LEGAL ETHICS IN THE PRACTICE OF LAW:
Second Edition, Zitrin, Langford
Outline by Brian Pedigo
Fall 2005,
Notes: Spoken by Professor Sall
1.
INITIAL REFLECTIONS ON ETHICS,
MORALITY, AND JUSTICE IN AN ADVERSARY SYSTEM
a.
Some Initial
Reflections from Abe Lincoln: “Discourage litigation. Persuade your neighbors to compromise whenever
you can. Point out to them how the
nominal winner is often the real loser—in fees, expenses and waste of
time. As a peacemaker, the lawyer has a
superior opportunity of being a good man.
Never stir up litigation. A worse man can scarcely be found than one who
does this.”
b.
The Duty of
Advocacy and Defending the Guilty: Problem was that a lawyer had been
trying to persuade a jury to acquit a man he knew was guilty. One has said, “I am simple enough to consider
that he who defends the guilty, knowing him to be so, forgets alike honour and
honesty, and is false to God and man!”
Others say, “A man is bound to deceive, if it be for the interest of his
client.” Still others, “if an accused
person be really guilty, he has no moral right to any defense.” The other side
says that “if the evidence is insufficient to convict him, he has a legal right
to be acquitted.” “The truth he [the
lawyer] cannot disclose; the law seals his lips as to what has been
communicated to him in confidence by his client.” The bottom-line is therefore to “use
all fair arguments arising on the evidence.”
c.
Should Legal
Ethics Ignore Social Morality?: most lawyers will say that it is their
obligation to provide the best defense possible for someone they know is
guilty. Having a code of ethics means
never having to say you’re sorry. i.e.
the shield of ethics is often used to do morally questionable things.
d.
Moral Costs: in
the past lawyers were directly involved in the tobacco industry’s attempt to
cover up what it knew about the dangers of its product. Moral costs are those features of
one’s action and its consequences toughing on important concerns, interests,
and needs of others that, in the absence of specific justification, would
provide substantial if not conclusive moral reasons against performing it. The lawyer is under great temptation to
refuse to accept responsibility for his professional actions and their
consequences. The lawyer’s integrity is put into question by the mere exercise
of the duties of his profession. This moral detachment can cause a deep moral
skepticism. When professional
action is estranged form ordinary moral experience, the lawyer’s sensitivity to
the moral costs in both ordinary and extraordinary situations tends to atrophy.
Moral detachment of a lawyer will adversely affect the quality of the
lawyer-client relationship by making it impersonal.
See 55
e.
Further Thoughts
on Ethics and Morality: clients retain us to meet their needs, not our own or those of society. “One way to look at
“legal ethics” is to integrate, even internalize, it along with one’s own
personal morality.”
f.
When the
Individual Alone Chooses to Act: one man stopped taking his CA bar exam to
give CPR to another test-taker having a seizure. CA said that the test
supervisor acted properly by refusing to give the good Samaritan extra time to
make up for the minutes lost giving CPR.
THE LAWYER-CLIENT RELATIONSHIP
2.
UNDERTAKING A CASE
a.
Hanging Out Your
Shingle:
i.
Competence and
the Right Lawyer: any lawyer-seeking law person, unsophisticated and
lacking the right connections, has great difficulty in finding the right
lawyer.
ii.
Malpractice and
the Wrong Client: a skill just as important as being able to attract and
take on good clients is the ability to assess which clients are to be
avoided. One should screen clients by
filtering out clients with bad expectations, motives (greed, vengeance, etc),
communication ability, and controlling tendencies. It is much easier to walk away from a case or
client before committing than after the case starts.
iii.
Competence and
iv.
Law Firm
Mentoring:
v.
Legal
Internships and Continuing Education:
vi.
Competence and
Negligence:
vii.
Fiduciary Duty:
viii.
Referral Fees:
b.
Must We Take
This Case?:
i.
Ethical Rules
and Their Limited Utility:
ii.
Two Famous
Lawyers and an Infamous Client:
iii.
The Courageous
Stand of Anthony Griffin:
iv.
How Two Firms
Dealt With an Explosive Issue:
v.
Law Firm
Associates, Credit Suisse, and the Decision to Take a Case:
vi.
Happy, Healthy,
and Ethical?:
vii.
Appointments by
the Court:
viii.
Requiring Pro
Bono Work:
ix.
Mr. Mallard Goes
to
c.
Getting a Client
and Getting Paid:
i.
When Does the
Attorney-Client Relationship Begin?: neither a retainer nor a formal
agreement is required to establish the attorney-client relationship. The attorney-client relationship may be
inferred by the conduct of the lawyer, including casually rendered advice. The
following factors may be useful in determining whether there’s a relationship:
1. Did the client seek advice from the lawyer?
2. Was it within the lawyer’s area of competence?
3. Did the lawyer, either directly or implicitly, agree to give the requested advice?
ii.
Getting a Client
Online: web solicitation is (in most cases) constitutionally protected
speech. Legal advertising, even when it targets specific groups of alleged
victims, has been deemed by courts to be protected commercial speech. Lawyers
should be safe if they follow the rules in the state in which they are admitted
to the bar.
iii.
Consumers or
Clients: operating “unbundled services” on the web may be dangerous –
turning consumers into clients. It is
also dangerous to ghost-write pleadings.
iv.
Fee Agreements: it
is important to put into writing the scope of representation – a clear
delineation of which tasks are being performed by the attorney, and which are
not. Set clear expectations as to fees
and services.
v.
Contingency
Fees:
vi.
Excessive Fees:
vii.
Must Reasonable
Fees be Proportional to a Case’s Dollar Value?:
viii.
Business
Relationships, IPOs, and Lawyer-Client Deals:
3.
COMMUNICATION AND CONFIDENTIALITY:
a.
Roger Earl
Receives Some Evidence:
i.
Mr. Garrow, His
Lawyers, and Two Buries Bodies – Belge: the lawyer is sometimes under
two conflicting obligations: the lawyer must keep the client’s confessions of
crime confidential, but also must not hide physical evidence (a weapon or dead
body) from the prosecution. Since a
∆ does not have to incriminate himself, the lawyer is bound to uphold
this sacred trust of confidentiality. At
the end of the day, confidentiality wins.
1.
Brian’s Thoughts:
a ∆ does not have to incriminate himself, but when the ∆ does
in fact incriminate himself, should the truth be given to all parties? If I am faced with this dilemma, and I blow
the whistle & tell it to the court, will I be punished? Can I draft a contract that defines my own
custom attorney-client relationship (e.g. you have a good case now, but if you
change your story, I will drop you/tell the court)? From what I understand now, criminal defense
attorneys seem as sick in the mind as the criminals who commit the crimes.
ii.
Future and
Continuing Crimes and the
iii.
In re Ryder:
there may be a difference between active concealment vs. not disclosing. In Ryder, the attorney (Ryder) took money and
a gun used in a bank robbery and put it in his own box to conceal until after
the trial. Ryder’s conduct was not
encompassed by the attorney-client privilege.
Since Ryder took the initiative, this was active concealment.
1.
Note: a lawyer’s job
is to advise the client as to what to do, but not to actively
participate in the crime. Volunteer the reasonable alternatives.
iv.
The Meredith
Case: held, an observation by defense counsel or his investigator, which is
the product of a privileged communication, may not be admitted unless the
defense by altering or removing physical evidence has
precluded the prosecution from making that same observation. The fundamental purpose of the
attorney-client privilege is to encourage full and open communication between
client and attorney.
1.
Note: one must
distinguish between a (1) communication and a (2) observation. “You can look,
but you can’t touch.” Don’t touch the
fruit of the crime, the instrumentality of the crime, or the evidence of the
crime.
2.
Brian’s
Questions: why is full and open communication so important? What’s at risk without this openness? Why doesn’t the client simply assume the risk
of withholding information?
3.
Note: the
attorney-client relationship starts as soon as the client starts talking.
v.
The Criminal
Defense Lawyer’s View: fruits or instrumentalities of a crime should be surrendered
by defense counsel.
vi.
Tarasoff and Its Consequences: Privilege
only protects an in-court revelation; confidentiality applies at all times and
in all circumstances. CA requires every
attorney maintain the confidence, and at every peril to himself or herself,
preserve the secrets of his or her client. §6068(e). A client who uses an attorney’s
representation to further a crime or fraud loses the right to claim the
privilege.
vii.
Balancing the
Duty to Warn – Pulling the Trigger vs. Jumping the Gun: if an attorney
jumps the gun and warns before a danger is truly dangerous, he may be liable –
as much as a million dollars in liability.
viii.
Can a Lawyer
have a Client for Purposes of Confidentiality?: a confidential relationship
is formed even when the lawyer does not want to take a case but just listens. A
communication to a secretary is also confidential, even if the prospective
client has yet to see the lawyer. When
the lawyer affirmatively states in advance that he is not willing to represent
the prospective client, the client can no longer have an expectation of
confidentiality, and the subsequent statements are neither confidential nor
privileged.
ix.
Confidentiality
and the Moral Imperative: Rule 1.6 says that a lawyer may not reveal
information learned during the course of a representation unless the client has
consented or unless it is necessary to prevent the client from committing a
criminal act that the lawyer believes is likely to result in imminent
death or substantial bodily harm.
DE has no duty to warn a potential victim that AIDS may be
contracted. A lawyer can confront, but
not disclose. Moral compulsion to
disclose is no exception to 1.6. CA
3-100 governs this.
1.
Brian’s
Questions: what if you can’t drop a rotten client – can you intentionally
do a crappy job and lose the case on purpose?
x.
Other Possible
Exceptions to Confidentiality: hypotheticals have been proposed as
exceptions to the strict confidentiality rule – such as when you could save a
life.
b.
When Does a
Lawyer Talk Too Much?
i.
Do Loose Lips Sink
Ships?: both secrets and confidences must be protected from discourse. Lawyers
who reveal confidences and secrets do so at their peril, and if their conduct
is closely scrutinized may well suffer penalties as a result.
ii.
Lawyer-to-lawyer
Consultations, Client Confidences, and the
iii.
Other Forms of
Lawyer-to-Lawyer Consultations: sometimes a lawyer has to consult a
replacement lawyer.
iv.
How Far Does
Confidentiality Extend?: a lawyer may go to jail if ordered to divulge
information which is then refused under confidentiality. Where an attorney does more than withhold
client information, the attorney will likely get into trouble (e.g. fraud).
v.
Is the Client’s
Identity Confidential?: the client’s identity may be confidential.
vi.
Death and Taxes:
confidentiality and privileged client information survives that client’s
death. Reasons include concerns about
reputation, civil liability, or possible harm to friends / family; same reasons as disclosure during the
client’s lifetime. Sometimes there is a
duty to disclose the death of a client.
1.
Taxes: businesses
that receive $10,000 or more in cash must report these transactions to the IRS
(form 8300); this applies to attorneys as well – which could possibly
incriminate a criminal defense client who paid with drug money.
2.
Brian’s
Questions: is there any more to the purpose of the attorney-client
privilege than what the courts say? Why is full and frank communication worth
more than openly known truth and justice?
c.
Technology +
Confidentiality = Trouble
i.
How Safe is
E-mail?: an attorney must have some certainty or reasonable expectation
that a means of communication will remain confidential. The
ii.
E-Mails and
Malpractice: attorneys need not encrypt email in order for their clients to
have an expectation of privacy.
iii.
Telephone Tag:
1.
Cordless Phones:
where harm clearly would occur [if intercepted], the use of cordless phones
to discuss identifiable confidential information should be avoided unless the
client consents after being apprised of the attendant risks.
2.
Cell Phones: safer
than cordless phones. Both difficult and
a crime to intercept, but still possible.
Bottom-line: be careful what you say on the phone to avoid malpractice.
iv.
Problem with
Websites: security is the bottom-line problem here too.
v.
A Few More
Internet Issues: website disclaimers
must be both complete and accurate.
Customers should have to click “agree” to the disclaimer.
vi.
Inadvertent
Disclosure: the professional
obligation demands that one utilize his knowledge about the case on his
client’s behalf.
vii.
viii.
WPS: opposing
counsel sent a package of documents to the plaintiff by accident. It was privileged strategy reports. The lawyer not only reviewed the info, but
shared it with experts and distributed it.
The lawyer was sanctioned, but the court of appeals reversed because
there is no clear rule in CA. One is
required not to read privileged info, as soon as you know it is privileged
stop, notify the other side, and then seek court guidance.
ix.
If the Current
Trend Continues:
4.
LOYALTIES AND CONFLICTS OF INTEREST
a.
When are Two
Clients Too Many?:
i.
Conflicts of
Interest:
ii.
Representing
Multiple Clients and Getting Informed Consent:
iii.
Confidentiality
and Joint Representation:
iv.
Adequate
Disclosure, Reasonable Consent, and Unwaivable Conflicts:
v.
Multiple
Conflicts and Billy Joel:
vi.
Prospective
Waivers:
vii.
Conflicts and
Criminal Defense:
viii.
Conflicts,
Waivers, and Effective Assistance of Counsel:
b.
Who Is My
Client?:
i.
Whom do You
Represent?:
ii.
Whom Do You
Tell?:
iii.
The Garner Case:
iv.
Upjohn:
v.
Privilege After
Upjohn:
vi.
Subsidiaries:
vii.
Who in the
Corporation May Keep Confidences:
viii.
Side-Switching
and Changing Loyalties:
ix.
United Mine
Workers Litigation:
x.
Lawyers for
Partnerships:
xi.
Miranda Warnings
for Corporate Officers:
c.
What Happens When
Your Personal Interests Get in the Way?
i.
When Lawyers
Have Something to Gain:
ii.
Fee Arrangements
and Conflicts of Interest: It has been said that almost any fee arrangement
can create a conflict between the interests of the lawyer and those of the
client. Fixed fee lawyers will want to
settle too quickly, while hourly lawyers will want to drag the case on and
on. The lawyer must not allow his own
interests to influence his professional advice.
A lawyer should evaluate a settlement offer on the basis of his client’s
interest, without considering his own interest in obtaining a fee.
iii.
Problem of
Determining the Attorney’s Fee Independently of the Client’s Recovery:
1.
In Re Fee: medical malpractice suit on a 40%
contingency fee basis. Fee accepted a
settlement, along with Fee’s client’s agreement to additional fees, and kept
that secret from the judge. The defense
offered this settlement on purpose to drive a wedge between lawyer and client
in negotiations, as it would cause the lawyers to lose money.
iv.
Contingency Fees
in Criminal Cases: no contingency fee allowed in criminal cases.
v.
Failure to Pay
Fees and Withdrawal: almost every jx allows a lawyer to seek withdrawal if
the client fails to meet agreed-upon financial obligations. However, sometimes actually getting released
from a case is very hard to get.
vi.
Don’t Slam the
Door Behind You: ABA 1.16 give grounds for withdrawal from a case, such as
failure to fulfill a fee agreement, or making the lawyer do something repugnant
or imprudent, or when representation become unreasonably difficult. Any reason
at all may be good enough so long as that there is no material adverse effect
on the client. In CA, a lawyer cannot
withdraw at all even with legitimate grounds until there are reasonable steps
to avoid
reasonable foreseeable prejudice to the rights of the client. 3-700(A)(2).
Deny to leave usually happens because the lawyer waited to long (eve of
trial). Having a substitute ready makes
it easier on the judge.
vii.
Who Owns the
Case File: almost all jx agree that if the client has paid the lawyer’s
bills, the file belongs to the client. The problem is when the client does not
pay the fees, as well as the extent of work product contained in “the file.”
Many states say that when fees are owed, the lawyer may not hold the file
hostage – even with a retaining lien.
viii.
What
Relationships are too close?: spouses representing opposite sides of a case
is too close. The problem today is
defining what is an “intimate personal relationship.”
ix.
Sex with
Clients: half the states have banned sex with clients.
x.
Lawyers’
Personal and Political Agendas:
d.
Conflicts of
Interest and the Business of Being a Profession:
i.
Conflicts and
Motions to Disqualify Counsel:
ii.
Law Firm
Imputation:
iii.
Substantial
Relationship Test:
iv.
Screening
History:
v.
Screening Debate:
vi.
Corporate
Subsidiaries:
vii.
Shared Space and
Non-Lawyer Migration:
viii.
Withdrawing From
a Case:
e.
A Day in the
Life of Lynch, Dahl & Wong:
i.
Loyalty and the
Insurance Defense Lawyer: