ETHICAL LAWYERING OUTLINE

I REGULATION OF THE LEGAL PROFESSIONA. Sources of Regulation

1. The State: subject to regulation by states in exercise of police powera. Courts: ultimate power rests with the highest court in state

i. appoints a Disciplinary board empowered to perform appellate adjudicatory functions AND make recommendation to high court about disciplinary rules

o BUT: CA allows greater legislative involvement than do other states b. Ethical Rules: professional ethics rules that govern conduct of lawyers

i. Cannons of Ethics adopted in 1908ii. ABA Model Rule: no legal effect until adopted by state

CA remains outside the fold o mandatory authority after adopted

ABA ethic committee’s interpretations o very persuasive

c. Law Governing Lawyers: restatement only moderately persuasive

d. Other Law i. preamble to MR: lawyers behavior should be shaped by

substantive and procedural law outside the rules, personal conscience, approbation of professional peers also defines lawyers behavior

ii. Scope to MR: lawyers can be disciplined for conduct that has nothing to do with practicing law

o CA: disbarment for attys convicted of certain felonies involving moral turpitude even if L acquitted in criminal case involving non-L conduct, may still be disciplined

2. Federal Systema. Inherent power to decide who will be admitted to practice before themb. power to discipline those lawyers

B. Professionalism1. Definition: conduct, decorum & commitment to rules & obligation to uphold the law2. Difference b/w ethical and professional

a. civility component i. not unethical, not illegal, but highly unprofessional

ex: shaking handsb. Bigger picture idea: being an effective and ethical lawyer

II ADMISSION TO THE PRACTICE OF LAW A. Qualifications for CA Applicants for First Time [B&P 6060]

1. must be 182. good moral character3. two years of college or equivalent intellectual ability4. register w/ the bar w/ in 90 days5. graduate from an accredited law school OR apprentice w/ an attorney or judge for 56. pass the bar exam

B. Out of State Lawyers1. 182. good moral character

3. 4 years or more take the attorney bar examC. The Application: must respond truthfully and completely to inquires

1. Model Rule: a. Applicant OR L in connection w/ admission application must not knowingly make a false

statement of material fact [MR 8.1(a)]b. Applicant or L must not fail to correct known misapprehension [MR 8.1(b)]

i. both applicant & L have affirmative duty to disclose information if you know you have to tell

c. L cannot knowingly fail to respond to demand for info from admission authority 2. CA RULE: 1-200B

a. Applicant Duty: not to make false representationb. Others: shall not further

i. only applicant has affirmative duty disclose information c. L does not have to respond to recommendation

i. can remain silent b/c it is not an affirmative duty L’s obligation is higher in MR states

D. Moral Character 1. Overview:

a. requires full disclosure b. 90% go through on paperc. Inquiry

i. if incompleteii. additional narrative

d. Investigationi. informal hearing

2. Burden and Proof a. burden of proof is on the applicant

i. bar does not need a very good reason to deny you b. An applicant denied admission is entitled to judicial review, usually by state’s highest court

E. Conduct Relevant to Moral Character1. All aspects of applicant’s past conduct that reflect on honesty & integrity are relevant to an

evaluation of moral character 2. trying to keep people out who could hurt a client

a. Political Beliefsi. cannot be denied for unorthodox political views, but can be denied for concrete acts

Schware: just former or current admission in political party is not going to do it Hale: white supremacist, currently involved does not get admitted

b. Criminal Recordsi. to cause disqualification crime in question must involve moral turpitude

nature of offense and motivation of the violator are also factors ii. no flat rule, commission of a felony does not mean you are automatically out

but: unpaid parking tickets, failure to appear, shows a continued disrespect for the law c. Rehabilitated Criminal

i. no flat rule of denial but very hard to show rehabilitation Dortch: not allowed in, still on parole Wall Street Journal Article: must be sufficient evidence of remorse and rehabilitation

d. Dishonesty i. can be denied admission based on acts of dishonesty

Friedman: cheater, not admitted SMD: financially irresponsible person, admitted

o bankruptcy is only enough if coupled with other factF. After Passing Bar & Moral Character Approved

1. get sworn ina. oath admits you to California State Court

i. in federal courts must be admitted to each district

III REGULATION AFTER ADMISSION A. Sanctions for Rule Violations

1. states determine for itself what sanctions may be imposed for violations of its rules a. L admitted in jxs subject to that jxs discipline regardless where misconduct occurs

i. L not admitted in jxs still subject to another jxs if misconduct occurred there [MR 8.5a]B. Typically Available Sanctions

1. disbarment2. suspension3. public reprimand4. private reprimand

a. CA: private reprimands are matter of public record 5. Probation

C. Effect of Sanctions in Other JXS1. discipline in one jxs does not automatically affect a L’s ability to practice in another jxs2. sister states accept disciplinary action by one state as conclusive proof of the misconduct

a. the sister state shall impose the identical discipline unless the imposition would be inappropriate:i. grave injusticeii. warrants substantially different disciplineiii. prevents lawyer who has been disbarred from freely practicing in another state

IV UNAUTHORIZED PRACTICE OF LAW & MULTI-JXS PRACTICE [MR 5.5(b)]A. L is subject to discipline for assisting a non-lawyer to practice law

1. quicken divorce software: UPL Braumbaugh2. independent paralegals – usually not UPL3. Law clerk:

a. must be authorized to go to courtb. must be supervised

i. BUT: if L just doesn’t read before signing, L on hook B. L is subject to discipline for practicing in jxs where she is not admitted to practice

1. CA Practice of law includes: a. Doing and performing services in a courtb. Giving advicec. Writing letters

i. Hypo: your out-of-state relative has a dispute with a local car dealer. You write a letter to the dealer on her behalf. This is a violation in CA, and both states can punish you.

d. Having clients2. Don’t even have to leave your state and actually enter the other

a. Physical presence not required Birwober v. Superior Court of Santa Clara Co.3. CA: 3 Exceptions

a. allow legal services attorney’s i. only welcomed for 3 years and must register w/ bar

b. house counseli. must abide by state rules and register

c. L’s temporarily in CA i. safe harbor provisions: depositions, client meetings, give advice

must not live or have office in CAii. pro hac vice

can petition to come practice in CA if advised by another member of CA baro must associate a local lawyer who actively participates in the matte

a. one time only4. Consequences of MJP

a. Will be subject to the disciplinary rules of both statesb. Criminal c. Fee Disgorgement

i. attorney’s fees non-recoverable common remedy for ethics violation

5. Possibilities for Leaving the State a. must take more bar examsb. follow MJP rules in jxs going to c. emergency order – Post Katrinad. pro hac vice

i. If NOT: then UPL

V PRO BONO & ACCEPTING APPOINTMENTSA. Voluntary Public Service [MR 6.1]

1. A lawyer should serve people who can’t afford it, but not obligateda. C will probably not feel confident w/ a L who is requiredb. L should try to fulfill 50 hours

i. states may chose higher/lower amount ii. can include working for reduced fees

contemplates services to those w/ high incomesiii. most states have money as an out

c. CA: no comparable rule w/ 6.1 B&P 6068h]i. duty never to reject cause of defenseless

no mandatory pro bonoo not an affirmative duty not to reject

ii. rules are silent on amount of hours BUT: some states require mandatory pro bono

2. Is an ethical obligations; violating is not grounds for professional disciplinea. reporting requirement: constitutional

i. rational way to encourage pro bono service ii. way to give court info that must be useful in providing better service to poor

B. Accepting Appointments [MR 6.2]1. A L has no general obligation to accept every case2. BUT: a L shall not seek to avoid by appointment representing an indigent person

a. EXCEPT: for good causei. the rep would cause a violation of the rules

not competent conflict of interest Others…

ii. unreasonable financial burden looking at percentage must be unjust

can’t just be speculation iii. client so repugnant as to impair the L’s ability to represent the C

must be both repugnant AND impairs the relationshipo just inconsistent is not enough

a. ex: Jewish L who refuses to represent C who denies holocaust sufficient b. very high standard

VI DUTY OF COMPETENCE & DILIGENCE A. Competence rules are rooted in agency law

1. Agents bind their principals, so when a lawyer acts, they bind their clienta. This can’t be undone, so if lawyer makes a mistake, client is stuck with it.

2. CR 1-100: rules are not intended to create new civil causes of actiona. Not every rules violation is malpracticeb. CA code isn’t exhaustive, may consider other things c. CA lawyers can’t be disciplined for violating the Model Rules, but they can be considered and

used as a tool for interpretation.i. Comments are super persuasive

BUT: technically not designed to add obligations B. 3 Distinct Bodies of Law Dealing W/ L Competence

1. 6th amend. right to effective assistance2. body of malpractice law3. codes/rules of professional responsibility defining L ethical duty to provide competent rep

a. Discipline: by California State BarC. Competence: When representing a client, L must act competently [MR 1.1]

1. Competently includes:a. legal knowledge & skill

i. complexity and specialized nature of materii. L’s general experienceiii. preparation & study L is able to give matteriv. whether it is feasible to refer matter, or associate w/ lawyer who is competent in field

b. thoroughnessc. preparation reasonably necessary for representation

i. must use reasonable judgment concerning: interests at stake case’s complexity client’s ability & willingness to pay for extensive research

ii. must investigate all relevant factual issues cannot give advice w/ out doing research

iii. must not neglect duties to client willful disregard of C’s interests indifference

o conscious failure/conscious disregard D. CA: Inexperience is not incompetence [1-300]

1. you can get competent in that areaa. do researchb. associate w/ another L

2. BUT: Disclaimer will not helpa. reducing fees, or pro-bono make no difference what-so-ever !

3. MR essentially the same E. Consequences:

1. not automatically subjected to disciplinea. must be super badb. repeated offenses

F. L must act w/ reasonable diligence & promptness in representing a C [MR 1.3]1. Diligence Defined:

a. L should purse a matter on C’s behalf despite:i. oppositionii. obstaclesiii. personal inconvenience

b. May take whatever lawful and ethical measures required to vindicate C’s causec. L should act w/ dedication and commitment to C’s interestd. W/ zeal in advocacy on the C’s behalf e. BUT: duty of diligence does not required L to be offensive or uncivil towards adversary

2. Promptness Defined:a. a L must control his workload so that each matter can be adequately handled

i. even when procrastination does not harm the C substantive interested, the can cause C needless anxiety and undermine confidence in L’s ability

VII PROFESSIONAL MISCONDUCT A. Lawyers are lawyers all the time and bound by the rules all the time

1. CA: [B&P §6106]a. moral turpitude, dishonesty or corruption is cause for disbarment and suspensionb. Moral Turpitude: an act undertaken for the purposes of concealment or other deception

i. does not need to be criminally charged w/ anythingii. all you need is an act that constitutes moral turpitude

does not need to be acting L capacity 2. Model Rules: Misconduct [MR 8.4]

a. act that reflects adversely on the L’s honesty, trustworthiness, or fitness as a L ii. can be in other respects

b. Any act involving dishonesty, fraud, deceit, or misrepresentationi. goes to character flaw, dishonest in private life, dishonest in another aspect of life

3. Get the same result under the MR & CA B. Client Remedies if L does Something Wrong

1. discipline by state bara. no money

2. malpractice3. client protection funds

a. not enough to cover everyone b. egregious misconductc. need based

4. Procedurala. try to get the mistake undone

i. need excusable neglect if you have inexcusable neglect no relief

o Panzino : bad lawyer behavior client wanted the mistake fixed. o Court didn’t undo the mistake, said lawyer wasn’t neglectful enough

ii. CA excusable neglect: requires lawyer’s declaration that it was his fault,

o sometimes the court will undo the mistake Rational:

o Want to preserve the finality of judgmentso don’t want to provide incentive for lawyers to mess up

iii. CA has positive misconduct rule for inexcusable neglect where the lawyer’s neglect is so extreme it is said to obliterate the existence of the

attorney-client relationship, then client can get mistake fixed. o very narrow rule.

VIII MALPRACTICE: CIVIL MATTERS A. Elements for Legal Malpractice

1. Duty: to act as a competent La. must establish C/L relationship

i. Expressii. Implicit: lawyer knows or should know C is relying on L for services Togstad

Nothing formal requiredo just client’s reasonable belief that there was a relationshipo reasonableness of reliance is question of fact

a. Fee discussions or agreements are good evidence that relationship existed. Burden is on L

o use confirmation letters to show L does not represent Co encourage C to see someone else

iii. CA: whether the C sought legal advice and L gave it Lesson: don’t give off the cuff legal advice!

b. intended beneficiaries (e.g. of a will) can bring malpractice claim Leak-Gilbert i. must be reasonably foreseeable that you will hurt the beneficiary

don’t need a A/C relationshipc. if L acted competently no basis for malpractice

i. if decision raised reasonable doubts & L’s could disagree = no malpractice ii. if L = recommends a L must take reasonable steps to check other L’s skills and rep. iii. Expert Standard: standard of care of a specialist in field

if he holds himself out as a specialist matter required services of an expert

2. Breach of Duty: L acted negligently a. Togstad: incompetent advice, failing to follow up

3. Causation: must be the “but for” cause & proximate causea. case-w/in-case

i. But for L’s negligence C would have won suit Fang: b/c he would have been deported anyway there is no casual connection b/w

negligence & damage no malpractice o BUT: L might still be subject to discipline for incompetence

4. Damages: a. not necessary that C loose case, only that there would be vastly different outcome

B. Malpractice Insurance1. not required2. CA: don’t even have to tell them you are insured

C. Ethical Rules on Contracting w/ Client to Limit Malpractice Liability [MR 1.8(h)]1. Waiving Liability:

a. C must be independently represented by another Li. would want liquidated damagesii. sophisticated clientiii. some sort of guaranteed fee

2. Settling Malpractice Claims:a. must fir advise that person, in writing, to seek advice from an independent Lb. give that person reasonably opportunity to seek that advice

i. Reasonable opp: how long it takes to hire a L in the area SOL for malpractice

ii. distinguished from waiving liability: don’t actually need a L 3. CA: Limiting Liability to C [3-400]

a. shall not prospectively limit liability to Ci. just can’t do it – not even w/ an independent L

b. BUT: can settle liability to C if:i. same as MR

D. Client’s Right of Action1. only remedy for incompetence lies in bringing a malpractice suit against former L

a. agency theory: neglect of L is neglect of Ci. can’t bring suit against

IX MALPRACTICE: CRIMINAL MATTERS A. Standard: must prove actual innocence

1. case w/ in case: that he actually did not do ita. preponderance of the evidence

B. Rational: 1. don’t want criminals profiting from L’s wrong2. have all kinds of other remedies if you are actually guilty

a. only hurt if you are really innocent

X FIDUCIARY DUTYA. L’s duty of honesty & loyalty to CB. intentional tortC. distinguished from malpractice

1. duty of care v. duty of loyalty and honesty a. probably not available for mere L incompetence

2. no case w/ in caseD. May owe fiduciary duty to persons other than C

1. law firm2. fiduciary duty to those the C owes duty of care to

XI SUPERVISION & REPORTING ROLES A. Responsibilities of supervising attorneys [MR 5.1]

1. Generally:a. only talks about individual lawyers

i. can’t discipline the whole firmb. Must fit into one of the 3 categories

i. lawyer order itii. knowingly ratifiediii. partner/direct supervisor & knows and doesn’t do anything when could of

2. Partner’s & Direct Supervisors Duties :a. must make reasonable efforts to assure that the other L’s adhere to the ethical Rules

i. applies to any L who directly supervises the work of another L: don’t have to be a partner – kicks in once an associate

ii. Reasonable efforts includes: small firm: informal supervision may be sufficient large firm: more elaborate steps may be necessary

o drag them to seminarso basic training

b. Only Liable for 2nd L if:i. knows about the misconduct at a time when consequences can be avoided ANDii. fails to take remedial action

3. Ethical Responsibilities for Another L’s Misconducta. the 1st L ordered the 2nd L’s misconduct ORb. knew about it and ratified it

B. Responsibilities of Subordinate L [MR 5.2]1. If L violate the rules, you’re in trouble even if a supervisor or client told you to do it.

a. L must follow ethic rules even when acting under the directions of another person 2. EXCEPTION:

a. when there is an arguable question of professional dutyi. CA: no equivalent to exception to rule

this means that you are subject to any willful breach of the rules. 3. Options:

a. go to another partnerb. confront senior partnerc. get off case and go to another firm!

C. Responsibilities for Non-Lawyer Staff [5.3]1. duty to educate and guide in ethics matters

a. must instruct them concerning the ethics of the professioni. appropriate instructions on client confidences

b. should be ultimately responsible for their work2. Duty of Partners Respecting Non-lawyer Employees

a. must take reasonable measures to assure the conduct of the nonlawyer is compatible w/ the obligations of the professioni. Reasonble measures include:

employee handbooks trainining understand confidentiality

3. Ethical Responsibility for Non-Laywers Misconducta. L ordered the conduct OR b. L knew and ratified itc. the L is a partner/direct supervisory responsibility AND knew and failed to mitigate

D. Reporting Misconduct [MR 8.3]1. Must report if you know that another lawyer has committed a violation of the rules

a. affirmative dutyb. BUT: don’t have to report if information is privileged.

i. CA: don’t have to tell, no affirmative duty c. CA: self-reporting [BP 6068(o)]

i. obligation to report yourself for violations of this section ii. BUT: no obligation to report anyone else for anything for any reason

filing of 3 lawsuits in 12-months against L for MP or other wrongful prof. misconduct entry of judgment against you in a civil action for fraud, misrepresentation, breach of

fiduciary duty, or gross professional negligence The imposition of judicial sanctions against you

o except sanctions for failure to make discovery or for monetary sanctions less than $1000

The bringing of an indictment or information charging you with a felony Conviction of a felony or a misdemeanor

o committed in the course of the practice of law,o where your client was the victim, o where a matter involves moral turpitude

Imposition of discipline by a professional or occupational disciplinary agency Reversal of judgment in a proceeding based in whole or in part upon misconduct,

grossly incompetent representation, or willful misrepresentationiii. May be disciplined for failure to report.

XII A/C CONFIDENCES: A/C PRIVILEGE, WORK PRODUCT, CONFIDENTIALITY

A. Duty of Confidentiality: 1. General Rule [MR 1.6]

a. L must not reveal any info relating to the representation of the clienti. applies to all info – whatever the source, even 3rd parties

b. Prohibits disclosure & use of information i. [MR 1.8] prohibits use of the information to the disadvantage of C

c. Applies Everywhere: can’t say it anywhere – to anyone i. Unless an exception applies

broader than A/C privilege and Work Product Doctrine 2. Rational:

a. encourages candor b/w L& Cb. encourages C to seek early legal advicec. helps L to discover all info relating to C’s problem

3. EXCEPTIONS:1

a. informed consenti. C may voluntarily consent to waive the confidentiality infoii. Informed Consent: C agrees to waive info after L has adequately explained the risks and

reasonable alternatives iii. CA 3-100: recognizes exception for informed consent

b. implied authorization when appropriate to carry out representation i. ex: fact stipulation, w/ other L’s in firm, paralegal/law clerk, discreet hypothetical

Unless gives specific instructions to the contrary c. law or court order d. disclosure to obtain legal ethics advice

i. call L2 for opinion on sit only disclosing enough facts to give L2 essence of problem e. controversy or client dispute

i. if L is accused you can reveal C confidences necessary to exonerate yourself should be made in a manner that limits access to information and appropriate

protective orders o tiny scope

a. does not contemplate threatening to report client to INS Lopez v. Wilson ii. Don’t have to wait for formal charges to be filed against you

f. Prevention of death/substantial bodily harmi. a lawyer may reveal info to in order to prevent client reasonably certain death/harm

1 Does this mean CA does not recognize implied authorization or legal advice – or does it mean there is no equivalent rule?

no mandatory disclosure Spaulding: vacated only b/c of age – not b/c of obligation to tell

ii. no exceptions apply when your client has already done the damage Armoryiii. CA 6068(e): may but is not required to reveal

g. crime fraud/ substantial financial injuryi. must be reasonably certain

applies even it C already acted & L’s disclosure can mitigate consequenceso controversial b/c people feel it erodes confidentiality

ii. CA does not have it might recognize whistleblower exception for sufficient public interest Quackenbush

4. Corporate Clients [MR 1.13]a. If person associated w/ org. acts in a way that might be imputed to org AND

i. represents the corp, not the individuals b. if the violation it likely to cause substantial injury to org, c. L must act reasonably necessary to protect interest of org.

i. mandatory to tell board of directorsii. may reveal confidences even though confidential

reveal only necessary info – as little as possible iii. if L is discharged shall take steps to inform highest authority

d. CA 3-600: can’t reveal confidences i. must first try to talk person out of itii. then go to highest aurhotiryiii. contemplates that you are going to resign

5. SECa. permissive disclosureb. anyone “appearing and practicing”

i. broad applicationc. not sure if SEC preempts

B. A/C Privilege 1. Prohibits testimony or evidence in a court or other govt proceeding2. Protects:

a. communicationsi. not the underlying information

CA: written fee agreements are confidential b. b/w privileged people

i. C & Lii. agents are ok Stroh

privilege wasn’t destroyed b/c daughter was acting as client’s agento interpreters, parents

whether the C had a reasonable expectation of confidentiality under circum. c. In Confidence

i. must take reasonable precautions to keep it in confidence ii. 3rd parties normally destroy privilegeiii. BUT: presence necessary for obtaining legal counsel won’t destroy

dr’s serve as conduit for information d. For the purpose of providing legal assistance

i. crime/fraud exception: cannot hire atty to help commit crime/fraud or cover it up BUT: you can advise on legal consequences or defend the suit

ii. applies even when L is unaware his advice is for furtherance of such improper purpose

iii. applies to future events 3. Application:

a. don’t have to have hired L for it to applyi. doesn’t even need to be licensed L

as long as C believes L was licensed 4. Corporations

a. Old Test: Control Groupb. New Test: Subject Matter Test Upjohn

i. scope or privilege depends on whether it was w/ in employees job ii. applies regardless of position of employee

C. Work Product Doctrine1. Prohibits discovery of evidence

a. needs to be in anticipation of litigation 2. Exceptions:

a. substantial need ANDb. inability to get w/ out hardship

3. BUT: can never get information about L’s opinions

WHEN & WHERE DO THE RULES APPLY?

DOES AN EXCEPTION APPLY?

WHAT IS COVERED?

ATTORNEY CLIENTEVIDENCE PRIVILEGE (Upjohn & Stroh)

Prohibits: testimony or evidence

Where? judicial proceedings & depositions

Exceptions: may not immunize by giving to atty

Crime/fraud

1. communications2. b/w privileged people 3. confidences4. for legal advice

Attorney Client Work Product Privilege (Upjohn & Stewart)

Prohibits Discovery of Evidence (still can get the information other ways)

Exceptions: FRCP 26b31. substantial need & 2. inability to get w/o hardship

1. HI: Lawyer’s opinions2. LMTD: Ordinary work product

ETHICAL OBLIGATIONS (Spaulding)

Rules: MR 1.6, 1.8(b) CR 3-100 B&P 6068(e)

X-references: CR 3-600(D) MR 3.3 Conflicts of Interest

Prohibits: disclosures AND use of information

Where? everywhere

Exceptions:

MR: 1.61. informed consent2. implied authorization 3. death/sub harm4. crime/fraud/sub financial injury5.legal advice6.client dispute7.law or court order CA: 1. death/sub harm2. informed consent3. ? whistleblower

SEC: permissive disclosure

CA: secrets

MR: info related to representation

I THE LAWYER CLIENT RELATIONSHIP A. Models of the Relationship

1. Traditional model: a. passive client/paternalistic L

i. attempts to act in best interest of C2. Participatory Model:

b. both parties share responsibility for successc. both parties have power to make decision

i. Rules instruct L to establish relationships in ways that nurture the participatory model 3. Hired Gun:

d. client dominanti. often L who is financially dependent on single clientii. often problem earlier in career

B. Forming the Relationship1. Usually Formed by Express engagement Letter

e. specifies scope of representation 2. Maybe Formed Inadvertently

f. whether the C reasonably believed L owes him a duty of confidentially or loyalty i. fee agreement in writing not requiredii. can be an implied relationshipiii. do not need a viable cause of action

existence of A/C relationship is not dependent on ultimate potential causes of action 3. Prospective Clients

g. certain duties arise even no relationship forms i. confidencesii. reasonable careiii. protect client property iv. conflicts of interest

4. How to Protect Yourselfh. write a letter “I am not representing you”i. warn people about SOLj. document everything!

C. Decisions to be Made by Client [MR 1.2]1. Instructs L to abide by C’s decision concerning the objectives

k. big picture decisions belong to the Ci. settlement offersii. pleasiii. waive a jury trialiv. testifyv. whether to appeal

2. Consult w/ C as to the means by which the objectives are to be pursued l. tactics/strategy

i. calling Wii. granting extensions of time

m. If it’s a means issue and there is a disagreement L controlsD. Lawyer’s Duties to Client [MR 1.4]

1. mandatory duty to explain matter to C to extent reasonably necessary to permit the client to make informed decisionn. keep the client reasonably informedo. promptly comply with reasonable requests for information

2. Client should participate intelligently in decisions to the extent the C willing and able to do soE. Insured/Insurer

1. Rule in most states: insured is sole client2. BUT: L still owes duty to insured b/c of legal relationship b/w insured/insurer

p. creates ugly mess w/ conflicts of interesti. may have duty to share info w/ insurer in order to assist client

q. BUT: L must protect C’s interestF. Client Interviews

1. Initiates the formation of the relationship2. Explain Foundational matters

r. contemplated scopes. confidentiality rulest. check for conflicts of interest u. explain client’s responsibility for fees

3. Gather Facts that will be relevant to representation4. Learn C’s goals for the representation

v. can’t pursue illegal objectivesw. can’t force objectives on C

II TRANSACTIONS WITH 3RD PERSONSA. Must not make false statements of material fact or law [MR 4.1]

1. applies when dealing on behalf of C w/ 3rd personx. includes stating something that is true but misleading OR

i. when L fails to speak or actB. Must disclose material facts when necessary to avoid assisting C in crime/fraud

1. UNLESS: L is forbidden to do so by confidentialityy. L must then w/draw

C. Communications with Persons Represented by Counsel1. A L must not communicate about a matter w/ a person the L knows is represented [4.2]

z. you haven’t done anything wrong until you knowi. Both CA and MR required knowledge

there is no affirmative duty to ask, buts it’s a good idea 2. UNLESS:

aa. person’s counsel consents ORbb. law or court order authorizes cc. L is present

3. Mistake:dd. get atty info – apologize and hang upee. call atty and apologize

D. Communication with Persons not represented by Counsel [4.3]1. L must not give that person legal advice AND2. must not imply that L is disinterested AND3. must not mislead the person in any other respect

E. CA: communication w/ parties CR 2-100: 1. “Party” has a broad definition, so basically end up in the same place as under MR.

F. Communication w/ Organization1. contact w/ employee is wrong if it would binding the org. w/ respect to proof of the matter

ff. Patricia v. Center for Living & Working: rules prohibit ex parte com. w/ certain employees i. ex: mangers, persons alleged to have committed act, decision makers

2. L does not need to obtain consent to interview if former employees

III INTERVIEWINGA. Asking Questions: ask questions in a way we can get information

1. starts w/ broadest questions first, narrowest questions lastgg. broad: a lot more freedom and options for client to answerhh. narrow: yes or no

i. if you ask lots of narrow, won’t get very much info ii. includes assumptions: needs to be way far down in topic

i. might be good for follow up questions when not getting info you need2. Problem Questions

jj. compound: asks two different thingsi. tends to get confusing

3. Pay Attention to Tonekk. careful that even though its neutral it could be interpreted negativell. don’t want to ask questions in way that is judgmental

B. Documents 1. need to give parameters on dates 2. help keep costs down3. recognize fear about personal documents and tell them you will treat them as such4. make sure clients understand how they can get documents

C. Interviewing Agenda 1. Introduction

mm. ice breakernn. building trustoo. confidentiality reminderpp. explain role of C & L

2. Interviewqq. allow C to narrate problem

i. permit C to attempt description of events w/ a min of prompting rr. General Questions Fristss. Specific Questions later

i. listen to pick up the logical follow up questions3. Elicit Clients Goals and Concerns 4. Summarize or Verify the information

D. Common Mistakes 1. sticking to notes too much2. underestimating common matters

tt. keep tone friendy3. Not thinking it through

IV COUNSELINGA. What is counseling

1. Lawyer as advisor [2.1]uu. L should exercise independent professional judgment and render candid advicevv. not only refer to law but:

i. moral, economic social, political matters 2. Communication: prompt

ww. explain a matter to extent reasonably necessary so that client can make informed decision

xx. rules contemplate participatory model3. Counseling is not promising them anything 4. Incapacitated Client [MR 1.14]

yy. you may decide for them if they are about to loose somethingzz. BUT: you may not decide for your average client

B. Counseling Agenda1. Explain Law generally

aaa. do not use legalese 2. Cover Options: preliminary stages only

bbb. discuss pro/con of each alternativeccc. discuss potential negatives

i. ex: court costs, cross complaint 3. Elicit Verify Concerns/Goals

ddd. consider legal and non-legal consequences 4. Closure

eee. set up specific next step fff. explain any deadlines

C. Threatening to File Complaints CA 5-1001. a member shall not threaten to present: criminal, administrative or disciplinary charges to

obtain an advantage in civil disputeggg. applies to only the things on list

2. L is allowed to:hhh. state we intend to pursue all legal optionsiii. intent to file civil suit

3. Rational:jjj. form of coercionkkk. will frighten most people

D. Constraints upon claims [3.1]1. must be a basis in law and fact

lll. will be frivolous if a lawyer cannot make a good faith argument on the meritsi. lawyer in criminal defense is given greater latitude that lawyer in civil

must be careful to avoid frivolous arguments, objections and motions may not use tactics to delay

mmm. a lawyer is not frivolous if she asserts a good faith argument for an extension of existing law

2. Can’t do things solely to harass nnn. can enjoy it - but it can’t be the sole purpose

E. Alternatives & Counseling1. Lots of Explaining

ooo. Do not think of options as mutually exclusive i. think were they intersect w/ other options

ppp. Think about timing i. ex: judgment before disbarment

qqq. Need to communicate past numbersi. explain variable in control and out of control

2. Negotiation/Investigation rrr. facts and circumstances of event sss.not a solutions

i. step toward solutionttt. litigation searchuuu. administration search

3. ADRvvv. Don’t need definitions: need big picture statement www. can mediate much earlier in processxxx. voluntaryyyy. success is figuring out his entire case and defense zzz. types

i. private mediator/arbitrator cost more, but much more flexible on timing

ii. non-profitsiii. licensing boards

aaaa. Can include non-cash settlements bbbb. arbitration: might not mean less money at all

4. Administrative/Disciplinary Optionsa. Pro: prevent others from being hurt & personal gratification

i. not mutually exclusive ii. no costs

b. Con: out of your hands & no monetary compensation i. timing is critical here

5. File Lawsuit: what would happen in 30-60 dayscccc. Pro: force him deal with us, get access to his files, question him under oath dddd. Cons: filing fees ($320); notifying defendant of case ($30);

i. stressful & slowerV EMAIL & LETTER

A. Email to Partner1. think before you send

eeee. purpose driveni. if you wouldn’t call – don’t send

2. Review Before Sendffff. Re line: needs to be very specific gggg. Don’t CC over someone’s head unless told specifically

3. Review More Before Sendhhhh. proof read and make it look formal

i. use capital letters how would it look in printed format?

iiii. Check Tonei. don’t be too cursory or too short can come across as offenseii. no symbols or abbreviations

4. Don’t sendjjjj. replies to every email kkkk. reply allllll. nothing angry or criticisms of any kindmmmm. answer w/ out the question

B. Letter1. give the C an opportunity remember things2. roadmap – future relationship next steps3. use headings 4. Don’t write colloquial

5. Should use we & firm