UPL

Motions/other acts he did was the UPL b/c was holding out leagal services to public. The forms were not approved by the Sup. Ct. as they needed to be to comply with the state law.

1. ethical obligation of confidentiality (MR)
2. Atty/C Privilege (evidence)
3. Procedural/Work Product Immunity (Civ.Pro.26(b)(3))

"5 Cs"

Client Communicates Confidentiality with Counsel (lawyer acting as lawyer) to obtain Counsel (legal advice)

1. informed consent
2. disclosure impliedly authorized
3. disclosure is permitted by 1.6(b)

1. prevent death/subs. bodliy harm

2. crime-fraud

3. injury to finances/property of another

4. secure legal advice about rule compliance

5. est. claim or defense on behalf of L in controversey b/w L and C

6. comply with law/court order

Rules:

1.8(b)

1.9(c)(1)

YES.

So long as there is no reasonable likelihood that the listener would be able to ascertain the ID of the client or the situation.

Comment 4, Rule 1.6

Falls under secrecy; Fed. R. Civ. Pro. 26

"anything prepared in the anticipation of litigation"

What is the main test for determining whether someone is your "client"

(1) "substantial need"

(2) party is unable, without "undue hardship" to get "substantial equivalent" in another way

generally just protects tangible things.

BUT if the oral communication becomes a tangible thing...

EX: you are not allowed to ask the consulting expert "What did you write in your notes"

YES.

Fed. R. Crim. Pro 16(b)

Yes.

Rule 3.4(a)

HELD: ACP attaches

b/c the call was about a past crime, not future/current commission of crime.

met all the standards (5Cs) of ACP

Case: whether Atty can be compelled to reveal name of individual who consulted him re: that individual's possible past commission of a crime.

D'Alessio v. Gilberg

No.

In this case the crime had already be committed and revealing client ID would expose him to prosecution. 

Name = privileged info that atty cannot be compelled to reveal.

What are the 5 Basic Categories of Physical Evidence?

1. Given to you by Client
2. given to you by 3rd party
3. that you find on your own
4. that you see but do not touch
5. that you only hear about but do not see or touch.

Case: When Defense Counsel removes or alters evidence, the ACP does not bar revelation of the original location or condition of the evidence

Waiver of privilege as to the condition and location of the evidence.

People v. Meredith

YES.

Rule 3.4(a)

P's Verdict for over $100 million

Lawyers for P sought routine discovery of some notes;

D atty casually/repeatedly stated that those "documents had not been retained"

BUT: the documents were produced during expert testimony.

SO: Judge asked for detailed affidivit as to why the missing docs had not been earlier produced.

AFF: missing docs and others had not been destroyed but were sitting in a suitcase in a closet in D's atty's office.

HELD: false statements under oath led to contemps for D's Lawyer and was a huge contributing factor in the jury's verdict for P.

HELD:

1. "Spoilation of Evidence" = civil liability tort
2. can be intentional or unintentional (negligence)

1. pending or probable litigation involving P
2. Knowledge by the D of the existence or likelihood of litigation
3. Intentional "acts of spoliation" on the part of the D designed to disrupt the P's Case
4. Disruption of P's Case
5. damages proximately caused by acts of D.

1. existence of potential civil action
2. legal/contractual duty to preserve evidence relevant to litigation
3. destruction of evidence
4. impairment in ability to prove lawsuit
5. causal relationship b/w evidence destruction and the inability to prove lawsuit
6. damages

Temple Community Hosp. v. Superior Court (California)

QP: "whether tort COA will ie against a person who is not a party in a lawsuit but who intentionally destroys or suppresses evidence that would be relevant to lawsuit."

Held: Decline to recognize COA

Case involving how courts assess whether sanctions should be imposed when Ls for a company argue that destruction of evidence was the result of a routine operation of a company's normal document retention program:

What are the Four Factors of spoliation from Mosaid Tech v. Samsung?

1. Evidence in party's control
2. must appear there's an actual suppression or withholding of the evidence
3. evidence destroyed or withheld was relevant to claims or defenses; AND
4. was reasonably foreseeable that evidence would later be discoverable in litigation

• Garrow charged with murder;

• authorities concluded he'd committed several other known murders/rapes & suspected him of murdering two women who were missing but had insufficient evidence.

• Garrow told his L all about other murders to help with insanity defense. Ls found other two bodies. 
• Attys indicted for knowing where bodies were and not coming forward.
• What case?

ACP attached to the communications (about the murders) b/c they were made to advance a client's interest and were not the subject of the trial at issue.

Privilege is not all-encompassing but here the 5Cs were met.

• Exception to Ethical Duty of Confidentiality
• Client gives informed Consent; OR
• there is Implied Authority (when disclosure would help client)

• Exception to Ethical Duty of Confidentiality
•  Says that info that became generally known after representation ended is not longer ACP

13 total.

1.6 - contains 9 of them

1.9(c)

3.3(a)(3)

3.3(b)

1.13(b)

1.0(e)

1. testamentary exception
2. crime-fraud exception
3. deceased client (which many courts don't recognize)

In re Investigation of the Death of Miller

(case where he died of arsenic poisoning and indication that had been killed by his wife's lover)

1. b/w Atty & Deceased related solely to 3rd party = NOT protected, Atty may be compelled to tell for criminal investigation
2. Rel. to 3rd Party but also Affecting Client's rights = Privileged, BUT may be ordered to disclose upon clear and convincing showing that disclosure won't subject estate (reputation/loved ones) to additional harm/liability
3. Relating solely to client's own interests = Privileged; Ct. may not order disclosure

1. Control Group
2. Subject Matter
3. Functional Test
4. Restatement test

NO.

Upjohn is Fed. law not universally accepted by state courts and they are free to accept or reject it.

•  the ACP protects corporations only if the person communicating with the L is a member of the "control group" (the elite group of corporate officer and employees who actually control the corporation and make its policies)

1. Communication concerns matters within the scope of that employee's job duties
2. Must be aware that this conversation within the benefit of the corporation to get legal advice.

• Where someone other than the employee initiates the communication, a factual communication by a corporate employee to corporate counsel
• is within the corporation's privilege if:
• it concerns the employee's own conduct within the scope of his or her employment AND
• is made to assist the L in
• assessing or responding to the legal consequnces of that conduct for the corporate client.

• Report Up or Report Out
• Rule 1.13(b) and (c) respectively

• disaffirm earlier opinions - while doesn't tell what the client is doing wrong but this disaffirmance is a strong signal that major problems have arisen

• despite the L's efforts in accordance with 1.13(b), the highest authority that can act on behalf of the organization insists upon or fails to addres in a timely and appropriate manner, an action or a refusal to act that is clearly a violation of the law, AND
• the L reasonably believes that the violation is reasonably certain to result in substantial injury to the organization.

1. Rule 3.3(a)(3): when L offers false testimony and comes to know of its falsity, and the false testimony cannot be corrected without disclosure
2. Rule 3.3(b): when necessary to remedy criminal or fradulent conduct relating to a proceeding in which the L represents C; OR
3. Rule 4.1(b): to avoid assisting a client's crime or fraud AND rule 1.6 does not prohibit disclosure

1. the individual's L consents; OR

2. the communication is authorized by law or court order

NO.

applies to all matters/all people (co-D/P, non-parties) whether or not inlitigation.

5.3

1.6

4.2

Niesig.

Widely followed

Witnesses can be a party - they don't get full protection if not represented.

• P injured after falling off D's scaffolding at work and wants to interview other employees who saw accident. D claims those employees are protected (b/c they are employees of corporation, and therefore "parties").
• used test that defined "party" to include corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation OR imputed to the corp. for purposes of liablity OR employees implementing the advice of counsel - all other employees may be interviewed informally

1. exercising managerial responsibility in the matter
2. alleged to have committed wrongful acts in the matter; OR
3. empowered to make decisions about the course of litigation

Fill in:

Client controls the ______ of the matter (______), and lawyer controls the _______, (_____).

YES. 1.16(b)

• Must have Court's permission
• if client insists on taking action which L considers repugnant or with which L has fundamental disagreement
• other good cause for withdrawal exists

NO. Atty cannot be forced to give defense if client rejects it = violation of D's DP rights and good order and court's conduct of trial

McMillan Case

Rule 3.3(a)(3) = Disclosure to the tribunal if necessary.

3.3(a)(3) and 3.3(c) expressly TRUMP rule 1.6...also in cases of perjury, 1.6(b)(2) and (3) might trump disclosure

• keep C off stand
• only ask Qs that won't elicit false testimony (looks suspicious tho)
• narrative method - let D tell (also may look suspicious)
• Move to withdraw (but that will not remedy perjury)

Discipline

public reprimand

suspension from practice

disbarment (atty must have INTENT to deceive for this one)

OR/and

Criminal Prosecution

1) rep of one client will be directly adverse to another client; OR

2) there is significant risk that a rep of one/more lcients will be materially limited by the L's responsibilities to another client, a former client or a 3rd person OR by a personal interest to L

YES.

Rule 1.7(b)(3)

1. immaterial
2. consenatable
3. non-consentable

• Personal = disqualify L b/c something he's done personally - representing client w/adverse interst or own interst at odds w/client
• Vicarious "imputed" = when restrictions placed on personally disqualified L are attributed to anotehr L (small firm) who is NOT personally disqualified. Usually when any one L in a firm is personally disqualified all other Ls in firm are vicariously disqualified.

1.7(b) and 1.8(a) are prohibited unless:

• transaction and terms are fair
• client advised to and given opportunity to seek other counsel
• client gives informed consent in writing to essential terms of transations and Ls role

YES

Consentable Conflict

poses risks

see. Rule 1.7 Comment 18

Rule 1.7 Coment 29

Lansing DE v. Oak Lane Park

HELD: Lawyer's new firm was disqualified; screening solution rejected by ABA and ususally by most courts.

RULES: 1.6 and 1.9(c)

NO.

except as Rule 1.9 would permit with respect to information of a former client.

YES. but note that out of state atty cannot do so without first being named PHV

Which part of 5.5?

No single test to tell if attny services provided on temp basis.

    ii.      Services may be temp. even though  attorney provides services in Host juris.

1. on a recurring basis or

2. for an extended period of time,

a. as when the lawyer is representing a client in a single lengthy negotiation or litigation.

f. Presence in Host may be syste and continuous even if the attorney is not physically present in the Host. Ex”

  i.      Advertising

1. Some states consider advertising in the Host state to be “continuous presence” in the Host state

2. An out-of-state lawyer could provide legal services in the Host, as long as he does not advertise there

1. Flat Fees
2. Hourly rate fees
3. contingent fees
4. Value billing
5. Hybrid fees

NO.

1. Minimum fees help clients choose b/w two Ls
2. may help a client decide whether or not to go forward with a project

1. insure Ls will get paid in all successful cases (substantial upside for Ls)
2. clients do not assume the risk (protect clients against substantial downside)

 NO.

1.8(e) says that L may 'advance court costs...' but L can neither lend C money nor guarantee repayment to a bank or other lender

7.1: communications

7.2 Advertising

7.3: direct contact with prospective clients

7.4: communicaiton of fields of practice and specialization

"is this advertisement false or misleading?"

Rule 7.1

Strategem Dev. Corp v. Heron

EB represented Strategem in transaction with Heron; And in an unrelated matter represetned a subsidiary of Heron.

Cromley v. Board of Education

Facts: Teacher alleged retaliation b/c she reported improper conduct of anoather teach to principal and was not subsequently promoted to dept head; her atty accepted p-ship at firm represetning D after two years of litigation.

What Rule:

Contingency fee agreements must be in writing and signed by client

  CASE: a state may not prohibit legal services advertisements targeting as clients Women who has used the Dalkon shield IUD

Shapero

[court distinguished from in-person solicitation as in Ohralik) b/c the element of undue influence is not met]

Which Rule?

"concerned with conduct that raises a substantial question as to that L's honesty, trustworthiness or fitness as a L in other respects"

No. Absolute certainty is not required before the reporting requirement is triggered.

TEST: whether reasonable L in the same circumstances would find that the conduct occurred.