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Professional Responsibility

Prof. John Flym

Wednesday, November 27, 2002 (Class 1)

• Lawyer didn't repay his student loans; admitted to practice in Wisconsin, but denied in Minnesota.
• Declared bankruptcy, purchased Jaguar.
• Lawyer did nothing illegal--no deceipt, "moral terpitude".
• Question for lawyers is not "is it legal" or "does it involve moral terpitude".
• Don't need aggravating circumstances to deny bar admission

• History of Legal Ethics
• 1836, Andrew Jackson, Hoffmann: rules said 'you can't act as hired gun.'
• Move from cannons to code
• Greater attention to legal ethics recently: social costs of 'hired gun' mentality may be too high.

• Legal malpractice claims usually filed without any reference to rules of ethics
• Lawyers as 'professionals', commitment to certain order--'rule of law'.

Monday, December 2, 2002 (Class 2)

In re Himmel

[533 N.E. 2d 790] 1988 Illinois Supreme Court (cb17)

• Lawyer suspended for one year for failing to report violation of another lawyer, instead accepting settlement in legal malpractice suit.
• Rule 8.4, defines misconduct: ...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.
• Whether violation is direct or indirect is immaterial.
• Does filing a brief or writing a memo for a Judge suggesting something inappropriate violate (f): knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Preamble and Scope

• Actually very important, to know what the rules are for.
• Danger if lawyers don't adequately self-police, government will take over this role, reducing independence of profession.

Wednesday, December 4, 2002 (Class 3)

Togstad v. Vesely, Otto, Miller & Keefe

[291 N.W.2D 686] 1980 Minnesota Supreme Court (cb39)

• Miller was attorney, even though he received no money.
• Miller had duty not to be negligent, and Togstad was entitled to rely on Miller's advice.
• Much of the rules depend on whether there is an attorney-client relationship, which is defined by substantive law.

• Ambiguities like this will usually be resolved against the lawyer.

Monday, December 9, 2002 (Class 4)

Blanton v. Womancare

[696 P.2d 645] 1985 3d District of California (cb44)

• Woman sues for malpractice after abortion, attorney agrees to binding arbitration without consulting client. Plaintiff is now appealing arbitrator's decision.
• Court finds decision was beyond scope of authority of attorney.
• Rule 1.2: scope of representatine and allocation of authority between client and lawyer.
• In criminal case, client must decide whether to waive jury trial; but this is civil case.
• If judgment were not set aside, client could have sued lawyer, but would have to prove damages (i.e., malpractice claim).
• Decisions in 1.4(b) vs. informed consent 1.2(c).

• Scope of representation in divorce: should you just represent client for divorce, or also restraining order, other options, etc.?
• Role definition/scope of representation

Holland Case

(cb50)

• Defendant preferred death penalty to life imprisonment; lawyer followed client's wishes, but was disqualified by court.

• Kennedy: we use intuition all the time, but we should do it with respect for clients and realize we won't always be right.

Wednesday, December 11, 2002 (Class 5)

Spaulding v. Zimmerman

[263 Minn. 346] 1962 Minnesota Supreme Court (cb61)

• Car accident; defendant's lawyer discovers plaintiff has aneurysm but fails to tell plaintiff, court approves settlement (since party is a minor).
• Court sets aside settlement, because material information was not revealed to the court when it approved the settlement.

• Rule 1.6: Confidentiality of Information; allows lawyer to reveal information relating to representation when gives informed consent, or:
  • To the extent reasonably believes necessary
  • To prevent reasonably certain death or substantial bodily harm
• (b)(2): permits disclosure to secure legal advice about compliance with Rules
• Alternative: withdraw from representation, tell other side that you shouldn't rely on anything you've said.

People v. Belge

[372 N.Y.S.2d 798]> 1975 Onondaga Colorado Court (cb65)

• Attorneys learn that defendant murdered other people, discovered bodies.
• Attorneys didn't disclose information to law enforcement but used it at trial in insanity plea.
• Did lawyer have obligation to do investigation?
  • Competence requires checking out facts as well as law.

• 1969 Model Code
  • Lawyer may reveal intent to commit crime
  • Lawyer shall reveal fraud on another person or tribunal, after calling upon client to rectify first.

Monday, December 16, 2002 (Class 6)

• Rule 1.6 Confidentiality parsing. Rule and exceptions.
• Attorney-Client Privilege
  • Factors (cb86)
  • Rule of Evidence, rather than Rule of Professional Conduct
  • Applies only to communications between attorney and client, not all information related to representation
  • Applies only when lawyer is called to testify

State v. Hansen

[862 P.2d 117] 1993 Washington Court of Appeals (cb87)

• Defendant was convicted of crime, called three lawyers for help but they refused, threatened Judge, etc. while talking to attorney.
• Attorney discloses information to Judge, telling him about threat.

Upjohn Co. v. United States

[449 U.S. 383] 1981 United States Supreme Court (cb90)

• How does attorney-client privilege function in context of corporation?
• Vice-president/General? Counsel sends out letter to field offices to find out about illegal bribes.
• Lower court uses "control group" theory, holding that the parties making disclosure weren't responsible for directing the company's actions in response to legal advice.
• Court instead uses test of whether communications were within scope of employment, then they are privileged.
• Government is free to question employees, but cannot force disclosure of information, i.e., cannot get company lawyer to do investigation for government.

Work Product Rule

• Broader than attorney-client privilege, in that information might be covered gathered from sources other than client.
• Narrower in that it applies only to information gathered in anticipation of litigation.
• Always coveres mental impressions, opinions, and theories.

Monday, January 6, 2003 (Class 7)

Conflict of Interest

Hotz v. Minyard

[403 S.E.2d 634] 1991 South Carolina Supreme Court (cb97)

• Attorney drafts will which is distributed to family; then drafts new will and father says not to show will to anyone.
• Daughter comes to lawyer for help with will and tax returns, but lawyer does not tell her about second will which shifts assets away from her.
• Lawyer has been doing daughter's tax returns for 20 years.
• Attorney has fiduciary duty to daughter which he violates.
• Difficult to predict future conflicts of interest within family.

• Rules 1.7-2.4
  • Rule 2.1: Advisor. Attorney could have raised issue when father told him he wanted him to keep modified will secret; could say he would have to write letters to family terminating relationship when will made secret.
  • Rule 1.7(a)(2): ...a lawyer shall not represent a client if the representation involves a concurrent conflict of interest...conflict of interest exists if...there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
  • Rule 1.16: Declining or Terminating Representation (since in case above representation had commenced 20 years earlier).

Employers Casualty Company v. Tilley

[496 S.W.2d 552] 1973 Texas Supreme Court (cb102)

• One lawyer represented insurance company and employers
• Victim is laborer, hit by pipe from crane. Employer claims victim is at fault.
• Attorney appointed to represent Tilley worked more in the employer's interest than in Tilley's interest.
• In many jurisdictions, lawyers are allowed to represent both insurance company and client.

Mickens v. Taylor

[122 S. Ct. 1237] 2002 United States Supreme Court (cb111)

• Defendant in murder trial is represented by attorney who had represented victim, sentenced to death.
• Issue of aggravating vs. mitigating factors--lawyer did not disclose that victim was prostitute.
• Court finds conflict did not cause ineffective assistance, Strickland requires showing of prejudice.
• Standard depends on allegations of ineffective assistance. Claim was that presumptive prejudice approach should be extended to cases where there is a conflict of interest.
• Defendant didn't know at time of conflict; facts suggest that the Judge knew. Question is thus whether Judge should have inquired about conflict.

Wednesday, January 8, 2003 (Class 8)

Maxwell v. Superior Court of Los Angeles County

[639 P.2d 248] 1982 3d District of California (cb120)

• Lawyer signed contract for all literary rights to story of criminal defendant in capital murder case.
• Rule 1.8d prohibits assignment for literary rights; California has not adopted this rule.
• Court allows representation: disclosure was sufficient, waiver was adequate.
• Rule is based not on certainty that there will be a conflict but on the possibility that there will be conflict.
• 6th amendment right to counsel has been interpretted to include the right to choose council.

Westinghouse Elec. Corp. v. Gulf Oil Corp.

[588 F.2d 221] 1978 7th Circuit Court of Appeals (cb125)

• Bigbee firm previously represented Gulf Oil over a 5 year period, now represents Westinghouse in price fixing case.
• Trial Court denied Gulf's motion to disqualify counsel, saying matters were not substantially related--reducing output was not the same price fixing.
• Appelate court reverses, holding that reducing output is the same as price fixing, and thus matter of representation is substantially related.
• Lawyers could have learned about Gulf's uranium reserves; don't need to prove that they actually did receive confidentialy information, just that they could have.
• Presumption that counsel has received confidential information is irrebutable, because we don't want rule that forces party to disclose information that rule is intended to protect in order to prove that confidential information was disclosed.

LaSalle? Nat'l Bank v. County of Lake

[703 F.2d 252] 1983 7th Circuit Court of Appeals (cb130)

• Former government attorney works for bank now in lawsuit with County.
• Court holds former government attorney could have been screened from matter but did not start screening until later and thus firm is disqualified.
• Rule 1.11: former government attorneys, refers to 1.9(c): can't use or reveal information from former client. 1.11(b) screening.

• Rule 1.10: when lawyer moves between firms.

• Rule 1.13: organization as client.
  • Duty is to company as abstract entity, rather than to shareholders, executives, employees, etc..

Monday, January 13, 2003 (Class 9)

Professional Responsibility: Report of the Joint Conference

[44 A.B.A.J. 1159] 1958 (cb147)

Confessions of a Criminal Lawyer

(Wishman)

Lawyers as Professionals: Some Moral Issues

(Wasserstrom)

Understanding Lawyers' Ethics

(Freedman)

The Florida Bar v. Betts

[530 So.2d 928] 1988 Supreme Court of Florida (cb155)

Wednesday, January 15, 2003 (Class 10)

Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp.

[858 P.2d 1054] 1993 2d District of Washington (cb165)

• Attorneys hide "smoking gun" documents in pharmaceutical liability case by putting documents in file for other product, doesn't disclose in discovery.
• Court imposes sanctions.
• Although Rule 37 sanctions damages are now capped, there is also the possibility of disciplinary sanction under Model Rules 3.1-3.4.

In re Ryder

[263 F.Supp. 360] 1967 Eastern District of Virginia (cb174)

• "Mere evidence" rule excluded from search and seizure, under 4th amendment, merely evidential materials rather than instrumentalities and means by which crime was committed or fruits of crime.
• Lawyer transferred money and gun from defendant's safety deposit box to his own.
• Later, when exclusionary rule was applied to States, "mere evidence" rule was revoked (by Supreme Court).

Nix v. Whiteside

[457 U.S. 157] 1986 United States Supreme Court (cb179)

• Defendant claims he was denied adequated counsel under 6th amendment when his attorney refused to suborn perjury.
• Court upholds conviction.

United States v. Cutler

[58 F.3d 825] 1995 2d Circuit Court of Appeals (cb183)

• Defense lawyer engages in media grandstanding prior to jury selection, eventually is disqualified and sentenced to probation for contempt.

Wednesday, January 22, 2003 (Class 11)

United States v. Kojayan

[8 F.3d 1315] 1993 9th Circuit Court of Appeals (cb195)

• Prosecutor misrepresented the availability of a co-conspirator who may have helped the Government's case.
• Brady rule: prosecution must reveal information that is favorable to accused.
• Model Code and State Rules don't apply to United States attorneys, however.

Slotkin v. Citizens Casualty Co. of N.Y.

[614 F.2d 301] 1979 2d Circuit Court of Appeals (cb203)

• Hospital made error in delivery; entered into negotiations after malpractice lawsuit; settled for $185,000 after lawyers represented that there was only $200,000 worth of insurance.
• Settlement was made at conclusion of plaintiff's case; stipulation as to insurance cover was entered into official record.
• Rule 4.1: must disclose unless prohibited by 1.6
• Rule 4.2: communication with person represented by counsel--must speak with counsel, not person
• "Silver platter" rule--can't hand over information to prosecutor that they couldn't have gotten themselves.

• Rotunda Article: can't assist client in committing fraud, but also can't disclose fraud, thus must do noisy withdrawal. Position of ABA is that you can't give notice after fraud is complete.

Brooks v. Zebre

[802 P.2d 196] 1990 Wyoming Supreme Court (cb210)

• Lawyers negotiated directly with Widow Brooks, got her to sell ranch in unconcionable contract, court invalidates sale, issue is whether Widow can sue lawyers.
• Court holds there is no negligence because lawyer can't have duty to two masters; also violation of rules doesn't lead to lawsuit, rather gives bar disciplinary proceeding.

Monday, January 27, 2003 (Class 12)

Wednesday, January 29, 2003 (Class 13)

• Billing issues, reasonable fees
• Rule 1.5

Committee on Legal Ethics on the West Virginia State Bar v. Gallaher

[376 S.E.2d 346] 1988 West Virginia Supreme Court (cb248)

• Lawyer represents mother after car accident, she says she won't sue son who was driving.
• Lawyer demands $8500 from insurance company, company offers $4500, lawyer accepts and keeps half.
• Even though amount he kept was reasonable as an hourly rate, court orders lawyer to give back money so that his fee would be one third contigency, because agreement was not clear in writing.

Monday, February 10, 2003 (Class 16)

In the Matter of Hague

[315 N.W.2d 524] 1982 Michigan Supreme Court (cb312)

• Judge finds firearm ordinance unconstitutional; overruled by Appeals Court; repeatedly finds other reasons not to enforce ordinance.