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definition of A/C privilege
rule of evidence that prohibits a court or other gov tribunal from compelling disclosure of confidential communication b/t an A & C, or their respective agents, if the communication concerns the prof relationship
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definition of confidentiality
ethical duty preventing the A from voluntarily disclosing or misusing confidential info
applies to every context where the A/C privilege doesn't
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kinds of info covered by A/C privilege
confidential communications b/t A and C or their respective agents
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kinds of info covered by confidentiality
communications that are protected by the privilege plus any other info the A obtains relating to representation, no matter what the source
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A/C privilege & disclosure
the privilege prevents the gov from compelling the disclosure of privileged communications
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confidentiality & disclosure/use
prevents the L from either disclosing confidential info w/o C informed consent or using confidential info to the disadvantage of a C, former C, or prospective C w/o the affected C's informed, written consent
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definition of C (A/C priv)
a person/entity that seeks legal services from an A
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A/C privilege & corporate C
covers communications b/t the L and a high-ranking corporate official
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A/C privilege covers another EE of corporate C if 3 conditions are met:
- (1) EE communicates with L at the direction of the EE's supervisor;
- (2) EE knows that the purpose of the communication is to obtain legal advice for the corp; and
- (3) communication concerns a subject w/in the scope of the EE's duties to act for the corp
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definition of A (A/C priv)
person who is authorized, or whom the C reasonably believes to be authorized, to practice law in any state or nation
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def of communication (A/C priv)
info transmitted orally or in writing in either direction b/t A and C or their respective agents
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A/C priv & mechanics of relationship
doesn't cover the C's identity or the fee arrangement unless disclosing those facts is tantamount to disclosing priv communication
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A/C priv & preexisting docs and things
doesn't become privileged just by turning it over to A...if discoverable in C hands then discoverable in A hands
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A possession of fruits or instrument of a crime
A may keep long enough to obtain info to rep C but must then turn it over to proper authorities
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definition of confidential (A/C priv)
communication made by means not intended to disclose the communicated info to outsiders
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Is confidentiality destroyed by the presence of a third party?
No if present to aid the A/C relationship or was eavesdropping
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Who "holds" the privilege
C - he alone may waive it
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when does waiver of A/C priv occur?
- (1) failure to claim it when chance to do so
- (2) intentinoal revelation of a significant part of the priv comminucation
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duration of privilege
continues indefinitely, surviving termination of the relationship and even death of C
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Does the privilege apply if C seeks the A's services to engage in or assist a future crime or fraud
no
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Does priv apply if communication is relevant to an issue of breach of duties arising out of the A/C relationship?
no
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Does priv apply when civil litigation arises b/t 2 persons who were formerly joint C of the A?
no
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Does priv apply if A is asked for evidence about the competency or intent of a C who has attempted to dispose of property by will or inter vivos transfer?
no
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Exceptions to A/C priv
- (1) future crime or fraud
- (2) breach of the duties arising out of the A/C relationship
- (3) formerly joint Cs
- (4) competency or intent of C
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Definition of Work Product Immunity
material prepared by the L for litigation or in anticipation of litigation is immune from discovery or other disclosure
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When is work product discoverable?
opposition shows a substantial need for AND an inability to gather the material w/o undue hardship
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When are a L's mental impressions or opinions immune from discovery?
always unless the immunity is waived
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Exceptions to ethical duty of confidentiality
- (1) C informed consent and Implied authority
- (2) dispute concerning A conduct
- (3) disclosure to obtain legal advice
- (4) disclosure required by law or court order
- (5) disclosure to prevent death or substantial bodily harm
- (6) disclosure to prevent/mitigate substantial financial harm
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A may reveal confidential information to the extent nec to protect herself against:
- (1) claim of malpractice
- (2) disciplinary violation
- (3) complicity with teh C in illegal acts
- (4) the like
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Must an A reveal confidential information that he reasonably believes nec to prevent reasonably certain death or substantial bodily harm
No - this is discretionary rather than mandatory
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Must an A reveal the C's confidential info to prevetn C from committing a crime or fraud reasonably certain to result in substantial financial harm?
No - discretionary rather than mandatory
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May an A reveal all confidential info that is reasonably certain to result in substantial financial harm?
No - only if the C is using or has used the L services in the matter
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Conflict of interest generally
L must not allow her personal interests, interests of another C, or interests of 3P to interfere with her loyalty to the C
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What must L do if conflict is apparent before L takes on matter?
Not take it on
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What must L do if conflict becomes apparent after takes on matter?
withdraw
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consequences for failure to handle conflict properly
- (1) disqualification as counsel in a litigated matter
- (2) prof discipline
- (3) civil liability for malpractice
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definition of imputed CoI
L who practice together in a firm are treated as a single unit for CoI purposes meaning that when one L can't handle a matter b/c of CoI then none can
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Factors for determining existence of a "firm" for CoI purposes
- (1) formal agreement
- (2) hold themselves out as a firm
- (3) share revenues & responsibilities
- (4) physical access to each other's C files
- (5) routinely talk amongst themselves about matters they are handling
- (6) purpose of particular CoI rule would be served by imputation
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Exceptions to Imputed Disqualification
- (1) CoI is personal to disqualified L
- (2) involves duties owed to former C and disqualified L is timely screened and gets no part of the fee
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Concurrent CoI - A L must not represent a C if:
- (1) directly adverse; or
- (2) significant risk of material limitation
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Despite a concurrent CoI, a L may represent a C if:
- (1) L reasonably believes that he competently & diligently rep each affected C
- (2) rep not prohibited by law
- (3) rep doesn't involve assertion of a claim by one C against another C rep by L in same litigation; and
- (4) each affected C gives informed, written consent
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def of informed consent - CoI regarding current Cs
each affected C must understand how the conflict could harm him
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Can C revoke consent regarding CoI?
Yes - almost always a C may revoke a previously given consent to a CoI
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Should L rep co-parties in criminal litigation?
no b/c the interests are likely to diverge
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May L rep co-parties in civil litigation?
yes if: (1) they are on the same side; (2) L concludes that she can effectively rep both; and (3) L obtains the informed, written consent of both C
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May a L rep 2 Cs with inconsistent legal positions in 2 unrelated cases?
No if there is a substantial risk the rep of one C would be materially limited by the L's responsibility to the other C and no informed, written consent
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Do unnamed members of a class count as Cs for CoI purposes?
No
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Factors for determining whether CoI exists in nonlitigation matters
- (1) length & intimacy of L's relationship with one or more C
- (2) functions L will perform
- (3) likelihood & possible effect of an actual conflict b/t C interests
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In nonlitigation matters, a L may rep 2 C whose interests are potentially in conflict if:
- (1) L concludes she can effectively represent both C; and
- (2) L obtains the informed, written consent of both Cs
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May either C claim A/C priv if they were formerly joint C of a single L?
NO therefore L should explain that whatever one C discloses will be shared with the other C
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When can CoI be created by L's own interest?
- (1) L own financial interests
- (2) L relationship with another L or C
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What must L do if CoI is created by his own interest?
not take on the matter unless obtains informed, written consent
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L must not enter into a bus X with a C or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a C unless 4 conditions are met:
- (1) fair to the C
- (2) fully disclosed in writing to C
- (3) C advised in writing he should get advice of an indpt L
- (4) informed written consent signed by C
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What is consequence of L using confidential info for his own pecuniary gain?
possibly subject to civil liability
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May a L solicit a substantial gift from a C who isn't the L's relative?
No
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May a L accept a small gift from a C?
yes
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May a L accept a substantial gift from a C?
yes but may be voidable for undue influence
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May L prepare an instrument that creates a substantial gift to the L?
no
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May L be named as an executor of an estate or counsel to the executor or some other fee-paying position?
yes
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Acquiring literary or media rights concerning a C case
L must not acquire these based in substantial part on the L rep of C
L may acquire these after the C legal matter is entirely completed, including appeals
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May a L financially assist a C whose litigation is pending or contemplated?
no
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May L advance court costs or other litigation expenses on C's behalf?
yes and repayment may be contingent on outcome of the case
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may L pay court costs and litigation expenses for indigent C?
yes w/o any provision for repayment
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A L who reps several co-parties in a matter must not participate in the making of an aggregate settlement agreement UNLESS:
- (1) C come to an agreement
- (2) L discloses to each C all terms of the sharing agreement
- (3) written consent
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L must not make an agreement with a C that prospectively waives or limits L liability for legal malpractice UNLESS
C is indpt rep in making the agreement
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May a L practice in a limited liability entity?
yes provided L remains personally liable for her own malpractice
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May a L reasonably limit the scope of representation?
yes if done in accordance with ABA Model Rules
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May a L settle a malpractice claim or potential claim made by his C?
yes but only if L first advises the C in writing to seek the advice of an indpt L about settlement
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May a L acquire a proprietary interest in the C's CoA or subject matter of litigation?
No
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What are exceptions to rule regarding proprietary interest in subject of litigation?
contingent fee & attorney liens
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A L must not accept compensation from 3P for rep a C UNLESS:
- (1) C gives informed written consent
- (2) 3P doesn't interfere with L judgment
- (3) arrangement doesn't compromise C confidential info
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When may L rep a C when CoI exists b/t C & 3P that creates substantial risk of materially limiting L ability to rep C effectively?
- (1) L reasonably believes the 3P's interest will not adversly affect rep; and
- (2) C gives informed written consent
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CoI raised by liability insurance
law on whom the L reps in this case varies from state to state but ethical obligations are governed by RPE, not the insurance company
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Does a L have a continuing duty to preserve info gained in confidence during rep?
yes - even after rep ends
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Opposing former C (confidential info) - A L who has confidential info from a former C must not:
- (1) oppose that former C in any matter to which confidential info would be relevant
- (2) use that info to the former C's disadvantage
exception - informed consent
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May L rep a C whose interests are materially adverse to those of the former C in a matter that is substantially similar related to a matter in which the L rep the former C
No unless there is informed written consent from the former C
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May L use confidential info to former C disadvantage without informed, written consent?
no unless info is commonly known or exceptions to confidentiality apply
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May a L whose firm formerly rep a C in a matter and who acquired protected confidential info or info pertaining to the rep thereafter rep another person in the same or substantially related matter?
Not if that person's interests are materially adverse to those of the former C and there is no informed written consent
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If a L is personally disqualified from rep a C due to CoI and L goes to a new firm, that firm is also disqualified UNLESS:
- (1) L is properly screened; and
- (2) former C is given notice
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A L's former firm is prohibited from rep a person with interests materially adverse to those of C of the formerly associated L if:
- (1) the matter is the same or substantially related to that in which the formerly associated L rep the C; and
- (2) L remaining in the firm has info protected by Rules 1.6 or 1.9(c)
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L who move b/t gov & private jobs must comply with _______ regarding CoI
legal ethics rules & various state/fed CoI statutes and regs
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May a L who leaves gov service and enters private practice rep a private client in a matter in which L participated personally and substantially while in gov service?
no unless gov gives informed written consent
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def of matter (CoI)
specific dispute involving specific facts and parties
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def of "personally and substantially" (gov CoI)
L worked on the matter herself and her work was more than trifling
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If L is disqualified under CoI rules for gov, the other L in her firm are also disqualified unless
- (1) former gov L is timely screened off
- (2) former gov L not apportioned part of fee; and
- (3) written notice
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May a gov L who receives confidential gov info about a person later rep a C whose interests are adverse to that person?
Not if the info could be used to harm that person
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How do CoI rules work for L who enters gov service after private practice?
same as ordinary CoI rules regarding current & former Cs
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Does the "personal and substantial" rule apply to L who enters gov service after private pratice?
Yes
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May a L who is n gov service and currently working personally and substantially on a matter negotiate for private employment with any party or L who is involved in that matter?
No - exception for law clerks
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general CoI rule when switching from Judicial Service to private practice
L msut not rep a private C in a matter in which the L previously participated personally and substantially while serving as a judge or other adjudicative officer, arbitrator, mediator, or other 3P neutral, unless all parties to proceeding give informed, written consent
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Does A/C priv apply to communications b/t L and prospective Cs?
yes
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Does ethical duty of confidentiality apply to discussions b/t L and prospective C?
yes
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What must a L who obtains confidential information during preliminary discussions with prospective C not do?
later rep a diff person in the same or a substantially related matter if the confidential info could significantly harm the prospective C
imputation applies
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Will informed, written consent from the affected C & prospective C overcome CoI?
yes
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Other than informed, written consent, how may CoI regarding prospective C be overcome?
- (1) avoid exposure to any more confidential info than nec
- (2) timely screen from any participation in matter
- (3) written notice
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When L rep an organization, to whom does the L owe duty of loyalty?
organization and NOT the ppl
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What should L rep an org do when CoI arises b/t interests of org & one of its constituents?
caution the person in question that she reps the org and not the person
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When a person associated with the org advocates an action that may cause it substantial injury, a L must protect org interests by:
- (1) report action to a higher authority and if nec the highest authority
- (2) if no timely approp action is taken L may report info outside of org to extent reasonably nec to prevent substantial injury to org
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May a L rep both org & one of its constituents?
yes if ordinary CoI rules are satisfied
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May a L serve as both a director and L for an organization?
Yes but could create a CoI and if the dual role will compromise the L's prof judgment, the L should either resign as director or not act as the org's L
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Who do the rules made by SEC apply to?
L who represent an issuer of securities and who practice before the SEC
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What are the report requirements under Sarbanes-Oxley?
A securities L who becomes aware of credible evidence that her C is materially violating a fed or state securities law MUST report the evidence to the CLO who must then investigate
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If a securities L believes that the CLO didn't achieve an approp response, what must he do?
report the evidence to either the C's BoD, audit committe, or committee made up of directors
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A securities L may reveal to the SEC any confidential information taht is reasonably nec to:
- (1) stop C from committing a violation causing substantial financial injury
- (2) rectify such financial injury IF L's services were used
- (3) prevent C from committing or suborning perjury
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Is a securities L subject to civil liability or discipline for complying with SEC rules?
no
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What may a securities L do if he is fired for reporting a violation to the SEC?
report the firing to the BoD
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A L is _______ for misappropriating or borrowing a C's money or property or for commingling it with her own money or property
subject to discipline
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What must a L do with all money received on behalf of a C?
promptly place in it in a C trust fund account, SEPARATE from L's own personal and business accounts
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Where must a C trust fund account be located?
in the state where the L practices or elsewhere with C consent
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When may a L put her own money in a C trust fund account?
to pay bank service charges
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What should a L do with a large sum of money held for the C for a long period of time?
put it in a separate interest-bearing account with interest going to C
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What should a L do with small sums of money entrusted to him by the C?
put it in a pooled C trust account - i.e. a checking account holding money entrusted by numerous Cs
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What must a L do with an advance for costs, expenses, and legal fees not yet earned?
place these into a trust account from which L may w/draw after fees are earned IF there is no dispute
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What must a L do with money in which both the C and L have an interest?
place it in a trust account until there is an accounting and severance of the respective amounts due to each party
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May a L refuse to surrender funds to a C until a 3P who has an interest in those funds been paid?
yes
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Is it proper for a L who receives a settlement check or other payment to the C from which his fee is to be paid to forward the entire amount to the C?
yes
most L would retain the fee amount in the C trust fund account pending an accounting
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Safeguarding Property rule
L must identify a C's property as belonging to the C and must put it in a safe place
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Duty to notify, keep records, render accountings, & pay over promptly...A L must
- (1) keep complete, accurate, & up-to-date records of money/property received on behalf of C
- (2) render periodic accountings to C
- (3) notify the C promptly upon such receipt
- (4) promptly pay over money/property when it is due to the C or 3P
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Duty to render candid advice
A L must exercise indpt judgment and render candid advice to the C
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In addition to legal advice, may a L give a C moral, economic, social, or political advice?
yes when it is relevant to the C's situation
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May a L volunteer advice?
yes when it is appropriate
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When may a L evaluate a C's affairs for the use of a 3P?
When he reasonably believes that making the evaluation is compatible with the L's other responsibilities to the C
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When must a L not evaluate a C's affairs for the use of a 3P?
when doing so would materially harm the C unless he first obtains written, informed consent
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May a L be liable to a 3P for negligent evaluation of a C's affairs?
yes
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during negotiations, a L must not
make a false statement of material fact
test - whether opponent would be reasonable in relying on the statement
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Must a L volunteer facts in a negotiation that would be deterimental to C's position or correct an opponent's misapprehension regarding strength of C's case?
no
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When does a L serve as a 3P neutral?
when assisting two or more nonCs resolve a dispute b/t them (i.e. - arbitrator or mediator)
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Who does a L serving as a 3P neutral represent?
no one therefore should explain that A/C priv doesn't apply
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def of a frivilous position
one that can't be supported by a good faith argument under existing law nor for changing the law
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A L is ________________ for bringing a friviolous claim or taking a frivilous position on an issue in a proceeding
subject to discipline
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Is a criminal defense attorney prohibited from conducting a defense so that the P must prove every nec element of the crime?
no
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A L has ___________ to expedite litigation
affirmative duty
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duty of candor to tribunals involves:
- (1) law
- (2) facts
- (3) evidence
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Regarding duty of candor to tribunals & the law
L must not knowingly make false statement of law to court or fail to correct a previously false statement of material law
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Must a L disclose a legal authority in the controlling jurisdiction that is directly adverse to his C position?
yes even if it hasn't been disclosed by opposing counsel
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regarding duty of candor & facts
L must not knowingly make a false statement of fact to the court nor fail to correct a previously made false statement of material fact
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Is there an obligation for an A to volunteer harmful facts to tribunal?
No EXCEPT in an ex parte proceeding the L must inform the tribunal of all material facts known to the L that will help tribunal make an informed decision
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Using false evidence...a L is subject to discipline
for knowingly using this
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May a L refuse to offer evidence
yes if she reasonably believes it is false
exception - criminal D testimony on his own behalf
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If a L has offered a piece of evidence and later discovers it is false, she must:
- (1) try to persuade rectifying situation
- (2) withdraw
- (3) disclose to court if w/draw not permitted
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When does the obligation to reveal perjury end?
at the conclusion of the proceeding
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May a L tamper with or suppress evidence?
no
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May a L falsify evidence or assist in perjury
no
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What payments to W are proper?
- (1) travel, meals, & lodging
- (2) compensation for time lost from work
- (3) reasonable fees to expert Ws
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When may a L refuse to obey a rule of procedure, evidence, the court, or a court order?
when making a good faith challenge to its validity
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A L is subject to discipline for chicanery at trial, including:
- (1) referring to inadmissible material
- (2) asserting PK of contested fact
- (3) asserting personal opinions about the justness of a cause, credibility of a W, culpability of a civil litigant, or guilt/innocence of an accused
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May a L bring or threaten to bring criminal charges against opposing party in civil case to gain an advantage for her C?
yes if the criminal and civil matters are closely related and both cases are warranted
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Can disciplinary violations be used as bargainning chips in civil cases?
no
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A L must not seek to influence who by improper means?
a judge, court official, juror, or prospective juror
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While a proceeding is pending in a tribunal, a L must not have an ex parte communication with...
a judge, court official, juror, or prospective juror EXCEPT when authorized by law or court order
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Is a written communication to a judicial officer an ex parte communication?
not if a copy is timely sent to opposing parites
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def of ex parte communication
oral communication on merits of a matter with a judicial officer w/o giving adequate notice to adversary
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Before or during a trial, when may a L connected with the case communicate with a juror or prospective juror?
never on any matter
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false statements about judges or candidates for public legal office
A L must not make a statement that the L knows is false (or with reckless disregard) about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for judicial or other legal office
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What types of out-of-court public statements are L prohibited from making regarding their case?
those that he reasonably should know will have a substantial likelihood of materially prejudicing the case
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When may a L make a public statement about his case?
when reasonably required to protect C from substantial undue prejudicial effect of recent publicity not initiated by the L or the C
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A P must not make extrajudicial comments that...
have a substantial likelihood of heightening public condemnation of the accused
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What facts may a L connected with a case publicly state?
- (1) information already in public record
- (2) what claim/defense are involved
- (3) names of ppl involved
- (4) scheduling or result of any step in litigation
- (5) fact that investigation is ongoing
- (6) warning of danger if approp
- (7) routine booking info about criminal D
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Doo the rules on trial publicity apply equally to other Ls who are associated in a law firm or agency with the L participating in the case?
yes
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What probs arise when a trial L also testifies as a W?
- (1) CoI
- (2) confusion of advocacy with evidence
- (3) unfairness to the adversary
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A L may also be a W if:
- (1) uncontested matter or mere formality
- (2) concerns nature/value of legal services
- (3) w/drawl would cause substantial hardship on C
- (4) another L in firm likely to be called as W
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Which CoI rules apply to a L who also serves as a W?
current and former C CoI
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Special responsibilities of the prosecutor
- (1) probable cause
- (2) protecting D right to counsel
- (3) securing waiver of pretrial rights
- (4) disclosing evidence that may help defense
- (5) disclosing info that may mitigate punishment
- (6) disclosing evidence to remedy conviction
- (7) public statements about pending matters
- (8) subpoenaing other Ls
- (9) other gov Ls
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P must seek to remedy the conviction of a D in his jurisdiction if
he knows of clear and convincing evidence that D was innocent
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P must promptly disclose new, credible, & material evidence that
creates a reasonable likelihood that D was wrongly accused
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A P must not subpoena a L to give evidence about a C unless the info:
- (1) isn't privileged
- (2) is essential
- (3) can't be obtained any other way
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how are prosecutors and gov L similar?
many of the same special rules that apply to P also apply to gov Ls
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When a L appears on behalf of a C before a legislative body or admin agency, he must disclose
that he is acting in a representative capacity
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When do the rules for advocacy in legislative and admin proceedings not apply?
- (1) L reps C in bilateral negotiations with gov
- (2) app for a license or other privilege
- (3) gov is investigating C affairs
- (4) gov is examining the C's compliance with a regular reporting requirement
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May a L make false statements of material fact to a 3P?
no but conventional puffery is permitted
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Must a L disclose material facts to 3P when nec to avoid assisting a C in crime or fraud?
yes UNLESS the L is forbidden to do so by ethical rules of confidentiality
if forbidden then must withdraw
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May L communicate with a represented person concerning the matter?
not unless that person's L consents or law/court order authorizes the communication
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A L must get consent of org L before communicating with a present org constitutent:
- (1) who supervises, directs, or regularly consults with the org's L
- (2) whose conduct may be imputed to org
- (3) who has authority to obligate org
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Must a L get consent before talking to a former constituent of org?
no
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May represented parties communicate directly with each other?
yes
-
May L interview intended unrepresented W of the opposing party?
yes
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When dealing with an unrepresented person what must a L not state/imply and what must he correct?
- (a) that he is disinterested
- (b) make reasonable efforts to correct any misunderstanding by the unrepresented person as to his role in the matter
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If L knows that unrep person and C interests conflict, may L give legal advice to that person?
no unless it is to get a L
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May a L use means that have no substantial purpose other than to embarrass, delay, or burden a 3P?
no
-
May a L use methods of obtaining evidence that violate the legal rights of 3P?
no
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What must a L do when he is sent a doc by mistake and knows that it was sent by mistake?
promptly notify sender so that he can take protective measures
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may a L use a doc that was sent to him by mistake?
yes
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def of partner
person who is a party to the firm's partnership agreement
-
def of associate
L EE who is paid a salary
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def of "of counsel"
L who has a continuing relationship with a law firm other than as a partner or associate
-
def of "general counsel"
(a) person in charge of an in-house law dept of a business
(b) private L who devotes a substantial amount of time to rep a business
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Do partners have a duty to educate and guide in ethical matters?
yes...must take reasonable efforts to assure that other Ls adhere to the rules
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A L is subject to discipline for a disciplinary violation committed by a second L if:
- (1) first L ordered it or knowingly ratified it; OR
- (2) first L is a partner, manager, or has direct supervisory responsibility over the second L, learns of violation and doesn't correct it
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When can a subordinate L not hide behind the "i was just following orders" defense?
when asked to commit a clear ethics violation
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Is a subordinate L subject to discipline for follwoing a supervisory L's reasonable resolution of a debatable ethics question?
no
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responsibilities concerning nonL assistants
- (1) educate and guide
- (2) reasonable efforts to assure act ethically
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When may a L share her legal fee with a nonL?
- (1) death benefits
- (2) compensation and retirement plans for nonL EEs
- (3) sale of law practice
- (4) sharing court awarded fee with nonprofit org
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A L must not form a partnership with a nonL if:
ANY part of the partnership activities will constitute the practice of law
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A L must not practice in an incorporated firm or association if a nonL:
- (1) owns any interest in the firm/assoc
- (2) is a director or officer
- (3) has the right to direct or control the prof judgment of a L
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restrictions on right to practice are
prohibited
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