LP Cases and Rules

MR 1.1

L shall provide competent representation to C. Legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

MR 1.2

C’s decisions > L; ( c ) L may limit the scope of the representation if the limitation is reasonable under the circumstances and the C gives consent; (d) L shall not counsel a C in criminal/fraudulent activities but can talk about potential future actions

MR 1.3

Reasonable diligence & promptness

MR 1.4

(a)(2) L shall consult with C about the means used to achieve C’s objectives; (b) L shall explain matter to the extent reasonably necessary for C to make an informed decision

MR 1.5

(a) Don’t charge unreasonable fees; (b) tell the C what you’re charging beforehand in writing

MR 1.6

(a) L shall not reveal information relating to the representation of the C, (b) Exceptions: (1) prevent injury or death, (2) prevent crime/fraud, (3) prevent/mitigate/rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has from C’s crime/fraud, (4) secure legal advice about the L’s compliance with the rules, (5) establish a claim/defense on behalf of L in action between L & C, or (6) comply with law/court order

MR 1.7

(a) L shall not represent C if a concurrent conflict exists;

(b) is allowed when

(1) L believes he can provide competent representation to both, (2) representation is not prohibited by law,

(3) not substantially related matters, AND

(4) each C gives written informed consent

MR 1.9

(a) No representing other Cs in substantially related matters to previous Cs unless former C gives informed written consent; (b) L shall not knowingly represent a person in substantially related matter in which a former firm represented a C whose interests are materially adverse and about whom the L acquired confidential information unless the C gives informed written consent; (c ) don’t use old info to disadvantage former C unless info is generally known or reveal info except as Rules permit

MR 1.10

Imputation of concurrent/former conflict unless prohibition is based on personal interest or L is screened and gets no money from it, written notice is given to former C, certifications of compliance are made

MR 1.13

• (a) A L retained by by an org represents the org

• (b) A L can report conduct that is criminal or may harm the org to higher ups within the org

• (c) A lawyer may reveal information regardless of R 1.6 but only to the extent the L reasonably believes necessary to prevent substantial injury to the org

MR 1.16

• (a) Mandatory withdrawal - when representation will result in a violation of the rules or the law or L’s physical or mental condition materially impairs the L’s ability to represent the client.

• (b) Permissive withdrawal - when no material adverse effect on client; client persists in a course of action involving the L’s services that L reasonably believes is criminal or fraudulent; client has used the L’s services to perpetrate a crime or fraud; client insists upon taking action that the L considers repugnant or with which the L has a fundamental disagreement; client fails to fulfill a L’s obligation and has been given warning the L will withdraw; representation will result in an unreasonable financial burden on L or has been rendered unreasonably difficult by the client; or other good cause.

MR 1.18

• (b) L can’t use or reveal information learned from a prospective client even no relationship ensues

• (c) L can’t represent clients with interests materially adverse to those of a prospective client if the L received information that could be significantly harmful to that person in the matter

• (d) Permits another lawyer in a firm to represent a client with interests adverse to the prospective client so long as disqualified lawyer minimized the receipt of confidences and is screened from the adverse representation

MR 2.1

• In representing a client a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social, and political factors, that may be relevant.

  • Cmt 2: Lawyers are not moral advisers, but morals can come into play

MR 3.1

Lawyers must not engage in frivolous activity; L can only assert non-frivolous assertions. Good faith requirement Ls must pursue.

MR 3.3

(b) L who represents a client in a proceeding and knows a person intends to or has engaged in criminal/fraudulent activity must take remedial measures

MR 3.4

(a) - L shall not unlawfully obstruct another party’s access to evidence, destroy evidence, or assist in the destruction of evidence.

MR 3.8

• R 3.8(a) says pros must refrain from bringing a case without probable cause

• R 3.8(d) says pros must disclose to the D all evidence or information known to the pros that tends to negate the guilt of the accused or mitigates the offense.

• R 3.8(f) says pros must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.

ACJ 3.14(a)

Public Statements: no extrajudicial statements that prosecutor knows or reasonably should know will have a substantial likelihood of prejudice

ACJ 3.39

(a): Discretion in Charging: no charge when prosecutor knows that the charges are not supported by probable cause; no charge or prosecution in the absence of sufficient admissible evidence

ACJ 3.311

(a): Disclosure of Evidence: can’t fail to timely turn over evidence which tends to negate guilt of accused or mitigate offence or tend to reduce punishment

ACJ 3.57

(b): Examination of witnesses: can’t use the power of cross-x to discredit or undermine a witness if the prosecutor knows witness is testifying truthfully

MR 4.1

A lawyer shall not knowingly (a) make a false statement of material fact to a third person or (b) fail to disclose a material fact to a third person when disclosure is necessary to to avoid assisting a criminal or fraudulent act, unless prohibited by R 1.6.

MR 4.2

While representing a C, a L shall not communication with another person represented by another L, unless the L has consent of other L or authorization from law or ct order

MR 4.4

(b) L who receives a document or electronically stored info relating to the representation of the L’s C and knows/should know it was inadvertently sent shall promptly notify the sender (NOTE: still doesn’t address reading, use, and return - Cmt 2)

MR 5.1

(a) - Partners and other managers shall make reasonable efforts to ensure everyone in the firm complies with the rules

(b) - Lawyer supervising another shall make sure he is following the rules

MR 5.2

(a) - L is bound by the rules notwithstanding that the L acted at the direction of another person

(b) - Subordinate L does not violate the rules if he acts in accordance with a supervisory L’s reasonable resolution of an arguable question of professional duty

MR 5.5

•  allows for Ls licensed in one jurisdiction to provide temporary legal services to Cs in another jurisdiction

  • Why? Because we want to facilitate cross jurisdiction legal services

MR 6.1

L should aspire to 50 pro bono hours a year; without fee to persons of need or charities; L should financially contribute to orgs that provide legal services to persons of limited means

MR 6.3

L can serve as member, director, or officer of legal services org apart from their firm notwithstanding the org serves persons having interests adverse to a C of the L. L shall not knowingly participate in a decision or action of the organization (a) if it would incompatible with the L’s obligations to a C under R 1.7 or (b) it would have a material adverse effect on the representation of a C

MR 7.1

a L shall not make a false or misleading communication about the L or the L’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

MR 7.2

(a)    Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

MR 7.3

No live solicitation for money—unless they’re a lawyer, family, or prior client.

MR 8.3

• (a) requires reporting on fellow lawyers

• (b) requires reporting on judges

• (c) protects information that falls under confidentiality or lawyer assistance programs

MR 8.4

• (a) has an aspect of intentionality

• (b) speaks to the mental state of the lawyer during the misconduct that could be reckless

• (c) implied intentionality

• (d) is quite broad; “prejudicial to the administration of justice”

• (e) and (f) anti-corruption

MR 8.5

(a) Disciplinary Authority

• Lawyer subject to discipline in:

  • Any jurisdiction where admitted, AND

  • Any jurisdiction where lawyer provides/offers legal services

• Same conduct → multiple jurisdictions possible

(b) Choice of Law

1. Tribunal-related conduct:

• Apply rules of jurisdiction where tribunal sits

2. All other conduct:

• Apply rules of:

  • Where conduct occurred, OR

  • Where predominant effect occurs

Safe Harbor:

• No discipline if lawyer’s conduct conforms to rules of a jurisdiction where lawyer reasonably believes predominant effect will occur

Spaulding v. Zimmerman

Facts: P was a passenger in D’s car when an accident occurred. After being cleared by his family doctor and a specialist, P is evaluated by another doctor at the request of the insurance company he is suing. This doctor finds an aorta aneurysm, which is life threatening, but he can’t determine if it came from the accident or not. The insurance lawyers keep the info to themselves. There is a settlement for $6,500 approved by the court (since P is a minor). A few years later, P’s family doctor finds the aneurysm and the emergency surgery does not go well. P gets the settlement vacated and so the insurance company appeals. The decision is vacated because the court didn’t know about the aneurysm.

In re Himmel

• Casey committed a huge ethics violation by keeping all of the settlement money

• The extra $40,000 is essentially hush money for not tattling on him. However, Casey still doesn’t pay, so Himmel sues for $100,000. Casey only pays $15,400, which is far less than the original amount and the court order. 

• Himmel got nothing because Forsberg didn’t get more than the original amount.

• Himmel is prosecuted by the Illinois grievance committee because he failed to report Casey’s misconduct. He gets suspended from practicing for a year by the ISC.

Wieder v. Skala

• Attorney suing former employer (law firm) for firing him because he insisted the firm report the misconduct of a fellow associate.

• P won - stated claim for breach of implied contract term of professional compliance

• The more of a gap on the hierarchy ladder between whistleblower and firer, the more likely courts are to rule in favor of whistleblower.

Bohatch v. Butler & Binion

• P was a partner at D (law firm) when she found out a partner was overbilling a client and reported it up the chain of the firm. She was fired for reporting this. Lw ct awarded damages that were significantly lowered by the CoA on the grounds that the firm did not terminate her partnership for self-gain. 

• P lost on the grounds that there is no fiduciary duty to retain a partner who reports misconduct. The lawyers were peers.

• We have to consider the level of trust needed for the firm to function. If peers feel like they are trying to undermine each other, the work of the firm will suffer.

Jones v. Barnes

• Richard Butts was robbed and said one of his assailants was known as “Froggy.” D was arrested since he went by that name. Melinger, D’s appointed counsel, does not raise every claim that D wants him to. D wants Melinger to raise an IAC claim against his first lawyer during the trial.

• SCOTUS says you don’t have to raise every argument a client wants because it would clog up the courts and they would become inefficient.

Westinghouse Electric Co. v. Kerr-McGee Co.

• K&E (DC) was representing API (a special interest organization that dealt with energy). Congress wanted to pass legislation to bust up energy monopolies and the members of API tell the org to stop this. Westinghouse files an antitrust lawsuit against API and they hire K&E (Chicago). API withdraws from K&E and tries to get the Chicago office disqualified from the case. 

• 7th Cir said the fiduciary relationship between K&E DC and WE extends to all K&E offices around the globe

United States v. Kaczynski

• PDs want to introduce psychological evidence to help mitigate the punishment D will receive, but D doesn’t want to.

• 3 Standards

  • 1. Does he have the mental competency to stand trial? (rational and factual understanding of the proceedings)

  • 2. Is his mental state impaired? (Did not appreciate the wrongfulness of conduct at time of crime - negates intent and/or reduces punishment

  • 3. Is he mentally competent to represent himself at trial? (Ability to carry out the basic tasks necessary to present his own defense)

• D pleads guilty but then appeals on the grounds that his Faretta request was wrongly denied

  • Faretta says Ds have a cnstl right to defend themselves under two conditions: D is making a good faith motion AND D is competent

• 9th Cir. says his request was in bad faith since he agreed to use the mental state evidence at trial

• Legal competency and medical competency are two different things.

United States v. Cueto

• L was involved in business dealings with his client who was under investigation. L was indicted on grounds that he misused his office as an attorney and intentionally conspired with his client to obstruct justice.

• “It is the corrupt endeavor to protect the illegal gambling operation and to safeguard his own financial interest, which motivated Cueto’s otherwise legal conduct, that separates his conduct from that which is legal.”

• Substance > form

The Bhopal Case

• After a Union Carbide plant exploded, the govt of India said it would represent the victims as a class in US courts.

• SDNY dismisses case under forum non-convenience and the govt of India settles for a meaningless payout.

• Indian lawyers argued “Who are these American lawyers to tell us that we don’t know how to handle these cases?”

Qualcomm Inc. v. Broadcom Corp

• Q sues B for patent infringement. B says Q engaged in a video sharing platform and exclusivity. Q denies this and B sues for any document related to the question. Q says they will produce anything they find. Bier, a junior associate, discovers an email that leads to 21 emails and he informs Mammen and Patch, both partners. They decide to not disclose them. Months later, the emails came to light and a magistrate judge imposed millions of dollars of sanctions on the lawyers, but they were never enforced because of a district court decision.

  • R 1.2(d); 3.4(a)-(d)

Lee v. American Eagle Airlines, Inc

Kurzbans represent Lee and they make a lot of comments in court that violated standards. Lee wins, but when determining fees he lowered them by $350,000 as a penalty on the lawyers.

Brady v. Maryland

violates due process for govt to suppress evidence material to guilt or punishment; D must request it

US v. Ruiz

Permissible to withhold evidence from D that would impeach prosecution witnesses during plea bargaining, but must turn over such evidence before trial.

In Re Chevron Corp

3rd Cir. says because the conversations were on camera, no ACP formed, and thus there is nothing to waive. Rest of the anty's file (which was done off-camera) not discoverable.

Upjohn

• Communications concerned within and beyond the scope of employment

• Communications were considered confidential and maintained as such (as respect to the opposing party)

• Note: This doesn’t really do EE a favor because the GC can still turn the info over to the EE’s supervisor and potentially EE can be punished (R 1.13(f))

Berkey Photo v. Kodak

Fortenberry (L) was almost a partner. Kodak hired a Yale economist to produce documents that were turned over to Fortenberry and Perkins and thus are discoverable. Perkins lied and said he shredded them but then later admits he lied and resigns. It’s unlikely the firm will make Fortenberry a partner at this point since he acted under Perkins.

Dead Bodies Case

Should the Ls disclose where the dead bodies are of unsolved murders? They probably have an out via 1.6(b)(1) and (6)

Nix v. Whiteside 1986

• Whiteside said he stabbed the victim in a drug deal because “he was pulling a pistol from underneath the pillow on the bed.”

• L presses him on that point and his story changes to “I saw ‘something metallic’ in Love’s hand under the pillow so I stabbed him.” L is trying to figure out if there is a self-defense claim here

• Cory Robinson, the ct appointed attorney, advises Whiteside that if he feels like he is committing perjury that he will disclose it to the court.

• After Whiteside is convicted, he files a motion at the trial ct claiming IAC because he didn’t have a zealous advocate

  • C has to show: (Strickland v. Washington)

    • That the D L erred AND

    • The error unduly harmed the D

• Supreme Ct says Robinson was fine because the duty of the L is to ensure that perjured testimony won’t be offered when the witness is testifying

Cuyler v. Sullivan 1980

• IAC key point is whether it prejudiced the decision

• There were 3 separate cases. They tried Sullivan first. He was convicted via a settlement and the other two were acquitted in separate trials on an affirmative defense.

• Sullivan appealed on IAC grounds. The attorneys didn’t raise the aff def because they wanted to save witnesses for the other two trials.

• Sullivan never raised IAC at trial level, only at appeal.

• Ct holds there is no cnstl duty to investigate conflicts on the part of the judge. 6th A says nothing about it explicitly. Also, from a public policy stand point, we don’t want to clog up the system with judges looking into conflicts.

• Ct also holds D has to show that L’s performance adversely affected the outcome

  • Strickland: error + prejudice

  • Sullivan: conflict + injury

Holloway v. Arkansas 1978

Failure of state court to appoint separate counsel for separate Ds, after timely objection to a conflict = automatic reversa

Wheat 1988

• D recognizes L might have a conflict, but D says “I don’t care” and then the tr judge says “No, I’m not going to give you a L that has a conflict.” D gets another L and is convicted and claims he didn’t get a L of his choice so claims 6th A rights were violated. SC said no violation. The tr ct is able to assert its authority here.

Mickens 2002

A L who is the L of someone who is in jail. The L is a PD. L’s C gets killed in jail. The person who kills the L’s C now needs a L, and because of the limit of PDs available, the ct appoints that L to defend the accused murderer. Person accused of murder is convicted and claims IAC because the L was the L of the victim. SC says the only way a D can get a new trial is to show that the Sullivan test was proven: actual conflict and adverse effect

Florida Bar v. Brumbaugh 1978

• Brumbaugh was a typist who would type up things, but ended up providing some quasi-legal advice when asking about how they want divorces set up, etc.

• No former Cs complained, but rather a member of the FL bar did

• Ct still let her practice, but curtailed it

Birbrower v. Superior Court (Cal. 1998)

1. The California Supreme Court held that a New York law firm engaged in the unauthorized practice of law by performing substantial legal work in California without being admitted there, even though much of the work was connected to negotiations and a settlement and not litigation.

2. In response, ABA Model Rule 5.5 was revised to clarify when lawyers may provide temporary, multijurisdictional services, creating safe harbors for cross-border practice that Birbrower had cast into doubt.

Bates v. Bar of Arizona 1977

• Legal clinic that offered legal services to middle class people. Needed to advertise to make money, so took out newspaper ad. “Legal services at very reasonable fees.” Went against AZ rules at the time.

• Ct applies strict scrutiny when a state regulates something in such a way that restricts a right

• 1st A categorizes speech into political or commercial. This was commercial.

• Ct said commercial speech gets intermediate scrutiny. The code violated the L’s 1st A rights. 

• Ads can make statements about pricing and routine services. They cannot talk about quality or complex services. State can regulate the last two.

Ohralihk v. Ohio State Bar 1978

• Issue: Is in-person solicitation different from newspaper advertising-or targeted mailing-for 1st A purposes?

• L visited hospital to sign up clients from car crash

• This was deemed commercial speech

• L’s conduct was deemed to be improper; solicitation directed at a single C for monetary gain for the purpose of employment

In re Primus 1978

• Doctor’s L tells Williams she has to sign a form to get sterilized because she wants medicaid. Primus files a lawsuit on behalf of Williams and the other women. South Carolina bar ends up investigating Primus for unlawful solicitation. 

• Primus says she is working for a non-profit, she’s not getting money, and is simply letting people know of their rights.

• Primus says this is political speech since this is informing of political and legal rights

• Primus won and her conduct is deemed to be protected as a form of political speech

• There is a direct solicitation of a class of Cs who are informed their political and legal rights are in jeopardy and the Ct okays this conduct

In re RMJ 1982

• State can prohibit misleading advertising

• Non-misleading advertising is presumed valid, but can be regulated to promote other state interests (public image, privacy)

• Potentially misleading advertising can be regulated to prevent misleading inference