Outline Chart.docx

Topic Practice of law Limits on nonlawyers Working with non-lawyers Ancillary businesses Unauthorized practice by lawyers

Creating the lawyer-client relationship

Ending the lawyer-client relationship Discipline

Malpractice liability

Rule

Case Law

Chapter 1. Practice of Law 5.5 (UPL) 5.3 (non-lawyer assistants) 5.5 (UPL) 5.3 (non-lawyer assistants) Brumbaugh (blank forms, p°32): allowed IF no assistance 5.4 (professional independence of lawyers) Dacey (books, p°38): allowed IF no personal contact (right to 5.5 (UPL) represent yourself in court) Parsons (legal software, p°40): allowed IF not personalized 1.8(a) (business transactions with current clients) 5.7 (law-related services) 5.5 (UPL) Birbrower (p°48): out of state practice NY-CA, attorney in violation 8.5 (choice of law) because of criterion of physical presence ➪ amendment of Rule 5.5 to permit multijurisdictional practice under certain circumstances R.14 (p°62 & 74) Morris (p°64): LCR created upon initial contact with client who 1.13(a) (organization as client: represent the reasonably believes he is consulting a lawyer in that capacity company) Westinghouse (p°67): LCR created upon exchange of confidential 1.13 (f) (organization as client: client with information + reasonable belief interests adverse to the company) Board of Professional Responsibility (p°74): the lawyer’s morals 1.13 (g) (organization as client: dual should not interfere, he is ethically obligated to follow the law and do representation) nothing in opposition to the client’s moral and legal choices 6.2 (declining court appointments) Nathanson (p°77): the lawyer’s Ist Amdt rights should not interfere with the defense of the client and with the State compelling interest in eliminating discrimination on the basis of gender 1.16 (declining or terminating representation) Whiting (p°86): pressure by client may be a cause for granting permission of withdrawal; duty not to make frivolous claims (Rule 3.1) 1.1 (competence) Wilkinson (p°98): intern lawyer (not allowed to practice), the 5.1 (partners, managers, supervisory lawyers) supervising attorney is liable for (1) non-supervision of the 5.3 (non-lawyer assistants) subordinate attorney (5.1) and (2) non-supervision of the non-lawyer 8.4 (misconduct) (5.3) R.48 and seq. (p°103) Ziegelheim (p°107): advice to settle, policy to encourage 1.18 (duties to the prospective client) settlements (but case presents issues of facts) 1.2(c) (agreements limiting scope of representation)

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Ineffective assistance of counsel

Decisionmaking b/ lawyer and client

Marketing legal services

1.8(h) (agreements limiting liability and settlement of claim)

Lerner (p°115): encouraging mediation // adversarial proceedings with independent attorneys, clear right to limit representation but violated the terms of 1.8(h) when client agreed not to sue the lawyer

R.53(d): in malpractice suits arising from criminal cases, the defendant must prove (1) lawyer failed to act properly and (2) but for that failure, the result would have been different 1.2 (allocation of authority) 1.3 (promptness and diligence) 1.4 (communication b/ lawyer and client) 2.1 (advisor: independent professional judgment, candid advice) 3.2 (expediting litigation) 1.16 (declining or terminating representation) 1.14 (client with diminished capacity) R.21: lawyer doesn’t have to carry out instructions that the lawyer reasonably believes are contrary to professional rules or other law, or which the lawyer reasonably believes to be unethical. R.23: emergency situations

Rompilla (p°122): ineffective counsel in death penalty trial, compared to the reasonable lawyer standard, where lawyer lacked the reasonable efforts to review the file, investigate mitigating factors Torture Memos Jones v. Barnes (p°143): an attorney doesn’t have to raise every (non-frivolous) issue, right to choose for effective arguments (dissent: right to effective assistance of counsel) Schools of Township (p°153): client has the burden of proving that but for the negligence complained of, the client would have been successful in prosecution or defense of action in question. Boyd (p°154): the lawyer who followed the client’s instruction to delay the matter is immunized against malpractice Gilmore (p°156): Chappell (p°161): lawyer helped client pursue illegal acts, violated 1.2(d), 3.3(a)(2), 8.4(b) and (c)

Chapter 2. Business, Technology and Marketing of Legal Services 1.1 (competent representation) 7.3 (direct contact with prospective clients)

Solicitation

Ohralik (p°196): solicitation in a hospital bed is illegal, the absence of harm is not relevant Primus (p°203): lawyer was not motivated by financial gain despite solicitation, she was motivated by personal political beliefs and to advance the civil liberties objectives and to communicate an offer of free assistance

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7.1 (false or misleading communication of services) 7.2 (advertising) 7.3 (direct contact with prospective clients) 7.4 (field of practice and specialization) 7.5 (firm names and letterheads) Advertising

Fees and billing Hourly billing

Contingent fees

Court-awarded attorney’s fees

Zang (p°215): false and misleading ads, despite absence of actual harm Cahill (p°230): Central Hudson balancing test (1) expression protected by Ist Amdt (2) commercial speech a. that is (a) not false or misleading and (b) does not concern unlawful activities b. may be restricted (a) only in the service of a substantial governmental interest, and (b) only through means that directly advance that interest (burden of proof on the State) (3) regulation (a) directly advances that interest and (b) is narrowly tailored 1.4(b) (explanation to the extend reasonably necessary) 1.5 (fees) 7.1 (false or misleading communication of services) 1.5 (fees) 1.8(i) (COI: proprietary interest in the cause of action) R.18 and 25 (p°264, 279) Lawrence (p°280): while the amount of the fee seems 1.5 (fees) disproportionate for 5-month worth of work, facts and circumstances 1.8(a) (COI: business transaction with client) surrounding the revised retainer agreement have not, at this time, 1.8(d) (COI: literary or media rights) been sufficiently developed to determine whether or not the 1.8(e) (COI: financial assistance to client) agreement was unconscionable at the time it was made 1.8(f) (COI: compensation from another) 1.8(i) (COI: proprietary interest in the cause of action) 1.15 (safekeeping client’s property) 2.1 (advisor) 5.4 (professional independence of lawyer) R.38(f) (p°294): prevailing litigants in some Private Attorney General types of litigation are entitled to recover attorney Perdue (p°298): fee enhancement, lodestar may be raised under fees from an opposing party exceptional circumstances Evans (p°305): a fee waiver can be approved by the court, there is no ban on settlement agreements that include a waiver of attorney’s fees (Congressional intent) Chapter 3. Attorney-Client Privilege and Duty of Confidence R.68 (p°319): ACP, rule of evidence, no exception, waivable by client (or attorney under his implied powers) 3

(1) communication (R.69): convey information and any document or other record revealing such expression (2) made b/ privileged persons (R.70) a. client, including prospective client and client’s agents b. client’s lawyer, including lawyer’s agents

Attorney-client privilege (ACP)

Upjohn (p°332): (1) communications b/ the lawyer and the corporation’s employees are privileged and (2) the work-product doctrine is applicable, where the gvnt failed to show necessity to overcome the protection Grand Jury Under Seal (p°340): client must show that his subjective belief that an attorney-client relationship existed was reasonably under the circumstances. // 1.13(f) Hatcher (p°353): defendants knew the conversations with lawyers while in prison were being recorded; there is no ACP because they could not reasonably expect that their conversations would remain private Erie (p°324): emails were privileged, they were sent for the predominant purpose of soliciting or rendering legal advice Moistureloc (p°347): communication to non-lawyer agents (PR firm) of the representation counts as a waiver of the ACP, unless their services are necessary to the legal representation (Kovel doctrine)

(3) in confidence (R.71): reasonable expectation of confidentiality, that no one will learn the contents of the communication except the privileged persons (4) for the purpose of obtaining or providing legal assistance for the client (R.72): communication made to or to assist a person a. who is a lawyer or who the client or prospective client reasonably believes to be a lawyer b. whom the client or prospective client consults for the purpose of obtaining legal assistance Waivers of ACP Selective waivers: a party who voluntarily Westinghouse (p°358): rejects the selective waiver discloses privilege material to the government cannot retain the privilege as to private parties. Mistaken disclosures: claw-back and quick peek agreements, FRE 502 (disclosures and work product) Duties of the party receiving privileged info Nilta (p°369): the party moving to disqualify an opposing counsel that had access to documents before they were deemed privileged by the court must prove: 1. opposing counsel’s reviewing the privileged docs caused actual harm 2. disqualification is necessary because the trial court lacks any lesser means to remedy the harm Crime-fraud exception: R.82 (p°372)

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Obligations under the DOC (1.6): not reveal information related to the representation of a client “Information related to the representation” Belge (p°382): the attorney conducted his own investigation and NY Rule 1.6: gained during or relating to the discovered the bodies in the course of representation, so he had no representation of client obligation to tell something. The exceptions did not apply.  1.6(a): not reveal client information  1.8(b) (COI): not use client information related to the representation of a client UNLESS he gives informed consent  1.6(c) (p°379): prevent improper disclosures, i.e. make reasonable efforts to safeguard confidential client information  1.18(b): not reveal OR use information related to the representation of a prospective client to the disadvantage of that client UNLESS information had become generally known (1.9(c))  1.9(c): not reveal OR use information related to the representation of a former client to the disadvantage of that client UNLESS information had become generally known Exceptions of DOC (1.6(b)): permits the lawyer to disclose information to the extend reasonably necessary Spaulding (p°389): while Defendant’s counsel had no specific ethical obligation to disclose Plaintiff’s life-threatening condition, they had reason to know that Plaintiff would not have agreed to the same settlement had he known of it. Alton Logan (p°392): ➪ changed ABA Rule 1.6(b)(1) Protect the victims when the client has misused the lawyer’s services  1.6(b)(2): prevent commission of (1) a crime or fraud (2) reasonably certain to result in substantial injury ➪ crime or fraud has not yet occurred  1.6(b)(3): prevent, rectify or mitigate (1) the effects of crime or fraud (2) reasonably certain to result or has resulted from the client’s commission of a crime or fraud ➪ lawyer does not learn of the client’s crime or fraud until after it has been consummated Lawyer self-protection  1.6(b)(4): seek ethics advice  1.6(b)(5): establish a claim or defense in a controversy with a client  1.6(7): detect and resolve COI arising from the lawyer’s change of employment ONLY if it would not compromise ACP or prejudice the client Chapter 4. Conflicts of Interest 1. Current ACR (R.14, p°62) Dow Chemical (p°410): there is no COI when with a former client in an unrelated matter 1.6(b)(1) (prevent death or SBH) Duty of Confidence (DOC)

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Murray (p°411): the lawyer did not have a LCR with the policyholders, because he represented the corporation, not the shareholders or the constituents (1.13) Carnegie (p°436): protecting against COI resulting from multiple representation, when the client has a reasonable expectation that they are represented and that the lawyer does nothing to dispel that belief

Current client v. current client 1.7(a) 2. Concurrent COI:  1.7(a)(1): direct adversity  1.7(b)(2): risk of material adversity 1. Lawyer reasonably believes he’s competent and can diligently represent both clients

Sanford (p°422): when representing multiple defendants with different claims, liabilities and testimonies, the lawyer could not reasonably believe he would be able to provide competent representation to each affected client

2. Representation is not prohibited by law Exceptions 1.7(b)

Client’s interests v. lawyer’s interests 1.8

3. The clients are not opposing themselves in the same proceeding or litigation ➪ Positional conflict: clients have opposing interests in unrelated matters 4. Client’s informed consent confirmed in writing a. Revoking consent b. Waivers: consent to future conflict 1.8(g) (aggregate settlement of claims) 1.8(a) (enter business transactions) 1.8(b) (use confidential information) 1.8(c) (solicit substantial gift) 1.8(b) (acquire literary rights based on confidential info)

Williams (p°447): lawyer disqualified, he cannot advocate two conflicting legal positions in two capital murder appeals pending simultaneously in the same court Ware (p°439): in some situations, dual representation is never appropriate, even if both parties are willing to consent. It is improper for a lawyer to represent both the husband and the wife at any stage of the separation and divorce proceeding even with full disclosure and informed consent

Beets (p°456): transfer of literary right to the attorney’s son, unethical but not a violation of VIth Amdt as there was no proof of actual COI.

1.8(e) (financial assistance to clients) 1.8(f) (compensation from 1/3P) 1.8(g) (aggregate settlements) 1.8(h) (agreements limiting liability) 1.8(i) (proprietary interest in the cause of action)

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1.8(j) (A/C sexual relations)

Inglimo (p°459): consensual relations with the client’s girlfriend in his presence; no evidence of sexual relation b/ the client and the attorney. Grimm (p°463): the respondent’s ability to attend objectively to the financial aspects of his professional relationship with the client was destroyed by his intimate involvement with her. As a result, she was forced to litigate the issue of fees owed and place in an openly adversarial position with former trusted counsel.

1.8(k) (extension of prohibitions to the law firm) 3.7 (advocate witness rule) 1.9 (duties to former client) Current client v. former client Former and current government lawyers Third Party Neutrals

1.11 (former government officers and employees)

2.4 (lawyer serving as 1/3P neutral) 1.12 (former 1/3P neutral) 1.10 (imputation of COI)

Lasalle (p°488): the screening process was put in place too late Hempstead (p°491): lawyer is not “associated” with Jaspan and thus his conflict should not be attributed to it Kassis (p°498): the lawyer had a substantial role in the case and the screening procedure are not sufficient

VIth Amdt (right to conflict-free representation) Federal Rule Crim. Procedure 44: joint representation

Kliti (p°504): actual v. potential COI, duty of the court to inquire Holloway (p°505): automatic reversal where trial court didn’t investigate conflict after D brought it up Cuyler (p°507): limited presumption of prejudice in cases where a D fails to make a timely objection to conflicted simultaneous representation if the D demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.” Burger (p°508): defendant must prove ineffective assistance of counsel

Vicarious disqualification

Conflict of interests in criminal cases

Westinghouse (p°472): the substantial relationship is determined by asking whether it could reasonably be said that during the former representation that attorney might have acquired information related to the subject matter of the subsequent representation Babineaux (p°479): the city failed to show that plaintiff’s counsel (1) was substantially and personally involved in a previous matter and (2) possessed confidential government information that could be used to the material disadvantage of the city

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Cancilla (p°510): D’s counsel was engaged in criminal conduct with the D’s co-conspirators. Winkler (p°511): contingent fee only if the defendant was found not guilty but COI did not affect representation

Waiver of the right to conflict-free counsel

VIth Amdt (right to counsel of choice): may be limited by the court in case of COI

Flores (p°512): a waiver is sufficient if it was made knowingly and intelligently, with sufficient awareness of the relevant circumstances and likely consequences Wheat (p°517): the court must recognize a presumption in favor of petitioner’s counsel of choice but that presumption can be overcome by a demonstration of actual or serious potential for conflict

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