Академический Документы
Профессиональный Документы
Культура Документы
PROFESSOR HOROWITZ
TABLE OF CONTENTS
I.
IX.
CONFLICTS OF INTEREST .................................................................................................................................................. 12
LAWYERS, CLIENTS, AND THIRD PARTIES .........................................................................................................................................................12
CONFLICT BETWEEN TWO CLIENTS ...................................................................................................................................................................13
X. COMPETENCE, DILIGENCE, AND UNAUTHORIZED PRACTICE ...................................................................................... 14
I.
Statement of Client Rights Made for laypeople, Easy to comprehend, Supposed to post so clients know their rights
o Clients to be treated with Courtesy and Consideration
1) So the clients stay, 2) Referrals, 3) So they return for other matters
o Entitled to Atty that is competent/handle diligently
Whats client right in the relationship?
Client may fire you, withdraw from relationship, for any or no reason-- Doesnt mean atty
isnt entitled to certain compensation
Children (infants in the eyes of the law) and Estates -- Court has oversight to prevent atty
withdrawal
o Independent Professional Opinions Without Conflicts of Interest
CoIs may be waived in certain circumstances
o Reasonable Legal Fees
Standard comparable attorney/work/field
o Communications Returned Promptly
#1 cause of client complaints
o Stay Informed and Receive Copies of Your Papers
o Legitimate Objectives
o Privacy
To the extent permitted by law
o Ethical Treatment
o No Discrimination
Does not mean you cant choose your clients
Character Requirements
o In Re DeBartolo Atty misstates something about his high school history, says he has between 200-400
parking tickets, and had falsely represented himself as a police officer on two occasions. The Illinois bar
refused to license him based on his character
An applicant for admission to the bar must show that he possesses the good moral character and
general fitness necessary for the practice of law. This atty does not meet those requirements.
Pro Hac Vice an attorney who has been admitted in one state and
NY Court of Appeals Rule 520.11, Rules
who want to represent a particular client in a court of another state
of Appellate Division, 2d Dept. 690.3
may petition to appear pro hac vice for this turn only
Pro Hac Vice Reqs. Any attorney
o There is no right to appear pro hac vice and each case requires
may apply, ex parte, for admission
a separate petition.
to the NY bar for a period of 18
o Sheller v. Superior Court (CA) Specific case admission for CA
months, they must file a petition
bar
basically stating who they are and
Reqs. 1) local lawyer affiliation, 2) local lawyer is
what there standing in the field of
contact person
law isc.
Discipline
o In re Mountain (Kansas) Shady lawyer promises to
represent couple in adoption proceedings, proceed to lie to them and arrange for adoption by richer couple
who paid more, he blatantly lied to original couple and there was a lot of money involved
He is disbarred, definitely violated ethics, pretty much all of them.
o In re Holmay (Minnesota) Lawyer forged documents with a signature, only suspended for 30 days
Bothwell v. Republic Tobacco Co. (District Court Nebraska 1995) Bothwell has civil case against Republic Tobacco.
He submits a request to the court to proceed in "forma pauperis." The court granted the P's request and appointed
Paula Metcalf as counsel. Metcalf contends that appointing her as counsel is "contrary to law and clearly erroneous"
because "a federal court has no statutory or inherent authority to force an attorney to take an ordinary civil case for
no compensation."
o Mallard v. USDC - section 1915(d) does not authorize a federal court to require an unwilling attorney to
represent an indigent litigant in a civil case
o When indegency is the principal reason for disparate access to the civil justice system in an individual
case, a federal court does possess the inherent authority to bring about a fair and just adjudicative
process by conscripting an unwilling lawyer to represent the indigent party.
o Court's inherent power exists for two purposes
to ensure a "fair and just" adjudicative process in individual cases; and
to maintain the integrity and viability of the judiciary and of the entire civil justice system.
Ruskin v. Rodgers (App. Ct. Illinois, 1979) D contends he was deprived of a fair trial because of denial by the trial
court of d's motions for continuance and substitution of attorneys, he had asked for continuance two days before trial
o Trial court possesses broad discretion in allowing or denying a motion for continuance. Denial of such a
motion will not be disturbed on appeal unless there has been a manifest abuse of discretion or a palpable
injustice. Heightened consideration once case has reached trial stage.
Rosenberg v. Levin (Sup. Ct. FL 1982) Levin hired Rosenberg and Pomerantz to perform legal services pursuant to a
letter agreement which provided for a price structure. Levin later discharged them without cause before the legal
matter was resolved and settled the matter. R&P sued for "quantum meruit" evaluation of their services.
o A lawyer discharged without cause is entitled to the reasonable value of his services on the basis of quantum
meruit, but recovery is limited to the maximum fee set in the contract entered into for those services.
o Quantum Merit Rule: an attorney discharged without cause can recover only the reasonable value of services
rendered prior to discharge
implied condition in every attorney/client relationship that the attorney may be discharged
NY RULE: the attorney's cause of action accrues immediately upon his discharge by the client
CA RULE: accrual at the client's resolution because it is based on his reward
FRIVOLOUS CLAIMS
ABA Model Rule 1.16 Declining or Terminating
Representation
An atty SHALL withdraw/not represent:
o Violation of profession conduct or other law
o Attys physical or mental impairment
o Atty is discharged
An Atty MAY withdraw if:
o No material adverse effect on client,
o Fraud
o Atty finds actions repuganant/fundamental
disagreement
o Client fails to substantially fulfill an obligation
o Unreasonable financial burden
o Other good cause
Notice
Protection of Clients Interest
Limitations on Referrals
NY Rule 7.2 Payment for Referrals
Fees may not be shared with non-lawyers
Can share with a lawyer if
o The lawyer shared in the work and
the work and division of the fee was
fully disclosed to the client
o Joint responsibility
V. CONFIDENTIAL INFORMATION
Washington v. Olwell, Sup. Ct. Was, 1964 Atty refuses to handover knife belonging to client, he cites attorney/client
privilege
o To be protected as a privileged communication, information or objects acquired by an atty must have been
communicated or delivered to him by the client, and not merely obtained by the attorney while acting int hat
capacity for the client
o The communication concerning an alleged crime or farud, which are made by a client to the attorney after the
crime or the fraudulent transaction has been completed, are within the atty/client privilege, as long as the
relationship of the atty/client has been established.
7
People v. Meredith, Sup. Ct. CA 1981 Client tells atty where to find a piece of evidence. Atty hires an investigator to
find the wallet. Investigator found the wallet based on the information from the client. Frick testified to where he
found the wallet
o Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the
original location or condition of the evidence in question
o If counsel chooses to remove evidence to examine or test it, the original location and condition of that
evidence loses the protection of the privilege
FRE 502
o Enacted in response to electronic data
o Privilege Log log that keep record .obligation to identity documents that are being withheld but without
identifying the contents of the document.
Neesig v. Team 1(NY Ct. App. 1990) makes clear that ex parte interviews of adversarys former employee are neither
unethical nor legally prohibited
Siebert v. Intuit, Inc. (NY Ct. App. 2007) Siebert entered into a strategic alliance with Intuit to jointly create
brokerage service. Siebert sued Intuit, an atty worked on a shit ton of stuff and somehow was fired. Intuit requested
an interview. Before interview Intuit made sure to tell Atty not to disclose privileged information. Siebert sought to
sanction Inuit
o Disqualification was not justified because Intuit advised atty not to disclose privileged information and not
privileged information had been disclosed
Cannot email the opponent attorney and the opponents client in the same e-mail, as this communication with a
represented party. (So never reply all to email from opposing counsel
METADATA
ABA
o
New York
o Notify and if other side asks must return and destroy the
document
o Must stop reading document once you realize its privileged
(only privilege if giving legal advice)
o Cant use it, unless you believe disclosure of documents is
waiver of attorney-client privilege, or can use it if document
was called for in discovery
o Cannot mine the other sides documents if you are looking for
privileged materials. (This cannot be justified with zealous
advocating)
o Searing for privileged information is prejudicial to
administration of justice
o If mine for metadata, not clear, but take away is must scrub, be
weary of mining, if find privilege write meme to file, notify
other see, if privilege do not wait for motion to return, but
proactively make motion
SOCIAL NETWORKING
New York
o Can look at other public information and use public information
Friending is a communication.
Can communicate if not about subject matter of
litigation. However, in reality, attorney is trying
ABA Rule 3.4 Fairness to Opposing Party
to get information about the case, not about
and Counsel
subject outside of case.
A lawyer shall not
Rule 8.4(c) is violated, would be deceptive and
o Obstruct access to evidence, alter,
prejudicial to administration of justice
destroy or conceal a doc. Or other
Rule 4.1 violated: May not make false
material.
statements to 3rdparty
o Falsify evidence
Rule does not apply to clients
o Knowingly disobey an obligation
under the rules of the tribunal
ABA Rule 4.1 Truthfulness in Statements to
o In pretrial make a frivolous discovery
Others
request
Lawyer shall not knowingly
o In trial, allude to non relevant matters
o Make false statement of a material fact to
o Request someone other than client to
a third person or
withhold information
10
o Fail to disclose a material fact
VIII.
FAIRNESS IN LITIGATION
Witness Coaching
Ethical if done properly
o Can
Explain how law applies to events in question
Refresh witnesss memory
However, if something is given to witness to help
with their memory, it is discoverable if it actually
helped refresh their memory
Can tell client to answer yes or no with no
explanation
Breaks during Deposition
o NY
Part 221: Deposition rules
BreaksAllowed for any reason if everyone agrees
Unilateral Breaks
o Discuss assertion of privilege
o Enforce prior order of court
o Improper question/question causes
embarrassment
o Federal If everyone agrees
Communication with Juries After Trial
Colorado Bar Associating Opinion 70
o Juries allowed to talk to attorneys and vice versa after verdict
o However, attorney may not harass or embarrass the juror
Publicity: Public Discussion by Attorney about Case
11
Matter of Vincenti (N.J.) (Line between zealous advocacy and unethical conduct)
Attorney makes numerous assertions that are sarcastic and disrespectful including accusing court of racism, mocking
the court, and other baseless accusations. Also engaged in outrageous behavior toward witnesses, opposing counsel,
and other attorney in courthouse.
A lawyer has the responsibility in society to safeguard constitutional guarantees and to guard against wrongdoing.
o In doing so, he must exhibit those qualities of moral character such as truth, honor, discretion, and fiduciary
responsibility
o Suspended for one year
IX.
CONFLICTS OF INTEREST
Beckwith Machinery v. Travelers Indemt Co. 638 F.Supp. 1179 Beckwith is sued by Trumbull. Beckwith files
insurance claim with Travelers. Travelers agree to defend part of suit.13 months later they deny all coverage and
withdraw defense. Beckwith sues travelers for breach of duty to defend
o Inconsideration for the Insureds payment of premiums, the insurer becomes contractually obligated to
defend its insured.
o The obligation arises whenever allegations against the insured state a claim which is potentially within the
scope of the policys coverage, even if such allegation are groundless, false or fraudulent .
Phillips v. Carson, 731 P.2d 820, 1987 Carson is Ms. Ps lawyer. He borrows a lot of money. There are two mortgages
which were meant for Ms. P Carson forgets to file them Ms. P seeks independent counsel to secure the mortgages and
demands repayment.
o Carson breached his duties by failing to record the
ABA Model Rule 3.7 Lawyer as Witness
mortgage, failing to properly advise Phillips and failing to
An atty shall not act as advocate
at a trial in which the lawyer is
recommend that she seek outside counsel before lending
likely to be a necessary witness
him money
unless
Related to uncontested issue,
AAA Plumbing Pottery Corp v. St. Paul insurance Co. of Illinois
relates to nature of legal services,
o Two workers compensation actions brought by an AAA
disqualification would result in
employee. St. Paul defended action on part of
hardship to client
AAA. Employee proposed settling all employees claim. St.
12
o
o
State Farm Mutual v. KAW, Sup. Ct. FL 1991 Wilkerson family injured in car accident. Father ends up as a D in the
insurance case and still a P in the medical malpractice, insurance seeks to disqualify the firm because of a conflict of
interest
o Where a conflict is such as clearly to call in question the fair and efficient administration of justice, opposing
counsel may properly raise the question
o The situation is too ripe with the ability to breach ethical conduct rules
Haagen Daaz v. Perche No! Gelato and Double Rainow Gourmet Ice Cream 639 F. Supp. 282, 1986 Haagen Daaz and
Dbl Rainbow are in a lawsuit. The former attorney for Haagen Daaz now works at the firm representing Dbl. Rainbow.
HD seeks to disqualify the firm because of his association. The firm didnt set up any CoI screening processes until
after the lawsuit was commenced.
ABA Model Rule 1.10
o Rule 1.9(a) a lawyer who has represented a client in a matter shall not
Imputations of CoI:
thereafter (a) represent another person in the same or a substantially
General Rule
related matter in which that persons interests are materially adverse to
the interests of the former client unless the former client consents after
When CoI No lawyers in a
consultation
firm shall represent a client
o Rebutting Presumption
unless based on personal
interest prior firm
Show that atty had no personal involvement in such
association (put screens in
substantially related matters and did not actually receive any
place)
confidential information relevant to the matter in which
disqualification is sought
13
Legal Malpractice
o Refers to attys civiliability to a client or other injured person for professional misconduct or negligence
o Forum is civil court
o Attys adversary is an injured person/client
o Purpose is to obtain compensation for the injured person
o Many times disciplinary hearings are held but no malpractice actions are brought
o Most times with malpractice there are no additional disciplinary hearings
o Violation of rules may be evidence of standard of care
Not always proof but goes toward it
o If P can establish atty violated rule = proof in form of expert testimony goes to judge
o Omission may be cause for legal malpractice
R3 LGL 52(2) in a negligence action, the trier of fact may consider the Ds lawyers breach of such a statute ro rule as
an aid to understanding and applying the std of care, provided that the statute or rule was designed to protect ppl in
Ps position
14
Standard of Care
o General practitioner: the skill and
knowledge ordinarily possessed by
attorneys under similar circumstances
o Specialist: skills and knowledge of a
specialist
Generally true in NY, no req. than an expert witness be the same specialty as the attorney, but they
must lay the foundation of familiarity
o Jurisdiction usually determines std. of care
Actual Cause
o P must prove actual cause: proof that injury would not have happened but for the Ds negligent action
If inadequate to determine actual cause
Substantial factor analysis: where several acts unite to cause an injury and any one of them
alone would have been sufficient to cause it the malpractice P can prevail by showing that
the D lawyers negligence was a substantial factor in causing the injury
Proximate Cause
o It is unfair to hold D liable for unexpected injuries or for expected injuries that happen in unexpected ways
Damages
o Direct damages immediate, natural, and anticipated consequences of the wrong
o Consequential Damages for loss that flows indirectly but foreseeably from the Ds negligence
15
17