.6 Duty of Confidentiality SC case where after the client died the info was still privileged because wanted to protect the privacy and allow clients to be as forthcoming with lawyers Doesnt get waived if talk to friends or family like atty.-client privilege does Rule 1.6 protects any information relating to the representation of a client Broadest scope of protection (compared to atty.-client privilege or work product Not limited to communications Not limited to materials prepared for litigation Not limited to context of discovery or litigation Strength of protection varies from that of atty.-client privilege or work product Duty continues after atty.-client relationship ends Duty continues after clients death (w/ some exceptions) Client does not waive confidentiality by sharing w/ others Other exceptions allow disclosure of confidential info State-to-State Differences in Rule 1.6 States are not uniform in adoption of Rule 1.6 provisions Lack of uniformity may create conflict

FL must disclose AL must not disclose

GA may disclose In conflict situation, lawyer should follow rules of State where predominant effect of disclosure will occur Rule 8.5(b)(2)

Persons that qualify for protection under the confidentiality rules: Individuals Corporations Partnerships Other business entities Unincorporated associations ATTORNEY CLIENT PRIVILEGE

Attorney-Client Privilege Protects (R3 68) (1) Communications

(2) Made between privileged persons

Privileged persons: are client, prospective client, clients lawyer, agents who facilitate communication between them, and agents of the lawyer who facilitate the representation. R3 70. (3) In confidence Has to be something in the standard of reasonable confidence which was reasonably intended to keep the info silent; (4) For the purpose of obtaining or providing legal assistance for the client Doesnt protect info about the underlying facts but only what is said between the lawyer and the client for the purpose of legal advice Dont have to be paid to have a protected relationship Limitations/Exceptions/Waiver If meet with an atty. with the intent to make something public it is no longer confidential Privilege belongs to client (not to the attorney; attorney have no independent right) Privilege can be waived through voluntary disclosure Joint clients exception no privilege against/between each other
11

If there are two spouses that want one attorney to help with a consensual divorce and then later decide to be on opposite sides, then anything shared in confidence is not privileged with respect to each other. Voluntary disclosure to third parties No privilege if communication is made in the presence of a third party Privilege is waived if confidential communication is later disclosed to third party Privilege holds if third party is an agent of client or atty., i.e. whose purpose is facilitating legal advice Generally no waiver through inadvertent disclosure

e.g. Eavesdropper unknown to client despite reasonable precautions Privileged (generally) if there were reasonable precautions taken e.g. Accidental transmission of info outside circle of privilege Privileged (generally) if there were reasonable precautions taken

e.g. Accidentally email opposing atty. Privileged (generally) if too reasonable precautions and would likely prevent opposing side from using; however, if careless then it could be in as inadvertent disclosure Examples: If an atty. consults w/ a client in the presence of one other personis privileged preserved if that person is:

A private investigator hired by the atty. to gather info related t the case Privileged A translator hired by atty. for a non-English speaking client Privileged Clients spouse, who attends the meeting to translate for non-English speaking client Privileged Clients spouse, who attends the meeting to provide emotional support Poses a problem Public relations expert hired by the atty. in a high-profile case Probably not protected because intent is to make info public Expert witness retained by atty. for purpose of testifying at trial NO privilege; planning to say these things at trial so it is all discoverable

Expert witness retained by atty. to consult on the scientific feasibility of a particular defense Maybe privileged; most uncertain because courts go both ways Crime-Fraud Exception

Attorney-client privilege does not apply to furtherance of crime or fraud (future) Privilege does apply to protect atty.-client discussion of clients past crime/fraud Uncertain issues Is privilege lost when attorney is unaware of clients criminal/fraudulent intent? Uncertain area based on case law generally if the attorney knew what was going on, no privilege. Grey area on whether privilege is lost when crime/fraud is planned but not committed.

WORK PRODUCT DOCTRINE Doctrine protects from discovery during litigation any material that: Is prepared in anticipation of litigation; Prepared by or for the atty. or atty.s representative; and Reflects litigation analysis (i.e. thought process not just info) Work Product Doctrine compared to Attorney-Client Privilege Attorney-client privilege is the strongest; with work product the other side can obtain the info if they say they have a substantial need for the info and it would be unduly difficult on its own Work product doctrine has broader scope Protects any materials prepared in anticipation of litigation, not just communications Work product doctrine is less powerful Protection for work product is not absolute; may be overcome by showing of substantial need and undue hardship
12

Overcoming the work-product bar to discovery: Ordinary work product is discoverable if substantial need and if it is not available from another source without undue hardship Opinion work product (atty.s mental impressions) are generally not discoverable except in extraordinary circumstances Attorney Client Privilege of a Corporation/Organization

Whose disclosures on behalf of an organization are protected by atty.-client privilege? Upjohn (US 1981) leading case- Rejected control group test that would limit privilege to people who mold organizational policy Subject mater test protects communications from employee/agent if related to subject matter of representation Upjohn Circle of Privilege Test Atty.-client privilege extends to employees, and non-employee agents of corp. if: (need all 4) (1) Employee/agent communicated w/ the atty. in atty.s capacity as corp. counsel (2) Communication was made to enable corp. to obtain legal advice and the employee was aware of this In contemplation of legal services (3) Communication concerned matters within the scope of employees/agents duties, and (4) Communications were considered confidential when made Note: If government officials want info about potential liability, they should get it from private lawyers (not government) Law firm self attorney-client privilege is based on whether actions are closer to business or lawyers. Common Interest Privilege Extends atty.-client privilege to allow parties with separate attorneys to share info without waiving privilege Required elements parties must: Share substantial common interests (e.g. if charge w/ same crime; merger) Be separately represented Agree to share confidential information Agreement may be oral/informal If parties are later adverse, they may use confidential info against each other Unless previously enforceable agreement not to

REQUIREMENT OF LOYALTY TO THE CLIENT

Representing Multiple Parties Model Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in p.(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or i.e. where contentious relations are imminent or contemplated antagonistic issues might come up (cmt 29) (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person OR by a personal interest of the lawyer Exceptions to Conflicts

(b) Notwithstanding the existence of a concurrent conflict of interest under p.(a), a lawyer may represent a client if:
13

 (1) the lawyer reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation OR other proceeding before a tribunal; and Mediation is not a proceeding (4) each affected client gives informed consent, confirmed in writing Steps to resolve a conflict of interest issue under Rule 1.7 (1) Determine whether a conflict of interest exists Are the parties antagonistic? Are the parties interests fundamentally antagonistic? Are the parties generally aligned but w/ significant potential for different interest? Does any party object to the disclosure of relevant info to another party? (cmt 30,31) Red flag if someone is hesitant or if impossible to be impartial because of long term relationship Is the lawyer unable to be impartial among the parties? Reasonableness standard (2) Common representation is possible in conflict situation if: The lawyer reasonably believes he/she can give competent diligent representation to each client; Joint representation is not prohibited by law, and The clients are not bringing claims against each other in same matter in the same court

(3) If it can, consult with the clients and obtain informed consent, confirmed in writing Atty. must discuss with each client the material, reasonably foreseeable ways the conflict could have adverse effects, including effects on: Loyalty Confidentiality Attorney-client privilege Common Representation Consent Attorney must fully explain potential conflicts; extent of explanation necessary depends on sophistication of clients Any affected client can prevent common representation by withholding consent Client can consent to possible future conflicts, but may not be effective If facts or circumstances change significantly, atty. should obtain new consents Client can withdraw consent at any time Unconsentable or Unconsented Conflict Former Join Clients DEVELOPS LATER Generally the lawyer must withdraw from representing any of the former joint clients One clients revocation of consent may require the lawyers withdrawal, depends on: (1.7 CMT 19) Type of conflict Reasonableness of the revocation Material detriment to other clients R3 122 pg. 169 illustration 6 Example 1: Client A and Client B validly consent to be represented by Lawyer in operating a restaurant in a city. After a period of collaboration, Client A reasonably concludes that Lawyer has begun to take positions against A. Reasonably concerned that Lawyer is no longer properly serving the interests of both clients, Client A withdraws consent. Withdrawal of consent is effective and justified. Lawyer may not thereafter continue representing either Client A or Client B in a matter adverse to the other and substantially related to Lawyers former representation of the clients. Example 2:
14

Clients A and B validly consent to Lawyer representing them as co-defendants in a breach of contract action. On the eve of trial and after months of pretrial discovery on the part of all parties, Client A withdraws consent for reasons not justified by the conduct of Lawyer or Client B and insists that Lawyer cease representing Client B. At this point it would be difficult and expensive for Client B to find separate representation for the impending trial. Client As withdrawal of consent is ineffective to prevent the continuing representation of B in the absence of compelling considerations such as harmful disloyalty by Lawyer.

Potential consequences of unwise joint representation: Disciplinary sanctions In litigation, a challenge and possible disqualification of lawyer from further participation In transactional matter, a challenge and possible injunction against lawyers further participation If conflict injures client, legal malpractice remedy

Duty Of Loyalty (TO CURRENT CLIENTS) General Rule: A lawyer owes each client a duty of undivided loyalty, essentially a duty to avoid conflict between that clients interests and the interests of: Another client A former client A family member or other third party The lawyer

Duty of Loyalty to Current v. Former Clients (essential the Rule under 1.7) Current Clients:

A lawyer may not be directly adverse to a current client, even in a completely unrelated matter without informed consent, confirmed in writing Former Clients:

A lawyer may be adverse to a former client if the current and former cases are not substantially related Cinema 5, Ltd. v. Cinerama, Inc. atty. was a partner in two law firms (one in NY and one in Buffalo); One law firm was suing Cinerama while the other law firm was defending Cinerama. Because Fleischmann was the common partner in the two firms, the ct treated the situation as a single law firm representing its client in one case while suing it in a different case. Both current clients so duty of undivided loyalty which an atty. owes to each of his clients. A lawyers duty to his client is that of a fiduciary or trusteeit was entitled to feel that at least until the litigation was at an end, it had his undivided loyalty as its advocate and champion, and could rely upon his undivided allegiance and faithful, devoted service. When relationship is a continuing one, adverse representation is prima facie improper, and the atty. must be prepared to show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation.

Who is a current client? (no bright line; fact question up to juries) Status of client is a fact question, dependent on circumstances of each case Standard: if client has a reasonable basis to assume an ongoing relationship, like a current client (reasonable client perspective) Exception Commercial Union Ins. Co. v. Marco International Corp. insurance company with nominal representation (pg. 185 c) But nominal representation only does not create current-client status Loyalty To Corporate Affiliates General rule is if you have separate corporations it is a separate entity and thus a separate client (i.e. if work with one company that is owned by a different separate corporation then they are separate entities and no prohibition) ABA Formal Opinion 97-405: 1 closer the relationship (are parent and subsidiary in effect operated as one entity?); 2 have you agreed to be an atty. for the corporate family; 3 obligations to one that would limit your pursuit of the claim against the subsidiary Are parent and subsidiary in effect operated as one entity?
15

Look to see if they have 1 CEO, a single Board of Directors, etc. to see if its a single entity. Has lawyer agreed to treat whole corporate family as the client? Is the case one where essentially the type of work you are doing involves labor law, hiring, etc. and looking to policy manuals and its the same that the entire group uses, then you are essentially agreeing to work for all of them. Will lawyers obligations to parent materially limit pursuit of claim against subsidiary? The general rule is that when you have separate incorporated entities, these are separate individuals. But if you work for a single corporation with divisions in other countries, the general rule is that this is one big happy family.

Does a Trade Associations lawyer owe loyalty to each member?

Only if a member is a DE FACTO client:

If the member disclosed confidential information to the lawyer If the lawyer had previously represented the member If the member relied on the lawyers representation of the members individual interest General rule is if you have done work for the central board that doesnt make you the atty. for all of them; however, if you have held yourself out as or they think you are their atty. then they are a de facto client and you cant oppose them

If a CONFLICT DEVELOPS between TWO CURRENT CLIENTS: General rule is have to drop BOTH of them Picker (Fed. Cir. 1989) Hot Potato Rule: Generally, a firm may not drop a client like a hot potato, especially if it is in order to keep a far more lucrative client.

Exception Gould Inc. v. Mitsui Mining & Smelting Co. 2 years into litigation the D acquired another corporation so it turned out the corporation acquired was also represented by the law firm; merger; no evidence of prejudice and disqualification would cost a great deal of time and money and significantly delay progress in the case

May a lawyer ARGUE CONFLICTING POSITIONS in different cases? No direct prohibition exists in the Model Rules

But a lawyer should not argue to create precedent likely to seriously weaken the position taken in
the other case Rule 1.7 Comment 24

Obligations of an attorney who participates in LOBBYING OR REFORM EFFORTS: Must disclose that are representing private interests advocating a position on behalf of a client An attorney may serve as an officer of a public service organization, even if the attorney has clients with adverse interests; but the attorney cannot participate in action incompatible with client obligations Rule 6.3 An attorney who participates in law reform efforts must disclose the interests of a client who will benefit from the reform Rule 6.4 An attorney who appears before a legislature must disclose the attorneys representative capacity Rule 3.9

16

DUTY OF LOYALTY IN CRIMINAL LITIGATION

Rule 1.7(a)(2) A lawyer may not represent multiple clients if there is a significant risk the lawyers representation of any client will be materially limited by duties to another client Reasonable person standard Factors in determining if JOINT REPRESENTATION OF CODEFENDANTS is permissible Lawyer may need to accept or solicit plea offers that favor one client at anothers expense Lawyer may need to challenge admission of evidence damaging to one client, favorable to the other Lawyer may need to argue relative involvement or culpability of clients at sentencing hearing Issue of ineffective assistance of counsel may be raised on appeal of conviction Holloway v. Arkansas US SC joint representation is presumed prejudicial. Joint representation of conflicting interest is suspect because of what it tends to prevent the atty. from doing. Talks about above factors how criminal law is diff than civil Thomas v. State classic example husband and wife trafficking drugs; atty. represented both; prosecutor offered a plea bargain to couples atty. that would allow husband and wife to each accept responsibility for half of the drugs seized and serve reduced sentence or one spouse accept responsibility for all drugs and serve 25 yrs. Ct granted petitioner post-conviction relief on grounds that she did not have effective assistance of counsel. Once the state offered the plea agreement, the initial conflicts waiver was insufficient to let the lawyer represent both clients, because any action in either spouses best interest would unavoidably harm the other. Challenge to joint representation of criminal codefendants may be raised: By defendant(s) By prosecutor By trial judge When do a PROSECUTORS PERSONAL INTERESTS create a CONFLICT? Prosecutor should not be motivated by political interests or personal biases

Private parties should not be involved in prosecutorial functions People v. Superior Court (Greer) disqualified district atty. from prosecuting a murder case
because the victims mother was employed in the prosecutors office. The mother was also scheduled to be a material witness for the prosecution and if D was convicted mother would gain custody of her grandchild. In re Complaint of Rook state district atty. accused of refusing to plea bargain with 15 criminal defendants as long as they were represented by either of two attorneys. District atty. was reprimand. Young v. US ex rel. Vuitton et Fils S.A. US SC trademark case; when Vuitton learned that Ds were violating its trademark, Vuittons counsel asked the judge to appoint him as special prosecutor. Trial judge did and US SC reversed holding that such a case constitutes an actual conflict of interest because the special prosecutor also represented the private party who would be the beneficiary of the ct order allegedly violated. People v. Eubanks white collar crime; stealing trade secrets; executive offered to pay local DA for the work of experts necessary to build a criminal case. While not taking any of the money for himself, no private citizen may direct the exercise of prosecutorial discretion, and such private contributions would inevitably influence whether given Ds are or are not prosecuted.

Clients v. Attorneys Interests

Model Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Business Transactions

(a) A lawyer shall not enter into a business transaction with a client OR knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client UNLESS: (3 requirements are met)

17

 (1) the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (objective standard) (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in writing signed by the client, to the essential terms of the transaction and the lawyers role in the transaction, including whether the lawyer is representing the client in the transaction (* rule does not prohibit standard commercial transaction in the regular course of business; i.e. car dealer may offer good deal on a car as long as it is a deal they would offer other business contacts and in their line of work)

Beery v. State Bar lawyer represented a client in personal injury suit and to write will; asked lawyer what to do with the settlement proceeds and atty. said invest in a satellite venture that was a good investment but didnt tell client the co. was in trouble and atty. was a principle; client lost $35k; suspended 3 yrs.)

Medina County Bar Assn v. Carlson mentally ill client; client offered to sell land to atty. who represented him for $52k the day before another buyer offered $470k; conflict of interest; 2 yr suspension) (Reasonableness standard with signed consent look objectively if offered on fair market.) Using Information to the Disadvantage of Client

(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 (But cf. Model Code DR 4-101 absent informed consent, a lawyer may not knowingly use a confidence or secret of a client for the advantage of the lawyer or third person) Gifts From Clients

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship Media Rights

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation Without client consent cant even say what is within the public record Cant get client consent until after the trial; without it is very risky; cant discuss or negotiate it during the case (Cali is exception) Need to put clients interests ahead of own personal interests

Concern about media rights in criminal defense: Defense atty. who acquired media rights might: Create damaging publicity to enhance story value Avoid mental defenses (cant have a k with a person that is mentally ill) Have an interest in seeing D convicted/sentenced for publicity value Financial Assistance

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client
18

Rationale: It would encourage clients to bring suits that might not otherwise be brought and gives lawyers too much of a financial stake (cmt 10) Compensation From Someone Else

(f) A lawyer shall not accept compensation for representing a client from one other than the client UNLESS: (1) the client gives informed consent; (2) there is no interference with the lawyers independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6 Aggregate Settlement

(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyers disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement

Malpractice Liability

(h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyers liability to a client for malpractice unless the client is independently represented in making the agreement; OR (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. Rationale: Purpose because likely to undermine competent and diligent representation (cmt 14) Proprietary interest in the cause of action

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyers fees or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case Sexual Relations

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced Application to Law Firm

(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs. (a-i) that applies to any one of these shall apply to all of them.

FORMER CLIENTS Model Rule 1.9 Duties to Former Clients

Former Client

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that persons interest are materially adverse to the interests of the former client UNLESS the former client gives informed consent, confirmed in writing reasonable client perspective; gets tested a lot Former Law Firms Former Client

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client IF (1) whose interest are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
19

 UNLESS the former client gives informed consent, confirmed in writing Former Client Information (or Former Law Forms Client) (c) A lawyer who has formerly represented a client in a matter or whose present or former firm
has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or

Exception: when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or
require with respect to a client When is a case Substantially Related to a former clients case? Substantial relationship test factors (standard grey area): Factual similarity of cases Legal similarity of cases Extent of lawyers involvement in the case Touchstone: whether lawyer received relevant confidential information in the prior representation Though this might not always work Cardona v. Gen Motors Corp classic type of case firms specialized in lemon law cases; small firm that represented hundreds of lemon law Ps hired a lawyer who had defended hundreds of lemon law cases on behalf of GM. Violated 1.9; while every lemon case is different there is a factual nexus running through the cases that made if very likely confidential knowledge of GMs approach to the cases would be important in the lawyers new job. Ct held was substantially related. Mitchell v. MetLife Ins. Co. Ps sued their former employer MetLife for gender based employment discrimination; partner at one of the two firms hired by Ps had previously worked at a diff firm that defended MetLife in a variety of products liability suits over several years; ct disqualified firm: scope of partners prior representation at MetLife exposed her to matters that would be at issue in the instant case; because interviewed several employees previously in sales department where Ps worked; thus matters were substantially related even though the legal issues were much different because partner learned confidential info that is substantially related to disputed factual issues material to the resolution of the present action. State ex rel. Wal-Mart Stores v. Kortum suit for damages from a fall in stores parking lot; lawyer had previously defended the store in a claim for a fall inside the store and in so doing received access to Wal-Marts policies and general defense strategy. The ct said the fact the pleadings in the two cases were similar was not controlling. Similarly, the Wal-Mart procedures were common knowledge and the policies manuals were discoverable thus neither confidential. Ct concluded the cases were not substantially related ABA Formal Opinion 99-415 general knowledge of strategies, policies, or personnel of the former employer is not sufficient to justify disqualification. Otherwise, a lawyer could never sue a former client. Other Possible Reasons For Disqualification Based On Former Case:

*Attorney represented a co-defendant *Attorney obtained confidential information about a non-client *Non-lawyer assistant worked on a prior case GTE North, Inc. v. Apache Products Co. there had been a joint investigation agreement (JIA) under which separately represented firms shared the costs of determining responsibility for waste at a Superfund site. Later, counsel for one potential D undertook representation of a claimant suing a different D who had been part of the JIA on the same site. Ct found that each JIA member was an implied client of the firm and consequently ordered disqualification R3 132 comment g(ii), Illustration 7 pg. 248 Grey area

In re Complex Asbestos Litigation upheld disqualification of a law firm representing Ps in asbestos claims b/c it had hired a paralegal who had worked for one of the defense firms on
20

similar cases. Danger of misuse of defense confidences was too great given the lack of screening from participation in asbestos matters.

Zimmerman v. Mahaska Bottling Co rejects the usual rule that a secretary moves from one law firm to another may be screened at all. Secretary had not worked for anyone connected with the case, although lawyers at the former firm had talked about it in front of her. Ct concluded that the secretary acquired material and confidential info regarding the personal injury suit while workings for Ps lawyers, and thus the ct disqualified the Ds firm where the secretary began working after leaving Ps firm. If secretary was atty. would have been disqualified in spite of screening. Majority of courts have rejected screening b/c of the uncertainty regarding the effectiveness of the screen, the monetary incentive involved in breaching the screen, the fear of disclosing privileged info in the course of proving an effective screen, and the possibility of accidental disclosures.

IMPUTED DISQUALIFICATION LAW FIRMS Model Rule 1.10 Imputation of Conflicts of Interest: General Rule (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when
any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, UNLESS

the prohibition is based on a personal interest of the prohibited lawyer AND

does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. Former Law Firm Disqualification

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer AND NOT currently represented by the firm, UNLESS: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; AND (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (c) A disqualification prescribed by this rule MAY BE WAIVED by the affected client under the conditions stated in Rule 1.7 (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. Imputed disqualification deals with law firms; if there is a lawyer in the firm that is disqualified then everyone in the firm is disqualified; controversial; 254-55 Attorneys Constitute A Firm for purposes of imputed conflict: Generally not just sharing office space, library, support staff Factors determining whether lawyers are a firm: How they present themselves to the public Terms of any formal agreements between associate lawyers Whether the lawyers have mutual access to confidential client information Imputation of Conflicts Outside The Context Of Traditional Firms? Imputation of conflicts depends on: Adequacy of physical separation of the attorneys from each other and each others files Whether the lawyers have a financial interest in how the case comes out Grey areas imputation of conflicts might not extend to: Legal services organization lawyers Public defenders Public prosecutors Look at the financial motivations (legal aid, prosecutors, public defendants do not have the same type of financial incentives) Flores v. Flores said state must supply private counsel to one party where the legal services agencys internal procedures were inadequate to guarantee confidentiality to both
21

 Public Defenders Office tried to represent two criminal defendants in the same case with
conflicting interests by keeping them separate Commonwealth v. Westbrook members of public defenders office are members of the same firm for conflict of interest purposes US v. Reynoso public defender office should not be considered a private law firm because no common financial interest in the case, did not talk about the case, and files had been sent to storage. No imputed disqualification for employee who went private. Starting to see some of this rule eroded

Imputed Conflict when Switches To A New Firm:

Rule 1.10(a) law firm cannot represent a client if prohibited by Rule 1.7 or 1.9: New firm cannot be adverse to lawyers current clients in any matter New firm cannot be adverse to lawyers former clients in the same or substantially
related matter W.E. Bassett Co. v. H.C. Cook Co. classic case same controversy lawyer X had represented the P in a lengthy case. X then joined a firm one member of which had once represented and advised a corporate D on some important issues in the same controversy. The lawyers in Xs new firm agreed that X would continue to represent the P corporation in the matter, but without any participation by Xs new partners in either the work or the fees. But when the district court learned of this plan, it sua sponte held a hearing on the disqualification of X. Ct found the made every effort to comply but the circumstances will inevitably lead to suspicion and distrust in them in the minds of the Ds and the opportunity for misunderstanding on the party of the public.

After a switch, New Firm Be Adverse To The Old Firms Clients Who Were Not The Lawyers Clients? Rule 1.9(b) - a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client,

1. Whose interests are materially adverse to that person, and

2. About whom the lawyer has acquired information protected by Rule 1.6 and 1.9(c) that is material to that matter. Aero-Jet Case Ps lawyer in an environmental case had formerly been at a firm that represented the D on environmental issue. Court held that a firm-switching attorney is not automatically disqualified, on the basis of imputed knowledge, from a case involving a client of a former law firm. Concluded that the lawyer whose disqualification is sought should carry the burden of proving that he had no exposure to confidential information relevant to the current action while he was a member of the former firm.

After a switch, may a lawyers old firm be adverse to the lawyers clients who left with the lawyer? Rule 1.10(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: 1. The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and 2. Any lawyer remaining in the firm has information protected by Rule 1.6 and 1.9(c) that is material to the matter. Can be adverse as long as when the lawyer switch to a new firm they dont bring confidential information (i.e. atty. never worked on a particular case and wouldnt recognize the clients; seen especially when atty. was in a different field of practice at the firm and the sections wouldnt recognize each others clients) General rule that applies to lawyers switching firms: Model Rules impute actual client knowledge; Rules do not impute imputed client knowledge
22

Once a lawyer is imputed disqualification, dissolution of the partnership usually wont cure it

How does imputed conflict impact a Lawyers Family Members?

Rule 1.7 comment 11 lawyer may not be adverse to a current client represented by the
lawyers spouse or family member unless both parties consent, AND lawyer may not be adverse in substantially related matter to a former client represented by the lawyers spouse or family member If you are a lawyer and your father is a lawyer in another firm, can a fellow partner be adverse to your father? Yes, this is a personal conflict. Exception to Personal Conflict Exception On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm. How may SCREENING be used to avoid imputation of conflict? Screening procedure affected lawyer is screened from participation in: Profits make sure no partner benefits based on who wins Files keep separate Conversations Screening is effective in some situations in some states variable and controversial NEVER yet applied to law firms Circumstances where SCREENING is generally accepted: Former government lawyers Rule 1.11(c) Former judges and judicial law clerks Rule 1.12(c) Lawyer who talked to prospective client Rule 1.18(d)(2)(i) Non-lawyer assistants Comment 4 to Rule 1.10 Law students Comment 4 to Rule 1.10

23

ADVISING CLIENTS
Business Corporation as Client

Model Rule 1.13 Organization as Client Misconduct (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. Misconduct By Corporate Client

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of * a legal obligation to the organization, or * a violation of law that reasonably might be imputed to the organization, AND that is likely to result in substantial injury to the organization, then

the lawyer shall proceed as is reasonably necessary in the best interest of the organization. UNLESS the lawyer reasonably believes that it is not necessary in the best interest of the
organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law. Revealing Confidential Information (c) Except as provided in p.(d), if

(1) despite the lawyers efforts in accordance with p.(b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action or a refusal to act, that is clearly a violation of law, AND

(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then lawyer MAY reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, BUT ONLY if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) P.(c) shall not apply with respect to information relating to a lawyers representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyers actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organizations highest authority is informed of the lawyers discharge or withdrawal. (f) In dealing with an organizations directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organizations interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organizations consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders

Steps to Address Possible Corporate Misconduct: Reevaluate the facts in light of applicable law Determine whether the conditions specified in Rule 1.13(b) are met If Rule 1.13 applies, take steps within the entity to protect the best interest of the organization Ask officer to reconsider * Get a separate legal opinion Refer to higher authority within organization if warranted Consider referral to Board of Directors
24

Consider disclosure outside the organization Liability for Not Disclosing Corporate Misconduct Restatement 66 A lawyer who takes action or decides not to take action permitted under the s. is not, solely by reason of such action or inaction subject to professional discipline, liable for damages to the lawyers client or any third person, or barred from recovery against a client or third person Despite above restatement the law is still unsettled *Remember*

Lawyers first duty is to their client; disclosure of confidential info should be a last resort

An atty. must independently investigate possible fraud or illegal conduct Unclear whether Tarasoff (tort case) rule may extend to a lawyer; not now though May disclose FDIC v. Mmahat lawyer had been general counsel of a savings and loan association for 20 yrs. Served as chairman of the Board of Director for 6; when the Garn-St Germain Act allowed S&Ls to lend more freely, the association did so; even if the loan would violate the FHLBBs loans to one borrower regulations, the lawyer did not seek to prevent its make the loan; the judgment recovered by the FDIC against the lawyer was $35 million whole firm liable FDIC v. Clark firm represented bank in many matters; unknown to firm, several bank officers initiated a heist money scheme in which they used $2 mil in bank money to buy $9 mil in stolen money. To implement the scheme, they created loan files for non-existent borrowers and forged checks on non-existent accounts. Ultimately caught, FDIC argued that the lawyers were slow to act when they first heard the charges; didnt have investigation when told it was a misunderstanding; ct held liabilitylawyer may not necessarily rely on the clients officers assertions about their lack of wrongdoing

CONTACT WITH NON-CLIENTS

Model Rule 4.2 Communication with Person Represented by Counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order not limited to substantive factual or legal issues Rule 4.2 ban on contact applies: In both criminal and civil cases To any represented persons, not just parties Less clearly in the investigation phase of criminal cases prior to arrest or charge Only when the lawyer should know the other person is represented Only to contacts related to the subject matter of the case Even though the represented person initiates the contact Until the representation of the person is in fact terminated To contacts made by a lawyers investigators, not just the lawyer personally Good statement of general law State Bar of California, Formal Opinion standard answer that the clients may talk. A failure to encourage such talks may forfeit opportunities to terminate disputes short of trial. The lawyers for each client may advise the clients before they get together, but communications must be those of the clients, not the clients acting out the lawyers script for them. Opposing Counsel May Not Contact Current Corporate Employee Or Agent If: Employee or agent supervises, directs, or regularly consults with the lawyer concerning the matter Employee or agent has power to compromise or settle the matter Acts or omissions of employee or agent may be imputed to the organization for liability purposes
25

Statement of the employee or agent would bind the organization under applicable rules of evidence Exception low level employee that was not represented by counsel or people in other departments Model Rule 4.3 Dealing with UNREPRESENTED Person In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. R3 103 comment e Failing to clarify the lawyers role and the clients interest may redound to the disadvantage of the organization if the lawyer, even if unwittingly, thereby undertakes concurrent representation of both the organization and the constituent. Among other consequences, the lawyer may be required to withdraw from representing both clients because of the conflict.However, the absence of a warning in such a situation will often be in the interests of the client organization in assuring that the flow of information and decisionmaking is not impaired by needless warnings to constituents with important responsibilities or information.

ETHICS OF NEGOTIATION Model Rule 4.1 Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 (Not required to disclose general weaknesses of clients case or confidential info)

Comments: Misrepresentation [1] A lawyer is required to be truthful when dealing with others on a clients behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4. Attorneys Authority During Negotiation on Behalf of a Client? In negotiation, only the client can decide: In criminal case whether to plead In civil case whether to settle Attorney must communicate offers to client Client may pre-authorize acceptable v. unacceptable settlements

Client is not bound by attorneys unauthorized settlement (until signed on) What is a lawyers duty to be honest during negotiations? Rule 4.1(a) (directly above) But ordinarily no ethical prohibition applies to: (comment 2 not thought of as statement of facts) Estimates of price or value Partys intention as to settlement Attitudes & emotions
26

 Fire Ins. Exchange v. Bell by Bell lawyers retained by homeowners insurer offered to pay policy
limits which they represented as $100k; although injuries would have justified higher payout they accepted; turned out the policy limits were $300k and not $100k; the reliability and trustworthiness of atty. representations constitute an important component of the efficient administration of justice. Despite discovery, was entitled to rely on what opposing counsel told him about this material matter Davin v. Daham classic case imposed obligation of candor on a lawyer negotiating a lease; lawyer represented the owner of a shopping center that unknown to the new lessees was about to be foreclosed on; lessees incurred costs to get new space ready only to be evicted because foreclosed; has a duty to represent his or her client effectively and vigorously,(but also) to act fairly, and in good faith. Had a duty to at least tell client to disclose the impending foreclosure; if the client refused, the lawyer had a duty to withdraw. Kentucky Bar Assn v. Geisler not classic hit by car; lawyer told defense atty. that the client was too ill to be deposed; client died; wrote to defense counsel and asked for an offer of settlement; defense first learned of clients death when the Ps administrator endorsed the settlement check; court condemned her silence about the clients death in the letter opening settlement talks and ordered a public reprimand During Negotiations may an Attorney Threaten Civil Litigation Or Disciplinary Action? An atty. may threaten litigation if reasonable grounds exist for a claim

An atty. generally may not agree to fail to report an opposing lawyers ethical violations as a part
of settlement negotiations During Negotiation Threaten To Press Criminal Charges? Model Code DR 7-105(A) A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter Model Rules ABA Formal Opinion 92-363 A lawyer may use the possibility of bringing criminal charges in negotiations in a civil case if both the civil case and criminal violation are well founded in fact and law. The lawyer may not suggest improper influence over the criminal process, and the threat must not constitute extortion under state law Florida Rule 4-3.4(g): mirror Code prohibition. As a Condition Of Settlement: Attorney may not agree to avoid future cases against a party.

Rule 5.6(b) prohibits settlement agreements that restrict a lawyers right to practice. But attorney may agree to avoid future use of particular information against a party.

ABA Formal Opinion 00-417 (2000): Bar ok on particular information, but not on future use of particular expert witness or future subpoena of certain documents.

LAWYER AS EVALUATOR Model Rule 2.3 Evaluation for Use by Third Persons (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other
than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyers relationship with the client (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the clients interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6 What standards apply to a lawyers preparation of an OPINION LETTER for a client? Opinion letter must accurately state law Opinions are not guarantees that court will reach particular result Atty. may rely on factual information from client, unless questionable or suspicious Opinion letter may be expressly limited in scope and application Atty. has no obligation to update opinion letter for subsequent events or legal developments Information a corporate lawyer should disclose in response to an AUDITORS REQUEST:
27

ABA Statement of Policy Disclosure of loss contingencies may be limited to items individually or cumulatively material Loss contingencies that may be disclosed by the lawyer in connection with audit: Overtly threatened or pending litigation Means that potential claimant has manifested to the client an awareness of AND present intention to assert a possible claim or assessment unless the likelihood of litigation is considered remote Contractually assumed obligation which the client has specifically identified an request comment to the auditor Unasserted possible claim or assessment which the client has specifically identified and requested comment to the auditor Client should request the lawyer to furnish information to the auditor only if the client has determined that is probable that a possible claim will be asserted, that there is a reasonable possibility that the outcome will be unfavorable, and the liability would be a material financial condition of the client

Liable to Non-Client Third Parties passed on the attorneys preparing an opinion letter? Three general approaches:

Privity historical approach lawyers cannot be held liable to persons not their clients Foreseeable reliance general rule atty. is liable to any third party who foreseeably relies on the opinion

Third-party beneficiary general limitation liability extends only to third parties intended or reasonably expected to rely on the opinion This is the most protective, but this would exclude anyone who got the report and made decisions on it if the lawyer didnt have them in mind when they wrote the opinion Greycas, Inc v. Proud traditional scenario borrower had sought to raise money from a finance company on the strength of a security interest in certain farm machinery. Lender, Greycas, agreed to put up the money if the borrower would supply the borrowers lawyers opinion that there were no prior liens on the assets. Lawyer Proud, who was the borrowers brother-in-law, wrote a letter saying that he had conducted a UCC, tax, and judgment search and that Greycas had the only perfected security interest; Proud had made no such inquiry and assets were encumbered; when borrower defaulted Greycas was left with no security; ct held lawyer was liable to Greycas for the amount of the loan; ct said despite no normal duty and Greycas not being clientthat Proud supplied info to Greycas knowing that it was to be relied upon by Greycas. Orshoski Case A couple had built a home that violated a covenant. They were told to dismember it, which was really costly. They had asked the real estate agent whether they could build the home, he didnt know and they went and asked a lawyer. The lawyer said it was no problem to build the home. But later they held the covenant was violated. So, can the homeowners get damages from the lawyer for misrepresentation? Court said that there are limited situations where a third party can get damages. They have to show that the D attorney knew that their opinion would be used for a particular purpose and that P would rely on the opinion and the lawyer knew that the opinion would be relied on for that issue. Rubin Case investors met with company officials about investing. Officials told investors to call company lawyers. The lawyers told investors that all was well with the company and there was no need to contact the bank. The investment defaulted and the company filed for bankruptcy shortly after. The court held that while a lawyer does not have an independent duty to volunteer information about the financial condition of the client, he assumes a duty to provide complete and nonmisleading information with respect to subjects on which he undertakes to speak.

CLIENT ENGAGED IN FRAUD Rules that govern an attorneys disclosure of client fraud: Rule 1.6(b)(2)&(3) permits disclosure to prevent future or mitigate/rectify past substantial injury
to financial interests or property caused by a clients crime or fraud that was furthered by the lawyers services
28

 Rule 1.13(c) permits disclosure outside an organization if a clear violation of law is reasonably
certain to result in substantial injury to the organization, and the lawyers efforts to convince the organization to remedy the violation have failed

Other Model Rules relevant to lawyers knowledge of a clients fraud:

Rule 1.2(d) prohibits a lawyers assisting a clients fraud Rule 1.13(b) requires a lawyer to proceed as is reasonably necessary in the best interest of the
organization where the client is likely to commit a serious and costly fraud

Rule 4.1(b) requires a lawyer to disclose material facts necessary to avoid knowingly assisting a
client to commit a crime of fraud

Rule 1.16(a)(1) says a lawyer must withdraw from representation if a failure to withdraw would
cause the lawyer to violate any Rule

3 situations an atty. must end client representation: (1) failure to withdraw would be violating a rule (cant help or perpetuate a crime or fraud); (2) physical or mental condition and cant work; (3) when fired (only if the judge says ok) Withdraws Because Of Client Fraud, Should A Lawyer Give NOTICE TO THIRD PARTIES? Comment 10 to Rule 1.2 says it may be necessary for a lawyer to give notice of the fact of withdrawal Comment 3 to Rule 4.1 says it may be necessary for a lawyer to disaffirm an opinion, document, affirmation or the like, and in extreme situations the lawyer may have to disclose confidential information to avoid being deemed to have assisted in the clients crime or fraud A NOISY WITHDRAWAL (mentioned in Rule 1.6 before the 2003 revisions) involved a lawyers notice along the lines of: I have withdrawn from this matter for ethical reasons. Do not rely on my former participation in this matter. What does the SEC require of securities lawyers whose clients violate SEC rules? Sarbanes-Oxley Act of 2002 Response to Enron and other corporate failures SEC regulations under the Act require lawyers to report material violations of SEC rule to clients chief legal officer CLO must investigate and report back conclusion (Chief Legal Officer) If violation continues, lawyer may disclose to SEC to extent reasonably necessary to prevent or rectify conduct likely to cause substantial injury to financial interests of investors Every company that is regulated by the SEC has to have a chief legal counselor

29

 LITIGATION
Decisions to File Suit

Model Rule 3.1 MERITORIOUS CLAIMS AND CONTENTIONS A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, UNLESS there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. Model Rule 3.2 EXPEDITING LITIGATION A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. Comment 1 prohibits: Routine delays solely for lawyers convenience Delay for purpose of frustrating an opponent Delay for purpose of financial benefit In Criminal Appeals: What if there is No Meritorious Grounds for appeal? Appeal cannot be based on frivolous grounds But defendant is entitled to effective counsel on appeal. Solution: Anders brief everything the counsel can think of, nothing merits an appeal, asks with withdraw. If court finds nothing of merit, then its over; if not, may appoint a different counsel to review the case. Many criminal appeals generally have more than one issue of merit, that something went wrong with the case. Sometimes there is no issue of merit that can entitle the defense to an appeal or reversal. Anders v. California US SC controversial held that appointed counsel in a criminal case may not withdraw a nonfrivolous appeal. The Ct required counsel appointed in appeals of criminal cases of indigents to file what is now called an Anders Brief. If the appointed lawyer, after conscientious examination, finds the criminal defendants case to be wholly frivolous he should advise the court and request permission to withdraw. However, he must then supply a brief referring to anything in the record that may arguably support an appeal. The lawyer should furnish the defendant a copy of the brief with enough time to raise any points that the indigent chooses. Then, the court should proceed, after full examination of all proceedings, to decide whether the case is wholly frivolous, grant the lawyers request to withdraw if it finds the claims to be frivolous, and afford assistance of counsel to argue the appeal for the indigent if it finds some legal issues to be nonfrivolous Standard set by Rule 11 of FRCP: Requires that every pleading, motion, or other paper be signed by atty. SIGNATURE attest that: (to lawyers best knowledge) Paper not filed for improper purpose, e.g. harass, delay Claims or defenses are warranted by existing law or non-frivolous argument to extend law Claims or defenses have evidentiary support, or reasonable likelihood of evidentiary support after discovery Sanctions possible under Rule 11: Changes in Rule 11 (by 1993 amendment): Attorneys fees no longer automatic After Rule 11 motion by opposing party, party filing challenged document has 21 days to correct or withdraw Retaliatory Suits may be filed: Abuse of Process, Malicious prosecution Does a lawyer have an OBLIGATION TO MAKE WITNESSES AVAILABLE for deposition or trial? Lawyer may not lie to make client unavailable
30

Rule 4.1(a) In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person Lawyer has limited right to Ask A Non-Client To Refuse To Testify

Rule 3.4(f) A lawyer may not ask a non-client to refrain from giving relevant information to another party UNLESS: The non-client is a relative or an employee or other agent of the client; AND The non-clients interests will not be adversely affected

Litigation Tactics

Model Rule 3.3 CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyers client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, that the lawyer reasonably believes is false HOWEVER Cant refuse to offer testimony of a defendant in a criminal matter (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 (d) In an EX PARTE PROCEEDING, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Duty of Candor Rule 3.3 to court Trumps Duty Of Confidentiality To Client in 4 situations: (1) Any statement of fact or law must be accurate to the best of the lawyers knowledge (2) Lawyer must disclose adverse legal authority in controlling jurisdiction If a case on point against you and if your opponent doesnt find it you must disclose the case (adverse legal authority not adverse facts) (3) Lawyer must not offer false evidence (4) Lawyer must not permit client to engage in fraud on court What are the time limits on the lawyers duty of honesty? Rule 3.3(c) The duties of candor continue to the conclusion of the proceeding, and apply even if the compliance requires disclosure of information otherwise protected by Rule 1.6. If you are a criminal defense attorney and you successfully defend someone for murder and theyre acquitted and a year later they come to you and say that they actually did it. There is no duty to go to the court to say they did it because the duty of candor is over at this point. But, if you are in the appeals process and you find out an alibi was false, then you have a duty to tell the court. How do courts sanction lawyers trickery?

31

 Rule 4.4(a) In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. Rule 3.4(e) A lawyer shall not in trial, allude to any matter that the lawyer does not reasonably believe is relevant Rule 8.4(c) It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. If you are doing something that gives a false impression on purpose to get a certain result, than this is something that the court can use. Rule 3.4(c) dont violate local rules

Rule 8.4(d) noting prejudicial to the administration of justice In re Zawada murder case; insanity defense; prosecutor tried to discredit experts; accused them

of fabricating testimony without any evidence; suggested defense paid for the experts to testify like they did with no evidence; despite strong evidence for insanity jury found guilty; state supreme ct overturned and because of Zawadas repeated prejudicial conduct the trial judge barred retrial because of double jeopardy; prosecutor cannot attack the expert with non-evidence, using irrelevant, insulting cross-examination and baseless argument designed to mislead the jury

How should an atty. handle Information Received Through An Opponents Mistake? ABA Formal Opinion 92-368 (1992) (old law but many attorneys still operate this way) said that the recipient of misdirected material should refrain form reading it, notify the sending lawyer, and either return or destroy the materials as the sending lawyer directs Model Rule 4.4(b) A lawyer who receives a documentand knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender Comment 2 to Rule 4.4 the sender may take protective measures, but the privileged status of the document may be waived

Comment 3 to Rule 4.4 the decision to return the document unread is a matter of professional judgment ordinarily reserved to the lawyer. Completely up to the individual Florida case that set precedent Firm got materials through inadvertent acts and said yay!, they printed them out and gave copies to the other lawyers in the firm. The court, without hesitation, disqualified the attorney that looked at it and went to use it against the other side. And then they disqualified the whole firm.

How should an atty. handle information received through Purposeful Disclosure To The Detriment Of A Litigation Opponent? (e.g. client takes a piece of paper from a meeting and gives it to you) ABA Formal Opinion 94-382 (1994) said that the recipient should: (1) refrain from using material that are probably privileged or confidential; (2) notify the adverse party or the partys lawyer; (3) follow the instructions of the adverse partys lawyer; or (4) in the case of a dispute, apply to the court for a ruling and refrain from using the material until a court has resolved the question When is Privilege Waived Due To Inadvertent Disclosure? Depends on state law varying approaches. 1. Never waived rule: no loss of inadvertent disclosure 2. Strict accountability rule: inadvertent disclosure waives privilege 3. Majority rule and in FL as long as you took reasonable precautions, then the general privilege will not be waived. What is the requirement of civility during litigation? Rule 3.5(d) A lawyer shall not engage in conduct intended to disrupt a tribunal

Disclosure Favorable to Other Side

Attorney Disclose Adverse Legal Authority In A Case?
32

 Rule 3.3(a)(2) A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel legal authority = not dicta, not law review articles in controlling jurisdiction = precedent the court must follow directly adverse = squarely on point not disclosed by opposing counsel = not mentioned even in error (if other side mentions it but was wrong about it then there is no duty to explain the meaning or set the record straight because the case is on the table for the judge) rationale is to make sure judge knows the law In FL, we have a unique system we have 5 appellate level courts and any one of them may pass a particular rule in a case. If the 4th DCA passed a rule and out 1st DCA hasnt addressed the issue, if its the only rule, then it applies throughout the state if its the only DCA to have decided on the issue. Applies to the trial courts only, not binding on appellate courts. Ongoing tension to duty of loyalty and confidentiality v. duty of candor in the context of litigation where there is a heightened duty of candor If there is precedent on federal law and youre in state court, then you dont have to disclose that. But you might want to. Tyler v. State of Alaska Tyler, D, appealed his felony DWI conviction by asserting that one of his two prior convictions had been invalid. Although Tyler had conceded his guilt in the instant case, he contended that invalidation of the prior offenses would make felony prosecution inappropriate. Tylers atty. failed to cite a case of the Alaska SC that had decided against Tylers theory in a felony DWI case. Ct fined atty. for violating his ethical duty to cite directly adverse authority. Duty to cite case that would reasonably be considered to cast substantial doubt on the argument being made and thus be important to the judge hearing the case. It was irrelevant, the ct said, whether the omitted case would completely control the decision. To what extent is a lawyer required to DISCLOSE ADVERSE FACTS IN A CASE? Generally lawyer has no duty to disclose adverse facts Duty to disclose may be imposed under applicable discovery rules In ex parte proceeding, lawyer must inform the court of all material facts known, including adverse facts Rule 3.3(d) When must a lawyer Correct False Information Given As Part Of The Case? (rule above)

Rule 3.3(a)(3) If a lawyer, the lawyers client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal Duty continues to end of proceeding Rule 3.3(c) Open question in civil context whether fraud must be corrected if case is settled Nissenson v. Bradley medmal case in which P replaced 1st lawyer; complaint attached what purported to be a medical certification that the doctors conduct violated the standard of care, but when the 2nd lawyer contacted the doc, he learned that the doctor had never written it and also disagreed with its conclusions. Nevertheless, the 2nd lawyer did not withdraw the report and continued to try to settle the case. The trial ct found that the lawyers failure to withdraw the at minimum inaccurate report after learning of its inaccuracy constituted contempt of ct. Even though he did not file the false report initially, a lawyer has a continuing duty to correct inaccurate material info that his side has brought forth. Pumphrey v. K.W. Thompson Tool Co wrongful death case; decedent dropped a handgun, which went off and killed him; D gun manufacturer introduced videotaped evidence showing that guns dropped from various heights and in various ways did not fire; however, the ct later learned that the D had not produced in discovery a video showing times that the gun did fire; the ct set aside the verdict because the failure to produce the other video was a fraud on the ct FL Bar v. Burkich-Burrell lawyer represented her husband, P, in a suit for personal injuries suffered in an auto accident; one of the interrogatories asked if the P had been injured before, and if so, for the names of docs who had treated him; he had been previously injured but did not
33

disclose the requested info; the lawyer tried to blame the omission on a paralegal working in her office, but the ct did not buy it; suspension Cleveland Hair Clinic, Inc. v. Puig P wanted to get out of fed ct and file in state ct; D wanted to remain in fed ct, so Ps plan was to make it appear that another lawyer had filed a different case in the state system; the lawyer told the fed judge the he was not involved in the state matter, when in fact he had worked closely with the other lawyer; says did not literally lie to the ct that he wasnt representing in the instant federal case; ct said such hairsplitting is not for an atty.; judge imposed sanctions of $250k *Notice duty continues to the end of the proceeding if find out the truth after the case is over there is no duty to disclose Grey area in criminal context When must an attorney disclose a clients criminal record or other court activity? Generally re defense counsels duty to correct judges misapprehension that the client has no previous record (ABA Formal Opinion 287 (1953)): If the judge asks, the lawyer should ask the court to excuse the lawyer from answering, or seek to withdraw from representation If the judges inquiry is indirectly implied by the circumstances, the lawyer should advise the court not to rely on counsels personal knowledge of clients record If the judge clearly does not rely on the lawyer, the lawyer has no duty to volunteer the information to correct a misapprehension But lawyer must not lie about clients criminal record, or about other civil cases 426-427 ABA ethics opinion if the ct asks the lawyer directly then the lawyer should ask the ct to exclude you from answering the question and asked to withdraw from the case asking if there is anything to add is not a direct question

In re Cardwell atty. misrepresented to the ct in a prosecution for DUI that his client had no
previous alcohol driving offenses; lawyers misrepresentation resulted in the trial ct accepting a plea agreement, finding the client guilty of a reduced offense of driving while ability impaired, and imposing a suspended sentence that was not legal for a second-time offender; 3 yr suspension Daniels v. Alander Daniels and Driscoll represented a client in CT on a n emergency application for child custody; full trial was underway in NJ where another represented the client; CT judge asked why the lawyers did not file this application in NJ with the ongoing case; Daniels responded that Driscoll, spoke to clients counsel in NJ and it was her opinion that we should not do it in NJ for a number of reasons, none of which are flattering to the judiciary there, but we are relying on that. Davis, NJ counsel, later testified that Daniels had misrepresented her opinion, and knew that atty. Davis believed that no emergency application for temporary custody should be brought at all, but that if one were brought, she believedthat, if necessary, she was prepared to file such an application in NJ. Daniels argued that his statement was not truly false, however, ruled that R. 3.3 required Daniels to respond to the inquiry with candor and not in a misleading manner. In addition, ct held co-counsel Driscoll had a duty to correct Daniels. What about a situation where there is a plea bargain in a DUI case and it is the third offense, so there has to be jail time. What happens if nobody has brought up the past? It depends. If the judge asks you if what the prosecutor is offering and does it seek ok to you? Is it true there is no history? Then the lawyer needs to say that he needs to drop the case. If there is no direct question, then you can say that you like the idea but not to depend upon the opinion. If the judge clearly does not rely on the lawyer, then the lawyer has no duty to volunteer the information to correct a misapprehension.

PHYSICAL EVIDENCE
When is a CLIENTS IDENTITY Privileged Information? Clients identity is not normally confidential under Rule 1.6 Attorney-client privilege normally does not protect: Clients identity
34

General purpose of work performed Amount of fee Exception: last-link doctrine may protect client identity if fact of clients consultation would link client to a crime Basic rule state by state and case by case. Florida tends to be conservative in that if someone walks into your office, you can maintain that as confidential but because this isnt generally privileged, then you could make the argument that in revealing the clients identity and they told me, could be detrimental or embarrassing. Baird v. Koerner is leading case on the atty.-client privilege and client identity; client or clients consulted a lawyer for legal advice as to what to do about unpaid taxes; paying the taxes stops the accrual of interest; also there are clients who would like to clear their consciences by paying the money owed, but do not want to confess to tax fraud; lawyer, on behalf of these undisclosed clients, paid the additional income tax; IRS wanted to know the clients identity, but the ct concluded that the privilege protected their identity against disclosure Baltes v. Doe FL client told a lawyer that he had been the driver in a highly-publicized hit-andrun accident; without disclosing the clients identity, the lawyer tried to plea bargain on his behalf; victims survivors filed a civil action against the unknown driver and tried to compel the lawyer to disclose his identity; trial ct held that under the circumstances the clients identity was privileged Matter of Nackson considered whether an atty. may refuse to disclose the whereabouts of a client who jumped bail and consulted the lawyer about a fugitive warrant for his arrest; client wanted to return to the jurisdiction only if his lawyer could work out a plea agreement in advance; citing Baltes, ct held that the privilege can protect against disclosure of client whereabouts; privilege is not absolute but prosecutors must first use all other reasonable ways of learning the Ds whereabouts; before ordering disclosures, the lower ct must balance the need to know against the clients right to confidentiality; In re Grand Jury Subpoena Daniel C once the client authorized the atty. to disclose the clients motives or purposes in retaining the atty. (to deal with the allegations regarding drugtrafficking on his property), those motives or purposes were no longer confidential, and thus the clients identity was not within the atty.-client evidentiary privilege based on a theory that disclosure would reveal those motives or purposes; ct specifically rejected the last link doctrine as giving too much protection to clients What is a lawyers duty in HANDLING PHYSICAL EVIDENCE in a criminal case? A lawyer may take possession of physical evidence of a client crime and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy the evidence; but following possession the lawyer must notify prosecuting authorities or turn the evidence over to them Restatement 119 Contraband Rule applies to evidence of client crime, contraband, weapons, and similar implements used in an offense; also documents used to plan the crime or that serve as evidence of the crime BUT witness statements, photographs, trial exhibits, etc. prepared by a lawyer or legal assistants are work product not subject to this rule Duty to turn over evidence applies only to evidence in lawyers possession NO DUTY to report the knowledge if a client has somethingonly have to turn over if have it in your own possession In Wemark v. State D told his lawyers that he had hidden the murder weapon, a knife; enforcement failed to discover it in their search the home; counsel believe it was unlikely they would search the house again; they could not actively participate in hiding the knife; but if defense counsel leaves the evidence alone, the only matter possessed is the communication which remains insulated from disclosure by the atty.-client privilege; lawyers did not have to disclose the location of the weapon, but the client had effective assistance of counsel anyway because disclosure to the doctor was a tactical choice, and any error was harmless b/c evidence of guilt was overwhelming Belge case buried bodies case; grand jury cleared lawyer of criminal wrongdoing for failing to disclose that his client in a murder case had told him where he had hidden two bodies;
35

 McClure v. Thompson D convicted of 3 aggravated murders; D drew a map for atty. of where
he hid the murdered children; did not say if they were dead or alive but he did tell him that satan had killed the parent but Jesus had saved the children; prosecutor refused to bargain for lesser charge; atty. arranged that his secretary anonymously call in the belief that they might be alive and withdrew from case; ct found disclosure was permissible because of his reasonable belief that it was necessary to prevent imminent deaths Exception is to prevent reasonably certain death or harm you must disclose the location; no mandatory but the lawyer may decide to or not to inform the authorities of the victim that may or may not be dead (Fl must disclose) (Model Rules may disclose) When may POTENTIAL EVIDENCE BE DESTROYED? Rule 3.4(a) A lawyer shall not unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act Applicable law in many jurisdictions makes it an offense to destroy material for the purpose of impairing its availability in a pending or foreseeable proceeding Comment 2 of Rule 3.4 But documents may be destroyed as part of a regular document management policy Enron 445-456 Meredith Case D told lawyer where wallet from murder victim was located. The lawyer had investigator go find it. As soon as that happened and the wallet was removed, then you have to turn it over. But if you leave it there, then your observations are protected.

CLIENT PERJURY
May a lawyer call a WITNESS TO TESTIFY FALSELY? Lawyer may not aid and abet perjury criminal offense Client has constitutional right to testify; lawyer may not prohibit client from testifying But lawyer has duty to court to disclose fraud (if client testifies falsely): Rule 3.3(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal Lawyer must absolutely know what is being said is a lie

FL Bar Rule 4-3.3(4) prohibits all false testimony, whether or not in narrative form
When does A Lawyer KNOW?

Rule 3.3c specifies duty to disclose perjury trumps duty of confidentiality R. 1.6 Comment 10 R. 3.3 steps of what atty. must do if client lies on stand Louisiana State Bar Assn v. Thierry indicted atty. for having X testify falsely as an alibi witness for client; guilty of suborning the perjury of X and sentenced to 3 yrs; disbarred *** Nix v. Whiteside US SC 457-459

Rule 1.0(f): Know = actual knowledge of the fact in question.

But a persons knowledge may be inferred from circumstances there are times that a court says that looking at things that the lawyer knew at the time, theres no way the lawyer didnt know. Typically a subjective standard. i.e. knowledge may be judged by a reasonable lawyer standard: Patsys Brand Case: Attorneys in a trademark case. D says that the trademark was his first. The P demonstrated, based on irrefutable evidence, that Ds printing was later and that he was lying. So, trial ended. D got a new lawyer who submitted the exact same affidavit, even though it had been proved to be lies, which is all in the court record. The court said theres no way a reasonable attorney could believe Ds statements after looking at the proof. The attorney was disciplined.

36

Procedure if A Client Testifies Falsely In court? Steps from Comment 10 to Rule 3.3 Remonstrate with the client confidentiality basically, try to talk them out of it and explain what happens with perjury and what youll do if you hear them lying on the stand. Typically, this is the only step that needs to be taken. Ask permission to withdraw. If necessary, correct the record, make disclosure to the court. Rule 3.3(b) applies only if lawyer knows testimony if false Rule 3.3(b) duty to disclose is controversial What is the NARRATIVE APPROACH to false testimony by a criminal defendant? Minority Approach the client takes the stand and testifies in narrative fashion; but the lawyer does not participate so does not elicit the false testimony, and the lawyer does not argue the probative value of the testimony in closing argument FL (Rule 4-3.3) expressly rejects the narrative approach Lowery Case: court approved the narrative testimony in principle but found it inappropriate in a trial where the judge is the fact finder. McDowell Case: court held that counsel may not substitute narrative questioning for the traditional question-and-answer format unless counsel first knows that the client intends to testify falsely.

Possibly Tainted Verdict Model Rule 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: (a) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) IN TRIAL, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information When may A Lawyer Contact Jurors Or Prospective Jurors In A Case? During a case a lawyer must not: Rule 3.5(a)&(b) Seek to influence a judge, juror, prospective juror or other official by means prohibited by law; or communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order. After a case lawyer must not: Rule 3.5(c) communicate with a juror after discharge of the jury if the communication is prohibited by law or court order; or the juror has made known to the lawyer a desire not to communicate; or
37

the communication involves misrepresentation, coercion, duress or harassment.

Limits on Attorneys Comments During a Case Rule 3.4(e) (rule above) During trial, a lawyer may NOT Allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, Assert personal knowledge of facts in issue except when testifying as a witness, or State a personal opinion about The justness of a cause The credibility of a witness The culpability of a civil litigant or The guilt or innocence of an accused PAYMENTS TO WITNESS Fact witness (474 new rule in ABA formal opinion saying it is ok in certain situations) May receive expenses including travel May receive reasonable payment for time spent preparing, attending or testifying Expert witness: Is generally paid for time spent preparing, attending, testifying May not be paid a fee contingent on their testimony or on success of the client When is an attorney permitted to make a SECRET TAPE RECORDING OF A CONVERSATION? Lawyer must follow state and federal law Legal under federal law and in 38 states to record conversations with consent of one participant Twelve states (FL included) make it illegal to record conversations unless every party to the conversation consents Some State Bar Associations prohibit secret tape recording as conduct involving trickery or deceit Current ABA position Formal Opinion 01-422 (2001): Secret recording of conversations is permissible if not prohibited by state law Lawyer may not falsely represent that conversation is not being recorded Lawyer should not record a client conversation without the clients consent Model Rule 3.5 Impartiality and Decorum of the Tribunal A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupt a tribunal

In Commission for Lawyer Discipline v. Benton Ps lawyer in a personal injury action in

which the jury had awarded no damages and wrote to all the jurors: I was so angry with your verdict that I could not talk with you after the trial. I could not believe that 12 allegedly good people from County, who swore to return a verdict based on the evidence, could find as you did your cold and unfair conduct does not matter nowJudge decided that your verdict was obviously unjust and granteda new trial.

Model Rule 3.7 LAWYER AS WITNESS (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or
38

(3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyers firm is likely to be called as a witness unless precluded form doing so by Rule 1.7 or 1.9 Purposes underlying rule: Avoid confusing jury re lawyers role Avoid conflict of interest between lawyers role as witness and role as advocate Avoid hampering opposing counsel by creating difficulty in impeaching lawyer-witness No imputed disqualification of entire firm when one lawyer is disqualified due to witness status Chappell v. Cosgrove lawyer had been one of fives person at a meeting where the Ds allegedly agreed to construct a park. P residents moved to disqualify him, alleging he was a potential witness; ct said that the test for disqualification is materiality of the testimony, the need for the lawyer to give it, and the prejudice if the lawyer does testify; b/c there were several people at the meeting, ct concluded that the lawyers testimony would be cumulative, not necessary, and therefore it did not order disqualification US v. Edwards police found bag of cocaine, but there was on direct evidence to tie it to the D; prosecutor said in presence of police he found a receipt w/ Ds name on it in the lining of the bottom of the bag; even though prosecutor never testified, officer explained how the receipt was found and used the prosecutors name; ct said the fact that his name was before the jury in connection with that evidence constituted prohibited vouching for evidence and required the prosecutor to withdraw People v. Donaldson new trial ordered based on ineffective assistance of counsel in case of child endangerment; prosecution only had one witness to Ds allege acts that had seen D hold pillow over Ds child head but at trial witness seemed confused and said prosecutor told her if didnt testify would be under arrest; prosecutor called herself to impeach witness credibility by giving a narrative account of the conversation; ct held that, by calling herself as a witness she violated the professional conduct rule generally prohibiting a lawyer form acting as both advocate and witness

PROSECUTORS Model Rule 3.6 TRIAL PUBLICITY (a) A lawyer who is participating or has participated in the investigation or litigation of a matter
shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (Stringently enforced in FL) Specific Info Allowed to Give

(b) Notwithstanding p.(a), a lawyer may state: (FL does not adopt) (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1)-(6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not be apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and

39

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation. Caveat regarding PERMISSIBLE information under Rule 3.6(b) The absolute immunity that lawyers have regarding statements made during a judicial proceeding does not apply to extra-judicial statements to the media; instead, there is possible liability, e.g. for defamation.

Fitzsimmons Case P filed a damage suit against a prosecutor for allegedly fabricating evidence of Ds guilt and for announcing Ds arrest at a press conference that may have prejudiced the trial. SCt applied a Functional Test and looked to the function being performed rather than the role of the act. They ruled that comments to the media had no functional tie to the judicial process. Florida has NO safe harbor list of permissible info that may be shared

(c) Notwithstanding p.(a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyers client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to p.(a) shall make a statement prohibited

Model Rule 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR Rights of a Criminal Defendant The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; Questioning Another Lawyer (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) * there is no other feasible alternative to obtain the information; (f) Except for statements that are necessary to inform the public of the nature and extent of the prosecutors action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused AND exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited form making under Rule 3.6 or this Rule. Summary of Media Statement Rules

Rule 3.6(a) A lawyer who participates in a matter must not make a public statement that will have a substantial likelihood of materially prejudicing a court proceeding.
40

Exception: Prosecutors: Rule 3.8(f): Except for statements that are necessary to inform the public and that serve a legitimate law enforcement purpose, a prosecutor must not make extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused; and must exercise reasonable care to prevent others associated with the prosecutor from making extrajudicial statements that the prosecutor would be prohibited from making.

Delivery of Legal Services MARKETING Model Rule 7.1 Communications Concerning A Lawyers Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyers services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading

Model Rule 7.2 Advertising (codification of Bates) (a) Subject to the requirements of Rules 7.l and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. Referrals / Recommendation of Services (b) A lawyer shall not give anything of value to a person for recommending the lawyers services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority; (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or a nonlawyer professional (e.g. CPA, psychologists, etc.) pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content

Model Rule 7.3 Direct Contact With Prospective Clients Solicitation of Clients (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyers doing so is the lawyers pecuniary gain, UNLESS the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer

(b) A lawyer shall not solicit professional employment from a prospective client by written,
recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by p.(a), If:

(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words Advertising Material on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
41

 (d) Notwithstanding the prohibitions in p.(a), a lawyer may participate with a prepaid or group
legal service plan operated by an organization not owned or directed by the lawyer that uses inperson or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. What advertising content may a State Bar constitutionally prohibit? Bates v. Arizona State Bar (US 1977) Advertising by attorneys may not be banned Butok to prohibit false, deceptive, or misleading ads FL very strong on this dont allow advertising with celebrities, courtroom drama, etc. Allow atty. to personally speak from office or in front of book case, not much else Basically what the model rules say now; can not have a blanket rule prohibiting lawyers from advertising; can regulate certain things Ohralik v. Ohio State Bar (US 1978) Upheld a ban on in-person solicitation (e.g. ambulance chasers) In re Primus (US 1978) Struck ban on solicitation by not-for-profit groups Shapero v. Kentucky Bar (US 1988) Prohibited a ban on targeted direct mail; must be labeled as advertising * Zauderer (US 1985) Advertisement by law firm for class action and put a sketch State may impose disclosure requirements in ads Requirement must be reasonably related to the States legitimate interest (e.g. preventing consumer deception) (Excess litigation is not a legitimate interest for the State to interfere)

(No valid interest in preserving the dignity in the legal profession; have substantial interest in dignity in the courthouse but not an interest in the public that abridges their 1st Amendment rights) Florida Bar v. Went For It (US 1995)

Upheld 30-day ban on targeted direct mail based on state interest in protecting potential clients privacy (Defense attorneys and insurance companies were contact people after the plane crash but the Plaintiff attorneys had to wait 30 days); legitimate state interest in protecting privacy of its citizens (despite the language in Zauderer the state of FL had a legit interest) Mason v. Florida Bar (11th Cir) On website put Martindale-Hubble rating on website Received an A rating and said it was the highest rating (not inaccurate) but the FL Bar said deceptive and misleading because only 3 ratings and no one ever gets the lowest one (said if gave an explanation of the rating system then would have been ok) Matter of Zang (Ariz FL would come out same way) Voice over; saw the atty. presided at a fake trial The atty. in the ad didnt actually litigate but just settled case Ct said the advertisement was deceptive and misleading because doesnt actually do this type work

Rule prohibiting false/misleading ads: Rule 7.1 Many State Bars including FL regulate ads further, justifying regulation as preventing ads that mislead the public Florida Bar v. Pape (2005) controversial FL Bar challenged website with pit bull ad on it and phone number 1-800-PIT-BULL; hearing referee said ok; appealed to FL SC

42

FL SC banned the ad based on darker side of pit bulls qualities malevolence, viciousness and unpredictability; held ad to demean all lawyers and thereby harm both the legal profession and the publics trust and confidence in our system of justice. SC denied cert Clearly not allowed Office of Disciplianry Counsel v. Shane Former client said I never expected the large settlement they won for me Prohibited because creates unjustified expectations Cant have someone from Law and Order cast to give an endorsement Requirements regarding LAW FIRM NAMES: Model Code prohibited law firms from using trade names, required law firm names containing names of at least one current or former lawyers of the firm old rule Rule 7.5(a) A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal aid services organization and is not otherwise in violation of Rule 7.1. (Can now use trade names though, e.g. sue-the-x firm, etc.)

Law Firms

Model Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules (c) A lawyer shall be responsible for another lawyers violation of the Rules if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; OR (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action (same standard applies to the misconduct of non lawyer assistants)

Model Rule 5.2 Responsibilities of a Subordinate Lawyer

(a) A lawyer is bound by the Rules notwithstanding that the lawyer acted at the direction of
another person. (Clear violation) (b) A subordinate lawyer does not violate the Rules if that lawyer acts in accordance with a supervisory lawyers reasonable resolution of an arguable question of professional duty (Uncertain area)

Model Rule 5.3 Responsibilities Regarding Nonlawyer Assistants With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the persons conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the persons conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of
43

the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Is a Subordinate Lawyer Responsible For An Ethical Violation Ordered By A Superior? Clear violation: Rule 5.2(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. Uncertain area: Rule 5.2(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyers reasonably resolution of an arguable question of professional duty. During the court proceeding, if you turn in something false or incomplete in discovery, what do you do? This is an uncertain area. There is potential for getting in trouble and in Fl, they are pretty conservative with the rules. Does an Attorney FIRED BY A CLIENT For Whistle-Blowing Have Recourse? In house counsel possible suit for retaliatory discharge (ABA Opin 01-424)

OK to disclose confidential client information for purpose of claim Rule 1.6(b)(5). But not more disclosure than necessary for claim. If there is a recourse under your state law, and in Florida there is we hold government employers to this standard.

For private employers: Florida has a statute that requires private employers to put public policy first. ABA says that as long as there is that type of claim, then bring it. This falls into an exception for Rule 1.6. Outside counsel generally no remedy private client may fire attorney for any reason. Does An Attorney FIRED BY A LAW FIRM For Whistle-Blowing Have Recourse? Some jurisdictions allow breach of contract claim; claim of wrongful or retaliatory discharge.

Jacobson Case: Lawyer concluded that some of his firms practices violated the law. He pointed it out to a partner who promised to change it and didnt. He protested three times and was then fired. Court said that the lawyer should have reported it to the disciplinary authorities. No recourse in some jurisdictions No recourse under Floridas private whistle-blower statute Snow v. Ruden, McClosky (Fla. 2d DCA 2005). Woman moved from old firm to new with her supervisor. She found out that her supervisor was taking bills from the old firm and after three months of trying to get it fixed, she reported it to the state attorney and was fired. The rule in FL is no recourse. Statewide rule is that the whistleblower statute should protect you if your employer messed up. But the 2nd DCA says that this doesnt apply to lawyers in their firms.

May an attorney Sell A Law Practice? Rule 1.17 A lawyer or a law firm may sell or purchase a law practice, or an are of law practice if these four conditions are met: The seller must cease to practice in the area The practice or area of practice must be sold in its entirety The seller must give written notice to each client (and may transfer client files if no objection within 90 days of notice) The fees charged may not be increased due to the sale Atty. Grievance Comm. of Md. v. Ficker 750 to 850 cases per year; regularly assigned cases to associates the day before Ficker essentially operated his practice like a taxicab company, what he apparently and inexcusably, failed to realize is that legal services cannot routinely be dispensed on that basis with an acceptable degree of competence.

44

Ficker is in violation but the associates too, unless (1) obeying, (2) reasonable resolution of a grey area exceptions, because should have known need to read files, etc. before a case even if senior atty. orders

45

PRO BONO WORK

Model Rule 6.1 Voluntary Pro Bon Publico Service Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to: (1) persons of limited mean or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and (b) provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organizations economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participating in activities for improving the law, the legal system of the legal profession In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means * This rule doesnt say shall but should aspire; dont have to do the 50 hours of pro bono work; not mandatory rule FL does require that you report every year if you have done it or not

ETHICAL CONDUCT OF JUDGES

Judges Conflicts of Interest What limits are imposed on a judges business dealings or financial activities? A judge must not engage in financial and business dealings that: May reasonably be perceived to exploit the judges judicial position, or Involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves But a judge may hold and manage family investments A judge must manage the judges investments and other financial interests to minimize the number of cases in which the judge is disqualified ***Avoid situations where your impartiality may be objected from a reasonably/objective outside observer; dont want people to lose faith in the judicial service What gifts or loans may a judge accept? A judge or family member living in the judges household may accept only a: (pretty inclusive list) Gift incident to a public testimonial Gift, award or benefit incident to separate activity of a spouse or other family member Ordinary social hospitality Gift from a relative or friend, for a special occasion, if the gift is commensurate with the occasion and the relationship Gift from a relative or close personal friend whose involvement would disqualify the judge from a case apart from the gift (e.g. if already disqualified because family) Loan from a lending institution on the same terms available to persons who are not judges Scholarship or fellowship awarded on the same terms and based on the same criteria as other applicants Any other gift only if the donor is not a person whose interests are likely to come before the judge In re Alexander lawyer who grew up with judge loans judge $11k when judge asked because needed money for condo fees; lent at 15% rate but when loan came up judge asked for extension; 5 years later lawyer wrote off loan as uncollectible; judge appointed lawyer a guardian ad litem in
46

a case from which he later rescued himself and awarded him a fee; both judge and lawyer would be in trouble Lisi v. Several Attorneys 21 attorneys loan judge money separately after he pleaded desperately for it; each loaned without knowing the others had; some attorneys had things pending before judge when loan was out; judge resigned and 4 lawyers suspended and others received public reprimand

Ethical prohibitions that apply to lawyers dealing with judges: Model Rule 3.5(a) A lawyer must not seek to influence a judgeby means prohibit by law Model Rule 8.4(d) A lawyer must not engage in conduct that is prejudicial to the administration of justice When must a judge disqualify himself or herself from handling a case due to FINANCIAL INTERESTS? A judge shall disqualify himself or herself from a case if the judges impartiality might reasonably be questioned, including: The judge knows that he or she, or the judges spouse, parent or child wherever residing, or any other member of the judges family residing in the judges household, has an economic interest in the matter Any situation where someone could objectively look and think that the judge might not be fair or that they might be swayed by a matter When must a judge disqualify himself or herself from handling a case because of PERSONAL FACTORS? A judge shall disqualify himself or herself from a case if the judges impartiality might reasonably be question, including: The judge has a personal bias about a party or a lawyer The judge has personal knowledge of disputed facts The judge served as a lawyer in the matter in controversy Its not about what the judge feels would be unfair, its about public perception When must a judge disqualify himself or herself from handling a case because of PERSONAL RELATIONSHIPS? A judge shall disqualify himself or herself from a case if the judges impartiality might reasonably be questioned, including: A lawyer with whom the judge previously practiced law served during their association as a lawyer concerning the matter The judge or the judges spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: Is a party to the proceeding, or an officer, director or trustee of a party; Is acting as a lawyer in the proceeding If its a lawyer from the judges daughters law firm then doesnt count Is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding Is to the judges knowledge likely to be a material witness in the proceeding May a judge avoid disqualification based on personal financial interests by placing assets in a blind trust or otherwise avoiding information about family financial matters? No. The Canons require a judge to keep informed about the judges personal and fiduciary economic interests, and to make a reasonable effort to keep informed about the personal economic interests of the judges spouse and minor children residing in the judges household. (Need to keep an idea of the finances of self and others related to) What are the exceptions to the rules of judicial disqualifications? De minimus interest disqualification of a judge requires more than de minimus interest that could be substantially affected by the proceeding look as an objective outsider (if $100 investment in $1 million portfolio that is de minimus interest)
47

 Rule of necessity
despite personal interest, a judge may hear a case if the case cannot be heard otherwise (e.g. if every judge would be disqualified and that is the only judge available just disclose)

Atkins v. US federal judges with life tenure and guaranteed income for life; had not received increase in a long time; heard an appeal that their salary guarantee was eroding away because of Congress; federal judges brought case in federal court; no judge who wouldnt have a conflict of interest so applied the rule and allowed them to hear HYPO all judges might be subscribers to Comcast, etc. HYPO call in at 10:00pm and judge on call has conflict of interest and if no other judge can be reached and an emergency then rule of necessity would apply and it would be ok How should a judge handle requests from friends and family for favors or recommendations? A judge shall not allow family, social, political or other relationship to influence the judges judicial conduct or judgment outside objective party A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others; Nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge A judge shall not testify voluntarily as a character witness Have to go if subpoenaed where he would then have to respond; should discourage people from using this mechanism Judge Disqualified because of the JUDGES PERSONAL VIEWS? Disqualifications based on personal bias: (tough to prove) Less common, less often required than financial disqualification Generally requires showing of favoritism (i.e. tendency to treat particular litigant differently) Religious beliefs (or lack of them) generally do not mandate disqualifications Generally alleged bias or prejudice must stem from extrajudicial source Personal views are almost never grounds for disqualifications (Very commonly self imposed; not often brought on merits have to bring a showing that there is a tendency for favoritism)

Liteky v. United States 3 Ds charged with spilling blood on walls and objects; judge assigned to preside at their trial had tried and convicted one of the Ds for similar conduct 8 years earlier; judge repeatedly admonished the defense to limit its evidence and argument to the issues in the case, not the motivations for protest. Scalia wrote a judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the D, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes necessary to completion of the judges task. Haines v. Liggent Group judge was disqualified based on ruling from the bench where judge wrote opinions in tobacco litigation where talked about cigarette companies said: Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profitsThe tobacco industry may be the king of concealment and disinformation. Couldnt be free from bias because of previous statements.

Parties to WAIVE JUDICIAL DISQUALIFICATION? A judge may disclose on the record the basis of the judges disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification If the parties and lawyers, without participating by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding The agreement shall be incorporated in the record or the proceeding
48

Judicial Politics May a judge participate actively in the political campaign of another candidate for public office? Except as specifically authorized by Canon sections, a judge or judicial candidate must not: Act as a leader or hold an office in a political organization, Publicly endorse or publicly oppose another candidate for public office; Make speeches on behalf of a political organization; Attend political gatherings; or Solicit funds for, pay an assessment to or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions ABA encourages states to set time limits 90 days before an election, but FL hasnt done this What activities are permitted for judges subject to public election? A candidate in a nonpartisan (e.g. retention) election may (A judicial retention vote differs from a regular election in that voters are not asked to choose from a list of candidates the judges on the ballot do not have opponents. Rather, the voter chooses between electing the incumbent judge to a further term in office (i.e. voting in favor of "retention") or voting against. A judge is deemed to have been retained if ballots cast in favor of retention outnumber those against).: Speak to gatherings on his or her own behalf Publicly endorse or oppose other candidates for the same judicial office Purchase tickets for and attend political gatherings Seek, accept, or use endorsements from any person or organization other than a political party or partisan organization. A candidate in a partisan election may (in addition to the above): Identify himself or herself as a candidate of a political party Seek, accept, or use endorsements from a political party or partisan organization

Can you support other candidates for any other non-judicial purpose? Definitely not. You can get support from anybody as long as its not a political party.

May a judge run for a non-judicial political office? A judge must resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or in a general election Exception: A judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so What limits are placed on judicial candidates in running their campaigns? A candidate for a judicial office: Must maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary Must prohibit employees and discourage others from doing on the candidates behalf what the candidate is prohibited from doing Must not, with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office Cant promise to rule or vote in a certain way In Republican Party of Minnesota v. White (US SC) candidates have 1st Amendment right to say they dont agree with a past judgments/cases; not ok to promise to rule a certain way Must not knowingly misrepresent any facts about the candidate or an opponent In re Judicial Campaign Complaint Against Burick made negative claims in campaigning that were not true; charged atty. Fees and fined May a judge solicit or accept judicial campaign contributions?
49

A judicial candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate A candidates committees may solicit contributions and public support for the candidates campaign no earlier than one year before an election and no later than 90 days after the last election A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others May a lawyer publicly criticize a judge? A lawyer must not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or judicial candidate (All these rules start when you become a candidate) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct United States District Court v. Sandlin accused judge of removing things from the transcript when it didnt happen; suspended 6 months United States District Court v. Yagman lawyer told LA Times that judge was anti-Semitic and drunk on the bench; discipline standard conduct that impugns the integrity of the Court is over broad; said lawyers statements were mere opinion and rhetorical hyperbole, and respect for the judiciary cannot be won by shielding judges from published criticism. However, expressly said the Judge would not be required to recuse himself from hearing future cases from the attorney. Allegations shouldnt be publicized if no reason for believing so; on the other hand, something that is definitely opinion (Yagman) is generally going to be ok (FL might not find ok) May a judge reward his or her friends by granting them court appointments? Model Rule 7.6 A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment

50