Surprise
In terms of the scope of representation, what does the client get to decide and what does the lawyer get to decide?
1.2
Client- objectives of representation, whether to settle a matter/ accept a plea, criminal case- jury/bench trial, testify?
Lawyer- means (consult), implied authorization
When does your duty to the court regarding a specific client end?
3.3
Until the conclusion of the proceeding- affirmed on appeal or the time for review has passed.
When must a L report another L?
8.3
If L's conduct raises a substantial question as to L's honesty, trustworthiness, or fitness as a L.
What are the 2 mandatory confidentiality exceptions?
3.3(a)(3) – If L discovers C or W offered false material evidence, L MUST take [MH1] reasonable remedial measures, including, if necessary, disclosure to the tribunal.
3.3(b) – If L discovers C intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, L MUST take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
A real-estate lawyer without any criminal law expertise received a call from a former client. The former client’s daughter had just been arrested for possession of a controlled substance, and the former client was seeking advice. The lawyer advised that the daughter would need to hire a criminal-defense lawyer, but, in the meantime, the daughter should not make any statements to the police or consent to any searches of her person or property.
Under the Model Rules of Professional Conduct, was the lawyer’s conduct proper?
Yes, because the lawyer may provide advice in an emergency even if the lawyer does not have the expertise that would ordinarily be required.
Why do we have the rule 1.2(b)- L's representation of C does not constitute an endorsement of C's beliefs or actions?
Encourage Ls to represent unpopular Cs
When can L sign a non-complete clause?
5.6 NEVER
If you are aware of L's misconduct and you do not report it, what happens?
If the conduct raised a substantial question as to L's honesty, trustworthiness, or fitness as a L, you can be disciplined for a failure to report under 8.3.
What is 1.9 (standard, what that standard means, and how to cure)?
L cannot represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client.
Confidential information could have passed in the natural course of representation (Comment 3/ Analytica)
Informed consent, in writing
When, if at all, do the Model Rules of Professional Conduct permit lawyers who are closely related by blood or marriage to represent clients in the same matter or substantially related matters?
Only when the lawyers disclose the existence of the close relationship, explain how it might affect the representation, and obtain the clients’ written informed consent.
What is 1.2(d)? Hint client is acting bad.
L cannot counsel a client to engage, or assist a client, in conduct L knows is criminal or fraudulent.
L 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.
What are L's obligations to third parties? Hint 4.1
L cannot make a false statement of material fact or law to a third person.
L cannot fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act, unless prohibited by 1.6.
Why are Ls not required to provide pro bono services? In other words, why is 6.1 permissive?
- New Ls are busy
- if its required, some lawyers may provide sub par services because they don't want to do it
- pro bono clients may need specific types of representation and not every lawyer will be qualified in that area of expertise (ex. big need for immigration and family lawyers).
What are the two types of conflict? How to cure?
1.7(a)(1) client to client directly adverse
1.7(a)(2) Significant risk that the representation that representation of C will be materially limited by lawyers’ responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer
Cure:
(1) L reasonably believes they can provide competent and diligent representation,
(2) the representation is not prohibited by law,
(3) can't be opposing clients in the same litigation/proceeding before a tribunal, and
(4) informed consent, confirmed in writing.
Two parties asked a lawyer to represent them both in the sale of a restaurant by one of the parties to the other. Because the parties agreed on all aspects of the sale and provided their written informed consent, the lawyer represented both parties and effected the sale. After the closing, the buyer discovered that the restaurant was contaminated by mold, which the seller had known and failed to disclose. The buyer sought to hire the lawyer to file a complaint against the seller to rescind the purchase. The seller, who knew of the impending litigation, also sought to hire the lawyer to represent her in the dispute.
If both parties provide their written informed consent, do the ethical rules permit the lawyer to represent both parties in the post-sale litigation?
No, because the lawyer must never concurrently represent multiple parties who are directly adverse to one another in the same litigation.
What are some of L's obligations to the court (not related to confidentiality)?
3.3
- L cannot make a false statement of fact or law to a tribunal
- L cannot fail to correct a false statement of material fact or law previously made to the tribunal by L
- L must disclose to the tribunal legal authority in the controlling JX known to L to be directly adverse and not disclosed by opposing L.
What rule applies to applicants for admission to the bar? Explain the rule.
8.1
An applicant for admission to the bar cannot lie or fail to disclose a fact necessary to correct a misapprehension, or respond to a lawful demand for information.
What is the exception to the solicitation exception?
7.3
Even if an exception applies, L cannot solicit if a person tells L to leave them alone or the solicitation involves coercion, duress, or harassment.
What is the imputation rule (number and explain)? Exceptions?
1.10 - L in LF CANNOT represent C when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 (one firm--> one L)
(1) If the conflict is based on personal interest + no significant risk of material limitation; or
(2) The prohibition is based on L’s association with a prior firm and disqualified L is properly screened and is apportioned no part of the fee, written notice is provided to former C, certification of compliance is provided to former C upon request.
A lawyer represented a professional basketball player in the player’s professional and personal legal matters for more than ten years. During the course of their professional relationship, the player confided in the lawyer that the player was HIV positive. The player kept this information private, fearing that the information would negatively affect his marketing endorsements. After the player retired, he became a spokesperson for HIV/AIDS research and treatment, and revealed his HIV status publicly. The lawyer performed no legal work for the player after the player retired.
Does the lawyer continue to owe a duty of confidentiality to the player with regard to the player’s HIV status?
No, because the information has become generally known.
When are you required to communicate with an individual client?
1.4
- promptly inform the client of anything requiring informed consent
- reasonably consult the client about the means of representation
- keep the client reasonably informed about the status of the matter
- promptly comply with reasonable requests for information
- consult about relevant limitations on L's conduct
- explain matters to C in a way that allows C to make informed decisions.
What constitutional right limits 8.1?
The Fifth Amendment.
L cannot be disciplined solely based on the fact that L invoked their 5A privilege.
What is considered misconduct under 8.4?
- violate or attempt to violate the rules, or assist others to do so
- commit a criminal act that reflects on L's honesty, trustworthiness, or fitness as a L
- Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
- Engage in conduct that is prejudicial to the administration of justice
- Try to influence a government agency or official to violate the rules
- Assist a judge in violating the rules
- Harass or discriminate against protected class in conduct related to the practice of the law
What are the 7 permissive confidentiality exceptions in 1.6(b)?
1. MAY reveal to prevent reasonably certain death or substantial bodily harm
2. MAY reveal to prevent a client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another
3. MAY reveal a crime or fraud that already occurred to prevent, mitigate, or rectify the injury
4. MAY reveal to secure legal advice to ensure compliance with these rules
5. MAY reveal (1) to establish a claim on behalf of the lawyer in a controversy between the lawyer and client, (2) to establish a defense on behalf of the lawyer in a controversy between the lawyer and the client, (3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, (4) to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
6. MAY reveal to comply with other law or a court order
7. MAY reveal to detect and resolve any conflicts BUT cannot compromise A-C privilege or otherwise prejudice the client.
An attorney represented a seller in negotiating the sale of his home. In confidence, the seller told the attorney that he was moving because he thought the neighborhood was “going downhill.” During negotiations, the buyer appeared to be losing interest. To help complete the sale, the attorney told the buyer “home ownership is always a great investment!” The buyer bought the property. Several months later, the buyer contacted the attorney and complained that home prices in the neighborhood were going down and several properties had been abandoned.
Under the Model Rules of Professional Conduct, is the attorney subject to discipline?
No, because the attorney’s statement was acceptable puffing during negotiations.