KAC Ethics Rules

A/C Relationship Notes

• Contractual and fiduciary relationship
• Express or implied (Perez)
• Ambiguities in favor of client

Elements of A/C Relationship

1. Intent to seek legal advice

2. Giving legal advice

3. Receipt of confidential information by the lawyer

4. Paid fees/work that benefits client

1.18(a)

A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client

1.18(b)

Lawyer who learns information from a prospective client can’t use or reveal it, except as would be permitted under Rule 1.9

1.18(c)

Lawyer can’t represent new client…
• With interests materially adverse to those of prospective client
• In the same or substantially related matter
• If the lawyer received information that could be significantly harmful to prospective client
• If lawyer is disqualified, no lawyer in firm with which the lawyer is associated may knowingly undertake/continue representation

1.18(d)

When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1)   both prospective and new client give informed, written consent, or

(2)   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)    the disqualified lawyer is timely screened and is apportioned no part of the fee and

(ii)   written notice is promptly given to the prospective client.

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.

“Reasonably necessary” under 1.1 …

depends on the complexity of the case, emergency, lawyer’s experience and training, feasibility of necessary preparation and study, what is at stake, etc.

1.4(a)(1)

A lawyer shall…promptly inform the client of any decision or circumstance with respect to which the client's informed consent as required by these Rules;

1.4(a)(2)

A lawyer shall… reasonably consult with the client about the means by which the client's objectives are to be accomplished;

1.4(a)(3)

A lawyer shall… keep the client reasonably informed about the status of the matter;

1.4(a)(4)

A lawyer shall…promptly comply with reasonable requests for information;

1.4(a)(5)

A lawyer shall…consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules or other law

1.4(b)

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

1.6(a)

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

1.6(b)(1)

A lawyer may reveal confidential information…to prevent reasonably certain death or substantial bodily harm;

1.6(b)(2)

A lawyer may reveal confidential information…to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

1.6(b)(3)

A lawyer may reveal confidential information…to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

1.6(b)(4)

A lawyer may reveal confidential information…to secure legal advice about the lawyer's compliance with these Rules;

1.6(b)(5)

A lawyer may reveal confidential information…to establish a claim or defense on behalf of the lawyer in controversy with client or to respond to allegations concerning client’s representation.

1.6(b)(6)

A lawyer may reveal confidential information…to comply with other law or a court order;

1.6(b)(7)

A lawyer may reveal confidential information…to detect and resolve conflicts, but only if it wouldn’t compromise the attorney-client privilege or prejudice client

1.6(c)

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Control Group Test

Privilege protects only communications with those persons who actually run the company

UpJohn Test

To be privileged, the communication must:
• Be made by an employee to the lawyer
• when the lawyer is acting on behalf of the entity
• at the direction of corporate supervisors
• to secure legal advice
• the communication concerns the scope of the corporate duties of the employee communicating with lawyer
• information is not available from people in the control group, and
• employee has awareness that the lawyer is working on behalf of the corporation or entity

Restatement 73

Privileges all communication between an agent or employee of the company and its lawyers so long as the communication “concerns a legal matter of interest” to the company

1.7(a)

Prohibits a lawyer from representing a client if the representation involves a current conflict of interest. A current conflict exists if:
(1) Representation would be directly adverse to another client, OR
(2) Significant risk that representation of 1 or more clients will be materially limited by the lawyer’s responsibility to another client, former client, 3rd person, or by a personal interest of lawyer

Conflicts that are not “directly adverse”

• Simultaneous representation in unrelated matters, where interests are only economically adverse
• Taking inconsistent legal positions in different tribunals, at different times, on behalf of different clients, unless it would seriously weaken client’s position
*Consider whether cases are pending, substantive vs. procedural issues, temporal relationship, significant issue to client’s interests/expectations
• Joint representation in same matter, unless…(1) substantial discrepancy in client’s testimony, (2) client’s have incompatible positions, or (3) client’s have substantially different settlement possibilities

If there is a significant risk under 1.7(a)(2) ask:

1. What is the likelihood interests will divide?

2. Will divided interests affect lawyer’s ability to judge/consider alternatives?

3. What function(s) is lawyer performing?

4. Will those divided interests foreclose courses of action that reasonably should be pursued on behalf of client?

1.7(b)

Lawyer may continue representation if:
(1) lawyer reasonably believes he can provide competent and diligent representation to each client,
(2) representation is not prohibited by law,
(3) representation does not involve the assertion of a claim by 1 client against another client in the same litigation or other proceeding before a tribunal, and
(4) clients give informed, written consent

Result of a conflict under 1.7

• If conflict is discovered before representation, decline representation or 1.7(b) must be met
• If conflict is discovered after representation begins, withdraw or 1.7(b) must be met.
*Note: No mens rea requirement

Rule 1.7 Checklist

1. Clearly identify clients

2. Determine if conflict exists under 1.7(a)… directly adverse? significant risk of material limitation?

3. Decide if its consentable under 1.7(b)

4. Consult with client and get informed, written consent (which can be revoked)

Elements of Written Consent for Joint Rep

1. Description of actual/potential conflicts and alternatives

2. Joint consent indicates that all parties have agreed that there are shared common interests in pursuing joint rep

3. Describe future conflicts that may arise

4. No right to privilege/confidentiality

5. Provide opportunity to seek independent counsel

Advanced Waivers

Generally acceptable if:
1. Attorney makes appropriate disclosures of relevant information and/or implications of waiver
2. Client has necessary experience/sophistication to understand implications
3. Client consults with independent counsel

Blanket Waivers

More suspect
• Less likely to be upheld because its impossible to provide full range of information
• Usually used in cases involving corporate entities

1.15(a)

A lawyer shall hold property of clients/3rd persons in connection with a representation separate from the lawyer's own property, in state where lawyer’s firm is located (or else need consent). Must keep complete records of this for 5 years after termination of the representation.

1.3

A lawyer shall act with reasonable diligence and promptness in representing a client.

1.2(a)

Objectives v. Means: A lawyer shall abide by a client’s decision concerning the objectives of representation, and shall consult with the client as to the means by which they are to be pursued, subject to limits imposed by law.

Objectives

Purposes to be served, expenses to be incurred, concerns for third parties who might be adversely affected

Means

Clients normally defer to the special knowledge and skills of their lawyer especially with respect to technical, legal and tactical matters

Authority of Client

Client decides whether to testify, appeal, settle, waive jury/speedy trial, have appointed counsel, admit guilt

Authority of Lawyer

• To determine means
• Take action client impliedly authorized
• Communicate decisions or information
• May withdraw if:
• Fundamental disagreement and no resolution
• Necessary to avoid assisting in crime/fraud (1.2 Cmt [2,10], 1.16)

Termination by Client

Can fire their lawyer for any reason and at any time. Except:
• When lawyer is appointed for indigent criminal defendant, the lawyer/client must seek approval
• Once lawyer enters appearance, must file motion with the court
• If client lacks legal capacity

1.2(b)

A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

1.16(a)

A lawyer must seek to withdraw if:

1. Representation will result in lawyer violating ethics rules or other law;

2. Lawyer’s physical/mental health results in materially impairment;

3. Lawyer is fired

1.16(b)(1)

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: withdrawal can be accomplished without material adverse effect on the interests of the client;

1.16(b)(2)

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

1.16(b)(3)

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: the client has used the lawyer's services to perpetrate a crime or fraud;

1.16(b)(4)

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

1.16(b)(5)

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

1.16(b)(6)

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client

1.16(b)(7)

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: other good cause for withdrawal exists

1.16(c)

A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

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.

4.2 Comments

• Covers all legal representation, but not client outreach to independent lawyer
• Does not apply to matters outside the representation [2,4]
• Doesn’t matter who initiates conversation [3]
• Represented parties may speak freely to one another [4]

Application of 4.2 to Entities

Prohibits communications with employee of organization who:
• Supervises organization’s lawyer
• Directs organization’s lawyer
• Regularly consults with organization’s lawyer
• Has authority to obligate the organization
• Act or omission in connection with matter may be imputed to the organization
*Note: Does not include former employees [7]

Application of 4.2 to Government

In controversy with government, a lawyer for client can:
• Communicate about matter with government officials who have authority to take or recommend action in that matter, provided sole purpose is to address a policy issue, including settling matter
*Must give government counsel reasonable advance notice of intent to communicate
• If counsel seeks to speak for any other purpose, must abide by Rule 4.2

Government 4.2 “unless authorized by law” Exception

• Includes 1st Amendment right to petition the government
• May include discovery requests/investigative activity, i.e., before 6th Amendment attaches
• Government lawyers must comply with Rules and honor constitutional rights of accused [2]

4.3

When a lawyer is dealing on behalf of a client with a person who is not represented by counsel: (1) lawyer can’t state or imply their disinterest, (2) When lawyer knows/reasonably should know that unrepresented person misunderstands lawyer’s role in the matter, lawyer shall make reasonable efforts to correct the misunderstanding, or (3) lawyer can’t give advice if lawyer knows/reasonably should know that the persons interests are/have a reasonable possibility of being in conflict with the lawyer’s own client’s interests

4.4(a)

In representing a client, a lawyer shall not use means that have no substantial other reason than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate legal rights of a person

4.4(b)

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender
*Note: Not covered:
• Whether privilege is waived
• Whether lawyer is required to take additional steps
• Further duties of receiving lawyer [2]

Fees: Best Practices

• Explain your best estimate, i.e., number of hours you expect to spend on the matter
• Consider Rule 1.5(a) factors in advance so you can be prepared to defend reasonableness later on if needed
• Stay in regular contact with client, detailing hours, services, expenses, and request regular payments
• Put it in writing to prevent misunderstanding [2]

Fees Paid By Client

Salary, flat fee, hourly fee, general or special retainer, contingent fee (or reverse contingent fee), performance fee, hybrid fee, “value” billing

Third Parties who can pay Fees

Insurance company, friends/family

Fees Paid By Opposing Party

By agreement (settlement), by court order (for prevailing party), or by statute (fee shifting statutes, Lodestar Method)

Fees Paid By Public Funding

IOLTA accounts, Legal Services Corp (Congressionally funded), Legal Aid Society (state or municipality funded)

1.5(a)

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.

1.5(a) Factor 1

Time or labor required, novelty/difficulty of the question involved, skills requisite to perform the legal service properly (Brobeck)

1.5(a) Factor 2

The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer (Brobeck);

1.5(a) Factor 3

The fee customarily charged in the locality for similar legal services;

1.5(a) Factor 4

The amount involved and the results obtained;

1.5(a) Factor 5

The time limitations imposed by the client or by the circumstances;

1.5(a) Factor 6

The nature and length of the professional relationship with the client;

1.5(a) Factor 7

The experience, reputation, and ability of the lawyer or lawyers performing the services;

1.5(a) Factor 8

Whether the fee is fixed or contingent.

1.5(b)

Lawyer must communicate to client: scope of the representation, fee basis or rate, expenses for which client will be responsible, any changes; In writing is preferred, but not required (unless contingency fee); the communication must be done before or within reasonable time after commencing representation (unless regularly represented client on same basis/rate)

1.5(c)

Contingency fees must be in writing, signed by client, and include: (1) method for determining fee, (2) litigation and other expenses to be deducted from recovery, (3) whether expenses are deducted before or after fee is calculated, and (4) client’s liability for expenses whether or not client is prevailing party. At the conclusion, must provide client with a written statement of outcome and show remittance/method of determining recovery.

1.5(d)

Fees contingent on outcome are generally permissible, except: (1) in domestic relations, (2) in representation of a defendant in a criminal case, or (3) if prohibited by law.

2.1

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice, by referring not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

6.1

Aspirational Only: Lawyer’s have a professional responsibility to provide legal services to those unable to pay and should aspire to render at least 50 hours per year. (Same for NY)

Pro Bono includes…

• Delivery of legal services for an organization at no fee/substantially reduced fees in matters in furtherance of their organizational purpose
• Delivery of legal services at a substantially reduced fee for persons of limited means
• Participation in activities for improving the law, legal system, or the profession
• Financial support for organizations that provide legal services to persons of limited means

Lawyer/Client Conflict

Stems from attorney’s own interests in conflict with client
*Note: No mens rea required

1.8(a)(1)

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

transaction/terms are fair and reasonable to client, and fully disclosed, and transmitted in writing in a manner reasonably understood by the client;

1.8(a)(2)

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

the client is advised in writing/ given the opportunity to seek independent legal advice; and

1.8(a)(3)

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

client gives informed written consent to essential terms and the lawyer’s role.

1.8(b)

Can’t use confidential information to the client’s disadvantage unless client gives informed, written consent, except as permitted/required by the Rules

1.8(c)

Can’t solicit substantial gifts from clients or prepare instruments giving lawyer such gift (unless related), unless it meets general standards of fairness… lawyer’s can accept, but voidable by client.

1.8(d)

While representing a client, lawyer can’t negotiate agreement for lawyer to obtain literary/media rights to portrayal/account based in substantial part on information relating to the representation.

*Note: Lawyer may receive media rights as a fee

1.8(e)

Can’t provide financial assistance to client in connection with litigation, except:
(1) can advance costs and expenses with repayment contingent on outcome,
(2) can pay court costs/expenses for indigent clients, or
(3) can provide modest gifts to cover basic living expenses, but can’t:
(i) promise as inducement to retain lawyer,
(ii) seek/accept reimbursement, or
(iii) publicize doing it for prospective client

1.8(f)

Can’t accept compensation from someone other than clients, unless:
(1) client gives informed consent,
(2) no interference with lawyer’s judgment or with attorney-client relationship, and
(3) confidential information is protected

1.8(g)

When representing multiple clients, can’t make aggregate settlements unless informed written consent is obtained from all

1.8(h)(1)

A lawyer shall not:

make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or

1.8(h)(2)

A lawyer shall not:

settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel

1.8(i)

Can’t acquire property interest in a matter, except liens and contingency fee agreements

1.8(j)

Can’t have sexual relations with a client unless it started before the representation began

1.8(k)

All conflicts except (f) are imputed to others in the firm

Holloway

Facts: Lawyer was forced, over their objections, to represent the client
Takeaways:
• No need to show an effect on the lawyers performance, just that there was a conflict and an objection that the court denied
• Creates a responsibility for the trial judge, in the face of an objection, to inquire and do some due diligence about the conflict

Wheat

Facts: Deals with 6th Amendment right to counsel of choice
Takeaways:
• This right is not absolute choice, but presumption in favor of defendant’s choice
• But can be overcome by demonstration of actual, or serious potential of a conflict of interest for the counsel
• Show deference to trial judge to determine whether they should accept the defendant’s waiver of conflict

Sullivan

Takeaways:
• When you have multiple representation, that doesn’t necessarily mean ineffective assistance of counsel
• Unless actual conflict of interest that adversely affects lawyer’s performance
• Don’t have to show prejudice, like under Strickland

1.10(a)

When one member of a firm is disqualified from representing a client because of a conflict of interest under 1.7 or 1.9, no other lawyer in the firm shall knowingly represent that client