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Chapter 5-2. Special Issues in Conflicts: Lawyer-Client; Clerks, Judges & Mediators; Criminal. 5-13.
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Chapter 5-2 Special Issues in Conflicts: Lawyer-Client; Clerks, Judges & Mediators; Criminal
5-13 • An attorney decided to obtain a master's degree in taxation, but lacked the funds required for tuition and expenses. The attorney consulted one of his clients, a wealthy banker, for advice about obtaining a loan. To the attorney's surprise, the client offered the attorney a personal loan of $10,000. The attorney told the client that he would prepare the required note without charge. Without further consultation with the client, the attorney prepared and signed a promissory note bearing interest at the current bank rate. The note provided for repayment in the form of legal services to be rendered by the attorney to the client without charge until the value of the attorney's services equaled the principal and interest due. The note further provided that if the client died before the note was fully repaid, any remaining principal and interest would be forgiven as a gift. The attorney mailed the executed note to the client with a transmittal letter encouraging the client to look it over and call with any questions. The client accepted the note and sent the attorney a personal check for $10,000, which the attorney used to obtain his master's degree. A month after the degree was awarded, the client was killed in a car accident. The attorney had not rendered any legal services to the client from the date of the note's execution to the date of the client's death. Thereafter, in an action brought by the client's estate to recover on the note, the court ruled that the note was discharged as a gift. Was the attorney's conduct proper? • Yes, because the client, without having been requested by the attorney to do so, voluntarily made the loan. • Yes, because the court ruled that the note had been discharged as a gift. • No, because a lawyer may never accept a loan from a client. • No, because the attorney did not comply with the requirements for entering into a business transaction with a client.
Rule 1.8 (business transaction) • (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: • (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; • (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 • (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.
Rule 1.8 (gift) • (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. • Comment [6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent.
Chapter 5-14 • An attorney represents the plaintiff in a defamation lawsuit. Both the plaintiff and the defendant are well-known public figures, and the lawsuit has attracted much publicity. The attorney has been billing the plaintiff at an agreed-upon hourly fee for his services. Recently the plaintiff suggested that, rather than paying hourly, she would like to assign the attorney the media rights to a book and movie based on her lawsuit as full payment of services rendered from that point until the end of the litigation. The attorney responded that he would consider it, but that the plaintiff should first seek independent advice as to whether such an arrangement would be in her best interest. The attorney knew that, in the unlikely event that the lawsuit was settled quickly, the media rights might be worth more than he would have earned on an hourly fee basis. Is the attorney subject to discipline if he agrees to the plaintiff's offer? • Yes, because the attorney knew that, in the unlikely event that the lawsuit was settled quickly, the media rights might be worth more than he would have earned on an hourly fee basis. • Yes, because the attorney has not concluded the representation of the plaintiff. • No, because the defamation lawsuit is a civil and not a criminal matter. • No, because the attorney recommended that the plaintiff first seek independent advice before entering into the arrangement.
Rule 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.
5-15 • Jim, an associate at a large law firm, is working on a deal for client Lincoln Enterprises. He works regularly with Pam, an Assistant General Counsel at Lincoln, who is supervising the deal. Their close working relationship becomes a close personal relationship and they begin to date and are thinking about moving in together. What are the implications under the Rules? • Jim can't work on the matter. • Pam can't work on the matter. • The firm can't work on the matter. • No problem under the rules.
Rule 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. • (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. • Comment [19] When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization's legal matters.
The Philadelphia Lawyer 1. Way out in Reno, Nevada,Where romance blooms and fades,A great Philadelphia lawyerWas in love with a Hollywood maid. "Come, love, and we'll go ramblin'Down where the lights are so bright.I'll win you a divorce from your husband,And we can get married tonight."2. Wild Bill was a gun-totin' cowboy,Ten notches were carved in his gun.And all the boys around RenoLeft Wild Bill's maiden alone. One night when Bill was returningFrom ridin' the range in the cold,He dreamed of his Hollywood sweetheart,Her love was as lasting as gold. 3. As he drew near her window,Two shadows he saw on the shade;'Twas the great Philadelphia lawyerMakin' love to Bill's Hollywood maid. The night was as still as the desert,The moon hangin' high overhead.Bill listened awhile through the window,He could hear ev'ry word that he said: 4. "Your hands are so pretty and lovely,Your form's so rare and divine.Come go with me to the cityAnd leave this wild cowboy behind." Now tonight back in old Pennsylvania,Among those beautiful pines,There's one less Philadelphia lawyerIn old Philadelphia tonight.
Issues? • Rule 7.3 Solicitation of Clients • (a) A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: • (1) is a lawyer; or • (2) has a family, close personal, or prior professional relationship with the lawyer. • Rule 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.
5-16 • Attorney, who had represented Testator for many years, prepared Testator's will and acted as one of the two subscribing witnesses to its execution. Testator's sister and brother were his sole heirs. The will left Testator's entire estate to his sister and nothing to his brother. Upon Testator's death two years later, Executor, the executor named in the will, asked Attorney to act as his lawyer in the probate of the will and the administration of the estate. At that time, Executor informed Attorney that Testator's brother would concede that the will was properly executed but intended to contest the will on the ground that he had been excluded because of fraud previously practiced on Testator by Testator's sister. The other subscribing witness to the will predeceased Testator, and Attorney will be called as a witness solely for the purpose of establishing the due execution of the will. Is it proper for Attorney to accept the representation? • Yes, if there is no contested issue of fact with respect to the formal execution of the will. • Yes, because Executor has no beneficial interest under the will. • No, unless Attorney's services are necessary to avoid substantial hardship to Executor. • No, because Attorney will be called as a witness in the case.
Rule 3.7 Lawyer As Witness • (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: • (1) the testimony relates to an uncontested issue; • (2) the testimony relates to the nature and value of legal services rendered in the case; or • (3) disqualification of the lawyer would work substantial hardship on the client. • (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
What is the interaction between Rule 1.8 and 1.10? • Rule 1.10 Imputation Of Conflicts Of Interest: General Rule • (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless • (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm;
5-21 • An attorney's law firm regularly represented a large company in its international business transactions. The company became involved in a contractual dispute with a foreign government. The company invoked a mandatory arbitration procedure contained in the contract. Under the arbitration clause, each party was allowed to choose a partisan arbitrator and the partisan arbitrators were to choose an additional arbitrator to sit on the panel. The company selected the attorney to be on the arbitration panel. Neither the attorney nor his law firm had represented the company in connection with the contract with the foreign government. The arbitration was completed, and the company was awarded the sum of $100,000. The company then hired the attorney to enforce the award. The attorney obtained the consent of the other arbitrators before accepting the representation. He was successful in enforcing the award. Is the attorney subject to discipline? • Yes, because the attorney should not have represented the company in a matter in which the attorney had been an arbitrator. • Yes, because the attorney should have declined the arbitration assignment in view of his law firm's regular representation of the company. • No, because the attorney obtained the consent of the other arbitrators before accepting the representation. • No, because the attorney was appointed to the arbitration panel as a partisan arbitrator.
Rule 1.12 Former Judge, Arbitrator, Mediator Or Other Third-Party Neutral • (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.
What about a judge or law clerk? • BigMac is suing Guggle in an antitrust case. The matter is before Judge Good. Jane Lawyer is Judge Good’s law clerk and worked with her on BigMac v. Guggle. Lincoln & Center represents BigMac. The Judge and her clerk are very impressed with Lincoln & Center’s work. They both decide to approach Lincoln & Center regarding jobs and begin conversations. As soon as they learn that Lincoln & Center has some interest, the Judge discloses these negotiations to all counsel in BigMac v. Guggle. Has Judge complied with the Rules? Has Clerk?
Rule 1.12 (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.
L&C hires Jane Lawyer. • 1. Under what circumstances could Jane Lawyer work on BigMac v. Guggle? • 2. Under what circumstances would L&C have to withdraw from representing BigMac in BigMac v. Guggle? • 3. Under what circumstances could L&C continue to represent BigMac in BigMac v. Guggle?
Rule 1.12 (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. • (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: • (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and • (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.
Would any of your answers be different if L&C hired Judge Good?
5-23 • A, B, and C are charged with the murders of D and E. Attorneys Alpha and Beta represent A, B and C, who are tried separately. A is convicted. B & C are acquitted. A claims he was denied effective assistance of counsel because his lawyers had a conflict of interest. He further argues that they did not call particular defense witnesses because those witnesses would have become less effective as witnesses for B and C. Did he receive ineffective assistance? • Yes, because his lawyers had a potential conflict of interest. • Yes, if his lawyers had an actual conflict of interest. • Yes, if his lawyers had an actual conflict of interest that adversely affected their performance. • No, because he did not object to the conflict at trial.
Strickland test: • failure to meet reasonable lawyer standard plus • Prejudice • Significance of failing to object to conflict? • Cuyler, Burger, Holloway • FR Criminal Procedure Rule 44
5-24 • Able, Baker and Carter had been indicted for the armed robbery of a cashier at a grocery store. Together, Able and Baker met with an attorney and asked her to represent them. The attorney then interviewed Able and Baker separately. Each told the attorney that the robbery had been committed by Carter while Able and Baker sat in Carter's car outside the store. They each said that Carter had said he needed some cigarettes and that they knew nothing of his plan to rob the cashier. The attorney agreed to represent both Able and Baker. One week before the trial, Able told the attorney that he wanted to plea bargain and that he was prepared to testify that Baker had loaned Carter the gun Carter used in the robbery. Able also said that he and Baker had shared in the proceeds of the robbery with Carter. What is the proper course of action for the attorney to take? • Request court approval to withdraw as the attorney for both Able and Baker. • Continue to represent Baker and, with Able's consent and court approval, withdraw as Able's lawyer. • Continue to represent Able and, with Baker's consent and court approval, withdraw as Baker's lawyer. • Continue to represent Able and Baker, but not call Able as a witness.
Rule 1.7 • (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; or • (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. • (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; • (2) the representation is not prohibited by law; • (3) the representation does not involve 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; and • (4) each affected client gives informed consent, confirmed in writing.
Rule 1.9 Duties To Former Clients • (a) A lawyer who has formerly represented a client in a matter shall not thereafterrepresentanother person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
5-25 • Public Defender ("PD") represented A on a burglary charge. After A's murder, the court appoints PD to represent B, who is charged with murdering A. Neither PD nor the court informs B that PD previously represented A. After trial, B is sentenced to death. The death sentence was predicated on B forcing sodomy on A. At trial, B's theory was that he did not know A. He did not argue that he knew A, knew that he was a prostitute, and that the sex was consensual, which would have mitigated the death sentence. After conviction, B argues ineffective assistance because PD did not pursue this strategy because of his conflict. What result? • Ineffective assistance of counsel, because of PD's conflict and the court's failure to inquire. • Ineffective assistance of counsel, because A's failure to share and use relevant info prejudiced B. • Not ineffective assistance of counsel, because not a concurrent conflict. • Not ineffective assistance of counsel, because did not adversely affect counsel's performance.
5-26 • L is appointed to represent C in an assault case, and meets once with C before C is murdered. L is then appointed to represent D, C's alleged murderer. D is later convicted and sentenced to death, and seeks habeas relief alleging ineffective assistance of counsel due to L's conflict. What result? • Ineffective assistance because of conflict. • Ineffective assistance because L could not zealously represent D for killing L's former client. • Despite the conflict, not ineffective assistance absent a showing of prejudice. • Not ineffective assistance, because no evidence of conflict or other indication the representation was not reasonable.
Conflicts Review • How do you work through a concurrent conflicts issue? • Rule 1.7 (a): Is there direct adversity or material limitation? If not, no worries under Rule 1.7. If so, go to Rule 1.7 (b). • Rule 1.7(b) must satisfy four tests • (1) reasonable belief “that the lawyer will be able to provide competent and diligent representation to each affected client; • (2) the representation is not prohibited by law; • (3) the representation does not involve 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; and • (4) each affected client gives informed consent, confirmed in writing.”
Conflicts Review 2 • How do you work through a successive conflicts issue? • (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. • How do the tests for concurrent conflicts differ? • Directly adverse (including unrelated) v. “materially adverse . . . in same or substantially related matter” • Informed consent alone resolves a successive conflict.
Conflicts Review -3 • When are conflicts of an individual lawyer not imputed to an entire firm? • Rule 1.18 Prospective Client contact/screen • Rule 1.10 Former Client Screen • Rule 1.11 Former government lawyer screen • Rule 1.8 (j) & (k) sexual relationship • What conflict provisions are found outside of Rules 1.7, 1.9, 1.10, 1.11 & 1.18? • Rule 1.8 • Rule 3.7
Conflicts Review 4 • Rule 1.18: Screening if Confidential Info from Prospective Client • c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). • (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: • (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: • (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and • (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and • (ii) written notice is promptly given to the prospective client.
Rule 1.10 General Imputation/Former Client Screening • (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless • (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or • (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and • (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; • (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and • (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures. • (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: • (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and • (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
Rule 1.11 Former Government Lawyer Screening • (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: • (1) is subject to Rule 1.9(c); and • (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. • (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: • (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and • (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. • (cont. for review purposes)
Rule 1.11 cont. • (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. • (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: • (1) is subject to Rules 1.7 and 1.9; and • (2) shall not: • (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or • (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b). • (e) As used in this Rule, the term "matter" includes: • (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and • (2) any other matter covered by the conflict of interest rules of the appropriate government agency.
