Intro

I. OPENING POINTS: A. Themes and concepts: 1. Nobodys perfect a. avoid the major mistakes, learn from minor mistakes, b. but dont hide mistakes; cover-up worse than crime 2. Youre not in this alone: a. consultation is key; b. think about whom to consult before problems arise 3. Trust your instincts, whatever form they take a. aggressively spot issues, b. carefully analyze them 4. Ethics and morality are not the same thing a. the right thing to do is not always the ethical thing to do 5. Whats your appetite for risk? (majority of ethics issues fall within one rule) 6. Always keep your cool, its just not worth it 7. The Icarus Principle a. feathered wings made with wax, flew too close to the sun b. more senior lawyers tend to ignore some of the ethical issues) B. How do we know whats ethical? 1. The Rulebook: issued by court or bar association applicable to a particular jurisdiction a. ABA model rules (rarely adopted word for word) b. NY Rules of Professional Conduct 2. Rules do not have the same status as decisional law or statutes a. rules may be applied differently in court proceedings as opposed to disciplinary matters) 3. Comments to rule (not binding): in NY, comments have not been accepted as law 4. Treatises 5. ABA/BNA 6. Restatement 3rd of the Law Governing Lawyers (often cited by appellate judges) 7. Example: a. Candor to the tribunal b. What does tribunal mean? c. "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. ABA d. Mediation is not mentioned in this definition 8. Ethics Opinions from bar associations (NOT binding) a. Pros: i. research done for you ii. good faith before discipline committee iii. wide range of issues already covered b. Cons: i. Built in biases on certain committees (trial: favors P; NYC: defendant) ii. No hierarchy in the different bar associations, and frequently disagree

iii. Not binding on anyone C. Issue: 1. Facebook: a. NY has said that judges can use facebook, but urged to stay on top of security settings b. Florida has prevented judges from using facebook for parties appearing before them II. COMPETENCE, DILIGENCE AND TAKING GOOD CARE OF YOURSELF: A. Diligence: 1. ABA Rule 1.3: A lawyer shall act with reasonable diligence and promptness in representing a client. 2. Put another way: a lack of diligence is the failure to handle client matters and with appropriate efforts under the circumstances. 3. Put yourself in your clients shoes. 4. Diligence might be loyalty to your client under the circumstances. a. Plaintiff (seeking $ for medical expenses) or b. Defendant (capital defendant- seek delay with a client facing the death penalty) B. Competence: 1. ABA Rule 1.1: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. a. Comment [3]: suggests some basis for emergency advice; can give limited advice when reasonably necessary 2. Problems: a. Competence can be negated by stress, and not knowing how to say no to clients or partners b. Lawyers Assistance Program: i. Helps with 1. Substance abuse 2. Gambling 3. Mental health, depression ii. Anonymous system 1. Lawyers assistance program is exempt from reporting requirements c. In re Discipline of Reynolds, (S.D. 2009): i. The attorney practiced commercial litigation in a South Dakota law firm. He represented a client that had allegedly been forced to resign from his employment. The attorney advised the client to seek a revocation of the resignation. After the attorney failed to respond to the client's numerous requests and failed to file the complaint within the statutory period, the client filed a former complaint with the Disciplinary Board. The Board determined that the attorney was overextended with a demanding legal caseload. In a Private 60 Agreement, pursuant to S.D. Codified Laws 16-1960, which allowed the attorney to continue practicing law under conditions, the attorney admitted that he violated S.D. R. Prof. Conduct 1.3, 1.4, 1.5, 1.7, 8.4(a), 8.4(c). The attorney's pattern of non-response continued in two other client complaints as well as to communications from the Board. The court, pursuant to

its duty under S.D. Codified Laws 16-19-31, held that the attorney's neglect of clients and the Board warranted suspension for three years. The court considered the attorney's potential for rehabilitation and his past service to the bar, community, and church. ii. OUTCOME: The court suspended the attorney from the practice of law for three years. Failure to meet certain suspension conditions would result in permanent disbarment. iii. Class notes: 1. Issues: A. how much he didnt do for so long B. how he only got punished with 3 years suspension 2. Disciplinary committee did not do him any favors by giving him multiple extensions, allowed him to dig it deeper 3. How balanced was Reynolds workload? Family life, extra d. In re Young (Cal 1995): Thrown in jail for 5 days for asking for 20 extensions. An attorney was granted 19 extensions of time to file an appellant's opening brief in a criminal case. The attorney appeared before the court in response to an order to show cause why he should not be held in contempt for failure to comply with the court's prior orders to file the brief, and was ordered to file the brief by March 1, 1995. The order was modified until April 4, 1995 and the attorney was further ordered to produce a copy of that part of the appellant's opening brief, which had been completed by that date, if the brief had not been filed earlier. The attorney appeared on that date and the court found that he had not complied with the court's orders. The court also found that the attorney was aware of and had the ability to comply with the orders and failed to do so. The court held that willful failure to comply with an order of the court constituted contempt. The clerk was directed to notify the Texas State Bar by forwarding a copy of the judgment of contempt. The court sentenced the attorney to a five-day jail term. e. Shall vs. Should i. ABA: A lawyer shall provide competent representation to a client ii. NY: A lawyer should provide competent representation to a client iii. In practice, the language difference doesnt make a difference. 1. should is slightly closer to how the rules are actually applied. 2. shall often means must and is therefore difficult to enforce. f. Mistakes: when there is a mistake (unintentional), should there be disciplinary action based on competence? i. Lawyer said it was $93 million mortgage when it was only $93k ii. Sept. 1, 2008 when it should be Sept. 1, 2009 for the back out date; contract, $ millions for each party to the contract iii. There are mistakes that rise to the level that, if done once, deserve disciplinary action iv. Most mistakes are not subject to disciplinary action III. LAW AS A SELF-REGULATING PROFESSION A. Rule 8.3:

1. (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 lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. 2. (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 judge's fitness for office shall inform the appropriate authority. 3. (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. B. Rule 8.4: It is professional misconduct for a lawyer to: 1. (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; 2. (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 3. (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 4. (d) engage in conduct that is prejudicial to the administration of justice; 5. (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 6. (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.: C. Wieder v. Skala, (N.Y. 1992): Attorney contended that he was wrongfully discharged as the result of his insistence that a fellow associate's misconduct be reported as required by Model Code of Professional Responsibility DR 1-103(A). Further, he contended that his termination by the law firm was a breach of the employment relationship. The appellate court concluded that attorney failed to state a cause of action because he was an at-will employee. The court concluded that attorney had stated a valid claim for breach of contract based on an implied-inlaw obligation in his relationship with his law firm. Intrinsic to the employment relationship here was the unstated but essential compact that in conducting the firm's legal practice both attorney and his law firm would do so in compliance with the prevailing rules of conduct and ethical standards of the profession. Insisting that as an associate in their employ attorney must act unethically and in violation of one of the primary professional rules amounted to nothing less than a frustration of the only legitimate purpose of the employment relationship. Next, the court concluded that recognition of the tort of abusive discharge was to come from the legislature. 1. OUTCOME: The court modified the judgment of the appellate court by denying the law firm's motion to dismiss the attorney's cause of action for breach of contract. As so modified, the judgment was affirmed. 2. Class: a. Even though NY has strict employment at-will policies, lawyers cannot be fired if they are reporting another attorney under rule 8.3; this is the Wieder Doctrine b. The bad acts of one lawyer tend to reflect badly upon the entire profession c. Doctrine includes a lawyer refusing to file a false affidavit d. Court expressly rejects the idea of same exceptions for those in the financial industry;

e. NY has only applied Wieder to lawyer cases, not doctors who are terminated for refusing to disclose patient information; 3. Bohatch v. Butler & Binion, (Tex. 1998)Plaintiff, who was a partner in defendant law firm, was expelled from the firm after she reported that another partner was overbilling one of defendant's clients. The trial court found that defendant was liable for expelling plaintiff, but the appellate court reversed the decision. On subsequent appeal, the court affirmed the appellate court's reversal of the trial court judgment. Neither statutory nor contract law principles answered the question of whether defendant had a duty not to expel plaintiff, and recent amendments to the law on partnerships did not have retroactive effect and therefore did not apply. The partnership agreement did not specify or limit the grounds for expulsion of partners. Although the relationship between partners was fiduciary in character, it did not give rise to a duty not to expel partners who reported suspected overbilling. Permitting law firms to retaliate against partners who in good faith reported might discourage compliance with the rules of professional conduct, but it would be impossible for partnerships to maintain the trust relationship necessary for their existence after such serious accusations. a. Should a client be able to waive improper billing practices by their attorney b. reason for 8.3: how else are going to correct behavior of attorneys? c. people have opposed the decision here D. Applying Rule 8.3 1. what do you know/what dont you know factually? 2. what rule/rules were violated? 3. does the violation go towards honesty, trustworthiness, or fitness 4. was it a substantial violation? 5. are there intangibles outside the rule (i.e., policy) that should weigh in? 6. is there any sort of exception (i.e., lawyers assistance program)? 7. if you dont have to report, can/should you report anyway?

E. One Night At A Party 1. Always ask yourself what you know and what you dont know a. Here, you know what you saw: repeated use of recreational drugs (could be serious) b. It matters that it was a social setting, at a party; outside the context of a law office c. What you dont know: what type of drug, how often it is done, whether it affects their work d. Do you know enough? There are strong arguments that you dont know enough 2. What rules were violated? a. 8.4 (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; i. Note: Conviction of felony typically results in disbarment, but there are some exceptions for substance abuse b. 8.4 (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; c. 1.1 competence

d. 1.3 diligence 3. Does the violation go to honesty, trustworthiness or fitness? a. 8.4(c) yes; b. 8.4(b) possibly c. This analysis is subsumed in rule violation d. Example: Going 100mph in a 50mph zone to get to a hearing on time; shows recklessness, but does this reflect on fitness as a lawyer 4. Was it substantial? a. Tension in comments to rule: i. certain degree of importance is needed to be worth the time ii. but there are certain serious things that can be uncovered from an isolated incident b. Helpful to ask: would you want this person as your lawyer? 5. Policy considerations: a. tactical concern with reporting your adversary; if you see a lawyer commit a violation mid-case, you probably dont want to report it right away; but give it some time b. drug and alcohol abuse is common; stop the problem before it gets bigger: substance abusing lawyers commit most tow most common violations: theft of client funds and neglect of client cases 6. Exceptions? Probably not here, but some would be a. protected by rule 1.6 or if you are representing the person b. if reported to a lawyers assistance program c. 1-6 have to deal with whether you are required to report 7. If you dont have to report, should you still report? a. Normally, these cases flunk substantiality element, but there are enough violations and policy implications that it should be reported b. If you decide not to report when the court says you must, you are taking a risk c. If it turns out that the lawyer did not report when they should have, they would have to convince the disciplinary committee that they did not need to IV. CIVILITY A. Do we need rules regarding being polite and courteous to clients and opposing counsel? 1. common sense 2. reminders B. Rules: 1.2, 1.4, 4.4 overlap with rules of civility C. Why does civility matter? 1. adversarial nature can break down civility 2. civil lawyers are less likely to fall victim to the Icarus factor (fly high and mighty, senior partner) 3. reputation: being uncivil harms it; reputation is very important in the profession; civil lawyers will have better reputations than uncivil ones 4. Curtailing bullies: use incivility to get it out of hand 5. Have a good poker face, even when other side is getting reprimanded by a judge D. Fla. Bar v. Walton, 952 So. 2d 510 (Fla. 2006): The attorney failed to tell his clients or opposing counsel that the opposing party had tendered in satisfaction of judgment an amount

short by 23 cents. After the shortage was rectified, he failed to record a satisfaction of judgment, as required by 701.04(1), Fla. Stat. (2005). He told the Bar that the opposing party was a liar and had a mental disorder. After the satisfaction of judgment was recorded, he filed a frivolous motion in the trial court to try to create a defense for himself in the Bar disciplinary proceeding. The referee found that this conduct violated R. Regulating Fla. Bar 34.2, 3-4.3, 4-1.1, 4-1.3, 4-8.4(a), and 4-8.4(d). The high court agreed. As the attorney forced his clients to wait six more months to be paid, he failed to provide competent representation with reasonable diligence, and engaged in conduct prejudicial to administration of justice, contrary to R. Regulating Fla. Bar 4-1.3 and 4-8.4(d), respectively. That he had been disciplined on three prior occasions confirmed the propriety of a 91-day suspension. However, the high court's policy precluded an award of restitution to third parties, such as the opposing litigant, in disciplinary matters. 1. OUTCOME: The court approved the referee's recommendation that the attorney be suspended for 91 days. It disapproved the recommendation that he be ordered to reimburse the opposing party for attorney fees and costs incurred as a result of the attorney's misconduct, and the recommendation that the attorney's practice be evaluated by the Bar's Law Office Management Assistance Service. Instead, it order him to take the Bar's professionalism course. 2. Class: a. Received a check for $0.23 short b. Wanted to get back at this defendant who had given him a hard time in the case c. Walton never contacted his client to notify him that he was fighting over a small amount E. Butler County Bar Ass'n v. Foster, 99 Ohio St. 3d 491 (Ohio 2003): The attorney was involved in antagonistic collection proceedings with a pro se litigant. The attorney started directing certain unprofessional e-mails and other correspondence to the pro se litigant's older brother. Examples included the attorney's e-mail that stated, "Your dear little brother only serves to make my life more miserable. In turn, I will make his as miserable as possible" and an observation that the family's "gene pool was in serious need of a filter, at best, or has been reduced to a gene pond." The attorney also described the pro se litigant in a letter as an "anencephalic cretin" with a "single operating brain cell" who made "brain-dead ravings" and "anal rantings." The attorney and county bar association stipulated that the correspondence violated several specified sections of the Ohio Code of Professional Responsibility. In recommending a sanction, a disciplinary panel expressed concern over the attorney's lack of remorse and appreciation for professionalism rules. After considering the case, the state supreme court adopted the panel's suggestion that the attorney be suspended from the practice of law for six months, with the entire period stayed. 1. OUTCOME: The attorney was suspended from the practice of law in Ohio for six months, but that sanction was stayed provided that he did not commit any other professional misconduct during the suspension period. 2. Class: a. Attorney uses a lot of nasty language in an email to the brother of the opposing pro se b. Why did he get the brother involved? Maybe he only had his address c. Continued pattern of conduct here?

d. Lawyer already won but collecting the judgment was the issue here e. Court seems to hold lawyer to a higher standard than pro se; lawyers are officers of the court V. PROFESSIONALISM A. Rules 8.1, 8.4 B. Rule 8.1: 1. 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. (a) knowingly make a false statement of material fact; or b. (b) 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. 2. Comment to 8.4: Lawyers holding public office assume legal responsibilities going beyond those of other citizens. C. Professionalism: In addition to following the rules for conduct 1. thoughtful, aware of reputation 2. Sandra Day OConnor: learn how to care about people and there problems; weve become too much of a business; less about how can I help the client 3. Test for professionalism: -actions and words being reported by a newspaper for a day without interviewing you D. In re Conduct of Carpenter, 337 Ore. 226 (Or. 2004): As a practical joke, the lawyer posted an Internet message purporting to be from an acquaintance who was a high school teacher. The message indicated that the teacher had engaged in sexual misconduct with students. The police investigated the prank, but no criminal charges were brought. The lawyer stated that he believed rumors about the teacher's sexual misconduct to be true. After a hearing, the trial panel dismissed the complaint against the lawyer. The court found that the lawyer's conduct did not constitute misrepresentation within the meaning of Or. Code Prof. Resp. DR 1-102(A) (3) because there was no proof that the statements regarding sexual activity with students were false. The lawyer's conduct was dishonest, however, within the meaning of the rule. The lawyer acted intentionally, knew that the teacher was vulnerable to the content of the message, and did not indicate to other readers of the message that the teacher was not the real author or that the message was a joke. A public reprimand was appropriate under ABA Stand. Imposing Law. Sanctions 5.13 because the lawyer's conduct, although it adversely reflected on his fitness to practice law, did not do so seriously. 1. OUTCOME: The court publicly reprimanded the lawyer. 2. Class: a. Outside the work context, what type of conduct is deserving of discipline? b. What do courts do? Determine how it reflects upon honesty c. Carpenter: Whether there is a nexus between the conduct and a lawyers task in work

Forming the Attorney- Client Relationship

VI. RETAINER AGREEMENTS, FEES, BILLING A. ABA Op. 93-379 (p. 59): billing issues B. Fees: C. Rule 5.1: (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. D. Brown, Rudnick (Mass. Super. Ct. 2003) 1. PROCEDURAL POSTURE: Plaintiffs, attorneys and others, sued defendant, the Commonwealth, seeking to enforce a contingency fee agreement relating to tobacco litigation. The Commonwealth moved in limine seeking an order precluding plaintiffs from calling as a trial witness the Commonwealth's lead trial counsel. 2. OVERVIEW: The Commonwealth's lead trial counsel was employed after the fee agreements in question were executed and after the underlying matter was settled. Nevertheless, the Commonwealth designated the lead trial counsel as its Mass. R. Civ. P. Rule 30(b)(6) witness, at least for the subject of providing testimony about the reasons for the Commonwealth's decision not to pay plaintiffs under the terms of their contingent fee agreements. Trial of this very complex and significant matter was just two weeks away. Plaintiffs indicated that the Commonwealth's counsel would be called as a witness on the subject of why the Commonwealth decided not to pay the fees under the contingent fee agreements. If lead trial counsel were forced to withdraw, the Commonwealth would need considerable extra time to get new trial counsel in position to try a case that had over a billion dollars at stake. Further, any such change in the trial date would result in a substantial continuance. The court found that a solution to the problem existed in allowing plaintiffs to present lead trial counsel's deposition to the jury in a redacted form. 3. OUTCOME: The motion in limine was allowed, provided that, if the court determined on the state of the evidence at the time that the matters to be read were relevant, plaintiffs could read a redacted version of the Commonwealth's lead trial counsel's deposition to the jury. E. Trap in 1.5(a): agreement for, charge, or collect an unreasonable fee 1. here it was trying to collect that was unreasonable (by bringing the lawsuit), even though they had agreed to/charged a reasonable amount 2. even if youre not sending out the bills, you will be involved in billing and why the fee is what it is F. What should have happened at the jury trial? 1. deal is a deal; contingency fees are enforced in contracts as written (clarity); 2. What about the word reasonable in Rule 1.5(a) G. Hypo: 1. best criminal defense lawyer, retired, charges businessman worth $25B a fee of $500M (not contingent) a. Issues: i. should a lawyer be allowed to benefit from his own ethical wrongdoing? ii. charging such a high fee is ethically wrong? H. Retainer/Engagement letters:

1. A retainer agreement is a work for hire contract. It falls between a one-time contract and full-time employment. Its distinguishing feature is that the employer pays in advance for work to be specified later. Additional contracts regarding the performance of this work may also apply. 2. It is common for a person seeking the services of a lawyer (attorney) to pay a retainer ("retainer fee") to the lawyer, to see a case through to its conclusion. In addition to the retainer fee, an agreement between a client and an attorney may provide for a "contingent fee". Retainer fee can be paid on a fixed, pre-negotiated rate or on a variable hourly rate depending on the nature of retainer and also, the practice of the lawyer/advocate being retained. Both models exist in the industry. 3. Advanced waivers for working with other clients is a heated issue; whether or not they are ethical I.Expenses versus fees 1. The lawyer's stock in trade is the sale of legal services, not photocopy paper,tuna
fish sandwiches, computer time or messenger services.

2. If youre going to bolster the bill, this is not the area to do it. VII. DUTIES TO PROSPECTIVE CLIENTS A. Rule 1.18: 1. (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. 2. (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. 3. (c) A lawyer subject to paragraph (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 information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). 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 paragraph (d). 4. (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: a. (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: b. (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and i. (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and ii. (ii) written notice is promptly given to the prospective client. B. One night at a party hypo: 1. make sure you're having the convo in a safe/secure place (1.6: confidentiality) and that you and the client are both up to talking business (competency: e.g., ability to check conflicts probably need the support of your office right state of mind; not drunk) a. do not take the risk of allowing other people to overhear the conversation; dont tell me anything you wouldnt want other people to hear

b. prevents others from hearing it and also less likely to involve exchange of info that would trigger the attorney-client relationship 2. absent an express waiver (unlikely to get at a party), limit discussion to minimal facts and confidential info, focus on facts needed for a conflicts check a. situation for waiver is where any thing you say would not leave the conversation 3. its less important that you have experience in the area than the firms experience 4. express interest in the client, and tell them about your firm, so that its clear that you WANT to continue the convo once youve dealt with conflicts (practical issue) 5. Togstad issue: dont use loose langue that could confuse a statement on the mrerits of their case with a statement that you're not interested in their case (courts will use the clients interpretation) 6. you can use a declination letter so they no youre not their lawyer for this case 7. Alert appropriate people in your office so that if there are screening issues, you can avoid prejudicing other firm clients; make sure the people who need to know, know about it 8. Note: with the exception of nailing down the conflicts issues, it might be possible to perform everything at the party C. Togstad v. Vesely, Otto, Miller & Keefe (Minn. 1980): Respondent clients were successful in their action for legal malpractice against appellants, attorney and law firm, as a jury found that appellant attorney was negligent, and as a result, respondents suffered damages. Appellants sought review of the trial court's denial of their motions for judgment notwithstanding the verdict, or alternatively, for a new trial. The court affirmed the trial court's denial of appellants' motions, holding that there was sufficient evidence in the record that established that an attorney-client relationship existed, that appellant attorney acted negligently or in breach of contract, that such acts were the proximate cause of respondents' damages, and that but for appellant attorney's conduct respondents would have been successful in the prosecution of their medical malpractice claim. The court also held that appellants were not entitled to a new trial under Minn. R. Civ. P. 59.01(5), because the trial court acted within its discretionary authority in ruling that respondents' damage award was not excessive. Appellants were not entitled to a reduction of that award for a hypothetical contingency fee. 1. Class: a. interest in taking the case vs. the merits of the case? b. balancing things like expressions of sympathy and interests in what happened with explaining to her that its in her own interest to be protected by the conflicts rules will help in explaining why there are preliminary conversations about whether you can take the case before you discuss the merits of the case c. If youre meeting with a potential client who has already met with several other lawyers, its not a good sign D. Pellegrino v. Oppenheimer & Co., Inc., (N.Y. App. Div. 1st Dep't 2008) 1. One of the former employees met with an in-house attorney to complain about sexual harassment by the general counsel. The in-house attorney and the former employee attempted to classify the substance of their communications as confidential because they were afraid they would be fired. Due to the alleged pervasive discriminatory environment, the former employee and the in-house attorney along with another in-house attorney went to see an employment discrimination attorney to inquire as to how they could notify their employer about the difficult situation. The appellate court found that no

attorney-client relationship was established between the in-house attorney and the former employees' counsel or, by extension, between the employer and the former employees' counsel. There was no basis for the conclusion that the in-house attorney received confidential information from the general counsel, or that the two had an attorney-client relationship since none of the information the general counsel related was privileged or even pertained to legal issues. Therefore, disqualification under N.Y. Code Prof. Resp. DR 5-108(a)(1), (2), (22 NYCRR 1200.27(a)(1), (2)), was unnecessary. 2. Class: a. Disqualification motion: i. if a junior attorney approaches you at your firm and wants to talk about something confidential, what would you do? ii. is it possible to hear the information without creating an attorney-client relationship? iii. unlikely that a court would say she represented her against her own firm iv. do you have to keep it confidential if she asks you to? 1. you could say, I cant promise that I will keep this info confidential b. Note: Screening is done rarely; ethics rules only allow it in only a few select circumstances, 1.18(e)(2) c. Tips to avoid 1.18 issues: i. Think about an analogy to medicine; you would not go to a foot doctor with a heart problem; if you dont have the expertise, you shouldnt try ii. you should never do a no thank you, but (unless you are pointing them to a lawyer or resources to find a lawyer) iii. if you dont have the time to give the client the time and attention the case deserves, you should tell them iv. develop a network of lawyers you know and have done business with to refer people to VIII. DECLINING AND WITHDRAWING FROM REPRESENTATIONS, AND CLIENTS WITH DIMINISHED CAPACITIES A. Rules: 1.14 (diminished capacity), 1.16 (withdraw), 3.1 (meritorious claims and contentions) B. Are you ever obligated to take a case? 1. if you do not like a client because of their business or personality, can you just deny them 2. Griffin- black lawyer representing KKK a. effects: lawyer is on the hook if they defend someone who does horrible things b. rights: lawyer is off the hook; if he hadnt done it, who else would? Also, protecting constitutional rights, not necessarily people C. Attorneys are required to send a letter if they are rejecting a client 1. Clients can fire a lawyer at anytime, unless discriminatory 2. Also if the court appointed the lawyer, the client must consult the judge D. Withdraws under 1.16: 1. There are situations in which a lawyer withdraws a. Must: mental condition, or just overwhelmed b. May: i. 1.16(b)(4): Fundamental disagreement with client; speak with judge ex parte to let him know what happened

ii. Hypo: You are an associate at the law firm of Sharp, Quick and Bright. The Assigning Partner knocks on your door and advises you that youve been staffed on a major class action defense team. The client is one of several large tobacco companies with international sales and reach. You are very much an antismoker, having lost several relatives to lung cancer and want nothing to do with tobacco work. On the other hand, you are an excellent class action litigator, enjoy working with the other team members, and could expect to get great experience doing the work. Do you take the assignment or try to duck it?

Within the Attorney-Client Relationship: Core Issues and Challenges

IX. DIVISION OF RESPONSIBILITY AND COMMUNICATION A. Communication: 1.4 B. Scope of representation: 1.2 1. Where is the dividing line between a clients absolute autonomy about making decisions and where attorneys step in? 2. There have been a number of disciplinary cases in which lawyers obeyed clients wishes in giving up appeals to quickly 3. Hypo: Client, on death row, decides to give up, even though there is new evidence that you believe would show the client is innocent; do you suspend work or proceed with the pending appeal? a. 1.14(b)- taking action in the best interest in the client when they have diminished capacity? Beaten up by prison system? b. Perhaps an opinion of therapists can help the lawyer dealing with this 4. 1.14 rarely deals with death sentencing cases; a. more likely, in will disputes- changing a will before dying b. 1.14 is a very important counter-point to 1.2; however, under 1.14 there is no disciplinary safety net if it turns out that youre wrong about diminished capacity (esp in NY, but probably in ABA too) C. Unabomber case: 1. injustice? 2. attorneys failing to disclose their intent to use mental incapacity defense (1.4) 3. 1.2: (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's 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. is the objective the best possible outcome for the client in this criminal case or is it preserving the clients particular message/dignity in this case by not pleading insanity? b. means are different for client and lawyer 4. There may be some things that to a client that are more important than their life; biggest crime the lawyers made was to assume that his life was the most important thing to him D. Hypo: can a practitioner say that he will never do plea bargains, inform clients in writing at the time of retention? 1. Competence: so many cases are bargained with plea

2. Limiting: 1.2(c)- is this reasonable 3. can he associate with a corporate negotiator to bring in as special counsel if a plea bargain is offered? There may be issues of this negotiations competency in the case; there may be a diligence issue 4. how would the client feel about this? Doesnt the client have to agree to let someone else come in and negotiate; this is a 1.4 issue E. Communication: 1. Dog client: calls every day to tell you about something 2. How much info does the lawyer have to provide to the client in order to satisfy 1.4(a)4)? a. when substantive information is ready to be given or material changes happen with the case b. if the client is likely to refer to you to the board for being inattentive to his matters c. Two potential courses of action: i. nebulous: put yourself in the clients shoes and ask what would I want to know if I were them ii. the moment you get the stack of messages, write the client an email or letter, and bill them for it X. CONFIDENTIALITY A. Rules: 1. Rule 1.6, Confidentiality 2. Rule 3.3: Candor to the Tribunal B. Why is it so important? encourage openness C. What is protected? 1. client telling you how he spent the money won from a judgment? 2. reputation of client may influence: good or bad way to spend it D. Does it matter who you tell? Spouse: protected information in NY E. Comment [16]: A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3. 1. Lawyer mistakenly gives out reply which was under seal to a newspaper, ethics violation? a. is there an implied consent if the client signed the complaint, knowing it would b. the fact that it was unintentional does not matter 2. What if a paralegal mistakenly gives it out? a. It matters for whole team: 3. Other common ways lawyers mess up confidentiality (low-tech version) a. Elevators b. bathrooms (conversations or bringing in work) c. public transportation: black car drivers d. restaurants e. your BFF youd trust with anything f. people in their own firms F. Exceptions: (1) to prevent reasonably certain death or substantial bodily harm 1. Hypo: Your expert witness found a heart condition of plaintiff, plaintiff does not know; your client, defendant, is an insurance company

2. Reasons to tell plaintiff: a. could be in clients interest anyway since client is a minor b. PR nightmare for your firm if people find out you knew c. The whole idea of trying to do the right thing can be good no matter what d. If you can convince the client to reveal the information, there is a chance that the Plaintiff will be grateful that his life has been saved that he will walk away 3. Argument for not revealing medical condition: a. He may find out some other way, but there are potential things that could happen to hurt your career b. subject to professional discipline (but it is unlikely that someone would be disciplined for revealing information on this particular set of facts) c. Malpractice suit d. lose client e. Diminished standing in the firm f. Reputational hit 4. Other options: a. tell the judge b. tell the other side they should ask for the report c. 1.16(a)(4): you could walk if you cant stay in this position d. If the disciplinary rule says you may, should you disclose information that is detrimental to your client e. appetite for risk will influence ones decision to disclose G. If you know that someone you went to question in jail, upon the recommendation of a former client, has AIDS. He asks you not to tell the former client, his live-in girlfriend. Can you tell her? 1. 1.6 exception for bodily harm? 2. get more information about the relationship from him; a. you could withdraw for irreconcilable differences under 1.16 b. difficult to tell judge why your are withdrawing H. Revealing information about your client (admitting to a murder) that would exculpate someone else incarcerated 1. not allowed until up for death penalty in most states 2. there is the potential that the client could be lying to get someone else out (esp if theyve already been sentenced to life) 3. both the attorney who held onto the secret for a long time and the attorney who tried to divulge it had bad things happen to them I.You prepared an opinion letter to demonstrate that they are in good financial shape to go through with a deal. Associate in mediation of your firm says theyre in a mediation for a confidential sexual harassment case and its not going too well Disclosure? XI. ATTORNEY-CLIENT PRIVILEGE A. How do privilege and confidentiality differ? 1. Confidentiality broader than privilege: all privileged communications are confidential, but not the other way around

2. Confidentiality is an ethics rule: communications can be used by lawyer to clients advantage: Cant waive confidentially protection, but can be ordered to forego it. a. information you learn about your client during the course of your representation) b. you have to give up this information all the time in furtherance of your clients interests (such as disclosing confidential information in a discovery proceeding); c. however, if you divulge confidential information to someone during discovery, it does not lessen your duty to keep it confidential from everyone else 3. Privilege is an evidentiary rule, can be waived. Courts typically dont order breach of privilege B. Scenarios: 1. If you learn information about your client from a 3rd party, but it relates to representation of the client, it is confidential (but it is not privileged) 2. Rule 1.6(a)- relating to the representation of the client doesnt have to be communicated by the client C. Conditions/elements of Privilege: (from Priest case) 1. attorney-client relationship 2. confidential communication between an attorney and client 3. for purposes of obtaining legal advice or services 4. no policy-based exception trumps shielding the communication from disclosure 5. burden on the proponent of the privilege D. Purposes of either: to encourage frank communication 1. privilege should not be read too broadly because it will block evidence that should be let in and therefore prevent the disclosure of the truth E. Other factors to consider in determining privilege: 1. Indication- marked confidential (has little actual effect) 2. Relating to the matter at hand (not an email lets go to lunch) 3. nature of the question-answer: legal advice (not business advice or some other advice) 4. setting: other people in the room a. strangers (probably not privileged because strangers are not expected to keep the info confidential); b. business partner (depends- if there is an expectation that the 3rd party would not destroy the privilege) F. Underlying facts are not privileged, only the communication 1. If your client says I invested in an oil well in Dallas. a. If asked Did he invest? not privileged b. If asked Did he tell you he invested? privileged G. Swidler & Berlin v. United States, (U.S. 1998): Respondent, as part of an investigation of the dismissal of employees from the White House Travel Office, sought the notes petitioner attorney had made during an interview of his client, the Deputy White House Counsel, prior to the client committing suicide. Petitioner filed a motion to quash, arguing that the notes were protected by the attorney client privilege and by the work product privilege. The lower appellate court reversed the trial court which had found the notes were protected from disclosure by the attorney client privilege and the work product privilege. Petitioner sought a writ of certiorari to the decision. The court reversed finding that the general rule with respect to confidential communications was that such communications were privileged during a testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation

between the testator's heirs. The court held that the attorney-client privilege survived the death of the client in this case. 1. Class: Privilege holder dies, does the privilege survive? a. Yes, unless it would further the clients intent b. Agreement between majority and dissent: a criminal defendants constitutional rights are at stake c. Dissent: critical information unavailable by any other means in a criminal case justifies breaking the privilege; this exception seems to fit a lot better for a defense as opposed to a prosecution d. Issue is not who is right and wrong, but how far can you extend the majority and minority positions? H. Priest v. Hennessy (N.Y. 1980): The trial court issued subpoenas directing the attorneys to give testimony and documents to a grand jury concerning fee agreements between the attorneys and certain clients who had testified before the grand jury, including payments made by third parties on behalf of the clients. The grand jury was investigating the clients' involvement in prostitution. The attorneys moved to quash the subpoenas on the grounds that they violated the attorney-client privilege. The court granted the motion and the People appealed. The appellate division reversed the trial court's order quashing the subpoenas and the attorneys appealed. The court affirmed, saying that the payment of legal fees on behalf of another was not a confidential communication within the scope of the attorney-client privilege. Paying legal fees on behalf of another did not create an attorney-client relationship between the attorney and the payer because the payment was not made for the purpose of obtaining legal advice for the payer. The court also noted that the burden of proving each element of the attorney-client relationship was on the party who asserted the privilege. 1. Class a. Information about who paid attorneys fees for former clients in a defense representation; b. Attorneys said information about 3rd parties was privileged c. Court said they did have to disclose it: i. no attorney-client relationship created by payment of fees alone (dissent says the majority ignored the context of the situation because they were potentially helping someone get away with prostitution) ii. could not meet confidential information factor iii. they were unwilling to give any more information about him; because they made a conclusory statement that they were a client, the court rejected it d. Dissent: Relies on concepts more appropriate to confidentiality than privilege, result oriented analysis I.Upjohn Co. v. United States, (U.S. 1981): Responding to a claim that its foreign subsidiary made illegal payments to secure a government business, petitioner corporation initiated an investigation and sent out a questionnaire to all of its foreign general and area managers to determine the nature and magnitude of such payments. After petitioner disclosed such payments to the Securities and Exchange Commission, the Internal Revenue Service demanded a production of all the files relating to the investigation. Petitioner refused to produce the documents. The court rejected the "control group" test applied by the lower

appellate court, concluding that even low-level and mid-level employees could have the information necessary to defend against the potential litigation, and that Fed. R. Evid. 501 protected any client information that aided the orderly administration of justice. The court rejected the lower appellate court's conclusion that the work-product doctrine did not apply to tax summonses, but remanded the issue because the work-product at issue was based on potentially privileged oral statements. The doctrine could only be overcome upon a strong showing of necessity for disclosure, and unavailability by other means.: 1. Class: a. Should there be a privilege for corporations? b. policy based exception? i. zone of silence: sweeps everyone in the corporation into the protected area; no one would be able to get any information from the corporation c. justifications: i. there are a lot of grey areas in corporate law ii. running a corporation is a complex task; both internal and external legal services needed d. Upjohn contending both that the material was protected by attorney-client and workproduct e. Court came up with a test to determine attorney-client privilege: i. control-group not broad enough; employees outside the control-group could also have the protection ii. fact that the lawyer needs to obtain information from more than just people at the highest levels iii. corporations seek guidance before problems actually arise iv. Why did the Court not go further and define a specific test? 1. privilege should be decided on a case-by-case basis 2. difficult to come with at test that could be applied in every case 3. concurrence comes up with a test (p. 107 bot right; factor test) J. LELS, KPMG tax-shelters: 1. what would happen without attorney-client privilege between firms? a. would have been more careful about exchanging information b. would not have sought legal advice c. if they hadnt had legal advice, the could have come up with something even worse 2. KPMG having risk as to attorney-client privilege if the Burger concurrence in Upjohn were the law of the land? a. few rouge employees acting for the benefit of the company b. would not be speaking with the attorney regarding conduct in the scope of their employment c. Burger test may not have covered this; flaw in the test is that it is underinclusive d. lawyers at prominent law firms were willing to get involved in tax sheltering, and their behavior was protected by the attorney-client privilege K. In re Steinhardt Partners, L.P. (2d Cir. N.Y. 1993): While being investigated by the Securities and Exchange Commission (SEC) for possible violations regarding the Treasury markets, defendant corporations voluntarily submitted a memorandum containing their legal theories to the SEC. Subsequently, plaintiff investment broker sued defendants, alleging fraud and manipulation in the Treasury markets. Plaintiff requested production of documents

previously produced by defendants to any investigating government agency. Defendants refused to produce the legal memorandum on the basis that it was protected by the work product doctrine. The district court granted plaintiff's motion to compel production. Defendants petitioned for a writ of mandamus to set aside the order. The court denied the petition, holding that defendants' voluntary disclosure to the SEC, an adversary, waived the work product privilege as to plaintiff. The court noted that it was not adopting a per se rule and that determinations regarding voluntary disclosures to the government had to be made on a case by case basis. 1. What would you want to get from the SEC in the negotiation state regarding a production of internal statements? a. explicit agreement not to disclose b. case law showing what the common interest is that would be an exception; SEC going after a third-party competitor and asking for your documents? 2. No selective waiver: waiving the privilege in one adversary does not waive the right in all cases a. policy: protecting the privilege even if you are going to share the information in certain circumstances b. D attempted unsuccessfully to argue that it was not adversarial c. Reasons why the court says selective waivers should not be allowed: i. cannot have both sword and shield or pick and choose among its opponents ii. reason why we have the privilege to encourage open communications; if its waived once, it reduces that purpose d. Most circuits have followed the Steinhardt case L. United States v. Kovel, (2d Cir. N.Y. 1961): Defendant, an accountant employed by a law firm that specialized in tax law, was called before a grand jury to testify against a client for whom defendant had done work. A judgment holding defendant in contempt for failing to answer questions was vacated and remanded because defendant may have had grounds to assert the attorney-client privilege. The presence of defendant while the client was relating a complicated tax story to a lawyer would not destroy the attorney-client privilege, as long as the communication was made in confidence for the purpose of obtaining legal advice. Although defendant did not offer any proof supporting the privilege claim, the uncertainty as to the applicable legal principles, the fixed view of the judge, and the haste with which the proceedings were conducted, extenuated failure of defendant's counsel to make a proper offer of proof. The case was remanded for a determination of facts. 1. Kovel: it was Martha Stewart a. interpreter analogy; accountant in tax matters b. physical therapist? c. IT specialist? d. psychologist? e. public reliations (PR) is about as far as it has been pressed 2. How would you advise KPMG if they wanted to defend the company both in the courts and in the media? a. every communication between the client and the PR be in the direction of the lawyers b. have the lawyer present at communications

M.It is very important that you are seeking advice on legal matters and not accounting matters (or PR matters etc) - #3 on the requirement for the purposes of obtaining legal advice) N. In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. 2003). The court initially held that the documents withheld from production by the public relations firm that were communications among the target, her lawyers and the public relations firm, or some combination thereof, for the purpose of giving or receiving legal advice, were protected by the attorney-client privilege, but that two conversations and an e-mail between the target and the witness were not protected by the attorney-client privilege because neither the conversations nor the e-mail were at the behest of the target's lawyers or directed at helping the lawyers formulate their strategy. The court then held that, although the documents claimed by the public relations firm to be protected work product were prepared in anticipation of litigation, the government would be allowed to make an ex parte submission as to both its claimed need for the non-attorney opinion work product portions pursuant to Fed. R. Civ. P. 26(b)(3) or Fed. R. Crim. P. 16(b)(2), and the necessity of preserving the confidentiality of its submission in order to protect grand jury secrecy. XII. INADVERTENT DISCLOSURE A. Rule 4.4(b): (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. B. Themes 1. anyone can make these mistakes 2. lawyers are not always comrades C. The Inadvertent Voicemail 1. Is Rule 4.4 implicated (document or relating to the representation probably yes for both)? a. document does not say privileged or confidential, but it is on the memo-head of the other firm and the re: line is your case 2. -appears to be a mistake, but the content is consistent with what you asked for 3. What does Rule 4.4(b) say you have to do? Notify- thats it 4. Are there reasons you might want to do more? 5. Are there reasons you might want to go to court? a. Philadelphia opinion, NY opinion, In re Meador b. Prof believes the NY opinion is the right way to go 6. Examine privilege/waiver: is it privileged in the first place? It is most likely legal advice (not just business discussions) 7. Remember civility/policy reasons why not to exploit the adversarys error a. dont want to play hardball 8. Consider whether the error is a game-changer (or decider) or just a run-of-the-mill error? If it is a bigger error, it will be harder to justify taking advantage of the disclosure without informing 9. Note: if the info was obtained through illicit means (cases we read, Meador), then there is a greater argument for disclosure? D. Future crimes sent inadvertently likely not privileged E. Reaction time of producing party in correcting the mistake; could be judged from time it was sent or time receiving party notified

F. Note: If you are the one who makes the mistake and you realize it (either by yourself or from the other side), let the people on your side know right away and the people know on the other side as much as possible G. Even if there is no intent on the receiving party, there are some things that are so prejudicial that they would require disqualification H. Differing Views: 1. Texas- factors for disqualification (Meador) a. whether the attorney knew or should have known that the material was privileged; b. the promptness with which the attorney notifies the opposing side that he or she has received its privileged information; c. the extent to which the attorney reviews and digests the privileged information; d. the significance of the privileged information; i.e., the extent to which its disclosure may prejudice the movant's claim or defense, and the extent to which return of the documents will mitigate that prejudice; e. the extent to which movant may be at fault for the unauthorized disclosure; f. the extent to which the nonmovant will suffer prejudice from the disqualification of his or her attorney. 2. Philadelphia- dont have to return: zealous advocacy 3. NY Bar. Op (p. 151): notify, return, and refrain from review a. Unless attorney-client privilege is waived b. Or the receiving attorney has reviwed part or all before having reason to know it was not intended for them I.In re Meador, (Tex. 1998): Defendants claimed that plaintiff's lawyer improperly used privileged documents that the lawyer's client, in another lawsuit, had secretly removed from defendants' offices. The issue was whether the trial court abused its discretion by refusing to disqualify plaintiff's counsel. The court held that the trial court did not abuse its discretion by refusing to disqualify the attorney. The trial court could have reasonably concluded that the notebook possessed by plaintiff's attorney was not a copy of the investigation notebook and did not contain any confidential information. The court stated that an attorney does not necessarily have to be disqualified when, through no wrongdoing on the attorney's part, he or she gains possession of an opponent's confidential information, without regard to the significance of the information or the other circumstances surrounding the disclosure. J. Issues:: 1. Consulting the client before telling the other side: look good to the other side or mediator 2. Does not have to be opposing party who inadvertently discloses; could be a mediator accidently disclosing his opinion a. What if the judge receives inadvertent disclosure? b. Normally a judge did disclose an ex parte communication; the other party needed the address to serve a default judgment, the judge should not disclose the address 3. Sort of a civility issue; what goes around comes around XIII. ETHICS AND TECHNOLOGY A. Areas of concern: 1. Facebook: separate work from play 2. Blogs: Togstad problem someone could comment and ask you a legal question

3. Text messaging: if you change your number, make sure you notify all your clients to whom you had given your cell number B. Stengart v. Loving Care Agency, Inc., (N.J. 2010): The employer provided the employee with a laptop computer, which she used to communicate with her attorney about her working conditions and a possible suit against her employer. She returned the laptop after she resigned. After the employee filed suit, the employer hired a computer expert, who retrieved e-mails between the employee and her attorney from the laptop's hard drive. The employer's counsel read the e-mails and used information culled from them during discovery. The trial court held that as the employee was on notice that all e-mails on her computer were the employer's property, they were not privileged. The intermediate appellate court and high court disagreed. The latter held that, under the circumstances, the employee could have reasonably expected that e-mail communications with her lawyer through her personal, password-protected, webbased e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them. By reading e-mails that were at least arguably privileged and failing to promptly notify the employee about them, the employers counsel violated Rule 4.4(b). C. Scott v. Beth Israel Medical Center 1. Doctor sending emails to lawyer on hospital server; hospital had a policy of not allowing personal use therefore, not privileged; no reasonable expectation of privacy 2. Unlike Stengard, where the policy was not clear; went into a yahoo account which was password protected (some courts have said that it doesnt matter about yahoo or company) 3. Other factors: a. IT review of information b. constructive notice of the effect of the policy c. consistency of the enforcement of the policy 4. Stengard court wanted to find a balance between letting employers monitor their employees use of computers and employee protection of privileged communication 5. Does adversity between the employer and employee matter? a. Third party present in a communication is neutral (Strow v. GM; privilege may or may not be waived based on the presence of a family) 6. Most cases would follow Scott, not Stengard unless it is a secure site D. Metadata: data about data 1. Types: a. System metadata: when it was created, etc.; demographics of an electronically created document b. Application/embedded metadata: formula for a spreadsheet 2. Sending party responsibility: review documents to protect confidences of clients; basis is in competency and confidentiality rules of ABA a. metadata scrubbers b. reasonable metadata removal c. if not confident that removal was sufficient, print it to paper and send it; redact it with a marker 3. Receiving party: If you realize there is metadata, different jurisdictions have different rules: a. stop reading and notify party

notify the other party (NY) do as you please ok to mine for metadata (but the court may disqualify you apart from ethical rules) The same rules in each jurisdiction apply if it is a client, not an adverse party, or a potential client 4. Cloud storing clients documents on the internet (not your own server) a. there may be multiple layers because one provider may contract with another b. you must take reasonable steps, and seek the support of IT if necessary E. When a party knows or reasonably should know that there is a reasonable likelihood (credible threat) of litigation, that party has an obligation to suspend a policy of document destruction (retain relevant documents litigation hold) 1. Certain industries, such as tires or drugs, de facto require a company to retain its documents F. Qualcomm 1. Sanctions cases for e-discovery are given 70% a case is brought 2. Ways you can run into this problem: a. no one is paying attention to you at the client to give you documents b. there is a red flag in the documents and no one in your firm is paying attention to your concern 3. Temptation is to find a way to make the documents not responsive to discovery requests; tend to parse these requests and construe them very narrowly 4. Between first and second opinions, lawyers fought sanctions by saying that they had attorney client privilege opposing party could not get information about who communicated with whom in order to cover up the information XIV. THE UNTRUTHFUL CLIENT A. Rules: 1. 3.3: (a) A lawyer shall not knowingly: a. (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; b. (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 c. (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, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. d. (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. B. People v. DePallo, (N.Y. 2001): Prior to the defendant's testimony, defense counsel informed the defendant that defense counsel could not participate in any kind of perjury, and that

b. c. d. e.

defendant should not perjure himself. Counsel elicited defendant's testimony in narrative form, and defendant denied being involved in the crimes . Defense counsel told the trial judge in chambers, outside the presence of defendant and the prosecutor, that defendant had previously admitted that defendant was involved in the homicide. The appellate court held that a defendant's right to testify at trial did not include a right to commit perjury, and the Sixth Amendment right to the assistance of counsel did not compel counsel to assist or participate in the presentation of perjured testimony. Therefore, an attorney's duty to zealously represent a client was circumscribed by an equally solemn duty to comply with the law and standards of professional conduct to prevent and disclose frauds upon the court. The appellate court found that defense counsel first sought to dissuade defendant from testifying falsely. Defendant insisted on proceeding to give the perjured testimony, and counsel properly notified the trial court. 1. Class: a. Narrative form: Defendant can say what he wants to say without questioning from the lawyer; D testifies that did not commit the crime b. It was within the right of D to be on the stand and testify c. The attorney let him testify but then met with the judge ex parte and told him about the perjury d. letting him step out of bounds to show that he actually committed it (risk- especially if the judge is a trier of fact) e. DePallo- you are not allowed to reveal client confidences f. Rule 3.3 (ABA and NY)- you can reveal if necessary C. People v. Darrett, (N.Y. App. Div. 1st Dep't 2003): Defendant asked to adjourn his N.Y. Crim. Proc. Law art. 180.80 deadline, knowing the case was being presented jointly with a codefendant. The prosecutor clearly instructed the grand jury that the charges against both defendants were to be considered separately. Defendant was not deprived of a meaningful opportunity to testify before the grand jury. Defendant was advised that his Huntley hearing testimony would not constitute a waiver of his self-incrimination privilege at a subsequent trial, but would be admissible for impeachment purposes. The ruling was proper. At the Huntley hearing, defense counsel expressed her concern that defendant might commit perjury. Such statements were unnecessary, as defendant had just testified in a manner counsel had no reason to believe was perjurious. Counsel even told the court she believed defendant had shot the victim. The right to a fair Huntley hearing was compromised. The statements were premature and unnecessarily detailed. At sentencing the court stated defendant had committed perjury because counsel had informed the court that she did not want to stay on the case because defendant perjured himself. A new Huntley hearing was required. D. From Rule 3.3: shall not knowingly 1. Knowledge dealing with someone saying something falsely 2. What you know the truth to be and when you know your client is fibbing (omission of key facts) 3. Can a lawyer play ostrich is it possible to know too much about your client: a. The thing to ask your client is what the other side might claim. b. there could be a competence issue; not fully informed 4. Hypo: Expert gives an opinion on a set of facts at a deposition, the facts being false without the expert knowing, lawyer finds out the facts are false

Does the expert testimony trigger Rule 3.3(a)(3)? Someone offering facts vs someone offering an opinion of facts If the lawyer finds out after, should meet with judge ex parte If lawyer finds out before, should probably not meet before If you hear it from the secretary that it wasnt true, how do you know for sure that it is not true? You should not tell the judge right away i. Darrett- dont want to give more information than you need to or come to conclusions ii. If you do meet with judge, you need to limit disclosure of information; only answer what a judge asks generally iii. Darrett: what did the lawyer do wrong? 1. nothing problematic had happened in direct testimony, but the lawyer had expected that there would be perjury in cross-exam 2. spoke in detail about the substance of her strategy, said she thought her client shot the victim 5. What should you do once you try and fail to convince D not to testify if you think he will commit perjury? a. Before D testifies, you alert the court there is a disagreement; let the D testify in a narrative form, do not ask them any questions you think will lead to perjury; cannot make any reference to anything you think would be perjury b. Use a Memo to File: what you know, when you knew it, what steps you took; c. Attempt to withdraw? No, this will just pass the problem on to someone else; they might realize it; you can get dragged back into it d. Note: ABA duties of (a) and (b) to the conclusion of the proceeding, but no limit in NY XV. SUPERVISION A. Rules 5.1-5.3: Responsibilities and Liabilities of Supervising and Subordinate Lawyers B. Daniels v. Alander, (Conn. 2004): The associate appeared at an ex parte emergency custody hearing with a partner from his firm seeking a temporary custody order for their client. A custody trial had already taken place in New Jersey but no judgment had yet been entered. In trying to determine its jurisdiction in the matter, the trial court asked the partner why the emergency action had not been filed in New Jersey. In response, the partner made false statements about a conversation the associate had with the client's New Jersey counsel. The associate did not correct the partner's statements. New Jersey counsel later brought the false statements to the trial court's attention. The court affirmed, holding that (1) as the associate was present when the false statements were made and could have corrected them, both at the time and later when he testified under oath on the matter, his failure to correct the statements was a violation of Rule 3.3; (2) the false statements were material to the issue of whether the trial court had jurisdiction to enter the custody order; and (3) the fact that the associate would have had to correct his employer did not create an exception to Rule 3.3's requirements. 1. Ex parte hearing- misrepresentation of facts; trying to get a restraining order in CT even though the joint counsel in NJ thought that if they were to seek one, they should get it in NJ

a. b. c. d. e.

2. Because he was an associate and not the person who made the statement to the court, should he not be held accountable? NO a. should only the speaker be held accountable? No i. the court gets around the rules language by using a comment to the rule that failure to make a disclosure can be equivalent to making a false disclosure ii. if the associate wasnt there at the ex parte hearing but later found out, he would probably have a similar duty to disclose b. should only the partner, and not the associate, be held accountable? No i. associates are lawyers too ii. tension between associates and partners as far as correcting the partner especially in front of a judge or other counsel associates are concerned about losing their job by correcting the partner iii. Here, Daniels had a second opportunity to disclose the truth at a second hearing; they maintained that it is not material iv. the court defines material: pivotal to the issues before the court C. Hypo: tech/paralegal at firm puts false info about the firm on a website 1. is there an ethical problem under 5.3(c)? a. 5.3(c)(2): partner or someone of comparable managerial authority (chief operating officer) OR b. someone who has direct supervisory authority c. AND knows of the conduct 2. comment 5 would suggest that knowledge is required for either a partner or someone with supervisory authority (?) D. Who do you consult if a partner wants you to do something you know is wrong or you had to call into question something they want you to do to another partner? 1. Partner wants you omit a fact (client is about to be sued) in clients behalf in an opinion letter because the client wants it 2. Asking another partner about it: a. dont go in with an aggressive stance b. potential problem; ramifications as I see them; here are the alternatives c. if the partner completely objects, and there is nothing else you can do, you can write a memo for your own file explaining the situation in case something comes up down the road when fingers are being pointed d. could even email the partner e. Do not be accusatory or inflammatory f. You need to be aggressive in spotting issues, but careful and how you analyze and present them XVI. TRICKERY A. Rules 1. 8.4: Misconduct: It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 2. 4.1: 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 to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. B. In re Malone, (N.Y. App. Div. 3d Dep't 1984): Petitioner ethical standards committee sought to confirm a referee's report that sustained in part a charge of professional misconduct against respondent attorney arising out of his conduct in instructing a corrections officer who witnessed an alleged beating of an inmate by other correction officers to testify falsely under oath at one point during the investigation in order to protect him from retaliation for breaking the "code of silence." The court found that censure was appropriate given attorney's laudable motive, lack of prior disciplinary problems, and his admission of the facts underlying the charges. The court had disciplinary jurisdiction over attorney as he had offices in or was employed in the department. Further, some of the alleged misconduct took place there. The court's power to discipline extended to attorney's conduct even though he was not acting as an attorney at the time because it reflected adversely upon the legal profession. Holding a public office was not a shield hiding breaches of professional ethics. The ethical canons requiring competent and zealous representation of clients did not overcome the proscription against directing another to give false testimony. The creation and use of false documents and testimony in investigative and prosecutorial context was unethical even if it did not violate due process. The means chosen by attorney was not the only alternative available. The unethical conduct was not justified because it was performed by a public servant in the reasonable exercise of his duties. Finally, attorney was not immune from the disciplinary action. C. In re Pautler, (Colo. 2002): A district attorney (DA) arrived at a gruesome crime scene where three women lay murdered. All died from blows to the head with a wood splitting maul. Upon arrival, he learned the identity of the suspect. When the suspect requested to speak to an attorney, the DA offered to impersonate a public defender. Ultimately, the suspect was convicted of the murders and received the death penalty. Attorney disciplinary proceedings followed. The hearing board properly concluded that the DA violated Colo. R. Prof. Conduct 8.4(c) and 4.3. Rule 8.4 prohibited the DA from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 4.3 prohibited the DA from implying he was disinterested when dealing on behalf of a client with a person not represented by counsel. A probation period was properly imposed. 1. Could there be an accidental attorney-client relationship? 2. Cover-up worse than the crime; he did not tell the actual public defender about the incident, resulting in the defendant 3. Imminent public harm: a. hostage situation b. gun to head D. In re Crossen, 450 Mass. 533 (Mass. 2008): The attorney was admitted to the bar in 1977 and was employed by a private firm. The attorney was part of an intricate plan to discredit the superior court judge, who presided in a case in which he represented some of the litigants. The aim of the plan was to influence the outcome of the litigation by forcing the judge's recusal and obtain reversal of her prior rulings against the attorney's clients. In furtherance of the scheme, the attorney, with his own investigators posing as corporate executives, set up and secretly made a tape recording of a sham job interview for a former law clerk of the judge, during which the law clerk repeatedly was questioned

about the judge's personal and professional character and her decision-making process in the ongoing matter involving the attorney's clients. The attorney then used the taped interview to coax and threaten the law clerk into providing sworn statements damaging the judge. The court found no question that the case called for the attorney's disbarment, particularly as a result of the egregious and extensive nature of his conduct. The court noted the attorney's lack of candor before the special hearing officer as an aggravating factor. E. Just because you cant get the evidence any other way, trickery will still put you on the hook 1. arguments in favor a. there is simple no other way to obtain evidence in question, and b. the deception is as to identity and purpose, and solely attempts to access evidence that already exists, rather than using deception to get someone to say or do something that they wouldnt have otherwise done. 2. Can you make a fake facebook account to investigate the opposing partys witness if you think they are not credible and lying in depositions a. deception merely in your identity (purpose too) b. law review article we probably read would think you can c. different states have different opinions d. youre not actively asking questions, just seeking information e. law review article: investigating facts that are already out there f. Philadelphia: anti-facebook policy- cannot use any trickery g. NY state: you can view public info without violating ethics rules h. city bar: you can friend someone as long as it is you XVII. SETTLEMENTS A. Rules: 4.1, 8.4 1. 5.6: attorney cant restrict right to practice as part of settlement agreement 2. Hypo: Defendant offers you double the settlement amount you requested if agree to forego ever suing the company again a. What makes rule 5.6 trump rule 1.2 (clients make the decisions)? i. Party making the offer also liable under the rule ii. Could drive a wedge between plaintiff and plaintiffs counsel b. How would you address your client: i. emphasize that it has to do with them because the settlement agreement could be held unenforceable ii. you would need to tell your client about all material developments; you cant just not tell them 3. Other settlement provisions: a. Non-disclosure agreement: cannot talk to the media for one year about this settlement (this is ok) b. Destruction of evidence as part of the settlement: probably ok c. Parties issue a joint press release no indication of liability; put it behind them: probably ok 4. The defendant could attempt to hire the attorney as in house counsel B. Ethics of negotiation 1. Few violations but many accusations of violations 2. Failing to disclose a material fact in a negotiation?

3. Bluffing; clients say they dont want a protracted trial, but you say your clients want to take it to trial 4. Difference between saying: they will not accept less than $200,000 and they do not wish to accept less than $200,000 5. Candor to the tribunal: definitely a court but not a mediator a. no 3.3 for mediators b. other duties to not falsely represent in front of a mediator 6. Reasons not to go too far in negotiations: a. Competence is also an issue for bluffing if you say an extremely high number b. Also reputational damage c. Your own sense of values and personal morals d. Fraud/material representation in negotiation real estate XVIII. CONFLICTS A. Rules 1.7 1.12: B. Issues: 1. What is a material limitation in Rule 1.7- if you receive a side benefit of a certain amount; does it matter if the fees would be the same 2. Rule 1.8: entering a transaction with a client; a. (a)(2): make sure they get outside input from independent legal counsel b. (a)(3): informed consent confirmed in writing by the client; very few sections where written confirmation by client is required c. If you were the owner of multiple companies and didnt realize it, could still be liable because the general application of 1.7 and 1.8 dont have a knowledge requirement (mutual funds: not what you own) C. Hypo: You make it onto Who Wants to Be a Millionaire, and your firm, but not you particularly, represents ABC; is there a conflict of interest 1. could be a gift 2. could be a business transaction 3. What could you do? a. disclose it to ABC, see what they think b. if you dont disclose, they might get upset with you for not disclosing c. You should have general counsel at ABC to talk to the partner d. The general counsel for the production company confronts you at the show D. Hypo: 1. Dating someone who is in the middle of a divorce with one of the clients of your firm in a matrimonial matter, but youre not representing this client; relationship started prior to learning the fact 2. ABA: sexual relations are not imputed 3. If it was non-matrimonial, it wouldnt matter for ABA but it is limited to domestic in NY E. Kassis v. Teacher's Ins. & Annuity Ass'n, (N.Y. 1999) Plaintiffs appealed an order of the Appellate Division (New York), which affirmed the trial court's denial of plaintiffs' motion to disqualify the law firm for the defendants' and third-party plaintiffs from continued representation of its clients due to a conflict of interest. Plaintiffs retained law firm (firm one) to represent them in an action premised upon property damage to a building owned by an individual plaintiff. A second law firm (firm two) was counsel for defendants and third-party

plaintiffs. The primary issue on appeal was whether firm two should be disqualified from continued representation of defendants on the basis that it hired a former associate of firm one who participated in the litigation between plaintiffs and defendants while employed there. The court found that the associate played an appreciable role as counsel with firm one in the litigation. Consequently, the court held that firm two was disqualified from further representation of defendants and third-party plaintiffs because defendants' conclusory averments that the associate did not acquire material confidences during his prior representation failed to rebut the heavy presumption that he did acquire such confidences. 1. OUTCOME: Order reversed; defendants' conclusory averments that its new legal associate did not acquire material confidences during his prior representation on case with plaintiffs' law firm failed to rebut the heavy presumption that he did acquire such confidences. 2. Class: a. switching sides from one firm to another i. second firm had 26 members ii. isolated him from the files iii. prevent discussion with other members of the firm iv. What type of information being imparted to associate? Information that could be material adverse v. motivation on a motion to disqualify- litigation tactic; if there is an appearance of impropriety to the party making the motion (subjective test), its a very easy rule to abuse vi. Court was considering the notion of screening but said it was not enough 1. cant even have the appearance that confidences could be breached 2. important that you dont appear to have impropriety b. ABA recognizes partitions: 1.10(a)(2)(i) i. Certain exceptions for partitions and screening 1.11 (govt employees) F. Slimeaway 1. Is this a personal interest conflict (1.7[b])? Most likely yes a. if so, is it consentable? i. informed consent: in 1.7 it needs to be confirmed in writing, but can be a writing by the attorney; but in 1.8, you need the clients signature 2. Does this implicate 1.8(a) on business transactions? a. how do you bless a business transaction with the client? i. fair, clear, and understandable by the client 3. Rule 5.7 4. Are there reasons, outside the conflicts rules, NOT to trigger the conflict here? a. problem with the public, or the other side of the case; they may try to blow up the settlement 5. Are there ways, outside the conflicts rules, to cure the conflict here? a. remove your financial interests b. maybe they could do it for free? What are the differing interests? Could they be removed it is done pro bono 6. Think broadly for the business transaction; what is your appetite for risk; 10% ownership is probably enough

7. Proprietary interest: lawyer purchasing the rights to bring the case; security interest in the outcome of the case above and beyond a contingency fee G. Theres no conflicts above $5 million dollar matters. -Anon large firm partner 1. Firms try to avoid conflicts rules to bring in big clients 2. Most transactional attorneys are not as good at weighing 3. More disqualifications than disciplinary actions H. AIG corporate umbrella 1. D: affidavit, confidences and secrets 2. Was this information confidential: (Bullet points p. 369 e.g., he had heard of both U and AIU; he could state confidently that the entire insurance industry is not familiar with the funcionts and identity of U and the intricate corp structure a. Generally known? by whom? how its known? b. Policy: preventing frivolous motions for DQ, made for the purpose of delay (argument raised every case) 3. 1.13(f): corporate Miranda warning XIX. NO-CONTACT RULE: COMMUNICATING WITH UNREPRESENTED PERSONS A. Rules: 1. 4.2: 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. 2. 4.3: 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. B. Formal Opinion 2009-2 1. Difference btw 4.3 and the opinion: a. Rule 4.3: i. Prevent lawyer representing a client from taking advantage of someone else who is not represented ii. also, the lawyer must clarify his position to the unrepresented if they demonstrate that they misunderstand, and may give this warning even if they do not misunderstand b. Opinion additionally allows: i. lawyers can tell unrepresented party incontrovertible legal positions appropriate to the situation: you dont have to take the stand ii. also can point to certain legal issues they should discuss with a lawyer once they get one iii. point them to legal services for unrepresented clients 2. Reasoning:

a. need to protect your own clients interests but cannot take advantage of unrepresented b. what could be a problem for your client or the system if you dont protect unrepresented parties? the unrepresented party could be unreasonably lead to protracted litigation or a settlement agreement could be thrown out by the court C. Niesig v. Team I (N.Y. 1990): Plaintiff employee, who worked for third-party defendant construction company, brought suit against defendants contractor and owner after being injured at a construction site. He challenged the decision of the Appellate Division of the Supreme Court in the Second Judicial Department (New York) that he could not conduct ex parte interviews of current construction company employees under N.Y. Jud. App., Code Prof. Resp. DR 7-104(A)(1). Stating that a disciplinary rule did not have the force of law, the court wrote that in interpreting it, it was entitled to make its own decision in the interests of justice. Writing that the issue was which corporate employees should be deemed to be parties under the rule, which prohibited communications with represented parties, the court stated that the blanket rule against any contact with corporate employees adopted by the lower court was too broad, while the "control group" test, defining "party" to include only the most senior management exercising substantial control over the corporation, was too narrow. It concluded that the test that best balanced the competing interests was one that defined "party" to include corporate employees whose acts or omissions in the matter under inquiry were binding on the corporation or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel. Such a test, it stated, was consistent with the purpose of the rule, was rooted in developed concepts of the law of evidence and the law of agency, and was similar to that adopted by courts and bar associations throughout the country. 1. Class: a. Can you investigate sports bars if they are suing your client sports league under Niesig, the alter ego test would be applied do they have the ability to bind the corporation i. if the bartenders are notified by the other sides lawyer that the associates might be coming? ii. if they are asking about prices of satellite tv? b. Policy issue in Neisig: getting the information in from company employees i. can you get it through depositions and interrogatories? More important ii. does it harm the company? Not as important in the courts analysis iii. If a lawyer gets trade secrets from a witness, is there an ethical violation? c. Big Q: is it ok if an employee comes to you and says they have the approval of the lawyer? i. you need to get consent from their lawyer ii. NYC bar opinion 2005-4 iii. But if it is the in house counsel that comes to you, as opposed to the outside counsel you were working with it is different because they are bound by the rules this is important iv. If the insurance adjuster doesnt want to deal with you and instead goes to your client they can talk on their own and you can most likely advise your client 1. Can you coach your client in advance and tell them to go to the opposing party to settle because you know opposing counsel is difficult to deal with

D. Muriel Siebert & Co., Inc. v. Intuit, Inc., (N.Y. 2007): Appellant brokerage firm sued defendant, a manufacturer of financial software, alleging breach of contract and breach of fiduciary duty in failing to promote the firm's business interests. On the firm's motion, the trial court disqualified the manufacturer's attorneys from the case. The New York Supreme Court, Appellate Division, reversed. The firm sought further review pursuant to CPLR 5713. The firm entered into a agreement with the manufacturer to jointly create and operate an internet brokerage service. After the instant suit was filed, the manufacturer's attorneys interviewed an employee of the firm, who had been terminated, about the underlying facts of the case, but advised him whom they represented and warned him not to provide any privileged information or any details about the firm's litigation strategy. The trial court held that disqualification of the manufacturer's attorneys was warranted, regardless of whether they actually received privileged information, because there was an "appearance of impropriety." The intermediate appellate court disagreed, holding that disqualification was not justified because the attorneys had advised the employee not to disclose privileged information and no such information had been disclosed. The high court agreed; ex parte interviews of an adversary's former employee were neither unethical nor prohibited by N.Y. Code Prof. Resp. DR 7-104(a)(1). XX. PRO BONO A. Rules: 1. 5.5: practicing in other jurisdictions where you are not a member of the bar 2. 6.1: pro bono aspirations 3. 6.5: limited legal service and obligations under Conflicts Rules 1.7 and 1.9(a) (knowledge of conflict required) B. Why do pro bono? 1. training: litigation, etc. 2. client development; experience in dealing with clients 3. morale booster; break from moving money around 4. going into new areas of the field C. Risks of pro bono: 1. ethics rules still apply (communication, decision-making, etc.) 2. pro bono doesnt mean the same thing to every member of the law firm scheduling issues 3. pro bono doesnt mean piggy bank in Latin (your firm cannot pay for everything) D. Hypo: can you make decisions on your own such as what to argue in a 10 page brief (3 pages saying that it should be oral argument? 1. if you attempt to contact your client, then probably, but you cannot satisfy duties under 1.4 unless you know communication was received 2. pro bono needs to be done not just for you but a balance between your clients interests and your own, and you need to communicate to your client E. Ghost-writing: 1. conflicts: who you represent is not documented, and you could also hide conflicts 2. 3.3 candor towards the tribunal (perhaps misstatement of material fact- pro se may have leniency from the court, and they would not deserve it) a. even though judges can usually determine if its a pro se or not 3. competence issues

4. honesty to the court/other side 5. lawyers cant bring frivolous claims- if you dont sign it, you can get away with the possibility of asserting a frivolous claim 6. Feinbergs solution: Indicate that the document was prepared with the assistance of a lawyer (dont have to necessarily put your name on it) XXI. JUDICIAL ETHICS A. Court ethics: 1. fundamental tenet is neutrality 2. except for the most sophisticated litigants, most people say the court was not neutral rather than the law or facts were against them 3. when and under what circumstances judges need to recuse themselves B. People v. Moreno, (N.Y. 1987) Defendant sought review of a decision from the Appellate Division of the Supreme Court in the First Judicial Department (New York), which affirmed a judgment convicting defendant of murder in the second degree, assault in the first degree, and three counts of attempted robbery in the first degree. Defendant argued that his right to a fair trial was violated because recusal was required to avoid the appearance of impropriety based on the bench trial judge's prior knowledge of defendant's record and of inadmissible evidence of his involvement in the crimes charged. On appeal, the court stated that when recusal was sought based upon impropriety as distinguished from legal disqualification, the judge was the sole arbiter. Further, the court ruled that in the absence of a violation of express statutory provisions, bias, prejudice, or unworthy motive on the part of a judge unconnected with an interest in the controversy would not be a cause of disqualification unless shown to affect the result. The court held that a judge who during pretrial adjudication acquired information inadmissible before the fact finder of guilt or innocence was not legally disqualified from conducting a bench trial which defendant chose based on a fully informed waiver of the jury trial right. 1. Class: a. Sandoval hearing: Judge determines pretrial whether prior criminal acts get into the case or are too prejudicial i. Judge found the evidence impermissible ii. D waived his right to a jury trial iii. Same Judge deciding merits of the case iv. Judge did not recuse himself v. Judges are able to compartmentalize b. Judges are given a perception of being able to suppress biases but practicing lawyers are not (if there is a conflict of interest with a client) i. case where this didnt happen (Darrett): ex parte discussion; attorney saying her client is going to lie c. Limited circumstances for automatic recusal (legally disqualified): i. Judge is party to a proceeding, lawyer to the proceeding, or related by the 6th degree (cousin) ii. when there isnt a situation such as here, the judge and no one else is the one to make the call about recusal C. Caperton v. A. T. Massey Coal Co. (U.S. 2009): Certiorari was granted to review a Supreme Court of Appeals of West Virginia decision that reversed a trial court judgment in favor of petitioners, a coal company and subsidiaries, against respondent corporation, on the question

of whether the Fourteenth Amendment was violated when one of the majority justices refused to recuse himself due to receiving large campaign contributions from, and through the efforts of, the corporation's principal. The principal contributed $ 3 million to replace the incumbent with the judge in question. His contributions eclipsed the total amount spent by all other supporters of the judge and exceeded by 300% the amount spent by the judge's campaign committee. Petitioners alleged the principal spent $ 1 million more than the total amount spent by both candidates' committees combined. Whether the principal's contributions were a necessary and sufficient cause of the victory was not the proper inquiry. The principal's contributions--in comparison--had a significant and disproportionate influence on the election. The risk that it engendered actual bias was sufficiently substantial that it had to be forbidden to adequately implement the guarantee of due process. Due to timing, it was reasonably foreseeable, when the contributions were made, that the pending case would be before the newly elected justice. It became at once apparent that, absent recusal, he would review a judgment that cost his biggest donor's company $ 50 million. There was a serious, objective risk of actual bias that required recusal. On those extreme facts, the probability of actual bias rose to an unconstitutional level. 1. Class: a. Firm had to pay $50 million b. Losing party donated millions to an appellate Judge candidates campaign while the case was waiting for appeal c. Court applies an objective test: whether there is an objective, unconstitutional potential for bias; NOT whether the judge was actually biased d. Here, the judge tried to demonstrate his lack of bias e. Normally only have to recuse when there is a pecuniary interest for the judge f. Could potential for re-election serve as pecuniary interest? Depends on how close it is g. Appearance of impropriety: need an objective standard to deal with this 2. Judges and reporting: similar to Rule 8.4: a. Hypo: If there is someone (doctor who failed a drug test) who has no ties to the rules, the judge has no duty to report b. If the lawyer knows about it, does the lawyer have a duty? Confidentially may be an issue or duty to report a future crime c. Advisory committee 06-13: said that since this is not a judge or lawyer, the judge has no duty, but the judge retains discretion based on the extent to which there is a likelihood that someone would be harmed XXII. DISCIPLINE A. Matter of Alperin, 2009 (N.Y. App. Div. 1st Dep't 2009): Petitioner disciplinary committee instituted disciplinary proceedings against respondent lawyer. The disciplinary committee sought an order confirming findings of fact and conclusions of law by a referee and a hearing panel and disaffirming the recommended sanction of six months' suspension. The disciplinary committee instead sought an order suspending the lawyer from the practice of law for a period of two years. The lawyer conceded virtually all of the factual allegations and admitted liability to all of the charges. As a result, the sole issue was the sanction. The court found that the lawyer had neglected several client matters and engaged in a pattern of deception to conceal his neglect. The disciplinary committee argued that the lawyer's persistent neglect, aggravated by his deception to conceal his malfeasance, warranted a two-year suspension. The lawyer

sought a public censure or, at most, a three-month suspension, noting his ameliorative efforts, his unblemished disciplinary history, the aberrational nature of his misconduct, and his remorse. The lawyer also claimed that a lengthy suspension was unnecessary to public protection because his misconduct would not have been repeated and that a prolonged suspension would have unfairly jeopardized his employment at his current law firm. A persistent pattern of neglect warranted a substantial suspension. The lawyer had no attendant psychological condition or personal circumstances that warranted mitigation. The adverse impact on legal employment was inherent in any suspension of significant length. The disciplinary committee's petition for an order confirming so much of the hearing panel's determination as confirmed the referee's findings of fact and conclusions of law was granted, so much of the aforesaid determination as recommended a sanction of six months' suspension was disaffirmed, the lawyer's cross motion was denied, and the lawyer was suspended from the practice of law for two years. B. Matter of Molinini-Rivera, (N.Y. App. Div. 1st Dep't 2005): Petitioner Departmental Disciplinary Committee for the First Judicial Department of New York petitioned the court for an order, pursuant to N.Y. Comp. Codes R. & Regs. tit. 22, 603.4(d) and 605.15(e), confirming the determinations of the hearing panel and referee, and disbarring respondent attorney, based on disciplinary violations. The Committee alleged that the attorney had committed 16 violations, and she admitted liability with respect to six of the charges. A hearing was held before a referee, who found that the attorney had failed to inform a personal injury client that she received a settlement check. Further, she used the funds from her IOLA account for her personal use, falsely testified about the matter to the Committee, and was sued by the client for a wrongfully withheld amount. The referee found violations of N.Y. Code Prof. Resp. DR 1-102(A)(4), (5), 9-102(A), (C)(4), and (D)(1) and (2). The attorney also neglected an immigration matter, refused to refund the retainer, and submitted an altered document to prove work done, which violated N.Y. Code Prof. Resp. DR 1-102(A)(4), (7), and 6-101(A)(3). In mitigation, the attorney testified she had severe personal, emotional, and financial problems due to abuse in her marriage, an errant professional relationship, and psychological difficulties. The referee recommended disbarment due to the intentional conversion, which was adopted by the hearing panel. The Committee found the matter was an exceptional circumstance that did not necessitate disbarment. The court granted the Committee's petition to the extent of confirming the findings of fact and conclusions of law of the hearing panel. The court disaffirmed the sanction recommendation, and instead, it imposed a five-year period of suspension from the practice of law on the attorney. C. Notes: 1. If youre suspended for 6 months or less on paper motions not required; 2. If more than six months, you have to file papers and then go through a hearing, and meet the burden that youre ready to come back (takes about an extra year): a lot of people dont come back 3. Due to the multiplicity of cases (in In re Alperin), he had to get more than just 6 months; a. overwhelmed was his excuse b. Mental illnesses is an excuse 4. Half the cases committee gets are neglect cases (complaints, but not disciplines); (get back to your clients) a. There are some neglect/misrepresentation (lying about the status of the case) b. Neglect: dont mean to do it, but just too busy to get to it;

i. not like they took money intentionally ii. generally get 2 years for neglect cases 5. There is little plea bargaining for disciplinary committees 6. Disbarments are not lifetime- you can have a rehearing after 7 years In re Molinini-Rivera -in the first department of NY, conversion of escrow usually means disbarment; here, she got 5 years instead of disbarment -claimed that she had been abused -had a mental defense that she claimed was causally related Purpose of disciplinary committee is to protect the public; a case is not just for the individual client Attorneys must account for escrow funds; 1.15 Every time a lawyer is certified, they have to sign saying they read the rule In Molinini, there was a dissenter saying that she should have been disbarred upon reconsideration when she was seeking less than 5 years; he said the whole panel was wrong the first time around Appeals from First Department- if there is a constitutional issue, it can go to the court of Appeals Dead mans rule: lawyer took client after Rule 5.1: mentoring Mentors: Keep in mind that the people for whom you work have an ethical obligation Mentees: you owe it to your clients to think about what youre doing and why -be about your own growth -competence: subordinates need to take all steps to ensure competence; this is done by selfeducating Courts do not view themselves as disciplinary committees; Judges are not particularly concerned about issues that dont affect the case, but they are concerned with -competence: expedite litigation; saves court from embarrassment (legit arguments); requirements for competence change over time (subject matter, procedural, such as e-discovery) -candor: 3.1 and 3.3.; keep integrity of the process, no one likes being lied to; -facts: lawyers resistant to acknowledge ignorance; try to come up with facts when theyre not sure -law: failure to acknowledge contrary law; better off showing than hiding -civility: 3.3f- courteous conduct- expedites litigation; makes judges job more pleasant -incivility example: not postponing a conference if adversary's wife is in labor or failing to control clients behavior -judges need to do no harm to prevent incivility; setting unrealistic deadlines

-conflicts: disqualification motions slow down process (may be simply tactical); conflicts decrease level of civility; conflicts are not coextensive in ethical violations and disqualifications It is not unethical for a party to not disclose their bottom line to a judge in settlement conferences Ghost-writing: issue of no recourse for the client Candor in settlement: using certain language I dont think my party would want this instead of absolute bottom line

Exam: Types of questions seen in written assignments; 3 hours -3 questions; one with 2 parts -fact pattern; spot/analyze issues -play different roles in answering questions -disciplinary counsel/defense counsel -law clerk to judge -you yourself are a lawyer No single write answer; raise issues and apply facts -there may be one question where you apply your own ethics/morality Not going to ask about rules not covered in class No policy questions No word limit read instructions carefully; different qs have different values Concise clarity -but also thinking outside the box; looking at novel issues -lots of issues in each question; doesnt expect us to get to every issue- just point out what you can and analyze it Dont need to focus as much on LELS and stuff we didnt read Rules and comments are most important to cite; key cases can be used

-but not comments arent binding Every question assumes ABA applies; but if you want to discuss NY you can Look at next big questions and exam Review: Rule 1.18 (a) prospective client definition (b) what happens with info obtained; it is confidential (not necessarily privileged), even if no attorney client relationship ensues (c) impact on the lawyer who has had the initial consultation but does not take them on; what is the lawyers ability to represent other parties a. if the prospective client communicated significantly harmful information, the lawyer cannot represent an adverse party in the same or similar matter (d) even if significantly harmful information was communicated, the lawyer can represent adverse parties if there is a. consent b. other lawyers in the same firm may be able to take on the case NY Rule has a section (e) limiting who can be considered a prospective client (not in ABA) -unilateral communication without a reasonable expectation -ABA comes pretty close to this in comment two but it is not explicitly in the rule -other part of (e) states that it does not apply person communicates with the lawyer in bad faith to disqualify the lawyer from representing other parties (this is not addressed in ABA) Comment 4: advises lawyers to limit initial interviews to determine if there is a conflict Comment 5: lawyers are permitted to use informed consent to condition initial interview Togstad: -medical malpractice suit; wife discussed with attorney on behalf of husband; lawyer indicated that he didnt think there was a case, said he would discuss with a partner, but did not get back to her; she thought there was no case statute of limitations ran -court determined that he had formed an attorney-client relationship; by saying I dont think you have a case the court determined that there was a relationship, not just a prospective client relationship takeaway -make sure your interpretation of the conversation is the same as the clients; write a letter of non-engagement -also, letters of engagement explicitly limiting what your representation is in case you spoke about several issues Privilege: evidentiary rule Confidentiality: ethical rule

Everything thats privileged is confidential, but not the converse Confidentiality: anything the client says to the attorney Exceptions (discretionary): -client has given consent -required for representation in the court or to the adverse party -one of the exceptions in 1.6(b) -crime/fraud: client must be using lawyers services in furtherance of this type -Disclosure for death/physical harm to third party discretionary on the part of the attorney -comments discuss hypothetical disclosures -comment 14 emphasizes that the lawyer should persuade their client to give them informed consent before -confidentiality survives death; disclosure could cause damage to their estate Privilege: -narrow category; anything privileged is also confidential -4 elements (Priest v. Hennesy): -attorney-client relationship -communication between attorney and client -for the purpose of obtaining legal advice -no clear exceptions Burden is on the proponent of the relationship Differences: Comment 3 to 1.6 Confidentiality-Source doesnt matter -Applies to everything involved in representation (privileged: only in legal proceedings) -Just because it is previously disclosed (or court orders disclosure) doesnt it mean its no longer confidential, although privilege may be waived by disclosure -Lawyer cannot reveal more than the court requires -Exists for a potential client (but privilege would not) Inadvertent disclosure -dont need to know the various jurisdictions except NYC -4.4(b): you do have to notify, but what you can do with it is an open question -NYC opinion discusses Philadelphia opinion -Texas: good discussion of whether an ABA opinion would be binding