TOPIC N: DUTIES TO NON-CLIENTS 2016 P.R. Prof. Janicke

NOTE: THIS TOPIC DOES NOT INCLUDE PROSPECTIVE CLIENTS OF THE LAWYER THAT SUBJECT IS DEALT WITH IN TOPIC Q (PRE-CLIENTS) 2016TOPIC N: DUTIES TO NON- CLIENTS 2

PERSON REPRESENTED BY OTHER COUNSEL LAWYER CANNOT COMMUNICATE WITH A PERSON KNOWN TO BE REPRESENTED BY ANOTHER LAWYER, ABOUT THE SUBJECT OF THE REPRESENTATION R TOPIC N: DUTIES TO NON- CLIENTS 3

EVEN IF INITIATED BY THE OTHER LAWYER’S CLIENT MUST STOP TALKING WHEN REPRESENTATION IS LEARNED 2016TOPIC N: DUTIES TO NON- CLIENTS 4

CANNOT URGE A CLIENT TO DO SO BUT IF CLIENT INITIATES CLIENT-TO- CLIENT TALKS, IT’S OK –AND THEN: LAWYER CAN EVEN HELP IN PLANNING WHAT WILL BE SAID 2016TOPIC N: DUTIES TO NON- CLIENTS 5

EXTENSIONS OF THE RULE THE NON-CONTACT RULE HAS BEEN EXTENDED BY CASE LAW CANNOT SPEAK WITH THE OPPOSING CORPORATE CLIENT’S CLOSE ADVISORS R. 4.2 C7 –E.G., CORPORATE SUPERVISORS OF OPPOSING LAWYER; RELEVANT EMPLOYEES OF OPPOSING COMPANY 2016TOPIC N: DUTIES TO NON- CLIENTS 6

DEALING, ON CLIENT’S BEHALF, WITH UNREPRESENTED PERSONS IS RESTRICTED R. 4.3 CONCERN THAT THE LAWYER WILL OVERREACH 2016TOPIC N: DUTIES TO NON- CLIENTS 7

RULE 4.3’S REQUIREMENTS MUST NOT GIVE IMPRESSION OF DISINTERESTEDNESS MUST NOT GIVE LEGAL ADVICE, IF PERSON’S INTEREST APPEARS TO CONFLICT WITH THE CLIENT’S –EXCEPT: ADVICE TO GET COUNSEL 2016TOPIC N: DUTIES TO NON- CLIENTS 8

NO GROUNDLESS BURDENING LAWYER IS NOT ALLOWED TO LOAD A 3 RD PERSON WITH UNNECESSARY BURDENS OT DELAYS R. 4.3(a) LAWYER WHO RECEIVES ACCIDENTAL MUST NOTIFY SENDER R. 4.3(b) 2016TOPIC N: DUTIES TO NON- CLIENTS 9

NO MISREPRESENTATION R. 8.4 MIXED IN WITH OTHER NO-NOs –CRIMES THAT SHOW UNFITNESS –“DECEIT” PRACTICE OF LAW OFTEN PRESENTS THESE RISKS>>> 2016TOPIC N: DUTIES TO NON- CLIENTS 10

THE FALLOUT MALPRACTICE ACTION BY CLIENT –FOR DAMAGES OR RESTITUTION MISREPRESENTATION ACTION BY 3 RD PARTY WHO WAS MISLED 2016TOPIC N: DUTIES TO NON- CLIENTS 11

ELEMENTS: –MATERIAL FACT FALSELY STATED –KNEW THIS 3 RD PARTY WAS LIKELY TO RELY –INTENDED THAT THIS 3 RD PARTY SHOULD RELY –ACTUAL RELIANCE NO KNOWLEDGE-OF-FALSITY ELEMENT! NEGLIGENCE WILL SUFFICE 2016TOPIC N: DUTIES TO NON- CLIENTS 12

LIABILITY ABOVE AND BEYOND TEXAS STATUTE ON REAL ESTATE OR STOCK TRANSACTIONS: –STRICT LIABILITY –NOT EVEN NEGLIGENCE NEED BE PROVED Tex. Bus. & Com. Code § TOPIC N: DUTIES TO NON- CLIENTS 13

OTHER TYPES OF TRANSACTIONS IN TEXAS TEXAS FOLLOWS THE NATIONAL NORM: NEGLIGENCE NEEDED FOR MISREPRESENTATION ACTION McCamish v. F.E. Appling, 991 SW2d 787 (S. Ct. Tex. 1999) 2016TOPIC N: DUTIES TO NON- CLIENTS 14

[NOTE: OUTSIDE OF MISREPRESENTATION, ATTORNEYS ARE IMMUNE FROM 3 RD -PARTY SUITS LAWYERS OWE NO DUTY OF CARE TO NON-CLIENTS –NEGLIGENCE WILL NOT WORK] 2016TOPIC N: DUTIES TO NON- CLIENTS 15

FOR THE MPRE: THE ETHICAL DUTY TO AVOID DECEIT AND MISREPRESENTATION, UNDER RULE 8.4, WILL BE ASKED ABOUT –“SUBJECT TO DISCIPLINE?” APPEARS TO REQUIRE “KNEW OR SHOULD HAVE KNOWN” THE REPRESENTATION WAS FALSE SEE R. 1.0 C5 re. FRAUD 2016TOPIC N: DUTIES TO NON- CLIENTS 16

2016TOPIC N: DUTIES TO NON- CLIENTS 17