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Legal Profession Outline

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Submitted By wince
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Fiduciary Duty Attorney Must place the client’s interests above their own for representation and must treat the client fairly. Duty of Loyalty
Attorney must pursue clients objectives unfettered by conflicting responsibilities or interests Duty of Diligence Attorney must pursue clients interests without undue delay Duty of Competence Attorney must give client competent representation legal knowledge, skill thoroughness and preparation Duty of Confidentiality from the 6th Amendment Right to Effective Counsel Duty of Confidentiality versus Attorney-Client Privilege
The Attorney Client privilege is a shield in evidence which protects all documents created for the client during discovery....if a third party is present the privilege is lost.
Work-Product Doctrine this extends to memorializations of conversations with 3rd parties, but not the actual conversations themselves. Anything produced/recorded in the process of and bearing on the legal representation of a client is protected (e.g. interviews, artifacts, documents, mental impressions...meaning ideas/thoughts, etc)

POLICY: We want attorneys to record their impressions so they can have more sophisticated representation, therefore we protect it. BUT, if your opponent can show a substantial need for the material AND they show that they cannot get it in any other way....then you have to hand it over.
The attorney-client privilege is thus stronger than work product (because WP can be broken if the other side really needs it)
Mental Impressions => these are called “core-work product”. Core WP is ONLY discoverable under EXTRAORDINARY NEED for Federal cases. (higher standard)......IN CALIFORNIA CORE WORK PRODUCT IS NEVER DISCOVERABLE.

The Duty of Confidentiality is an Ethical Duty which obligates an attorney not to reveal ANY information (or say something that leads to the discovery of such information) that is learned relating to the representation of the client (even if it comes from a 3rd party). IT ONLY APPLIES TO COMMUNICATIONS...NOT facts Duty of Confidentiality is MUCH BROADER (covers 3rd party communications) Duty of Confidentiality is WEAKER (can be broken by necessity...if the other side shows “substantial need”

EXCEPTIONS To Duty of Confidentiality Client Gives informed consent implied consent Attorney must disclose in order to: prevent reasonably certain death or bodily harm to prevent fraud to prevent reasonably certain harm financially or to property to get legal advice about the matter self-defense of the lawyer (when client comes after them) to comply with law or court-order CALIFORNIA IS MUCH MORE NARROW FOR EXCEPTION TO CONFIDENTIALITY CALIFORNIA RULE - Must be a criminal act, no exception for financial harm, no exception to protect the interests of the attorney.

Attorney-Client Privilege in the Context of Business Entities Control-Group Test -
We look at the communications with the “control group”....the BOD, CEO, etc (highest ranking officers). Anyone else is a mere employee. Subject-Matter Test - if an employee is talking with an attorney on a subject matter which relates to their service to the entity, then their communication is privileged. Functionality Test (CALIFORNIA RULE) If employee seeks out attorney then it is privileged. If communication between employees and attorney bears on a matter which threatens to give rise to liability...then it is protected/privileged. BUT...if the employee is merely talking about something they witnessed (not something they engaged in personally) then it can be subpoenaed and forcibly revealed. This falls somewhere between the control-group test and the subject matter test. IN CALIFORNIA: Any member of the control group speaking to an attorney is privileged. If an ordinary employee seeks out an attorney seeking advice on how to conduct themselves...that is privileged But, when an attorney initiates the conversation, or is investigating something....those communications are not privileged

Government Attorney-Client Privilege There is LESS protection for privilege with Government clients because we want more transparency Agency Relationship of Attorney-Client Actual Authority - Client expressly tells lawyer Implied Authority - A reasonable attorney (agent) would believe it is implied based on the actual authority (e.g. I want you to build a football stadium implies the authority to buy wood and concrete) Apparent Authority - when client represents to 3rd party that agent has certain powers Inherent Authority - Regardless of what the principle tells the agent, by the nature of the position of the agent (e.g. attorney)....the agent has the authority to bind the principle in all actions that would typically come with that kind of agency. THIS INCLUDES AN ATTORNEY’S TACTICAL DECISIONS DURING LITIGATION EXCEPTIONS Some tactical decisions are reserved for the client: Plead Guilty Waive Jury Trial Settlements (IN CALIFORNIA) RULE: THE CLIENT HAS THE AUTHORITY TO CHOOSE THE GOALS OF REPRESENTATION AND THE ATTORNEY THE HAS THE AUTHORITY TO CHOOSE THE MEANS. AND WHERE THE ATTORNEY HAS AUTHORITY THE CLIENT IS BOUND. DUTIES IMPLICATED: Duty to Promptly inform client Duty to Act with reasonable diligence and promptness....BUT not bound to press for every advantage that might be won for the client. (e.g. Ms. Niceperson hypo) Attorney-Client Relationship After Death PRIVILEGE SURVIVES DEATH FOR MR CALIFORNIA - PRIVILEGE IS GONE WITH DEATH Terminating the Attorney Client Relationship Lawyer must inform the client of relationship ending Client can fire lawyer for any reason (except discrimination) Indigents can only request that the court changes attorney Attorney has Right to Terminate Relationship if attorney reasonably believes client is doing something criminal or fraudulent if client insists on repugnant course of action, which attorney disagrees with Attorney must get courts permission to terminate, if litigation has commenced
No Contact Rule CIVIL CASES
Rule 4.2 => In representing a client, the lawyer cannot communicate directly with another party (opposing party or witness....about the subject of representation) who is represented by an attorney. Must always communicate with the attorney UNLESS through the consent of the other lawyer, or through court order. Knowledge required but can be inferred from the circumstances UNREPRESENTED PARTY cannot discuss legal matters cannot represent that you are uninterested party must affirmatively clear all misconception as to whether they are represented and advise them to get an attorney CRIMINAL CASES No contact at all ENTITIES FUNCTIONALITY TEST APPLIES Control Group - No contact Other Employees - you can have contact with any employees who are mere witnesses EXCEPT those who’s conduct may give rise to liability TESTERS Testers => example: attorney sending a minority to a apartment to see if there is discriminatory rental practices Testers do not violate the no contact rule if they ask questions that ordinary members of public would ask. Inadvertent Disclosures REQUIREMENTS Promptly notify the other side Whether you can use the document depends on jx CALIFORNIA RULE Notify the other side and you CANNOT use the disclosure. Conflict Duties A conflict is when there is a significant chance your representation of a client will be materially limited by your obligation to: Another Client A Former Client A 3rd Party Yourself (personal interests)
CONFLICT DUTIES MAY BE WAIVED IF THE ATTORNEY: reasonably believes that they can represent the client even with conflict; AND informs the client of the conflict (MUST BE IN WRITING IN CALIFORNIA); AND the client consents (IN WRITING IN CALIFORNIA) Types of Conflicts Personal Conflicts Business Transactions is is ok to enter into a business transaction with a client as long as the lawyer’s interests are fair and reasonable; AND fully disclosed in writing; AND client gives informed consent Literary or Media Rights prior to the conclusion of the representation of a client, the lawyer cannot buy any media rights of the client in connection with with what the representation involves. CALIFORNIA allows client to sell the literary or media rights. Hollywood! Sex with Client no sexual relations with the client unless the relationship existed prior to the commencement of the attorney client relationship CALIFORNIA allows sex with client Sex with Client as Entity
No sex with controlling parties (managers, directors) or any points of contact...but lower employees can be humped Financial Assistance and Proprietary Interests Attorney cannot lend any financial assistance to a client unless they are court costs for litigation Fee Payer Interests this is where a company pays the attorney fees for the client...for example an insurance company in a class action or any company paying litigation fees for their employee who was acting within the scope of employment when they were injured. This is ok when: The client consents to the fee payer interests The fee payer does not interfere with the lawyer’s independent professional j/m and or a/c relationship; AND the lawyer protects the client’s confidences Relatives and Significant Others ????????????

Concurrent Clients Criminal KEY POINT: there is a lower bar for D’s to demonstrate a violation of 6th Amendment for conflict situations than other situations. Ineffective Assistance of Counsel (6th Amendment) BASED ON CONFLICT [Cuyler standard]: client must show that attorney had: ACTUAL conflict (not potential) That the conflict had some adverse impact on the representation Ineffective Assistance based on any other issue [Strickland standard]: client must show: the lawyer behaved unreasonably in that, the lawyer took steps that no reasonable lawyer would take or the lawyer failed to take steps that a reasonable lawyer would have taken. But-for the conduct the outcome would have been different. the lawyers conduct probably changed the outcome of the trial CIVIL Concurrent Clients in a Civil Case on THE SAME MATTER
Attorney cannot represent adverse parties in the same proceeding.
Imputation - this is imputed on all attorneys in the firm. One firm can’t handle both sides of the “v”

Concurrent Conflicts on RELATED MATTERS Default RULE - you are not allowed to stand adverse to your concurrent litigation that is substantially related. you must examine the conflict for the exam ANY DEFAULT RULE CAN BE CONTRACTED AROUND

Concurrent Clients in a Civil Case on UNRELATED MATTERS must get informed consent from the client

Concurrent Clients and the Duty of Confidentiality when client have joint representation, the client should expect lawyer may share all relevant information with both of them. Even if client 1 tells lawyer not to tell client 2

Reporting Other Attorney’s Misconduct MR 8.3 REQUIRES any attorney who witnesses substantial violations to report CALIFORNIA - You may report, but there is NO DUTY TO REPORT

“Substantially Related”- if the matters invoke the same transaction of dispute OR if there is a substantial risk that confidential factual information would materially advance the client’s position in the subsequent matter. basic issue - did you learn some information in the last case that would be useful in the new case...if so, substantially related.
You CANNOT represent a person in a matter that is substantially related when the person’s interests are materially adverse to the former client....UNLESS former client gives informed consent in writing Attorney Withdrawals
“HOT POTATO” Issue - CANNOT WITHDRAW If you are working on a deal with a company and then get the opportunity to sue them with another client which offers more profit, you can’t withdraw from representation to maximize profits. (MR Rule 1.16 prohibits it) Attorney MUST withdraw when representation would violate rule attorney has lost mental or physical capacity, and is unable to carry on discharge (client fires you) Attorney MAY withdraw if it does not adversely effect the client client is engaging in fraudulent or criminal activity client insists in a course of action that is repugnant to the lawyer client doesn’t pay

Clients with Diminished Capacity
When you believe that the client has diminished capacities and is unable to set the goals for themselves Treat client as any CANNOT set the goals of the representation If it is not possible for client to set goals, seek intervention have Guardian Ad Litem or Conservator appointed Seek guidance from the court/tribunal CALIFORNIA - no rule, look to MR

Migrating Attorney and Imputed Disqualification
The BURDEN IS ON THE MIGRATING ATTORNEY TO REBUT the presumption of conflicts existing
You can do this through an affidavit Two-Part Test on Migrating Attorney DQ Is the matter substantially related? IF YES, look at next question... Did the migrating attorney learn any confidences that would be relevant to the subsequent representation. IF YES, the attorney must rebut through an affidavit... SCREENING - Were the confidences shared? Some jx allow (including CALIFORNIA) if you were screened. Institutional Screening can rebut the presumption of conflict, and can be done through: Conceptual - send out notice that attorneys shall not talk to migrating attorney about the case Physical - lock up the files and physically separate the attorneys. FORMER LAW FIRM IS CURED OF ALL CONFLICTS WHEN ATTORNEY MIGRATES AND FIRM REBUTS PRESUMPTION (shows that non of its attorneys learned anything. HOT POTATO PART DEUX - in this situation a firm can technically discharge an attorney in order the be able to stand adverse to the client

Government Service
Migrating from: Civil to Government (or vice versa) - MR 1.11: lawyer CAN represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer/employee as long as the government agency gives informed consent; OR the attorney was screened

Spouse or Relative Conflicts Can a husband and wife or relatives stand adverse to each other? NO RULE IN CALIFORNIA - extends to everyone but friends (spouse, parent, child, sibling, cohabitant or intimate relation) Positional Conflict this is when the position an attorney takes for one client is directly adverse to another client CALIFORNIA - this is not a conflict....not required to disclose. Conflict of Interest within Entity Context
if a lawyer observes malfeasance within a company they MUST report it up to the highest legal authority if that doesn’t work they can report out ????? MR 1.13 If an attorney observes something that is reasonably likely to result in substantial injury to the organization, their first obligation is to do something they reasonably believe to be necessary to the best interest of the organization If what is observed is not in the best interest of the organization, then they shall report the matter to the highest authority. CALIFORNIA - CANT REPORT OUT REGARDLESS....ONLY REPORT UP

Fees Contingency Based Fees Must be in writing
Must inform client of all expenses for which client will be liable NO CONTINGENCY BASED FEES IN: Domestic cases based on securing divorce of property (IN CALIFORNIA CONTINGENCY IS OK FOR Domestic cases) Criminal Cases Fee sharing between attorneys in different firms Only allowed when: division is proportioned by services performed by each attorney, and each attorney assumes joint responsibility for the representation; AND Client agrees in writing; AND the total fee is reasonable Referral Fees Not allowed for referring a client to another lawyer without doing any legal work IN CALIFORNIA it is allowed, as long as it is in writing and doesn’t add anything to the total cost of representation

ETHICS IN ADVOCACY Ethical Duty of the Prosecutor A Prosecutor’s obligation is that justice shall be done....not just to win a case. MUST HAVE PROBABLE CAUSE to prosecute a case Probable Cause is: reasonable belief to charge (this is subjective) Black Law: reasonable basis to suspect that someone has committed a crime Ethical Misconduct by Any Attorney No Frivolous Claims or Defenses Exception A lawyer can bring a losing claim if they have a good faith belief that the law can be changed or modified Relevancy CANNOT elude to any matter that the lawyer does not reasonably believe is relevant. Appeals to Bias or Prejudice NO appeals to bias or prejudice in making arguments Offering False Evidence CANNOT offer evidence knowing it to be false ALSO, YOU MUST CORRECT if false evidence is offered Dilatory Tactics Slowing Down Litigation - the attorney shall make reasonable efforts to expedite litigation consistent with the interests of the client. “Indirect” Delay Strategies - conduct whose primary purpose is to avoid contest on “the merits” by focusing on collateral issues Client Fraud/Perjury If the Lawyer KNOWS client will perjure themselves: They can refuse to allow them to testify in a CIVIL CASE criminal you have to allow them to testify If the lawyer REASONABLY BELIEVES the client will perjure themselves They have to let the client testify Concealing Adverse Legal Authority Attorney MUST reveal all adverse legal authority that is on point within the jx Perjury Duty of Candor
What is perjury? Is the Proceeding.... Adversarial - less strict for perjury standard, because we don’t necessarily have to help the opposition Cooperative - this is a more strict standard. US system is moving towards more of a cooperative standard False Inferences Criminal Cases
Prosector CANNOT argue for false inferences Defense CAN argue for false inferences (In&Out Case) Civil Cases
False Statements NO false statements to tribunal NO false statements to 3rd parties NO engaging in in conduct involving dishonesty, deceit, fraud or misrepresentation Real Evidence Real evidence is and document or object that may have relevance to a pending or impending case (e.g. artifacts, papers, guns, bodies, pens)
FOUR ISSUES Ethical Obligations Criminal Obligations (obstruction of Justice) Attorney-Client Privilege Observations and Communications are you don’t have a duty to turn it over to the other side...but you also cannot obstruct or conceal. (e.g. Case of Bodies in mineshaft) If you move the evidence, alter it or take possession of it (e.g. the wallet case) then you must reveal the source of the information, because you have destroyed the att-client privilege.
Discovery Obligations

Judicial Ethics Judicial Disqualification Must DQ oneself if impartiality might be reasonably questioned Must DQ oneself where there is an actual conflict Must DQ oneself when: you have personal bias or prejudice concerning a party personal knowledge Judge is DQ’ed if a relative within the 3rd degree of relationship to judge or the spouse of a relative within the 3rd degree (anyone but cousins) Judicial Election and Judicial Appointment

Who can practice Law? You can gain admission to the BAR as long as you don’t Knowingly make a false statement of material fact Conceal a material fact Moral Character Requirement

Malpractice Requirements duty to behave towards you breach causation (but for the conduct) damages Frequently cited grounds for Delaying or Denying Bar Admission Criminal Conduct Lack of Candor in the application process Dishonesty or a lack of Integrity in legal academic settings Mental Health Financial Probity Applicant’s Private Life Ability to Speak English Unauthorized Practice of Law CALIFORNIA - ONLY EXCEPTIONS ARE
“GIVING ADVICE” Corporate Provision of Services A lawyer SHALL NOT practice with or in the form of a professional corporation or association authorized to practice law for profit, IF: a non-lawyer owns any interests therein, EXCEPT fiduciary representative of the estate of a lawyer can hold an interest for a reasonable time during administration therein a non-lawyer is a corporate director or officer thereof a non-lawyer has the right to direct or control the professional judgment of a lawyer POLICY ARGUMENTS against this => allowing corporate america in would increase the power and ability to serve For this....Corporations owe a duty to their shareholders...not clients.…...

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