Professional Responsibility Law 115 Wed., Nov. 7

substantial physical harm/death

MR 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm;

Your client, whom you are representing in a divorce proceeding, tells you that her husband is furious at his lawyer and plans to beat him up. She requests that you keep this quiet. May you inform opposing counsel under MC, Va. Rules, or old MRs?

Spaulding v. Zimmerman the defendant’s lawyers (and perhaps the defendant), but not the plaintiff or his counsel, are aware that the plaintiff has a life threatening aneurism resulting from accident caused by defendant’s negligence. Assuming that the defendants do not want to divulge the information, may their lawyers do so anyway under MC, Va. Rules, or old MRs?

a client reveals that he has dumped toxins in a river may you tell the people who might be harmed under MC, Va. Rules, or old MRs?

forced exceptions

Tarasoff v. Regents of the University of California (Cal. 1976)

Hawkins v. King County (Wash. App. 1979)

10 DUTY OF LOYALTY (conflicts of interest)

11 Conflicts concerning current clients

12 Rule 1.7 Conflict Of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client

13 (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

14 (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client…and (4) each affected client gives informed consent, confirmed in writing.

15 Unconsentable conflicts: 1.7(a)(1) lawyer cannot reasonably believe that she will be able to provide competent and diligent representation to each affected client… 1.7(b)(2) the representation is…prohibited by law 1.7(b)(3) the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal

16 You represent A for the purposes of drafting his will and creating a trust for his children. B asks you to represent him in his suit against A for breach of an unrelated contract.

17 You are a famous civil rights lawyer who specializes in cases of police brutality. A police officer asks you to defend him in a civil rights action in which he claims to have been falsely accused of police brutality. May you undertake to represent him?

18 You represent C in a tort suit concerning a car accident involving A, B and C’s car. A and B are suing C. A few weeks into the case A decides to bring a crossclaim against B claiming that B’s negligence too caused the accident. Because so many of the same arguments that B will give against A are arguments that C will give against A, B asks you to represent him in connection with the crossclaim. He will retain his own lawyer in connection with his suit against C.

19 Comment 17 Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client's position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding.

Westinghouse Elec. Corp. v. Kerr- McGee Corp. (7 th Cir. 1978)

imputation MR 1.10

22 Positional conflicts

Lawyer represents Bank1. Lawyer also represents Consumer who is bringing a suit against Bank2, arguing that its ATM fees are illegal. Bank1 charges the same fees.

24 Comment [24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.

25 A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

26 Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer.

Does the 7 th Circuit analyze Westinghouse as a positional conflict case (i.e. its arguments for API will materially limit its representation of Westinghouse and visa versa)?

Assume that Westinghouse has sued Getty for breach on an unrelated contracts. Would K&E have to get Getty’s consent to the conflict?

quasi-clients

how was K&E supposed to discover the conflict?

31 advance waiver of conflicts

32 Comment 22 to MR 1.7 If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation.

Fiandaca v Cunningham (1 st. Cir. 1987)

34 Hot potato rule – Under 1.7 and 1.9 a lawyer can sue a former client concerning issues not substantially related to the earlier representation – Rule 1.16 allows a lawyer to terminate the relationship when there is no material adverse effect on the client as a result of the termination.

35 You represent company A in a small contract dispute. B approaches you and suggest that you represent him in a mega-million dollar class action suit against A. You are sure that A will not consent to your representing B. May you terminate the relationship with A, and represent B? – Assuming no material adverse effect will result from the termination, eg because in early stages.

36 Thrust-upon conflicts – You discover late in game (and unforeseeably) that you have a conflict – no consent (by one or both) is available – you try to solve it by dropping a party

37 Personal Interest Conflicts 1.8 – All imputed to other members of firm (except 1.8(j) – sexual relations) See 1.8(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

38 Business transaction with client 1.8(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless…

39 (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

40 (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

41 (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

42 If duty of disclosure and consent not satisfied, lawyer can be disciplined – Even if the transaction is reasonable – And even if the lawyer loses money

43 Lawyer is representing client in slip and fall litigation Lawyer also enters into an agreement with client to buy piece of property Does 1.8(a) apply?

44 What about buying a stick of gum from your client’s store? Is that a violation of 1.8(a), unless informed consent etc.

45 Comment 1 to 1.8 In addition, the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities' services.

Iowa State Bar Assn v Mershon (Iowa 1982)

47 Different problems of being lawyer for startup (even when you don’t get a cut) First lawyer for people creating startup – Representing adverse sides in transaction Then represent corporation instead (or also) – Could have conflict due past (or continued) representation of the people starting up

48 One financial transaction almost always occurs between lawyer and client Fee for legal services Will discuss this later – R 1.5

1.5(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate.

50 Assume that L draws up the papers for a startup corp - gets hourly fee after project is completed C offers to sell L shares at below market rate because he believes that L did good work and wants to cement the relationship What should L do?

51 Client gifts?

52 1.8(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. – For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

1.8(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

54 you have an poor client you are representing in an eviction case and you put him up in a hotel

55 1.8(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

56 Champerty Maintenance

57 1.8(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case.

58 Special rules on contingency fees

1.5c A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

60 Personal interests affecting representation – Need not be mentioned in 1.8

61 You are a partner in a small law firm. Another partner in your firm is representing P, who is suing D in a personal injury case. D is represented by your husband, who is counsel for D’s insurance company. Any conflicts problems?

62 Comment [11] to 1.7 When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.

63 The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10.

64 Having sex with clients

65 1.8(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

66 Problem of jointly representing criminal defendants

67 Comment [23] to 1.7 … The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.

68 When does a conflict in representing joint criminal defendants result in ineffective assistance of counsel?

69 Problems in representing joint clients in transactional work First problem – Don’t know you are jointly representing

70 But joint representation can be in clients’ interest Despite disadvantages – Especially if there is a falling out – No attorney client privilege with respect to one another – And cannot represent one in a substantially related issue unless the other consents

71 Puzzle about confidentiality in joint representation AvBvHill Wallack Lawyer jointly represents husband and wife husband in connection with drafting will Husband discovers he has an illegitimate child Husband says don’t tell wife What do you do?