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Course: Professional Responsibility 2 (Michigan)
School: unknown
Year: 2004
Professor: unknown
Course Outline provided by Legalnut.com

Professional Responsibility

(see other Professional Responsibility outline)

Tape 1 of 2 -

 

Exam Based on:

American Bar Association Model Code of PR = Code

ABA Model Rule of Professional Conduct = Model Rules

Judicial Code

 

 

If a question say must, should, may – do something, might be same under both model rule and code but may approach differently

 

 

Exam is about 2 hours and 50 questions long – 2 1/2 minutes/question

Wrong answer not counted against, so answer all questions

Usually four possible answers – may ask to choose more than on question

Sometimes ask what is the worst answer

 

 

Ways questions will be asked:

You will be asked sometimes, must an attorney do something or is he subject to discipline – this asks is attorney subject to discipline under code or model rules. -

 

 

2nd question may ask should an attorney do something, this asks does the conduct conforms to both the code and rules

 

 

3rd may or proper will be used – whether conduct is professionally appropriate is it not inconsistent with the above, code, rules, and judicial code – this can be difficult because can be counter intuitive, and no common sense.

Example: suppose work for client at 100/hour, earns $100,000 and then client fires attorney for no cause and demands refund, if refuses attorney not subject to any disciplinary action. Is it proper for attorney to return money? If question said should, or must the answer is no, there is nothing compelling the attorney to do so, but the question asks is it proper, yes, in fact may pay the client another $100,000 for the pleasure of representing him. Point is in real world probably will not return fee, but is it proper to, yes.

 

 

4th question says, is attorney subject to liability for malpractice – question asks is attorney liable for damages resulting from attorney action

 

 

Every state is either and integrated bar or non-integrated bar, if state integrated bar state means bar and courts are integrated, meaning bar is not voluntary and want to practice law in that state must be a member of that bar, the opposite is true of non-integrated bar states, New York is a non-integrated state but there are many voluntary bars in the state – Illinois and Indiana are not either integrated or non-integrated they have a hybrid registration system but regardless bar dues pay for discipline proceedings not the public.

 

 

American Bar Association is completely voluntary, not a regulatory body, publishes the rules but does not punish

 

 

Disciplinary rules are black letter and put forth mandatory conduct, what a lawyer what a lawyer must or must not do

 

 

Criminal codes only tell you what not to do, disciplinary rules you do not go to jail but get sanctioned, money and so forth

 

 

Ethical considerations – these are non-mandatory rules or statements that tell a lawyer what should or should not do, if violate not subject to discipline, but are subject to discipline is violate the disciplinary rules – this has been asked before remember this and be clear

 

 

Model rules divided into two parts – 1 part describes prohibited conduct that if violate will be disciplined, also contain preamble and commentary but do not subject you to discipline and are considered asp-rational

 

 

Admission to Practice –

The license to practice law is a property right and has been held so, as with any other property right you cannot deny admission to practice of law based on race and so forth, and as with any there property right you cannot deny ability to obtain it based on things that violate constitutional rights, race, religion and so forth

 

 

In order to deny a person a license to practice, there must be a rational connection between reason for denial and practice of law

Moral fitness is a reasonable standard to apply to deny license to practice law

 

 

Therefore bar applicant must comply with committee to on morals – broad latitude is given to this broad

 

 

What you have to do if character committee asked about character of a person trying to get into bar after you have been admitted – shows up in this hypothetical –

Assume you are a new lawyer with firm of xyz and senior partner comes in with affidavit speaking to good character of his daughter to admit her to bar, you have never met is daughter, you have been at firm at short time, and she in school in another part of country, you may not sign this affidavit, they may fire you but you cannot sign, and attest to good character to a person you have met. Similarly if go to lunch with her one day or so, this does not give you must more than a good idea of table manners.

 

 

 

 

 

 

 

 

Applicant to bar cannot be denied admission to practice law because:

You are not a U.S. citizen

You are not a resident of state you have applied to bar in

You cannot be denied because you are not living in the state you applied in

A state may not require a lawyer applying to take exam if they do not require lawyers living in state to take exam

 

 

A state may require things of you: Graduate from ABA accredit school and pass a bar exam

 

 

Special rules:

You do not give up your 5th amendment right by becoming an applicant to the bar, but however if going to invoke or use 5th amendment right in answering question of character committee and you must do so openly, you must say I invoke 5th amendment right, cannot do it secretly or ambiguously

 

 

You may not further the application of a person you do not believe fit for the bar, you may not make a false statement about an applicant to bar, if know person and do not thing good person for bar may not say they are

 

 

You may not make any false statements about a qualifications or integrity of an candidate for election to be a judge or any statement about judge in circumstances you have a reckless disregard for the truth of statement you are making – has been on exam –

In appellate brief or article you may state a judge has failed to follow established law or misunderstood testimony, you may not say judge has IQ of a penguin or has not read anything since 10 Fed 2nd

 

 

Lawyer Discipline:

Very little chance will see something on test on attorney discipline, but maybe

 

 

Lawyer discipline takes away your property right, you cannot do this without due process, but a lawyer can be disciplined if lawyer violated disciplinary rules of code, assuming that is rule in your state, or model rules if that standard in state, or lawyer committed crime involving dishonesty or moral turpitude – in addition if lawyer committed (and convicted, not just charged) tortious conduct involving fraud or dishonesty can also be disciplined

 

 

You are a lawyer 24 hours a day, 7 days a week including holidays – ALL THE TIME

 

 

Lawyer x hard day at office, and before going home, stops at a hotel to attend cocktail party in honor of that areas new United Way president – there after having drank too much lawyer gets into car to go home and because lawyer is drunk runs a red and hits a pedestrian, an ordinary person, in most states that is vehicular homicide – lawyer could, not for sure, be disciplined even though no connection to practice of law

 

 

Another example, has been on exam – New Jersey Supreme court held: a lawyer’s conviction for simple assault which arose in domestic dispute (wife beater) warranted professional discipline, in this case a reprimand, but none the less was disciplined

Message in above, does not have to be a connection to practice of law and can still be disciplined, but this does not mean a lawyer can be punished for any negligent conduct

 

 

Finally a lawyer can lose license only in that state(s) in which lawyer is licensed to practice law – a lawyer can be punished in those states (which is licensed) for an act that was committed outside those states –

Example – Mass. Lawyer trying a case in California – and you commit a violation of rules Mass. Can discipline you for that act even though happened outside licensing state

 

 

You are not required to know forms of discipline but: (in most states)

Forms of discipline:

Disbarment

Suspension

Public or Private Reprimand

Admonition

 

 

Disbarment – permanent loss of license, but sometimes can get restored after a period of time

Suspension – loss of license period of time

Reprimand – no loss of license

Admonition – most places not even considered punishment

 

 

 

 

You can be (will be on exam for sure) disciplined if you fail to report violations of ethical rules that come to your attention committed by lawyer or judge, two prongs here – 1. you must report the violation 2. then must be available to testify against them – so no such thing as a anonymous report because must testify to them

 

 

One exception where you may not report the violation – where learn of ethical violation as a result of privileged communication – this may happen where you represent another lawyer

 

 

Problem 1-

Attorney A represent D in litigation concerning whether a will was properly signed by decedent who left large portion of estate to D. While interviewing one of people who witnessed signing the will, A is told by witness that B, attorney for witnesses, who is contesting the will offers witness $5,000 to testify that decedent did not sign will, second witness says same thing.

  1. Must inform appropriate authorities B is offering bribes and then tell B clients these are bribes

  2. Must inform authorities and also sue B on behalf of D for interfering with ability to D right to fair trial

  3. Must inform authorities and may tell own client D, of B behavior

  4. Must inform authorities and must also tell both witness will report to police if do not say saw decedent to sign the will

 

 

Unethical to - To pay a non-expert witness to testify even when testimony is accurate

 

 

A is wrong – first part is right, but A cannot tell B’s clients about the bribe, unethical to speak to opposing party represented by another attorney

B is wrong – do not have to sue other attorney, just have to report

C is correct – must report and A may tell OWN client about unethical behavior, does not have to but may do so – only correct because the word is may and not must

D wrong – coercive and unethical

 

 

If A learned of the violation as part of privileged conversation then cannot report, so if A were representing B may not report

 

 

Hour 2 of tape 1:

Information about legal services – Advertising

 

 

Many court including Supreme Court – subject to 1st and 14th amendment – what talking about here is commercial free speech to regulate need compelling state interest, good taste is not a compelling state interest –

 

 

No misleading statements

  1. May not make a false or misleading statements

  2. Statements that may encourage unjustified expectations on part of client are prohibited, any statement that states a lawyer can achieve or even implies that a lawyer can achieve results by using methods that violate rules of professional conduct or model rules is not allowed – cannot say things like have an in with judge, cannot say things that create and unjustified expectation

  3. Lawyer may not advertise regarding results obtained for or on behalf of other clients or statistics regarding verdicts or amounts of verdicts – may not say win 90% cases or say average verdict is $200,000 even if it is true - these are prohibited create an unjustified expectation – statistic suggest all cases are same this is not true – client endorsement not permitted, by names can be mentioned but only with consent of client – comparison not permitted and statements incapable of verification not permitted, may not say I am better the Johnny Cochran, even if true, still not allowed – I am best lawyer west of MI incapable of verification – if advertise name of firm, fictitious names are not permitted – if advertise work for Bob, Lou, Steve – either must work there, died or retired, and if retired cannot be working, the names advertised, for someone else at the time, if so cannot use in advertisement that name – so if x and y are not lawyer partners only share rent, cannot advertise as a firm expense sharing relationships are not firms and may not advertise as such

 

 

If lawyer has been appointed to public service, assuming this is a full time service, that lawyers name may not be included in name of law firm or even included on letterhead unless regularly engaged in practice of law

 

 

Members of state legislature not full time job – 90 or 120 days a year

 

 

Congress members – listed on letterheads of law firms or on firm names even though thousands of miles away for Washington D.C. – if they are regularly and actively engaged in practice of law may name on firm and letterhead, fact specific question on this

 

 

Disbarred lawyer must be removed from name of firm and letterhead

Suspended lawyer may remain on the firm name and letterhead

 

 

A lawyer may be listed “of counsel” if a special relationship exists – if a lawyer is simply renting space does not qualify – must refer cases or discuss cases with law firm or law firm has to refer work to lawyer

 

 

Trade names in legal advertising – trade names cannot be mis-leadings – Best law firm in world, this is mis-leading – so name that includes a charitable name or name of political subdivision may not be used as a trade name – Legal Clinic of Baltimore of California state legal clinic may confuse people into thinking government connected with firm is mis-leading so may not be used – that is a political subdivision – Women’s legal clinic approved under circumstances where groups specialized in issues that are associated with women’s rights movements

 

 

Some states provide for specialization (MI does) – so if member of bar for period of time and pass exam may hold yourself out as a specialist – torts, workers compensation and so forth – you may hold yourself out as a specialist if your state allows for this and the Supreme court has held, if there is a national body which permits and has a test for specialization and you state reasonable adopts their rules may hold self out as a specialist – So generally get answer in question – you may hold yourself out as a specialist, if your state allows for it and you have passed the specialist exam - some firms try to get around this, in states that do not recognize specialist by saying their practice is limited to certain areas, torts, personal injury – these are permitted if true and provided that the limitation is to area of law that is generally recognized as a specialty – you may say practice is limited to legal problems of rich not a legal specialty

 

 

Material misrepresentations are closely policed – something omitted that should have included to make ad not misrepresentative or misleading can result in disciplinary action – famous case – that has been asked – attorney advertised will take cases on contingency fee basis and “no legal fees were owed” unless attorney was successful – the US Supreme court said that the state could regulate that to extent could require to disclose whether client responsible for cost, and clients always responsible for costs even in contingent fee case

 

 

Looking at where can advertise, form and place, any place, print, TV, billboards, sky writing if advertise in print media or television a record, copy or recording or advertisement must be retained for two years after showing along with a record to the best extent you know it of where and when it appeared that advertisement must identify a lawyer who is at least in the firm and responsible for the ad - the ad must be reviewed by the lawyer, you cannot say the advertising firm did the ad and you knew nothing about it

 

 

 

 

 

 

 

 

No bait and switch – if advertise a simply divorce cost $200 so that better be what it cost and cannot charge $1000

 

 

A lawyer may not pay another person for recommendation of lawyer’s services other than what you pay the advertising firm or what pay for a non-profit bar related lawyer referral services – a lawyer may not pay a runner or solicitor that goes out to try and find clients

 

 

Free legal services –

A lawyer may educate lay people about legal services but a lawyer may not, under any circumstances, volunteer legal advice to a client and then try lure client to lawyer and then try charge for it

Example 1– you can be a “sue ‘em bird” you can walk down the street and every time something happens that is wrong, you can yell “sue ‘em, sue ‘em” , this if offering free legal advice, if this happens you cannot there after represent the victim because you have offered free legal advise.

 

 

Example 2– Assume you are an expert in geriatric law, assume further invited to local geriatric home to give a seminar on geriatric law, assume you are doing this pro bono, this is permissible conduct and is encouraged, assume at end of talk residents start to ask you about own problems on Medicade, or social security or whatever – you can answer all the fact specific questions, but you must make very clear at some point you normally charge for this advice and if and will charge for legal services and if want you to represent you will charge them and some point the charges will begin – what trying to avoid here is you luring the client in by offering free legal advice – both code and model rules encourage free legal advice but not trying to lure people in on this basis

 

 

You may not pay public media people, or representative in exchange for publicity or a story about them or television radio or paper but lawyer is permitted to call press about yourself even if only purpose is to generate publicity about yourself

 

 

Solicitation that is one on one in person or by live telephone contact this is not commercial free speech and not protected by 1st amendment

 

 

Not allowed because this may put undue pressure on person – but there is an exception and that is if it is not for pecuniary gain – working for civil liberties union and have some people harmed may file on behalf for free

 

 

Some exceptions – may solicit in person a family member or a close personal friend, mother and so forth, you may solicit in person present clients – and former clients so long as you are aware of fact they are not represented by another attorney if they are may not solicit – if member is part of a pre-paid legal plan group may solicit plan member and solicit plan manager to get plan member as clients

 

 

Neither in person or live telephone contact – may solicit by mail or recorded phone, fax or telecopier who are known to be in need of particular legal services – go to bankruptcy court and find pro se one you may in fact write to or fax and solicit

Supreme Court in June 1995 held – where a state prohibits lawyers from using targeted direct mail (mail sent to specific people know to be in need of legal services) or their families within 30 days following an accident such a regulation had a substantial state interest and was upheld constitutional – so if state say cannot solicit for 30 after accident cannot

 

 

Targeted newspaper ads also permitted, may target newspaper ad to plane crash victims, knowing they were in need of legal services

 

 

Problem 2:

Upon graduation from law school attorney A worked for PWY law firm for several years, that firm almost exclusively represented plaintiffs in personal injury matters, after four years with firm A opened own law office, business was slow, he decided to advertise and consulted several advertising firms regarding proper advertising campaign with their designed following advertisement copy: which with A picture promptly displayed his on the side of city buses owned by municipality “have you or loved been injured in accident, have you considered your child’s bad grades in school are a result of complications at birth due to medical malpractice, you may need legal help to protect your rights, someone should sniff out facts of you case, call office of A your legal beagle.”

 

 

Is A subject to discipline as result of advertisement?

 

 

  1. Yes, because it is not clear in advertisement will charge for representation

  2. Yes, because picture in ad may be misleading

  3. No, because attorneys can state anything in ad so long as ad not in bad taste

  4. No, because nothing misleading about advertisement

 

 

A incorrect nothing say have to disclose fee in ad

 

B incorrect whatever may thing about attorney who wants picture in advertisement not wrong

C incorrect not permitted to state anything so long as in bad taste, many things may not state, comparison, statistic, non-verifiable statements, endorsements without consent of client

D is correct nothing mis-leading

 

 

A has a first amendment write to advertise like this

 

 

Competence:

Model rules require that she only represent client she is competent to do so

 

 

So what does this mean –

1st admitted to practice assumed competent to represent a client in a particular field of law who are generalist, not specialist, would take this type of case – meaning if most lawyers in your community would take this case you can take but be reasonable, medical cases usually require a specialist or trade treaty agreements

 

 

Now where an attorney is not competent to take a case may do so subject to making him or herself competent to do so – two way to do this

 

 

But if attorney discovers after accepting case decides incompetent to handle must withdraw subject to discipline

 

 

Two ways to become competent – you may associate with an attorney to do so, but may never ever, never associate with another attorney for any reason to make self competent or otherwise unless client consents and that consent is given prior to the consultation with other attorney

 

 

Anytime associate with another lawyer need advance prior condition

 

 

Second – in some circumstances an attorney may make self competent for 20 hours per day for 10 days and reading every horn book and treatise and everything else – some areas can do this others cannot, but may not bill for this time

 

 

Malpractice –

A lawyer required to represent client competently – most complaints to bar is that lawyer not communicating enough – reasonable standard not four updates per day but must keep client informed

 

 

You violate ethical rules with respect to your professional discipline and duty when subject to certain violations of the code and they are when you commit an act willfully, habitually, or intentionally

 

 

Have to represent client zealously

You commit legal malpractice when you make a mistake when conduct based on negligence subject to tort liability when not based on willful or intentional

 

 

Legal malpractice has three elements –

Duty owed, based on attorney client contract or fiduciary duty

A breach of that duty, the negligence

Damages, which are proximity cause by breach of duty

 

 

Assume there are cross motions for summary judgment on the trial docket on Monday morning at 10 am in local jurisdiction in which you are representing a client in one of these cross motions, and you know about these cross motions, but you get up on Monday decide to go fishing instead of going to court. You have willfully ignored the duty to client and you are and ignored ethical standards and can be disciplined.

 

 

Now assume unaware of cross motions, not because you failed to enter in calendar but because for 10th time forgot about appearance because can’t organize. This is habitual conduct and subject to discipline

 

 

Now assume for first time or second missed this date by accident, this not subject to discipline, may or may not be malpractice, simple mistakes are not disciplined unless habitual

 

 

 

 

 

 

Are the above malpractice – suppose that other attorney fails to appeal, or court busy does not get to you, or court denies both motions so no damages caused so not malpractice probably, their can be malpractice and you still not be subject to discipline action or violation of ethical rules, and can be violations of model code without there being malpractice

 

 

Two different standards – for negligence or malpractice we look to see if damages proximately caused by the breach

 

 

For discipline – look to see if conduct is intentional, willful or habitual

 

 

Can have one without the other – apply the standards

 

 

Emergency exception to willful duty standard – suppose attorney is going to court but on way child is injured and is called so instead goes to hospital, no disciplined or malpractice here

 

 

You may not limit liability for malpractice may not insert clause in retainer or contingency fee agreement which states that the client promises never to sue you for that matter – this at best is anticipatory breach in contract action and not enforceable and violation of both code and model rules

 

 

Constitutional standards in criminal cases, not that neither code or model rules are of greater force than the constitution – 6th amendment – may be a breach of – if not zealous or willful intention or habitual then subject to discipline if simple mistake then attorney maybe subject to malpractice

 

 

Example 3:

Attorney Jones is a solo practitioner employs two law students from local each year to assist her in her practice. Because she relies heavily on research and writing skills of law students Jones requires each candidate to show transcript grades, each must have 4 semesters of law school and have a B average, one of her assistants, Sally, is B+ student who serves as editor on school civil rights law reporter. Jones is representing a turbine manufacture who is being sued in state court for negligent manufacture of turbine which exploded and injured killing power company employees on Jones advice turbine manufacturer deny the allegations Jones asked sally to research law on defect perhaps because distracted by school missed a case that held manufacture of electrical equipment, including turbines, only liable for gross negligence and not simple negligence because of inherently dangerous nature of electrical equipment and consequential assumption of risk – so Jones did not argue point and simple negligence submitted to jury and Jones lost, interrogatories to jury showed had Jones known and then argued case would have won, instead lost $5,000,000

 

 

Jones is

 

 

  1. Jones subject to discipline because, Relied on Sally who failed to find the case

  2. Subject to discipline, because attorney cannot rely on research of law clerk

  3. Subject to malpractice complaint because Jones employee made mistake

  4. Not subject to malpractice because Sally made mistake not Jones

A not correct because act of negligence does not subject attorney to discipline, only willful habitual etc, nothing in facts to suggest this, if Sally many times sloppy then problem, then habitual

B incorrect, lawyer can use law student research

C is correct – duty owed, agent relationship

D not correct

 

 

Legal fees and client funds –

Model rules and code prohibit excessive fees – MPRE will frequently refer to fees that are over reaching, meaning excessive or a fee that would shock the conscious – if that kind of fee in question attorney is subject to question

 

 

A fee is never excessive if it is a fee charged in your community by other attorneys for that kind of service

 

 

Minimum fees are prohibited – cannot do a fee saying for housing closing minimum fee is $500, there are maximum fees, court of claims has max fee and probate many examples

 

 

Contingent fees are permitted (will be on test for sure) – fact and law specific issue –

Never permitted in a criminal case, must charge by the hour or by the task

 

 

Bonus paid at end of criminal case is client found not guilty, is a contingent fee in a criminal case, so no bonus

 

 

Attorney charges 100/hour but aggress to accept 50,000 at end of case if innocent still a contingent fee

 

 

A criminal defense attorney may not accept as a fee, royalties for unpublished book by client or movie royalties to be made, impermissible because creates conflict of interest – client chainsaw murder person, so if client found not guilty no book so no fee, but if found guilty then, problem but if the book has been written already and what assigning royalties for book already written no problem because assigning a current asset, no problem

 

 

Contingent fees prohibited in domestic relations cases, divorce and so forth

However – has been asked many times – if client comes to you an says I was divorced from spouse two years ago and spouse suppose to pay temporary alimony for 2 years at 1000/month, 24,000 total, and I have not gotten anything go sue him for 24,000 arrears, here can charge contingent fee, not domestic relations case suit for money owed

 

 

Contingency fees must be in writing and must describe percentage to be paid before an after trial land must also describe the percentage and whether net of cost

 

 

70% contingent fee has been held to be an over-reaching fee – but 40 and 50% have been upheld

 

 

contignent fees have been sometimes prohibited were clinet could pay an hourly fee, both rules and code says must inform client to make the choice

Fee splitting –

Between lawyers in same firm is permitted – also with former partners when pursuant to a retirement or separation from firm agreement

 

 

Fee splitting with lawyers outside firm permitted only, when client consents before consult with other lawyer, total fee charged cannot be twice as much as would

 

 

And fee is proportional to work performed – this is code provision model rules say can divide anyway want

 

 

Cannot split fees with non-lawyers, can pay salaries or contribute to 401K plans but cannot promise a percentage to a non-lawyer, this includes expert witnesses a set up or agreed upon percentage of particular case

Exception (has been asked) a lawyer or firm may share a legal fee with estate of deceased lawyer pursuant to a partnership agreement and may agree to share such fees with non-lawyer widow or widower

 

 

Hour 3 tape 2:

Sale or purchase of a law practice –

A lawyer may sell or purchase an entire law practice so long as written notice is given to each client and the seller is not practicing law

Two exceptions a seller may go to work for government and second can work for institutions, in-house counsel of corporation and so forth

 

 

We do not sell clients or confidences so attorney must inform client so can either say okay or pick up file

 

 

Restrictions on practice of law – covenants not to compete a lawyer or partner or associate saying cannot practice for a year or within 200 miles not permitted does not mean law firm can’t have agreement how a client will be notified on leaving law firm

 

 

Restrictions that say may not settle or ask to settle a lawyers right to practice right in future – assume suing GM it is unethical to agree never again to sue GM, and separate violation for GM lawyers to even ask - two violations, to agree to it or even ask for it

 

 

Client funds – high priority area –

May not commingle your funds or firm funds with client funds – must create escrow accounts for client money, may not commingle your money or firm money, may commingle other clients money not yours

 

 

How to handle disputes over how much money owed to client –

Assume representing a client in 300,000 case on contingency fee basis for 30% and settle for full value, you are entitled to 100,000 and they are entitled to 200,000 and must call client ASAP and tell the news and now client say thought about fee too much, 1/6 is better, you try to convince stick to agreement but will not how do you divide this money (this is always on test) what should do is take a check for 200,000 and send it to client then write a check for 50,000 to yourself or firm for that amount, because client concedes that much, and the left over 50,000 you should in dispute keep that in escrow account, you may not take whole 100,000 because part in dispute, and cannot hold whole amount as ransom till client concedes your way.

 

 

However if question says may you pay 250,000, yes of course, you may send all 300,000 to client if want, but what should do is above

 

 

You are required to keep accurate records on you escrow accounts – cannot live off interest of escrow accounts – sometimes lawyers keep things other than money for client must keep property in safe guard, put in safe or some place safe not just around office

 

 

Use of funds –

Where you hold client funds to pay client expenses or other things empowered to spend money on – that money belongs in escrow account – if client indigent and you pay cost client should ultimately responsible for expenses – you may advance cost for litigation in an action, filing fees, experts and so forth – you may never pay a lay witness for testifying but may advance cost to witness for cost to getting to court and lost wages for going to court may not pay for testimony never, never pay non-litigation cost for client, food, clothes or housing only advance litigation cost

 

 

Fees paid by client, which are unearned – advance of 50,000 and says bill against it, they must go to escrow account until earned

 

 

Example 4:

Client retained attorney B to represent him in a criminal case brought against client as a result of bank failure, client bank president made certain loans in violation of certain banking laws, client gave B 300,000 to be used as follows: 150,000 as an advance against B’s 200/hour fee 100,000 for expert witness and 50,000 for general expenses, travel, postage etc – B deposited in client escrow account (that’s where it belongs) – B spent 500 hours on client defense and during next 5 months also paid handwriting expert and figure print expert 25,000 each to examine documents government was going to present against client as trial, each expert would produce report saying were not client’s, also spent 10,000 on genera expense, postage phone calls etc at the end of 5 five months client fired B accusing him of greed and demand return of whole 300,000.

 

 

Which of following proper for B:

  1. Return 300,000 to client

  2. Return to client only the unused portion of 300,000 of legal fees – 50,000 of unused legal 50,000 and 50,000 of unused expert witness fees and unused portion of general expense fees

  3. Retain unused portions of witness fees, witness fees and general expense fees because fired without cause

  4. Retain only unused portion of witness fee because B has right to chose expert witnesses

 

 

 

 

 

 

Then asked –

a. 2 only

b. 1, 2, and 4 but not 3

c. 2, 3 but not 1 and 4

d. 1 and 2 but not 3 and 4

Is A good, yes, it is proper, may give 600,000 if wants – its proper to return who amount

B also correct and probably what should do

C and D, not relevant at all, neither not correct at all

 

 

So 1 and 2 but not 3 and 4 is correct answer – d

 

 

Law firm -

Partnership – partners can only be lawyers, no non-lawyers allowed – partners must also share in profits, does not have to be equal but must share in profits – expense sharing relationships may not hold themselves out as partnerships

 

 

Limited liability law firm partnership permitted

 

 

Associates – are salaried employees not partners

 

 

Professional corporations – only lawyers’ maybe officers, principle shareholder or director – no non-lawyers

 

 

Relationship within law firm –

Model rules distinguish between responsible and subordinate lawyers with respect to enforcement of potential violation of rules and model code and do so this way - No similar code provisions

 

 

Suppose – A associate and P is the partner and are working on a matter – A comes to P with a close ethical question a gray area – if two discuss matter and P decides on course of action and it later turns out that is was ethical violation the P can be disciplined but not A, the responsible lawyer the employer is the responsible lawyer for purposes of discipline, not A, however it has to be a close ethical question

 

 

Relationships with other professions – dual professions are permitted and attorney can be both attorney and accountant or physician, any profession and can be reflected on letterhead and business card – how will see this if attorney is practicing say accounting and not law, look for the facts, if being an accountant no attorney client privilege, if not practicing law

 

 

Authority of attorney, client and firm –

Decisions for lawyer and other for client – outcome determinative decisions are for client, should I sue, settle, plead guilty or how settle for, lawyer should counsel client but decision is for client but tactical decisions are for the lawyer, who to call as witness, interrogatories and so forth up to attorney not the client – but must keep client informed

 

 

Under model rules –

If client under disability regarding what to do, the lawyer should request the appointment of a guardian – settle or other client decisions

 

 

Law firm and its clients –

Right to reject and duty to reject cases

 

 

If have a license must maintain ethical standards

 

 

Have the right to reject cases –

Three exceptions – must/should

Should represent defenseless and oppressed members of society

Must do of fair share of pro bono work

Must accept a case if appointed by court should accept if appointed by ABA pro bono

 

 

Must reject 5 types of cases; have to reject these:

  1. If physically or mentally unable to take one more case, must turn down, if have stroke and you in hospital bed reject it

  2. Must turn down a frivolous claim or defense, separate violation of ethics to bring a frivolous defense, good faith attempt to change existing law is not frivolous – may not file a defense unless meritorious but there is an exception in criminal case, constitutional issue

  3. Must reject if conflict of interest

  4. Must reject if incompetent to take on the case, lack of training or knowledge

  5. Must reject if have personal feelings about client that inhibit you from representing client diligently

 

 

 

 

Unauthorized Practice of Law:

May not practice law in jurisdiction not licensed to

 

 

Definition – Unauthorized practice of law is both in code and model rules – where a non-lawyer is providing services that require professional judgment of lawyer

 

 

What code and rules really mean is – intended to prohibit legal services of anyone who is not a lawyer where such services involve the substantial legal rights of a client

 

 

Ask self if substantial legal rights are involved in this area

 

 

4 problem areas –

Law clerks should be law students are graduate of law school but not yet admitted to practice of law – they can write legal memo and research and provide a whole range of services – and lawyer does not have to read each case – however that letter must be review by the lawyer and determine if it describes the law accurately he cannot simply sign the letter without reading or endorse without understanding what is being said – must supervise

 

 

Paralegals perform certain services, research and so forth but must be supervised and work reviewed both law clerks and paralegals can talk to client in certain situations, factual issue are fine, who is so and so

 

 

An accountant (for our purposes) is someone who prepares financial statements not one who interprets the code

 

 

A real estate agent can probably prepare the deed, but if married and can’t remember proper language you cannot ask real estate that is something important

 

 

Preparing a will is considered giving legal advice – this is also consider substantial

 

 

Problem 5-

Smith graduated from University with a BA, he then attended paralegal school and was awarded a degree, Smith worked as sales person for local TV/cable company but in free time worked as a community activist promoting interest in living will through which people express written wishes regarding under which circumstances when or what medical care should be withheld if they are suffering from terminal illness in the state he is in this is controversial subject, based in no small part a State Supreme court case which holds in absence living will the decision to withhold care is a decision for medical professionals not the family or patient – S feels strongly everyone should have a living will – his feelings based on grandfather that died recently who was in agonizing pain for eight months before he died. S purchased living will kits from local place on weekends goes to local mall and sells the kits for profit the kits have instructions and preprinted forms the conform to legal rights for this type of will.

 

 

Is Smith violating the unauthorized practice of law rules?

 

 

  1. Yes, because providing people with legal advice that require independent judgment of a lawyer

  2. Yes, because selling kits at a profit and thus deriving gains from a law related activity

  3. No, because a living will does not require independent judgment of a lawyer

 

  1. No, because S not giving anyone legal advice

 

 

A is incorrect S is not providing people with legal advice, selling kits not practicing law, s does not offer advice

B is incorrect because them people who sold law books to lawyers would be in violation

C is incorrect living will does require independent judgment of lawyer but selling books does not

D is correct s not giving advice just selling a book

 

 

 

 

Conflicts of interest –

Most frequently asked question are here –

 

 

Financial dealings –

A lawyer should avoid entering into business with client – unless it is the client’s business, you can buy a car from your car dealer client you can borrow money from you client bank

 

 

Where there is a business relationship with a non-lawyer the relationship must be fair, in writing and must advise him to seek independent counsel, and advice

 

 

Generally avoid business as a client

 

 

Lawyer as a witness –

Lawyer may not be an advocate and a witness in same matter

 

 

Four exceptions –

  1. A lawyer may testify and remain on case in the case of a minor or ministerial matter – that is did client sign document, was it signed on 22nd of February, things like this

  2. Lawyer may testify with respect to legal fees and basis for such fees

  3. If lawyer is called as adverse witness by other side the lawyer may testify and stay in case, and if did not have this rule could always get a mistrial by calling the opposing lawyer

  4. Where it would gross prejudice to client to force lawyer to withdraw - here watch for question that has two lawyers representing the client and one is called to testify, that lawyer probably has to get out of case because no gross prejudice has another lawyer

 

 

Conflicts based on lawyers’ family who are lawyers:

A lawyer may appear to have a conflict because member of family may work for a law firm or institution that represents other side – many times problem between husband and wife but can be between parent child – rules assume no pillow talk and as long as that is true each side can continue to represent each side – both code and model rules recognize this

 

 

Where one of family members is actually appearing in court and other side just works in the firm where the client has his primary attorney probably no problem, but nonetheless client consent should probably be obtained

 

 

Limits on how far this goes – cannot be prosecutor and defense, husband and wife, cannot be dad and daughter against each other in personal injury case – clients cannot consent to these –

 

 

Client gifts –

A client should not suggest a client give a gift to lawyer if wants to – not talking about a bottle of scotch or flowers this means something more substantial the lawyer should suggest the client get independent legal advice

 

 

A lawyer may not prepare a will or any instrument that will give the lawyer or close relative any inter vivos to testamentary gift unless the donee lawyer is related to the client

 

 

Books and Media rights done above

 

 

 

 

 

 

 

 

 

 

Positional and personal difference of the lawyer:

Here concerned with lawyer personal interest is in conflict with client or that may inhibit lawyers ability to represent client

 

 

If you believe the protection of environment is most important thing facing us – and a clinet walks in and wants to build a hydrocarbon plant ask yourself if you can do this

Or

Feel that all rapists should be castrated, and feel strongly about this should ask self if can do this, represent them

 

 

If you traditionally and have strong feelings about this, if you represent banks and you get a client who wants to sue a bank, not one of yours but another ask yourself if you can do this

 

 

Where there are positional and personal difference that limit you ability to represent a client zealously then there is a conflict

 

 

Use of information –

Model rules and code differ under and when may use information when can use information provided to you by the client

 

 

Under the code you may never information from you client, or you learn in the course of representation – for example you client is going to build a shopping center on parcel A, and is not even interested in parcel B you may not buy B and build a parking lot, even though you not competing with you client

 

 

However under model rules you may buy parcel B so long as not using the information to the detriment of the client and you can build the parking lot

 

 

Conflicts between the lawyer the client and other clients –

3 basic parts to this –

Present clients

Former clients

Government as former client

 

 

Present clients -

Assume a, b, c, d are driving down the highway, d is the driver a truck crosses yellow dividing line and all are injured – can you represent all four

 

 

Maybe or not – what are you going to do if truck counter-claims and says d crossed line or what going to do if it turns out one of passengers distracted driver and that’s why crossed – it may be abc have a better claim against the truck and d on a res ipsa theory – look for a conflict where there are multiple clients in same matter

 

 

Criminal defendant problem – a and b accused of robbing bank (direct conflict coming) a says did not do it, b says did do it but insane and a was with me, those are inconsistent and conflicting defenses so cannot represent both clients

 

 

Directly Opposing interests –

You may not as a lawyer represent someone if that representation will be directly adverse to another client or materially limit you ability to represent the other client – exception is if lawyer reasonably believes representation will not effect other clients and the client if effected this can consents to new client, the lawyers reasonable belief must be based on what a dis-interested lawyer would believe and not himself

 

 

Consultation of the client and the client waiving the conflict –

You must consult with client inform them completely, must inform them of rights and all options and the client can waive if fully informed – obviously a lawyer cannot represent both sides in a conflict or lawsuit –that is can’t represent both x and y

 

 

Potential conflicts based on opposing present clients –

First, what about situation where x is suing y and z is a witness and z is y witness can you cross examine a present client in a case on behalf of another present client – can you cross examine z who is going to appear for y who client x is opposing, maybe. Must consult with x though the affected client

 

 

The lawyer as intermediary – mode rule provision only –

The lawyer may act as intermediary if both sides understand a lawyer is appearing in non-traditional role and that there is no attorney client privilege w/respect to situation and that both sides understand that lawyer will have to bow out if there is litigation on a successful mediation agreement – other than that the lawyer may appear to do this

 

 

Non-litigation conflicts -

Adverse interest exist in non-litigation – you cannot represent the landlord and tenant in a lease negotiation – one has to look at function of lawyer if present client have conflicts in present situation then lawyer cannot represent both sides and another lawyer will have to be found

 

 

Former clients –

You can’t switch sides in a case – prosecuting attorney could not switch over and represent the client on appeal

 

 

Representation that are adverse to former client –

First when lawyer represent a client whose interest are adverse to former client may have a conflict situation, next when lawyer uses information obtained through representation of former client to disadvantage of that client also may have conflict situation

 

 

May not represent another client against a former client in the same matter, unless the former client consents

 

 

Similar matters – quick test to see of matters are substantially related and when are not related – if you are asked on the MPRE, a former client question in conflict context but facts do not reveal to whether, sometimes they will, but if do not, new matter involving new client is substantially related to the old matter of the old client, do not guess, pretend you are lay person and see if involve same kinds of facts, stockholder suit in both cases, do the matters appear to be related, do the involve same legal issue, workers comp – if look the same, or smell the same if walk and talk like a duck then cannot without client consent represent the new client against old client because of client

 

 

Does not mean you can never represent a new client against old – if your represented Ford in workers comp cases and five years later a client comes to you and wants you to represent them in a product defect case then can, facts are different, legal issues are different you can probably take this case no problem

 

 

Government lawyer as a former client –

Former judges – if judge sat on the matter as a judicial officer the judge may not there after represent parties in that case as a private lawyer this would conflict

 

 

Former government lawyers – local and federal –

A lawyer may not represent a private party, while in private practice, in a matter a lawyer in which the lawyer participated personally and substantially as a government lawyer unless the government agency where lawyer worked consents – what constitutes substantially related matter, personally and substantially has been litigated, the facts will tell you this, if the former government attorney learns information about a person while working as a government attorney which the lawyer knows is confidential government information about a person, the lawyer may not represent a person and use that information that he learned on the job

 

 

Imputed disqualification when former client is government –

If any lawyer has a conflict then the entire law firm has that conflict – if paralegal, associate, secretary or anyone – has a conflict the whole firm has that conflict – anybody in firm smells bad all smell bad

 

 

One exception will see on the MPRE – for imputed disqualification purposes if a former government lawyer leaves government and goes to private practice if we screen that lawyer out of from case because of conflict and lawyer does not share in fees generated from that case and the government agency consents there is no imputed conflict to whole firm – public policy reason being do not want to punish people for government service so the former lawyer does not have to carry the bad smell with him

 

 

But no similar rule if in private practice and go to another firm you bring as a private practitioner all conflicts based on the old law firm - so private practice following private practice does carry imputed disqualification taints

 

 

 

 

 

 

 

 

Hour 4 tape 2 – Final Hour –

Conflicts involving 3rd parties and Fees paid by 3rd parties –

 

 

A lawyer may accept compensation for representing a director; a parent may pay for child a trade association will pay for a member

 

 

A lawyer may never accept a fee from 3rd person who will interfere will lawyers representation of the client

 

 

Thus the lawyer represents the client regardless who pays the fee – does not matter who pays

 

 

It is sometimes possible for the lawyer to represent both the paying party and the client – Example Corporation and client – If that happens corporation must waive any potential conflict and so must a member of the organization – the person providing the waiver cannot be the person being represented – so if president being represented then someone other then the president of corporation must provide the waiver

 

 

Where a lawyer represent an individual and institution and that individual does something or fails to do something that is of serious consequence to the corporation the model rules require that the lawyer ask the client reconsider matter and that if client does not, the lawyer must go to another responsible individual person in the corporation to seek reversal of that decision and that person turns down the lawyer the must work their way up the corporate ladder to seek reversal of the situation - lawyer must consider what is best interest of organization, in corporation that is the stock holder, lawyer should consider seriousness of violation but lawyer is required under model rules to go up ladder of corporation to seek reversal of the decision

 

 

Where a lawyer who knows a 3rd who is not a client is actually going to be the beneficiary of legal advice, conflicts where legal advice is used by third persons, the lawyer may write a opinion for client which will be used by third person with client consent but under no circumstances may say something untrue in that opinion

This comes up mainly where a corporation is trying to borrow money and creditor asks for a letter from counsel saying there are no contingent situations and corporation says write such a letter, the lawyer may not lie because the lawyer knows that bank is going to make or not make that lawyer depending on what the lawyer says

 

 

Where the MPRE frequently has asked questions in this regard is where a conflict exists between a client where a client has consented and where a client is not able to make such consent – we assume a knowing waiver of all conflicts – some clients cannot effect a knowing waiver – we assume consent after consultation and a knowing waiver and conflicts can exist if not knowingly or intelligently given

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Problem 6:

T was in charged of environmental division of state attorney general office he supervised the other four lawyers in division and handled his own cases, one of the other lawyers in division filed suit against World Industries because World was illegally dumping toxic waste into a stream the suit both damages payable to the state and injunctive relief to stop World from dumping the toxic waste. As the division head T gave extensive advice as to the drafting of the complaint and during early stages of discovery he suggested depositions questions that be asked of World’s toxic experts and plant manager where the substance was manufactured. Because of own case load he left the case to his subordinate just before the trial the T left the government job to join a private firm PG, at trial the state won the injunctive relief was granted and judgment was entered in favor of the state for 5,000,000. Three weeks later farmer B, a long time client of PG, asked the firm of PG to sue World for dumping in stream which was the subject to of the states case against World, because toxic waste killed a number of B’s cows after they drank from the stream, farmer B wants T to represent him, assume T possess no confidential information about World which he learned while working for the government.

 

 

Is T subject to discipline if represents farmer B

 

 

1 Yes, because a conflict of interest between states interest and farmer B’s interest

2 No, because T did not participate personally and substantially in the World matter which he was a government lawyer

3 Yes, because T is side switching

4 No, because farmer B obviously has consented to T’s participation in the matter

 

 

  1. 1 and 3

  2. 2 and 4

  3. 4 only

  4. None of above

 

 

Answer –

  1. Clearly no conflict of interest between state and farmer, both case brought against World and same facts – interest no in conflict maybe even same and 3 is not correct he is not side switching both parties interest are the same so A is incorrect

  2. Answer 2, may be cases in which difficult to say that the matter in which T represented the state is not the same matter in which T wishes to represent a private person this is not one of those case – the conduct was the same in both cases – but what T did here was clearly substantial and personal work on the states matter – gave legal advice on drafting of complaint and posed questions

  3. It maybe farmer B came because of experience, not enough facts – farmer B’s consent is not sufficient government is an adverse party in government, a former government lawyer may not participate in a trial for private client where the lawyer participated in the government matter personally and substantially without consent of that government agency and does not say have that here

  4. Correct answer

 

 

Duty of confidentiality –

There confidentially issues involving present contact and conduct

 

 

Time periods –

Duty to keep you mouth shut, about client confidential issues, begins with the initial interview it continues through representation and survives the termination of the attorney client representation and survives death of client and lawyer

 

 

Libel and slander do not survive the death of someone

 

 

With respect to initial interview, even if it is decided that the attorney will not represent the client, the even was is said in initial interview may not be revealed

 

 

In terms of what is confidential – model rules and code are slightly different but not much –

Model rules say – any information relating to representation whether learned from the client, learned from investigator learned from any other party or anyone

 

 

Code – what is confidential is what is protected by the attorney client privilege and second, secretes that revelation of which would be embarrassing to client

 

 

Some exceptions –

You may discuss confidential information, under code and rules, with other lawyers in firm, paralegals, with other people who have to be consulted, investigators

 

 

You are not under any circumstances to discuss client affairs, past present or future, with your relatives or friends – must keep mouth shut with clients

 

 

Exceptions –

If client consents may reveal that which is confidential, this must be a knowing consent, must be a waiver of confidences and a waiver after consultation with a lawyer

 

 

If a court requires you may not only reveal what is confidential but you must, newspaper reporters are permitted to go to jail to protect sources and confidences, you may not as a lawyer if a court directs you to reveal a confidence you may not litigate courts right to do that from a jail cell, you must reveal and litigate at appellate level whether court should have required it

 

 

A lawyer may reveal to protect himself, so if lawyer sues the client or client sues you may reveal to protect yourself - if you are up on ethical charges or crime in order to protect selves lawyer may reveal confidences to protect self

 

 

You are required to reveal client confidence that have intent to commit a crime, under certain circumstances – you may, you do not have to – if it’s a past crime may not reveal subject to above exceptions – it says may reveal client intention to commit future crime and information intended to prevent successful commission of that crime where death or serious bodily harm is involved or a substantial (not word used but what is intended) larceny – you may do not have to.

 

 

Future crimes you may reveal past not – but not all is neatly divided to that what future and what is past

 

 

Continuing crimes –

A lawyer may never aid in commission of crime, so that if client is fugitive may not have to reveal where client is hiding, unless court directs you to, but you may not harbor the client and may not assist in remaining a fugitive – you may not advise a client to flee a jurisdiction to avoid arrest

 

 

Problem 7:

Attorney Jones (J) represents Xyz Corporation a two-stockholder corporation that leases computers. In theory xyz obtains lease commitments from corporations, borrows money from banks to buy multi-million dollar computer for corporation and leases to these corporations. In theory the lease payment are large enough to make payments on their loans and still reap substantial profits. Banks have been happy to lend Xyz millions of dollars because the leases are secured by both the leases and computers themselves, lawyer J has been involved in negotiating lease with clients and negotiating loan agreements with banks. Yesterday the two stockholders came to J and told him confessed involved in a massive fraud; they told J that at least half the leases used to obtain the loans were forgeries, loan money was not used to purchase computers and there are not leases or computers to secure the loans. Lawyers was not aware of this when drafted leases or when negotiated with banks.

 

 

Lawyer J must

 

 

1 Report to appropriate law enforcement agencies the two stockholders of Xyz corporation

2 Inform the banks that their loan in jeopardy because there are neither leases or computers to secure the loans

3 Inform two stockholders will no longer represent them

 

4 Inform clients they have a duty to try to straighten out the situation and prevent future losses

 

 

  1. 1 and 2

  2. 3 and 4

  3. 4 only

  4. None of the above

 

 

1 and 2 are incorrect – this is a past crime and the lawyer may not report the past crime to either law enforcement agencies or to the crime victims

 

 

3 may be appropriate, because may not like the crooks but the questions asks, MUST, no, he may withdraw but not required to so 3 is incorrect

 

 

It is not mandatory that he tell the client to straighten this out, maybe he should but not mandatory

 

 

D is the correct answer here; none of the above

 

 

Zealous representation –

Permitted to be an advocate and be zealous

 

 

Under model rules required to expedite litigation and under both the rules and code delay solely for the purpose of delay is not a legitimate or ethical tactic – you may not file a merit less motion for simply for delay

 

 

You must always be candid with trial or appellate court; you may never make a false statement about the law to a court, in addition, this is on every MPRE exam – you must disclose to a court legal authority in the controlling jurisdiction that is adverse to your position if opponent has failed to do so – thus if you opponent is moving for summary judgment and you opponent has failed to cite to the court a controlling case on point which is adverse to your client’s position if you opponent has failed to cite to it, your are required to do this, and required to distinguish if you can – revealing this case does not mean string citing the case along with 30 other cases in a footnote

 

 

As far as what is involved in controlling authority – US supreme court, appeals court in state, state supreme court, but another trial court in your state in not controlling legal authority so you would not necessarily cite to it or reveal it

 

 

As a general rule you are not required to reveal adverse facts and since required to represent client zealously you may not reveal adverse facts

 

 

Does not mean can destroy documents, or hide discoverable material and may not invite adverse witnesses to leave the US – but if you opponent do not know how to find witnesses or get out facts you do not have to help them

 

 

May never make a false statement of fact, either to a court, opponent of another party – and never present false evidence to a court

 

 

Ex parte proceedings –

You must disclose adverse facts because other side not there, but except for this minor exception not required to disclose adverse facts

 

 

The MPRE asked many times in past –

About situation that lawyer subsequently discovers that evidence presented at trial was false, the lawyer did not know it at the time but learns about it later – under the model rules layer is required to take remedial measures when the lawyer discovers this – which includes attempting to withdraw and if client did it then trying to convince him that the falsity of the evidence must be revealed

 

 

 

 

 

 

 

 

 

 

 

 

Limitations on zealous representation – the Perjurious client –

Nix v. Whiteside – court held that the 6th amendment right to effective assistance of counsel does not include the right of a criminal defendant to have his lawyer assist in presenting perjurious testimony but that case upheld the right of an attorney to threaten to withdraw and reveal the perjurious statement to the court, but it did not address what the attorney should if the attorney learns of the perjurious testimony after the client has testified and it was perjurious, for purposes of this exam if you learn afterwards, in civil or criminal, you should try to persuade client reveal the situation by testifying truthfully and should consider moving to withdraw

 

 

You are required within ambit of zealous representation to be fair to opposing counsel, in addition you have to give them access to evidence, and may never threaten anyone under claim of zealous representation

 

 

You may never threaten criminal litigation in a civil case to gain a tactical advantage but you may threaten civil litigation to gain a tactical advantage in a criminal case

 

 

Assume you represent from farmer Jones and one day his cow goes to stream and drinks from it and drops dead because of toxic substances in the stream and you are nowing suing that company for pollution. You may not go to that corporation and threaten to report to EPA the criminal enforcement agency in this field and threaten to report them if they do not pay what farmer Jones wants

 

 

But may do opposite you represent Smith who is accused of a crime and in jail awaiting trial, in jail gets beat up by prison guard, can you go to the county attorney and say if do not accept plea to lesser crime I will sue in civil court, yes you can

 

 

A prosecutor is charged with making sure justice is done

 

 

A prosecutor should only prosecute when there is probable cause that the defendant committed the crime, not preponderance and not proof beyond a reasonable doubt

 

 

In additional Brady v. Maryland – holds - exculpatory evidence must be turned over to defense and model rules and code say same thing

 

 

Prosecutors may never, never question somebody who is not represented by counsel without making special efforts to try to get counsel, goes beyond Miranda, prosecutor should not talk to person even if waived right to counsel

 

 

Trail publicity –

A lawyer may not make and extra judicial statement, that is to say to the press or otherwise, that a lawyer believes or reasonably should believe will have a substantial likely hood of prejudicing a trial, any statement that is made based on a public record, like the complaint or answer or interrogatories or depositions is permitted because it’s a matter of public record

 

 

Further the model rules but not code state, if speaking to press must be for attribution, that is you must not say to report don’t cite me but here are real facts, all statements must be for attribution and not from a source close to the case

 

 

Prosecutors also have special rules when making statements to the press – a prosecutor may never reveal existence of confession until or if that confession is introduced into evidence, however a prosecutor may say a suspect was arrested with tangible evidence on them, thus the prosecutor may not say that smith confessed to the axe murder of the 8 nurses but prosecutor could tell press, until the confession is offered into evidence, may tell press smith when arrested was carrying an axe

 

 

Tricks and games seen on movie or TV:

You may not refer to evidence, which you know to be inadmissible or which has been held to be inadmissible you may not bring to court room tangible evidence which you know will never be admitted, like the severed leg which is only there to inflame the jury, you may not mention irrelevant or inadmissible matters and may never express a personal knowledge or personal opinion, the last rule has been asked many times, intended to address –

If arguing to jury you may say, I ask you to believe that officer j was telling truth, I ask you to consider this evidence, I ask you to find for my client, you may never say I know that witness is lying, you may never say I know my client is not guilty, may not express a personal opinion

 

 

We do not let personal creditability of lawyer decide how the case will be decided, we do not let personal opinion be stated to jury

 

 

Witnesses –

We do not cross examine people for sport or ask a question intended to degrade them, and may only ask questions that are relevant, we do not permit ex party communication with either jurors or judges

 

 

There is a de minimis exception – if you juror arrives early to court one day and you are there and they ask where is the bathroom you may tell them, when no one else is present

 

 

Before a trial you may investigate a prospective jury panel only in a manner only in a way that does not harass prospective jurors, you may not after trial talk to a juror or jury in such a matter that will prevent them ever again from sitting on a case

 

 

This means, there was a recent case where jury very late at night brought back verdict of not guilty, when the jury was leaving all were on the elevator and before the doors could close the prosecutor came running up to the doors and said the defendant you acquitted in fact confessed to strangling the girl but could not use the confession and he lives near your neighborhood, the doors close and they go home. Clearly that jury can never sit in a criminal case again that is what is meant

 

 

 

 

 

 

You can talk to jury in case just not in above way, in most district courts against court rules, and still in over half the states it is a crime to talk to jury after a case, keep this in mind also

 

 

Courtroom decorum –

Must be maintained – you cannot carry on like a mad man in court room and cannot continuously interrupt a person that includes you opponent

 

 

Terminating the attorney client relationship –

Two types here – mandatory withdrawal and permissive withdrawal –

 

 

Mandatory withdrawal – is all of the duty to reject cases from above – 5 duty to reject cases plus were client wants you to violate an ethical rule or other provision of law or the attorney is discharged –if client ask to violate law or ethical rule or duty to reject cases must withdraw

 

 

Permissive is any good reason, not one of mandatory withdraw cases

 

 

Completion doctrine – if unclear if case is over and not sure if suppose to continue representing the client you should ask the client about that – do not just assume ask the client about that – do not assume, make sure matter is completed before stop representing the client

 

 

Regardless, of whether a withdraw is mandatory or permissive an attorney has some responsibilities following the withdrawal –

First, if case is pending, you always need permission of tribunal to withdraw, second must take reasonable steps to get you client another lawyer, you may withdraw but cannot abandon client, you must client time to find another lawyer, cannot quit the night before trial or the day before the deposition

 

 

MPRE asks question with regard to fees in this regard –

If have a agreement with client to be paid periodically and client is not paying and given reasonable notice to client will withdraw you do not have to represent for nothing, you can begin to take reasonable step to withdraw if client is not paying you, but do so sufficiently before some crucial period or some crucial event so that you are not abandoning the client – if law requires you turn over some files with regards to client then you must do so, this tends to be a function of state law

 

 

Problem 8-

Lawyer Smith (S) represent Safe Swing manufacturing company in a product liability case in which plaintiff was injured when a playground swing broke. Plaintiff has moved for a ruling from court that if it can be established that swing was negligently manufactured that punitive damages can be awarded in addition to any other damages which are established. In the motion papers the plaintiff has failed to cite the case of Jones v. GM in which the supreme court of state in which court held that punitive damages are appropriate where a product which is reasonably expected to be used by children as in child car seat is manufactured negligently. Plaintiff in safe swing has also failed to depose engineer Henderson who designed the swing in question and who could testify that the swing was not properly mounted on the swing frame and that is why it broke.

 

 

Lawyer Smith must

 

 

    1. Give plaintiff the name and address of engineer Henderson but does not have to disclose the existence of Jones v. GM

    2. Disclose case of Jones v. GM, but does not have to give the plaintiff the name and address of Henderson

    3. Disclose both existence of Henderson and Jones v. GM

    4. Disclose neither Henderson or Jones v. GM

 

 

Answer 1 is backwards

Answer 2 is correct

The question does not ask who must reveal to – since the GM case is adverse authority must reveal case to the court that is hearing the motion

3 and 4 incorrect because must reveal existence of GM case but not required to reveal Henderson, and therefore probably cannot reveal Henderson

 

 

Lawyer as a citizen –

You are encouraged to join legal service organizations and encouraged to do pro bono activities – encouraged to join things like ACLU and so forth, there are limitations, if you are part of ACLU screening committee and they are considering suing a bank, which is your client, you must withdraw yourself, conflict of interest

 

 

Expected to support good law reform, expected to participate in good law reform activities – if you believe in capital punishment then go work for the committee that advocates capital punishment

 

 

Ethical rules always apply – including in pro bono work – remember there does not have to be a nexus to violation of rule and practice of law to subject you to discipline

 

 

You are encouraged to support the good judiciary – assume you are in a jurisdiction where judges are elected – you may contribute to judges campaign fund for election, but may never, for any reason what so ever give a judge a gift or anything of value and also cannot give a gift or anything of value to court employees

 

 

You may contribute to an organization gift for judge, if local bar is buying a judge something gift or throwing party for a retiring judge you may contribute, but you may not personally throw a party for the judge nor give a gift to him

 

 

Book publishers and software firms are permitted to give the judge for purposes of judicial resources purposes, that is for judges library, for supplies, free books, free things like that and organizations and bar associations are permitted to pay for the judges costs or judges spouse to attend bar associations functions even out of state that are directed to the improvement of the law

 

 

 

 

Judicial Ethics – Last section –

10% - 15% tends to be on this section alone

 

 

Among the things that tend to be rule specific is the election and appoint of judges

 

 

Prohibited political activity – this is rule intensive –

If the judge is not running for election or re-election the judge is prohibited from holding any office in a political organization, judge is prohibited from endorsing a ticket or any candidate on ticket and judge is prohibited from making speeches at a political rally or organization, a judge may not purchase tickets to attend a political rally if the judge is not running for public office or re-election –

Minor exception – a judge may where there is a constitutional convention and one is looking for candidates to attend the constitutional convention a judge may in fact run for constitutional convention office while serving as a judge continue to serve as a judge and campaign during that time, but except for constitutional convention really can’t do anything in political arena unless you are running

 

 

Permitted political activity –

When a judge is running for judgeship – a judge may contribute to political organization, and may purchase tickets to political rally and judge may identify his/her political party membership – in addition when running for election or re-election the judge may speak on his behalf on a political gathering – however, the judge may speak not speak on anyone else’s behalf and judge may not endorse a political ticket – judges can run advertising campaign, work things through the media, run through an election committee of course, but the judge may only endorse in that media representation or oppose in that media representation – candidates for the same judicial office as that judge – you can oppose you opponent as a judge, you cannot endorse the entire ticket, but if there are 5 seats open for circuit court bench, and you are running for one of them – you may endorse another candidate running for the same elected office.

 

 

Obliviously, the judge may allow her name to be listed on election materials that support the entire ticket – that is judge may allow name to appear on election materials that support Smith running for judge

 

 

During the election campaign the judge must prohibit officials or employees of the court where the judge works or any other employees who serve at the judges discretion from doing on the judges behalf, anything that the judge is prohibited from doing

 

 

Judge may not make any statement, while running for public office, about any issue or case that is likely come before the judge – means –

If running for circuit court judge, a court of general jurisdiction, that hears criminal cases or for appellate bench that hears such cases, you may say you are opposed or for capital punishment – because that issue is almost certainly going to come before you – and may not say anything about an issue that is likely going to come before you

 

 

 

 

 

 

 

 

Candidates for appointment to judicial office –

If seeking appointment, not election, may not accept funds from people helping you appointment but may go to the constituting authority and campaign about you own qualifications

 

 

Judicial conflicts of interests – heavy area –

Personal bias – judges must disqualify themselves in any situations which there impartiality may reasonably be in question – examples –

If judge has knowledge of disputed facts the judges must disqualify themselves -

Judge is driving to work one day and sees car run the red light and hit other car, year later that case comes before the judge, and he remembers the incident – he must disqualify himself

This can be waived is parties agree reasonably to waive it

 

 

A judge must also have his impartially questioned where the judge or a lawyer where the judge has previously practiced, served as a lawyer in the matter or the judge has served as a material witness concerning the matter that is now before the judge.

So if you law partner or you, who is now a judge, were in private practice was involved in matter that comes before you, then the judge may have to be disqualified –

The parties can waive this after the judge makes a disclosure

 

 

Financial interests –

Where the judge individually, that means the judge himself or as a fiduciary, or the judges parent or spouse, or child, or any member of judges family living in the judges household – has an economic interest in the outcome of the proceeding the judge must disqualify himself or herself

Economic interest is defined as more than a de minimis amount, so if own a 100 shares of GM, which is a de minimis amount, you can stay on the GM case, if you own $1000 or $10,000 in the X bank, not really an economic interest in the bank you can stay on the case

If own government securities – that is always a de minimis amount and you can stay on the government case – talking about something more than de minimis economic interest

 

 

Other than that if judge individually or as a fiduciary, for instance is a representative of an estate, or a judge’s spouse – parent, child or any other member of judges family actually living in the household has an economic interest in outcome of proceedings, other than de minimis one, the judge must disqualify himself

 

 

If the judge or relative closer than a cousin, is a party or officer of a party to the proceeding or if any of those people is acting as a lawyer in the proceeding or is going to be a material witness in the proceeding the judge must disqualify himself

 

 

Closer than a cousin – is any person who holds a similar relationship to the judges spouse – this includes children, grandchildren, parents, great grandchildren, grandparents, great grand parents, siblings, aunts, uncles, nieces and nephews and your spouses relatives like that are closer than a cousin and must disqualify yourself

 

 

In this case the judge cannot be present when the parties decide to waive this issue –but this must be decided out of the presence of the judge, has to be

 

 

Judges are not permitted to accept gifts or loans or favors or bequests from anyone, that does not mean he cannot borrow from a bank under usually accepted terms or that judge’s child cannot get a fellowship or scholarship –this is common sense, where something is being given to judge that is not generally given to other people

 

 

A judge may accept gifts from relatives that is de minimis gifts and not huge amounts of money – any gift over $150 has to be reported

 

 

Courtroom decorum –

Judges are required to be patient and dignified when interacting with anybody a judge may not consider ex parte communications except when considering emergency orders like temporary restraining orders or what have you, and finally with respect to ex parte communications one last consideration – which is unusual and frequently on the MRPE –

Suppose Judge S has a complicated UCC matter which the parties have completely unhelpful in their briefs with respect to question of law under the UCC. May the judge if judge remember old law school roommate is an expert on this, may the judge go to the expert and ask for advice? Yes, if the judge tells the parties that he is going to the outside expert, the judge lets the parties comment on what he expert says after the judge gets the advice

 

 

So can go to outside expert but must follow the above rules this kind of extra judicial conduct is permitted

 

 

Judicial administration is up to the judge, it should not be by nepotism should be by merit, judges should only appoint qualified people to be trustees or executors or whatever

 

 

Extra judicial legal activities –

First of all like lawyers judges are required to report other judges violations of the model code and so forth, a judge may testify but only if subpoenaed

 

 

A judge may teach and be paid and a judge may be a member of a law reform group

A judge may not solicit funds on behalf of law reform group from the public, may from government or other private foundations but not from the public

 

 

A judge may serve on board of law reform group

 

 

Judge not permitted to be a fiduciary or executor of estate or guardian, except a judge may be a fiduciary for a member of his family

And exception to this – a member may not be a fiduciary for even a family if any issue concerning the fiduciary responsibility may come before him in court – so if judge sits on probate court the judge could not be the executor of a will even for a family member

 

 

 

 

 

 

 

 

 

 

Remember is you get a question that asks can ever lend their name for solicitation to the general public for any reason, the answer is almost certainly, no.

This includes where judge is trying to get money for his former law school from his former classmates

 

 

Extra judicial non-legal activities –

A judge may serve on board of not for profit organization – but not on board on a for profit organization

Exception here is if judge’s family has a closely held corporation the judge may serve on that board

 

 

With respect to all extra judicial non-legal activities the judge should avoid activities that are likely to influence the judge or lead to frequent disqualifications

 

 

Integrity, independence, impropriety

These are buzz words – remember judges are suppose to have super integrity

 

 

Impropriety fact specific – an oral argument was being heard by a judge and the attorney went on and on – the judge pulled out a revolver and said if you don’t sit down and shut up will shoot off you penis – that was improper

Another example – complicated civil trial, after 12 weeks of trial the lady stood up to do her summary and during this the judge stood up, strapped a dildo to his waist and chased her around yelling I’m going to get you, I’m going to get you - this is improper

 

 

Problem 9 –

Judge H running for circuit court judge, second term, there are two other candidates for her seat in this contested election and during her campaign –

 

 

Judge H is permitted to

  1. Speak in favor of her own candidacy at her political party kick off campaign rally at the coliseum

  2. Authorize the publication and distribution of campaign literature which identifies her political party and authorize the publication of this campaign literature as a political advertisement in the state newspapers

  3. Contribute $100 to her political party and purchase tickets to the kick off campaign rally

  4. Endorse candidacy of Judge J who is running in same general election but is a candidate for associate state justice in state supreme court

 

 

    1. 1 and 3

    2. 1,2, and 3

    3. 3 and 4

    4. All of the above

 

 

 

 

 

 

 

 

 

 

1 is permitted

2 is permitted

3 is permitted

4 is not permitted judge J running for different office

 

 

Answer b is the correct answer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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