I. Introduction p. 1
A. Professionalism & its Morality
1. Special moral rules For Lawyers
a. Once an attorney represents a client, the lawyer has a duty to make his/her expertise fully available in the realization of the end sought by the client, irrespective of the moral worth to which the end will be put or the character of the client who seeks to utilize it.
b. Provided the end sought isn’t illegal, the lawyer is an amoral technician whose peculiar skills & knowledge in respect to the law are available to those w/whom the relationship of client is established.
c. The lawyer’s task is to provide that competence which the client lacks & the lawyer possesses.
A. Federal Regulation of State Practice
HOOVER v. RONWIN: Whether the state action doctrine of immunity from actions under the Sherman Act applies to the grading of bar exams by the Committee appointed by & according to the Rules of the Arizona Supreme court? Ronwin failed the bar in 1974. Ronwin petitioned claimin the Committee conducted & graded the exams unfairly, claiming they failed to provide him w/model answers to the exam & failed to file its grading formula w/the court w/in the time specified int he Rules, applying a bad pass fail process, used a grading formula which measured the group (not indiv), & failed to test the applicants on areas of the law the Rules required testing on.
He also alleged they deprived him of due process & equal protection, and violated the Sherman Act.
Arizona Supreme Ct. established the Committee to examine & recommend applicants for admission to the Arizona Bar. The Ct was reserved the ultimate authority to grant or deny admission.
The Committee shall examine applicants on subjects in the Rules & recommend to the court for admission to practice applicants found to meet the requisite qualifications. The committee was to utilize grading & scoring systems as they deemed appropriate & were to use the Multi State Bar Exam.
The Committed was to file the formula to be used in grading the exam w/the court 30 days prior to giving the exam.
After grading the exam & compiling the list of applicants it considered qualified to practice law int he State, the Committee was to submit its recommendations tot he court for final action.
Only the Court had authority to admit or deny admission. A rejected applicant was entitled to seek individualized review of an adverse recommendation by filing a petition directly w/ the court.
The Committee was required to file a response to such petitions & it called for a fair decision on the applicant’s claims by the Arizona Supreme Court.
Parker Rule: when a state legislature adopts legislation, then its actions are those of the state & are exempt from antitrust laws.
Bates Rule: When state supreme court acting legislatively is exempt from Sherman Act liability as state action.
The Committee’s action’s cannot be divorced from the Supreme Ct’s exercise of its sovereign powers.
The court denied petition & two subsequent petitions for rehearing. Arizona supreme court denied his petition for cert.
The Ct granted motion finding that the complaint filed to stte a justiciable claim & the ct had no juris & that Ronwin lacked standing. App Ct reversed ruling Ronwin failed to state a claim as holding the bar exam grading procedures are immune from federal antitrust laws, b/c mere fact that they were state appointed officials was insufficient to confer state action immunity on them, therefore holding that dismissal was improper & Ronwin had standing to sue. Supreme Ct. US granted Cert & REVERSED.
D Contends: Immunity from antitrust liability. Ronwin suffered no damages from the conduct he complained of & the Committee’s conduct had not affected interstate commerce. The conduct Ronwin challenges was that of the Arizona sup. Ct. & therefore is exempt from Sherman Act liability under the state action doctrine of PARKER v. BROWN.
The action at issue was clearly that of the Arizona Supreme The District Court properly dismissed Ronwin’s complaint for failure to state a claim upon which relief can be granted.
J. REVERSED (Ct. of App).
CLASS NOTES 5/23/95 Intro to Legal Ethics
Shall provide competent representation to client
Michigan Code of Conduct
Shall not handle legal matter w/o adequate preparation an advisor, advocator, mediator, organizer, providing legal info, friend.
II. Unuathorized Practice Of Law: p. 76
A. Representation in Adjudicative Proceedings:
1. CASE LAW:
STATE BAR v. GALLOWAY: Issue: Whether a nonattorney may represent an employer in proceeding b/v the Michigan Em ployment Security Commission
Facts: D, Gates, is a corp & D, Galloway< was an em ployee of Gates. Under new stat., D resumed practice of representing employers b/f MESC & continued until 1979, when referees of MESC refused to allow it based on 1963 injunction. State Bar filed action v. D’s resulting in a consent J permanently enjoining D’s from representing clients in proceedings under Mich Employment Security Act, which provided that no indiv claiming benefits shall be charged fees in any proceding under the act by commission or its rep or any ct or officer. Any indivs claiming benefits in any proceeding b/f the commission or ct may be represented by counsel or other duly authorized agent, but no counsel or agents shall charge or receive for services more than an amt approved by the commission.
Circ Ct issued order denying D’s motion to dissolve/amend injunction, holding the sec 31 of MESA specifically permitted nonattorneys to represent emp loyers in MESC proceedings, D Gates, McDonald was precluded from doing so under MCL sec450.681 & MSA sec 21.311 which prohibits practice of law by corporations. clause sec 31 provided that an employer may be rep resented in any proceeding b/f the commission by counsel or other authorized agent.
The rt of cts is paramount or exclusive; beyond that point the legislative dept also has constitutional rts in the exercise of the police power. The practice of law in certain aspects is solely a matter w/in judicial control, but other activities commonly considered & sometimes judicially held to be the practice of law are subject to legislative control.
Under rules governing construction of statutes sec31 prevails & musat be treated as an exception to the statute prohibitaing practice of law by corporations. Trial ct’s order denying D’s motion to dissolve the 1963 injunction is REVERSED.
POPE COUNTY BAR ASSOCIATION v. SUGGS: suit to enjoin real estate brokers from completing instruments involving real estate trans w/o consulting a lawyer.
Denied injunction & limited use of such instruments by realtors & both sides appealed.
P contends: constitutes practice of law and are against public Brokers can fill in blanks of ceartain standardifzed forms in connection w/certain real estate transactions, provided they’d been previously prepared by a lawyer. Approved use of standard warranty deeds, quiatclaim deeds, release deeds, bills of sale, leases agreements & mortgages w/ power of sale under 6 specific restrictions (see p. 83).
No clear definition of the practice of law.
simple real estate transaction: those which involve a direct, present conveyance of a fee simple absolute b/t parties, which becomes effective immediately upon delivery of title document. Doesn’t include aconveyances involving reservations or provisions creating life estates, limited or conditional estates, contingent or vested remainders, fee tails, easements or rt of way grants, or any other conveyance of future, contingent or limited interest.
It is in the public interest to permit the limited, outside use of standard, printed forms in the manner stipulated by the chancellor.
If the mortgage, bill of sale, release deed or lease ins necc & coincidental to a real estate trans, being handled by the broker in his capacity as a broker, then he is authorized to use the forms under the conditions imposed.
If not, then his use of the forms wouldn’t be permitted & would constitute the unauthorized practice of law. (P85)
CLASS NOTES 5/30/95: Regulating Responsibilities/Unauthorized Practice of Law.
MR 8.1: regulates behavior b/f b/c a lawyer. (MI adopted as written)
What authorizes the state to regulate who becomes a lawyer??? Judicial decisions aff’d state’s authority to do so & it derives from the importance of the practice of law. Must prevent possible sanctions that may result from inadequate representation. Must have a minimum standard.
Must protect from 1) incompetent practice of law. & 2) prevent unethical conduct
How is this accomplished?
1) Educational standards for competence
2) Trend toward mandatory CLE (continuing legal education)
3) Set of standards (prior convictions, etc.)
4) Bar Exam
5) Deterrence Techniques (State Attny Grievance Commsission)
6) Marketplace (good results, employed. bad results, no job) Value of reputation, very important!!!
1) Economic motive
2) Keep it exclusive & limit the competition dissuades people from entering the profession What is the practice of law? (Unauthorized)
1) Indiv may simply hold himself out as an attorney
2) Attny in 1 juris practicing in another don’t know technical transactional rules certain customs not in the law books
3) eg. Ask clerk to prepare deposition notice, under Ct rules it is suff to require party to come to deposition.
Clerk files & it is served.
MI 2.114: Attny is req’d to sign documents & practice of law is defined by state law. Clerk may have violated rule if attny didn’t sign it.
MR 5.5a: Shall not practice in juris if doing so violates rules of practice in that juris.
gets expertise that ct & state wish to retain.
1) Ask secretary to call other side & reschedule motion hearing for next week.
2) Working in firm as a student & then called by attny & asked to make argument & motion on behalf of client & attny.
3) Complaint file, summer clerk. Tell clerk to put together an answer to complaint & ask her to file it (she signs).
Unauthorized??? Yes, Lawyer must review it & usually sign it.
An answer is a pleading as defined by 2.114
4) Sending clerk to depositions to take notes w/o an attny present. Could substantially impair client’s rights.
Allowed employee to represent corp. Statute carved out the particular exception. Outside judiciary’s power.
MR 1.1: shall provide competent representation to a client.
MR 5.3(b): lawyer w/direct supervision over non lawyer must make sure non lawyer complies/compatible w/the rts of the client & rules of representation???
Supervisor must make reasonable efforts to make sure adequate representation is provided to client.
MR 5.5(b) Shall not assist non lawyer in unauthorized practice of 5.5 Note: prepartation w/supervision is okay, provided adequate supervision is provided.
MR 5.3(c) Responsible for conduct if it would be a violation of the rules had the acts been performed by an attny.
STATE BAR v. KRAMER: (399 Mich 116, 1976): do it yourself divorce kit. Non-lawyer prepared the forms & client isn’t being advised on what to do.
1. person put out kits & personally advised them of proper testimony
2. arranged personal conferences w/clients & decided what to do
3. advertised the kits & fact that professional advise would be given regarding the kits
STATE BAR v. KUPERIS 306 MICH 688 1962: Real estate brokers can fill out real estate forms. Similar to Galloway. Does lawyer need to be involed or can it be done w/you & the
MARQUETTE v WARDEN: ???: Layperson appointed as minor best friend, w/judicial hearing re: minor & best friend wanted to represent minor in the proceeding.
What type of proceeding? Effect rts of minor? Ct didn’t allow layperson to represent the minor.
CLASS NOTES 6/1/95: Attny Client Relationship
Sherman case p.149: Attny rec’d payments, interviewed client, never entered an appearance, & did nothing to show he would not be his attny. Attny should have expressly written & said he wouldn’t be the attny & get another attny for client.
Attny/Client relationship had been formed. Make sure doesn’t exist, or take steps to make sure the relationship is w/drawn.
Should it matter that he never made an appearance.
Attny has a duty of candor, no excuse.
What about opening a file? Should that matter? It is a problem. Doesn’t work both way, would penalize for good organizational practices. Also could be used against the other way, offensively.
Biggest flaw was no letter to client expressing he didn’t desire to take on the representation.
2 Key practical practice points:
Confirming letters: client, opposing counsel, clerks, etc.
Memos to file.
Keep records of what happens on file, with all agreements to prevent too many letters & present distrust to Observations about Sherman:
1. Possible that Attny was telling the truth. Problem is Attny had no paperwork to prove it. One letter may have made all of the difference. Would have avoided a 3yr loss in livelihood
2. Either you represent someone or you don’t. Never let them think that you are their attny, make it understood if you won’t be representing them.
3. Lack of candor is important to the court.
4. Ct tries to mask it, but assumes that the attny’s distaste re:client impaired his ability to provide competent representation.
Be aware of the strength of your feelings when considering whether to take the case.
KURTENBACH v. TeKIPPE: Attny helped client form corporations, long history of representation, yet didn’t give client infor regarding stock sales & reporting thereof.
Undesirable client, but unlike Oliver in Sherman who is innocent w/o representation problem, TeKIPPE was much more innocent. Did all the acts, series thereof, for what he knew about, & didn’t know about everything client was doing.
Ct uses a contractual analysis for attny/client relationship, where ct in Sherman uses a fiduciary analysis. Attny here was a much more sophisticated client.
Elements of Attny Client Relationship:
1. Person seeks advice/assistance from an attny
2. Advice/assistance sought is w/in attny’s professional compentence.
3. Attny expressly/impliedly agrees to give/or gives advice or assistance.
***Can be expressed or implied advice/assistance.
Kurtenbach very interesting, ct uses wide discretion w/vindication when suspects ill will of client.
MR: 1.2b (Mich Rule): client must consent after counselation, rt to refuse the attny’s services.
Can limit objectives, can never limit the quality of the representation.
MR 6.2: must accept appointments by ct except for good cause:
1. violation of rules 2. unreasonable financial burden on attny 3. Repugnant to attny: must impair relationship MI: Attny not required to accept client who is repugnant
WESTINGHUSE ELECTRIC CORP v. KERR McGEE CORP: Attny (firm) was representing a consortium, or perhaps the entities making up the consortium.
Oil corp w/smaller entities hired legal representation & entities claimed a conflict of interest.
1. no member asked for representation, API was client.(consortium)
2. billed API, paid by API, & others weren’t billed/paid.
Hedging on whether attny/client relationship, & was a fiduciary relationship. No K, but didn’t matter b/c of implied K theory & fiduciary relationship.
Applied fiduciary analysis & looks to definition:
person/entitiy, public/private, who obtains & seeks advise & it is thereby given.
1. Ct says client is no longer person who walks thru door. On paper it is the institute, but not necc only client. Person paying bill is not neccessarily the client.
2. Ct distinguishes arguments & says they interviewed co’s representatives, conferred w/them, clients confiede b/c believed firm was acting as their attny, that they otherwise wouln’t have divulged. Clients’ perception is very important.
3. Look at facts, primary & secondary matters. Attny’s held themselves out as attny’s & advised & consulted on antitrust matters.
Gen Point: clarification/waiver could have avoided matter.
***MR 1.13e, 1.17
Had they disclosed what their intentions were & what representations would be provided, then waiver may have been attained & problem may have been avoided.
Firm gets disqualified, & lose both clients.
getting greedy & end up w/nothing.
May lose client forever & future business, big company & big MR 1.13: organization as a client:
Tells you organization is the client. Unincorporated associations fall under rule. Being upfront & disclose info to client & associated entities. Problem of determining who client is:
1. arises when representing an entitity, school, non organization.
1. Mayor, city sued for discrimination. City is clearly liable. mayor directs attny to settle lawsuit. Who is client? Is Mayor authorized to run suit.
No corporate voice, who has ability to make the decision?
2. Organization makes ordinance prohibiting adult book stores. P wants bookstore. Mayor wants to go along w/it & settle it.
Ordinance is constitutional.
MR 1.13b: If mayor is highest authority/client, then you must go along w/it. May be able to w/draw if no substantial injury to
3. Counsel to Det Redwings. Coach w/whom attny has dealt w/ are friends. Coach asks attny to represent him, wants share of team.
Can attny do this?
MR 1.13e ok if ok w/1.7a
1. Attny reas believes won’t adversly affect relationship w/client & both clients agree.
depends on type of work you do for client
MR 1.13b: Mandatory language to act in best interest of organization. Circumstances are narrow. Beware of WEASEL WORDS.
1. must know
2. must be legal violation
3. must result in problem to organization
***doesn’t tell you what to do ***When rule was put toether, proposed draft avoided allowing attny to resign.
MI RULE: doesn’t allow attny to resign.
Once Attny Client relationship exists, what are the characteristics of the relationship.
Authority to settle:
JOHNSON v. TESKY Attny settled w/o proper authority.
Asking attny to act on your behalf doesn’t give attny authority to settle. Only allows attny rt to negotiate.
Attny is there to advise & counsel, but ultimately must be client’s decision. Client retains ultimate authority to make that decision. No evidence client signed for authorization.
P proceeded to trial, her damages due to attny were ascertainable.
***Most cts would agree that power to settle is ultimately retained by client.
1. get clients permission
2. never assume anything
***may be good time for a confirming letter.
3. get opposing party’s signature on settlement so they can’t claim that attny didn’t have authority. Get opposing attny & client’s signature.
a. when not sure if attny has auth to settle
b. when you’ve achieved good settlement & want to be locked Attny for D fails to answer the complaint. Should you consult client first w/o consultng client.
MR 1.14, 1.4a Must notify client, may delay if client acts imprudently.
***look up in book.
MI adopted 1.14 unchanged.
CLASS NOTES 6/6/95 MR 1.4 & related issues.
Whenever you are doing anything related to the case, ie changing trial date, you should always contact your client. You never know what kinds of problems can/will be caused to your client as a result of your actions/decisions if you act w/o his consent or knowledge.
Legal Competence: legal knowledge, skill, thoroughness, & time necc to prepare for representation, reas. prepared to handle the matter, & devoted.
If you are a divorce attny & relative asks your opinion regarding his/her DUI, which in not your area of expertise.
You can learn a new area of law, but if you don’t want to do it, then you must advise them that you aren’t interested, but perhaps can refer them to someone who can help them in that particular area.
***Under certain circumstances, expertise is required in that
MR 1.1 p.11
MI has rule: old disciplinary rule DR 6
101(A): MR 1.1: shall provide competent representation to a client & shall not 1. handle a legal matter the lawyer knows/should know he is not competent to handle w/o associating w/attny competent to handle
2. handle a legal matter w/o preparation adequate in the circumstances.
3. neglect a legal matter entrusted to the lawyer.
Diligence MR 1.3:
A lawyer shall act w/reasonable diligence & proptness in representing a client.
Comment 1: act w/zeal in advocacy upon client’s behalf, but is not bound to press for every advantage that might be realized for a client.
Comment 2: Any unreasonable delay can cause a client needless anxiety & undermine confidence in the lawyer’s trustworthiness.
Get fees written down & agreed to at the beginning, b/f you proceed w/client.
One of the primary causes of tension w/attny client relationship is re: fees.
Keep records of time spent on each case & be specific: ie researched stat limits issue for possible summ J motion.
Not billing frequntly, fee outweighs recovery/award, experts at high prices (more than your “deal of a fee”), contingency matters (% of recovery), good outcomes, attny puts in a lot of work at a low fee & then client wins a large recovery, or huge litigation w/numerous people working on it & forget to mention hourly rate is raised at certain points throughout the year & client is billed more than he expected.
Get agreement up front & in writing.
MR 1.5: concerns fees
Fees need to be reasonable.
NEWMAN v. SILVER: Used car salesman accused of turning back odometers. Hired an attny who advised him to plead guilty, he dismissed him & met w/Silver. Silver had good reputation, took them out to dinner & consultation, charged 10,000 as deposit/initial fee. Silver kept charging more & more money, dispute regarding fees arose. Questionable as to whether fees were excessive. Silver asked Martin Luther King, SR. & asked him to contact Judge (ethical violation) & tries to set up an ex parte meeting w/Judge only (ethical violation.
Ultimately Newman is charged w/a nominal sentence, by pleading guilty, fires Silver, gives Silver money to see if no time served can be secured. Large fees are in question b/c large amts are paid & Silver doesn’t know where he sent them to.
Newman wins recovery of fees by means of quantum meriut.
Ct has authority to supervise fees. If an agreement is in place, ct can still step in & regulate the practice of law, including fees.
Key factors: contrast b/t exobitant amt & what attny actually does. If you do have a written contract, can’t rely on ct to step in & throw out the K b/c you are allowed to make a bad deal.
The ct falls back on a fiduciary analysis, claiming no arms length negotiaitions. Cts more concerned more w/fee arrangements in situations where undue influence or unfair pressures on client are apparent. Ct doesn’t hold that representation was incompetent, only that the fee was excessive.
***EXAM: MR 1.5a: fee must be reasonable.
In most cases attny/client will be stuck w/the bad bargain.
Fiduciary duty on attny to proceed w/case, even if client fails to pay on time or bounces checks, etc. Can’t just back out or tell client that case is on halt.
MR 1.16B4&5: Can stop representation if client doesn’t pay & it places an unreasonable financial burnden on the attny.
**Contrast w/MR 1.7 dealing w/conflict of interest.
MR 1.16b2: if you learn info in course of attny/client relationship, such info can be disclosed in litigation where attny sues client to collect payment.
Exception to attny/client privilege b/c it is supposed to work both ways. If client breaches, then later the attny can breach b/c client severed relationship.
1. duty to be candid
2. not to say anything that’s not untrue. Perjury
3. duty not to breach
CLASS NOTES 6/8/95
MR 1.5: No, b/c ct determined reas. fees & can’t bill twice. Would result in a windfall to attny.
What if in K, wife made clear that she would pay X an hr, regardless of what husband would be forced to pay? Depends on circumstances & what ct thinks of total fee attny would receive under the circumstance. If K was reas, then attny can recover xtra for troubles.
1. get agreement in wrinting
2. specify entitlement to reimbursement of costs
3. if hourly rate is scheduled to go up, make client aware & specify in the agreement upfront
4. keep detailed & careful records of time spent results in less cutting of fees
5. unique twists to fee arrangement should be spelled out & explained to client
6. discuss strategies & costs thereof w/client, make sure that they understand the arrangement let client play a role & have input in the matter(s)
***Sometimes you’re required by client to provide a budget & then you must stick to it or take the loss. Use weasel words to give yourself room if you need more money for expenses, cover your ASS!!!
CONTINGENT FEE ISSUES
When attny undertakes litigation in exchange for a promise to share in the recovery. ie. 1/3 At common law, they were condemned. Today, they are permissible in certain types of cases.
1. give incentive to attny to do a good job
2. allows people who can’t pay upfront to pursue a ligitimate case & only pay out of what they recover, no out of pocket expenses. Allows the poor to sue also, not just limited to the Prohibited in:
1. domestic relations matter, if payment of fee is contingent upon obtaining the divorce b/c against public policy
2. criminal matters no way to measure % of recovery & it is against pub policy
MICH RULE 1.5d: broadly phrased Shall not enter into an arrangement for, charge, or collect a contingent fee, in a domestic relations matter or criminal When contingency fees are allowed, still subject to regulation:
Anderson case p.212: Attny collected lg contingency fee after a quick investigation & easy settlement w/Ins Co upon the discovery of the wrong date initially thought to be of importance.
Basically zero efforts of attny & he gets 8,000 & the widow got 18G.
LLL Factor: Little Old Lady, ct feels sorry for her & want to give her some money.
Key Point of Case: Contingency fee arrangements are subject to scrutiny of ct & are subject to being adj by ct.
CT can nullify K by supervisory powers
MI RULE: MCR 8.121
In claims & actions for pers injuries & wrongful death actions: Max allowable fee is 1/3 amt recovered. Fee of 1/3 or less is fair & reasonable. A fee greater than 1/3 is clearly excessive fee & in violation of the code. Attny is required to inform client that other fee arrangements exist in which the attny is compensated for reas fee of amt performed, ie hourly rate/fee. Agreement must be in writing & client must get a copy. Applies claims & actions for pers. injuries & wrongful death. Take amt recovered, including any int on J, ct costs, etc, & subtract dispersements appropriate to client & take 1/3 of net amt left.
eg. Fee: 1000 (amt recovered)
Dispersements inc 50 copying fees & 50 filing fees 100 = 900
Lawyer gets 100 dispersements
gets 1/3 remainder (900) = 300.
300 + 100 = 400
MR 2.403 (Mediation):
Includes provisions for late fees. Ct rule now says, unless specific agreement w/client, your firm/attny is responsible for late fee.
eg. Alt fee calculation method Take 1000/3 = 333 for attny & 666 for client Then subtrace 100 from client Client gets 566 & attny ends up w/433.
DIVISION OF FEES:
eg. Client asks you to do Admiralty matter, you have no experience in that area, & you decide to do it. W/o telling client you work w/experienced attny in that matter. Results in 50G attny fee. You pay other attny out of that amt. What result??? MR 1.5e: if it is in proportion w/amt of work done & the client is aware & consents to such an agreement. Must be in proportion of services provided. Secs are conjunctive so all requirements must be met to divide fees.
MI Rule 1.5e: only requires
1. client advised & consents to participation of attny’s involved
2. total fee is reasonable
***No req’t for proportionate division of work.
B/C want to encourage attny’s to get help & seek out competent counsel.
Specific limitations & exceptions:
Attny may not share legal fees w/non
ADVANCEMENT OF EXPENSES:
Old code: DR 5 103b, only advance litigation costs if client remained ultimately liable.
New Rule: MR 1.8e
Attny can do this on non reimbursement basis if client is indigent. Can advance expenses & don’t have to require client to pay it back.
***MI Adopted Exactly
Good for strategic cases, allowing poor client to go on w/good case…good chance of lg recovery…tie in w/contingency fees. Civil Rts allows recovery of attny fees & costs.
TERMINATION OF THE RELATIONSHIP:
Perjury is most troublesome area re: termination of the relationship.
Better chance if file motion early in case. MCR 2.117c2: Attny who enters appearance may w/draw from action or be substituted for ONLY on order of the court.
Can’t decide, once in the case, that you want out. You are SOBOL CASE p.243:
Woman hired attnys to handle husband’s estate & then later again in a civil action w/contingent arrangement later on. She becomes uncooperative & w/holds info, contacts people by herself.
Attny’s file to w/draw as counsel & she can’t find new counsel w/in 30 days & files for rehearing. Ct turns over decision & it is reversed again so ULITMATELY they can w/draw.
1. let her know way in advance that they wished to w/draw from the case 10 mo in advance
2. they helped her to find counsel, although it was unsuccessful
3. mutual antagonism b/t client & attny, became impossible for them to get along b/c level of antagonism was too great.
4. Attny’s gave her ample time to find another attny to represent
MR 1.1: competent rep rule goes both ways. Letting attny w/draw denies client representation, but if you make attny remain, then client may be deprived of adequate rep b/c attny can’t do their
***Look out for clients who have shopped around, most likely potential pain in the ass clients who are very difficult to deal with & usually run into problems which prevent allowing you to w/draw. Disputes may & probably arise.
CLASS NOTES 6/13/95
1. In most juris, & you are attny on record, then even mandatory w/drawal will require leave of the court. File motion & ct will hear the arguments. Particularly early in case, usually allow it. Give ct reasons why you must w/draw. Timing & scheduling are important in considering your w/drawal to the court.
2. If fail to w/draw as attny of record, then you may still be responsible. Particlularly w/problem client.
3. Client may discharge you at any time for any reason.
May get attny liens or get quantum meriut.
ATTORNEY CLIENT PRIVILEGE: What are the policy reasons for attny client priv?
W/O privilege, clients won’t disclose info suff for adequate representation. Primary concern is adequate representation of the Only basis for the privilege is the policy.
Rules/Perspectives on Attny Client Privilege:
1. Rule of Professional Responsibility: shall not reveal such communications except in certain circs. Duty not to disclose.
2. Rule of Evidence: info can be revealed in litigation…
Obligation to reveal.
***Questions involving Attny Client priv don’t arise unless/until someone asks or brings it up as an issue.
Arise in litigation context Two different perspectives.
Don’t expect client to come into 1st meeting & spill out their Client Privilege, Elements:
1. legal advice, any kind, is sought
2. from professional legal adviser in his capacity as such
3. communications relating to that purpose
4. made in confidence
5. by the client
6. are at his instance permanently protected
7. from disclosure by himself or by the legal adviser,
8. except the protection be waived.
MR 1.6: shall not reveal info relating to rep of client, unless client consents. Unless crim act to result in death of sub bodily harm, or est defense of attny in an attny litigation.
1. Client comes in & says wants to buy shopping ctr in Southfield & it will be expensive. You’ve represented friends of client in other areas. Asks you what you think about the price & possible purchase of the prop.
No def legal relationship established. Possible conflict of interest b/c represented friends. No legal advise is Suppose you discuss purchase & go ahead & negotiate prices, etc.
Communications are privileged both ways, otherwise privilege is worthless.
2. Many dies in auto crash. Family hires you to represent estate. Family gives you materials, in which a suicide note is found. Ins. Co. wants to know if you have found anything, & you know that the note would violate ins. rules & estate wouldn’t get the ins. money.
No intended communication to the attny. Client is the family, so the letter Estate is the client, still isn’t privileged info, not estate’s communication. Privilege protects communications, but not facts. Doesn’t protect pre-existing documents.
Issue: to what extent does the attny client priv reach, & who is the client? Extends as far as the control group. Supreme ct feels control group test is too restrictive. To encourage full disclosure, must extend protection beyond control group
1. info needed by attny will often come beyond the control group.
2. legal problems are often caused by people beyond the control
3. control group test is too vague
4. test was adopted due to “cloak of secrecy”, not really a concern b/c of pre existing documents & only communications are protected.
Communications by employees for Upjohn for attny’s in anticipation of litigation. Sup Ct installs new test. Court doesn’t lay down a new test, rather, they say it will be taken on a case by case basis.
Rely largely on who, why, type of communication, to whom, why, etc. Questionnaires sent out to elicit info to respond to an anticipation of litigation, returned to counsel, treated as confidential by the corporation, communications were directed to the attorneys, & communications were on a need to know basis.
2. made by employees of company
3. matters w/in scope of duties
4. to corporate counsel acting as such
5. at the direction of the organization’s superiors, Somebody comes to you & says you represent ‘X’, & asks you if you do. Is that info privileged? Meet a friend & says he understands that you represent so & so. He may need your client as a witness & wants his phone number, can you give it & is it privileged.
Ask your client if the number can be disclosed, even when the number is in the phone book. Your obligation is to your client.
VALDEZ CASE: As a general matter, employment, client’s name, etc in court, that info is not generally privileged.
PERILS OF OFFICE TEST:
Once there is a waiver of the privilege, tehn there is no longer a privilge for that matter.
If an accident, faced to opposing party, then cts consider whether the info was inadvertant, how important, etc.
MR 5.3: requires lawyers to watch non lawyers, secretary sends it to attny to other side. 1.6 & 5.3 are in opposition.
CLASS NOTES 6/15/95 Attorney Client Privilege:
Know that it is a policy driven rule & we often fall back on the policy.
Know the elements of the privilege.
Case P.270 BELGE (LAWYERS OF ROBERT GARROWS)
4 dead campers Client admitted of the killings & told lawyers location of bodies not yet fount. Attorney photographed the bodies, also allegations he reassembled one body, public outcry over bad ethics.
Lawyers allowed to hide behind policy based privilege while family members go thru hell not knowing where bodies are. Matter of priorities: human life v. protecting crimimal.
Irony: lawyer can forgo on privilege when case of fee dispute arises, but not here.
Could we carve out an exception for these types of circumstanes? eg. balnce sanctity of live b. rt to self incrimination.
Are there ways to satisfy competing interest? eg. perhaps allow for a disclosure, but don’t compel lawyers to say how they found the bodie, etc??? This case makes lawyers look bad: public outrage.
Are there circumstances besides fees where we shold waive the eg. national security MR 1.6: exception for past crime b. future crime (see p283 eg. Mr. X comes to your office & says he planted bomb to go off in 2 minutes, bs. Mr. X coming in two minutes later & saying “I did it”.
1.6 allows you to disclose when you have to prevent him/her from committing a crime. We have recognized in teh rules that when you have the opportunity to do something positive, eg prevent a death/crime, then we will allow an exception to the rule and you can disclose.
Contrast with MR 1.3: criminal will try to hide behind 1.3, by arguing that you must represent the client zealously; but this is a weak justification in some cases.
Case by case basis: bust balance
MEREDITH CASE p.274: Robbed & shot Wade…Conspiracy involving Scott & Meredith.
Scott’s first lawyer hired a PI who found a wallet belonging to the victim & turned it over to police. Now lawyer is being asked to dislose what he knows about the wallet, & there are also objections to the PI’s testimony.
How far does Attny Client priv. go?? Does it extend to 3rd parties like the PI?
1. Does priv protect views observed directly from the relationship??
CT: we are not limited solely to communication. Privilege will extend to observations made as a result of the communication.
2. Removal of evidence: wallet was removed. Does priv encompass situation where one’s lawyer removes evidence?
CT: NO. That’s going too far. Prevents prosecution from doing job & would be unfair.
Prof: says ct was correct in deciding above. We shouldn’t allow a lawyer to use that “info” as privileged to alter, remove, etc, evidence.
eg. In Belge, it would NOT have been OK to bury the bodies so that they would never be found. Thus, distinguish b/t using the shield to protect legal advice, & using it to protect criminal in getting off.
HYPO: Client gives you the gun. do you turn it over?
p. 278, footnote 8: Consider: Can you call anonymously & reveal where the bodies are? No one would link to you or client.
(ethically, probably should). The rule is based on policy, so you are weighing policy concerns.
HYPO: Attny retrieves the gun Ans: Meredith says you can’t do that or else you eill have to testify, so leave the gun alone??? Don’t mess w/evidence.
Can we reconcile Belge & Meredith??? Yes. In Belge, no evidence that lawyer’s actions affected the prosecutor’s ability to investigate the crime.
eg. removing tag from the gun.
Consider: is it OK for lawyer to say:
I ca’t advise you to throw the gun in the river, but that would make the polices’s case a lot harder…???????” Practical matter of distinguishing what is “fact” Consider:
1. Lawyers very rarely allowed to be deposed.
2. If deposed, can object on basis of priv. eg. You say “The only way I know of the fact is AS A RESULT OF THE COMMUNICATION.” That may not be suff.
3. Can’t use priv. to protect pre existing documents. (but this is not always clear cut.)
4. If it’s a quest of fact, you should answer.
SUMMARY: In civil context: a former employee of a D corp is asked not to talk to the other side. Problem?
MR 3.4a: fed civil pro, satte ct rules, also found in MR
Elements of Attny Client priv eg: communication, seeking legal advice, etc.
BELGE: the indictment against attny was dismissed. Priv was upheld. Priv. is sacred
MEREDITH: Attny Client priv extends to observation, but priv is gone if attny removes or disposes of evidence. eg. The gun itself is not a communication, so it is NOT privileged.
If your client delivers you the gun, turn it over & tell her to get a new attny. We don’t want lawyers to be depositories of evidence.
MR 3.4: Criminal Context: can’t hide evidence & can’t obstruct another party’s access to evidence.
3.4f: you can’t ask a person other than your client to refrain from voluntarily giving info to the other side.
We shift from past crimes to future crimes:
HAWKINS v. KING COUNTY p280: Psyco client was not committed or hospitalized. The family blames lawyer saying he was neg & committed malpractice.
Psycho assaulted mother & tried to jump off bridge, losing both legs.
Was the failure to disclose infor re: mental state = malpractice? No, the Attny was not required to disclose info. Contrast Tarasoff case where the psychologist had a common law duty to warn murdered victim. In that case, there was a definite 1st hand knowledge by teh Dr. & he knew specifically who the targeted victim was. Victim had no other way of knowing.
Here: the victims (mother, sister) KNEW of psycho’s mental state b/c they were the ones who told the attny.
While the ct isn’t completely ruling out Tarasof liability, here the lawyer had not committed malpractice. (as a lawyer, must be cautious).
Torts: there is no liability unless a special relationship exists b/t the parties.
MR 3.32: shall not knowingly fail to disclose a material fact…
Key: did attny know disclosure was necc to avoid a crime?? So lawyer argues she didn’t know it was necc.
1. No duty to warn her b/c mom & sis already knew he was dangerous. (contrast w/Tarasoff)
2. Aattny rec’d no specific info that client intended to assault anyone. (Contrast Tarasoff).
Mr 1.6: Compare w/MI rule, M 1.6 which reads:
“A lawyer may reveal an intention of a client to commit a crime & the info necc to prevent a crime.”
Unlike the MR which is limited to imminent death or substantial bodily harm, the MI rule is UNLIMITED. Any crime is enough, emphasizing the benefit to society of preventing crime.
Since it is discretionary under MI rule, here are the factors to consider:
1. magnitude of the contemplated crime.
2. proximity of the contemplated crime. eg. next week
3. likelihood of teh contemplated crime.
4. Nature of the attny’s relationship to the client & those who may be injured.
5. Attny’s own involvement in transaction
6. Factors that may extenuate the conduct in question.
CLASS NOTES 6/20/95
Left off w/Hawkings case When threatened injury is grave, may be obligated by law to take action to take preventative measures.
MR 1.6b. you may choose not to revveal a client’s criminal/report a crime.
In some states a violation of the rules is malpractice/negligence. In MI it creates a rebuttable presumption.
PROTECTING THE COURTS: p. 290
MR 3.3: duty of candor
3.2, 8.4: duty, ct rules, etc; fiduciary duty Lawyer can create conflict when he breaks 3.2. Arises most frequently when client believes/lawyer violates that duty.
PERJURY: Client is accused of armed robbery & felony murder. He tells you many versions & you believe them to be false. He wants to testify, can you refuse, may you refuse to allow him. Can you prevent him from testifying? requires you to know that it is false, not simply think that it is false.
If you know it is false, then you must prevent him from testifying.
Or reasonably believe that it is false.
Must you w/draw if you reasonably believe his testimony is false? No mandatory w/drawal or discretionary w/drawal. MR 1.16b1&2:
Client is convicted & sentenced to death & he appeals.
Tells you will perjure himself in 2nd criminal’s trial to blame it on other person. Must you refuset to offer the evidence? MR 3.3a: shall not offer evidence that you know to be false.
Must refuse to offer the evidence.
3.3a: realize that in hypo above, you wouldn’t be the one offering the evidence, so w/a strict reading of the statute, you may avoid the penalty for violation of the rules.
Evidence comes in, Drake is sentenced to death, & you represent Campbell’s appeal. You know the testimony is perjured testimony.
You might be able to disclose to the court, look at 3.3, to see if an obligation exists to disclose the perjury.
MR 1.6b: may reveal such info to prevent client from committing a criminal act.
Only need justification if you get called on it, otherwise it doesn’t matter.
Comments 7, 10, & 12 to MR 1.6.: look at them for advise.
11, 12, & 8 10 for MR 3.3:
NICKS CASE: said saw something metal in victim’s hands. Attny knows that info to be false.
1. advised client testimony would be perjury.
2. telling D that D can’t testify.
3. if D insists on testifying anyway, then attny can:
a. w/draw b. advise ct of perjury You may have to disclose perjured testimony, better to do that than to wait for prosecution to learn you played a role in presenting perjured testimony to jury & ct.
PEOPLE v. SCHULTHEIS: D was a prisoner who sexually assaulted & murdered inmate.
Was going to bring in perjured testimony. Attny refused to allow client to present the perjured testimony. Ct held that attny did nothing wrong.
Does lawyer have affirmitive duty to w/draw at this time? Sup ct says that they don’t b/c it didn’t affect relationship w/client.
1. Unless will lead to irreconcilable differences, then no need to w/draw; attny must refuse to present the perjured testimony.
2. If lawyer chooses to w/draw, then he will have to tell ct the reason why. Reason is irreconcilable differences & don’t need to go more in depth than that.
***shold make motion to w/draw outside the hearing range of jury to violate any confidential rts of client otherwise.
LOWERY v. CARDWELL: p. 301: Whether attny can w/draw the moment client lies on the stand? No b/c deprives D rt to counsel & confidentiality. It deprived D of a fair trial.
Extreme difficulty w/drawing at this late stage in a trial.
Ct draws a distinction b/t passive refusal to lend aid to perjury & direct action to ask ct for motion to dismiss. Passive refusal to lend aid to perjury, will not necc result in a violation of due process.
You have judge as fact finder in this case. What does attny do to protect himself? Ct suggests that you can keep a record. Ct’s try to limit these decisions to the facts involved in Lowery.
Should a lawyer counsel client in a way that induces perjury? eg. client is arrested for drunk driving & comes in looking for advise. Should lawyer counsel client in a way that would induce perjury. Telling client that judge will want to hear he hasn’t been drinking since the accident & has attended all the classes, etc.
MI 1.6b2: (DR 4
MI has added provision that lawyer may reveal confidences to rectify client’s illegal or frauldulent act in furtherance of which the lawyer’s services have been used.
SUMMARY: MR 1.6 Confidentiality, 1.6b: exceptions as to when you can reveal confidential info to prevent criminal act. MI also allows you to reveal confidences to rectify illegal/fraudulent Factors to consider in deciding whether to disclose info.
Duty not to offer evidence that you know is false, may refuse to admit if reasonably believe it to be false.
CONFLICT OF INTEREST: P.314
One of the most frequent bases for client complaints.
Confidentiality & conflict problems are the two most prevelent.
Conflict of interest is one of the least understood. What is a conflict of interest? see p. 314: wheneber the attny or any person represented by the attny has intersts adverse in any way to the advice or course of action which should be available to the present client. It exists whenever this tension exists, even if the attny eventually takes the course of action most beneficial to the present client.
Not about actual harm, but rather potential harm to client(s).
1. appearance of inpropriety
3. opportunity for abuse of confidentiality
4. general point: key to successful avoidance is successful anticipation by recognizing pot. prob beforehand & acting on it early & addressing it early.
***Area where you can use a common sense test, but IT WILL MOST LIKELY FAIL YOU.
Personal interests of the attny:
How do conflicts arise b/t clients & attny’s? Matter of McGlothlen (Case p.319):
Ward was entitled to prop, McGlothlen offered money for it, Ward accepts, & price was a lot lower than the appraisal & McGlothlen knew about it.
Attny had improper conflict of interest b/c took advantage of client & bought prop for much lower price. Attny is ot sanctioned, only must pay costs for the proceeding.
Reasons for this decision: ct says there was an attny relationship, but only needs full disclosure. No proof that Ward couldn’t have found buyer to pay higher price. No evidence of actual harm.
Attny’s conduct was borderline, & his relationship was not clear. Ct points out attny acted in good faith & w/honest intent.
No feeling that client was harmed.
Ct acknowledges that attny has never been previously disciplined. No prohibition of doing business w/client. Does have a disclosure requirement & dealings must be reasonable, & client must consent in writing to business transaction.
CT: was a failure to completely disclose in this case, probably reason for the ct costs being charged to client.
CLASS NOTES 6/29/95:
HYPO: Couple wants a divorce, don’t want 2 lawyers b/c amicable dispute. Can you take the case?
1.7a: can’t unless…
1. both agree w/consultaion & full disclosure.
2. attny reas believes representation of 1 will not adversely affect rep of the other.
Possible problems in future that attny must consider when contemplating taking the case.
Potential for conflicting interests
1a: Look at MR 1.10a: rep of 1 party is imputed to all attny’s involved. Leads to 1.7a.
Issue is 1.7ai, will it adversely affect the parties involved? Attny’s are from the same firm, but the 2 firms are in different areas. The separation may make it more feasible.
Problems: appearance of inpropriety. Problems w/asking for costs & sanctions from same firm. May affect zealous representation issue. Not a good situation, shouldn’t do it b/c each client probably won’t receive undivided loyalty of attny.
In divorce situation, clients have same objectives, want to achieve same end, but in this situation the objectives are different in every way except that they both want to win.
1.7b: applies in situation where many D’s come to you & want you to represent all of them, but even though they’re all D’s, possibility of inconsistent defenses regarding car accident that may have been b/c of faulty tires from plant, mechanic, etc should keep you from representing all of them.
What if at time of accident there are only shreds of tires left & by time of suit being filed, evidence is destroyed & can’t determine source of tire. P sues all tire manufacturers in state. They come to you & ask you to represent them all/a subgroup of them. Can you represent them? Still have conflicting interests, not a situation that you should take on.
Does Rt to choose counsel in crim context prevail over the MR?
US v. GARAFOLA, p350 Both were represented by same attny, (2 criminals), both crims took same attny, 1 plead guilty, so only 1 crim went to trial. Prosecution called as a witness, the one who plead guilty. Judge determined that both couldn’t be adequately represented by one attny.
Policy reasons: can’t predict how a trial will go, so even if attny w/2 crims won’t call 1 as a witness v. the other, it doesn’t mean that the prosecution won’t call them. Potential penalty, ie loss of freedom, so high so can’t risk it based on misbelief that the avg defendant will understand potential problems after consultation w/attny.
p355: when dual representation is allowed.
Potential for conflict of int w/2 d’s is so grave, it should be denied in most circumstances.
Reardon v. Marlayne, Inc: p.358 Auto accident w/faulty brakes. P hired attny who was GM’s old attny & had access to privileged info. GM wanted to disqualify attny b/c of inpropriety & duty to always protect privileged info, even from prior representations.
Found a substantial relationship & similarity in the litigation which disallowed the attny to continue to represent the client. 1.10a: imputed the disqualification to all attny’s in firm.
***3 things needed to do when motion for disqualification. Look up, around p. 359:***
MR 1.9: conflict based on representation of a former client.
Should avoid appearance of impropriety.
p.364 Jenson v. Touche Ross & Co.: decided under DR’s not MR’s Orig suit was stayed, pending resoulution. Attny of bankruptcy suit. Ct found substantial relationship which disqualified firm who’d represented the old client for 5 yrs. Rebuttable presumption that confidentiality would be disclosed.
3 part test:
1. rebuttable presumption
2. substantial relationship
3. balance of equities Severe eco hardship if entire firm was disqualified, & ct advocates chinese wall concept to allow other attny’s to take case, just not the one who represented client.
Apply rule 1.9b: If you can rebut presumption, then attny or firm may not be disqualified.
No per se disqualification rule.
IN RE GREEN CHARITABLE TRUST: involved famous local attny. Got involved in 2 sides of a representation. Conflicts of interest can happen & can be very costly.
172 MICH APP 198 Smith & Jones fight & Smith kills Jones. Jones sues for wrongful death. You represented Jone’s wife when they were considering divorce, you also represent her on a emo distress case. Smith calls & wants you to represent him.
Can you? Why or Why not? You have confidences that you must protect. You probably can’t represent him.
Can Mrs. Jones pursue loss of consortium? Someone else wants you to handle their case which is on appeal. They are unrelated claims w/entirely different parties, but opposite arguments.
MR 1.9: can’t represent client in sub. adverse position to former client. No diff positions tht are substantially related matters, but totally different sides, can’t do it.
MR 1.7: comment 9
Practical problems: people in genera won’t think that you are effective if you can jump to both sides of the fence.
ZUCK v. ALABAMA P 371: If hypo had been a criminal matter, what result under Zuck? 2 types of litigation, 1 crim & 1 civil. Attny was prosecutor in civil & def in crim matter. Attny wasn’t allowed to represesnt the client b/c of loyalty problems & full fledged attack for client? Effects of disqualification:
MR: 1.10a: associated in firm can’t represent client if any other associate is barred from doing so.
1. traditional imputed conflict. A & B are assocaites in a firm, A has conflict & can’t represent X. What about B&C’s ability to represent that client.
2. A, B, C work in firm & hire D. D’s old firm represented X & D has confidential info about x. What does 1.10d: can’t represent client on substantially related matter.
MI 1.10d: will allow if you can build a chinese wall. When attny becomes associated w/firm, firm may not knowingly represent person in same or sub. related matter in which that lawyer or firm which that attny was associated, if disqualified under 1.9b
1. disqualified attny is screened from participation in matter & is apportioned no part of the fee therefrom,
2. written notice is promptly to appropirate tribunal so that it may look into the matter.
Why the rule makes sense:
a. conflicts can be frequently worked out
b. doesn’t impede lawyer’s mobility
c. chinese wall is honored
What if no chinese wall req’t:
1. Need consent of other firm’s client, to get chinese wall
2. petition ct & say not problem b/c…a, b, c Otherwise it could be used offensively if precautions aren’t HYPO: conflicting party dilemma. A D work together, D reps GM & D leaves. Can ABC represent GM? Yes, unless 1.10b circumstances.
1.10b: A, B, C can take represention of client unless… See comment 7.
1.10c: disqualification may be waived under same terms as 1.7.
CLASS NOTES 7/6/95:
First Wisconsin Mortgage Trust v. 1st Wisconsin Corp: How do you use conflict of int offensively? P.376 Delays, probs for client, possibly shuts down case.
Shuffle & delay, motion w/associate who did work w/another client, delay while motion is pending & disqualification which prejudices client.
No longer a per se disqualification, work product goes out the door. Adopt flexible approach where ct looks at circs & allows work product to be used.
Summary on Conflicts:
1. MR 1.7
2. Practical advice: institute a conflict check system.
3. Lawyers as advocate: attny has fiduciary duty/is fiduciary to provide zealous representation, but is also an officer of ct & must use candor & honesty.
Client is running for office w/rt to life stand. 14 yr old had an abortion, client admits report is true, but wants to file a libel suit to intimidate news. Falsity is req’d. Should you file suit?
No, it is for purpose of harrassment.
MR 4.4: no substantial purpose.
MR 3.1: don’t take position, unless good faith reason to do so.
Under 3.1, this hypo, not necc/completely out of bounds. If good faith argument that libel law should be changed, etc, then you may get away w/this suit. For Crim Cases: allowed if will result in further incarceration, b/c of loss of liberty potential.
Good faith: all 50 states require falsity, & Sup Ct of your state affirms, then must have REALLY good argument.
Why throw out a lot of complaints/answers/defenses (affirmative):
1. not enough time to answer complaint & cover each issue thoroughly.
2. client may sue you later if you dont’ adequately defend/represent him.
3. generates more hrs of work
4. want to look like an aggressive, hard hitter, etc to your clients.
How do we address flat out frivilous claims? Spencer Case p.513:
Client said all of things constituted malicious prosecution.
Ct: don’t constitute malice, & ultimately negligence, but only client can sue for this, & not other person who had claims against them.
Freidman v. Dozorc (412 Mich 1, 1981): P was sued for med malpractice, then sued D’s attny b/c said owed affirm duty to prevent malicious prosecution claim.
Requires malice, knowledge charge is false when make/made w/reckless disregard that it is false.
Ct found negligence, but not malicious prosecution.
Clearly attny didn’t have all facts/info.
FRCP 11: Every pleading shall be signed by attny of record in indiv’s name representing that motion/pleading to your knowledge & belief, after inquiry reas under circ.
1. not brought for improper purpose
2. claims, defenses, contentions are warranted by existing law/modifications thereof.
3. allegations/factual contentions likely to have evidentiary support, &
4. denials of factual contentions are warranted by the evidence.
Old rule 11 made sanctions mandatory. Now it is discretionary for the court. Motions for sanctions are now filed separately, & must serve on opposing side b/f filing it.
Rule 11 motions themselves can be basis for filings of rule 11 motions.
P.512 problem: Interviewing client may have been enough. Should have consulted an expert, not a student, but malicious prosecution probably will be dismissed, however a negligence action may be upheld.
MI MCR 2.114 (like FRCP 11): similar to Fed Rule 11, tells you signature of pty & attny:
1. read pleading
2. best of knowledge after reas inquiry is well grounded or extention/modification of law
3. pleading/motion not imposed for improper purpose.
What about threatening to file a civil suit? Rule 11 doesn’t apply/address this issue.
MR 4.1: can’t knowingly make false statement to 3rd person in respect to client. If threat is agregious enough then you will be sanctioned.
What about threatening to file a crim suit?
105: can’t threaten crim suit to gain adv in a civil
MR 3.1: doesn’t necc apply in crim practice.
trial delay & discovery abuse:
3. request for production of documents Discovery is immensely important in litigation. Used to be trial by ambush. Now we allow other side to find out about opponent’s case b/f trial. Few cases go to trial (2 3), so discovery is very important for mediation, trial, or settlement. If you can discover it is frivilous/weak, then you can motion to w/draw.
Can’t try every case, try to mediate/settle.
Discovery can be very probing. Assuming not involved in lying/destruction of documents. Tactics are uniformly used to frustrate process. (broad requests,etc.) Refuse to respond b/c too vague, not applic/necc, etc.
Becomes easy to hide documents by objecting, etc & prolonging discovery process. Also can claim privileges as often as possible to frustrate discovery process. Bearing smoking gun document in pile of irrelevent stuff. By interpreting very broadly.
Refusing to respond until compelled to do so.
MR 3.2: shall make efforts reas to expedite litigation/discovery in best int of the client.
MR 3.4 (a, c, d) shall not obstruct other to evidence, can’t destroy documents, & can’t violate rules of tribunal, & can’t obstruct discovery.
MI adopted 3.1, 3.2, & 3.4c&d Cts are given broad discretion in sanctioning conduct & applying conduct. p.531. MR 3.1 & 3.4 (DR 7 Ct can dismiss the case instead of santioning the conduct or can dismiss certain motions or conduct instead of entire Refer to Litton Case, p531.
28 USC 1927: applies to fed litigation: attny who so multiplies proceedings/vexatious conduct can get fees or the like.
p.535 Data Corp Case: must be just, speedy determination of any action.
Attny’s communications w/3rd party’s:
Client gives you complaint signed by P. You call P & give advice which he takes under advisement.
MR 4.2: prohibits communications w/pty’s attny knows to be represented by an attny. No problem in this situation b/c it is signed by P, not an attny.
Get a complaint by GM, signed by GM. You reas know GM has an attny, can you call GM & get the attny’s name? MR 4.2 doesn’t require you to know who the attny is, only that the pty is likely represented.
Since you’re suing GM, can you contact technical non Can’t contact anyone w/managerial authority. Attny’s must be careful w/contacting representatives or people associated w/the other side.
Don’t want to force other side to waive a privilege or get them to waive all rts to sue. Also want to avoid undercutting representation of the other lawyer. What if GM is an outside pty, not directly involved in the litigation.
MR 4.2: still can’t contact b/c you would be contacting them on info related to the litigation.
What if comm is inadvertent? P.541 Crane Case Opposing client contacts you, can you talk to him? No, b/c you know he’s represented by an attny & only if attny consents to it. Call other attny & let him know you’ve been contacted & get off the phone as soon as possible.
What if you learn 3rd pty isn’t represented by an attny? Yes. Can you state or imply you’re disinterested & want to No b/c MR 4.3.
CLASS NOTES 7/11/95 Communications w/Judicial Officers:
Preliminary disjunctive Relief TRO:temp restraining order Mr Smith, missed payments, foreclosure, put house on mkt Smith wants TRO to stop sale of his house to protest. Can you get this motion for a TRO ex Mr. Smith is highly regarded in the community.
Yes, MR 3.5
Can you tell judge if he rules v. Mr. Smith, that the community will respond negatively to him.
No, MR 3.5a
MR 3.5: If allowed by local ct rules, then you can communicate parte w/judge. Usually must make effort to communicate w/other side.
MR 3.5a: no improper influence allowed w/in ex parte/judicial communications. No undue influence. Includes other officials in addition to judges.
You review the papers & decide your client had adequate notice from bank re: foreclosure & that adequate payments were missed to foreclose. Are you obligated to bring this up in ex-parte communications?
Yes. MR 3.5 comment 15.
MR 3.5 comment 15: object of ex parte proceeding is to yield a just result.
Hertz, Moodie, Bell: (p.544, 547, 549) All were improper ex-parte communications.
Need to be very careful w/ex parte communications w/judicial officers, especially judges.
Communications w/juror/prospective juror MR 3.5: shall not communicate w/juror/prospective juror unless w/in the law.
FLORIDA BAR CASE: Mistrial, at lunch attny communicated w/jurors. Violation of State Bar Code. Penalty involved placed attny on probation for 1yr, had to take PR Bar.
Severe sanctions. Not clear what communications were, or even that they were to gain any type of adv.
MR 3.5B: doesn’t say former jurors, implies it continues forever, absent a law otherwise, but it is generally up to local ct. rules.
MI: “pending matters”: shall not communicate ex parte w/such a person concerning a pending matter, except as permitted by law.
MR 3.3: requires candor toward tribunal & fairness to oppossing pty & counsel:
(A)(1): shall not knowingly make a false statement of material backdoor law to a tribunal.
Can you disclose only the good facts/law & remain selectively mute about the rest?
LAW: MR 3.3(A)(3): a) can’t fail to disclose to tribunal legal authority controlling in that juris b) known to attny to be c) directly adverse to the client.
FACT: MR 3.3(A)(2): limited to criminal or frauldulent facts/material facts.
Obligation to disclose facts. Limited to certain situations (crim/fraudulent).
GREENBERG CASE p.556: MR 3.3A3: attny’s role is to serve as a minister of justice. Test is: decision judge would want to know about/consider in deciding case?
PROBS p.594: IMPORTANT TO READ FOR EXAM PURPOSES
THOREEN CASE p.599: [MR 3.3 & 3.4] Client was illegally fishing & attny substituted someone else who looked like person w/o telling someone in ct. He was trying to show they couldn’t identify his client. Ct gets upset about fact that attny didn’t notify someone in the court. He could have used a line up, but instead he basically lied to the court.
examining an expert at trial, he’s provided you boxes of info prior to trial (documents). You don’t plan on using the info, but you want to bring in the info to intimidate expert into thinking that he may be questioned longer than he will. Can you do that? It may be a misrepresesntation issue, to tribunal.
MR 4.4: Rt. of 3rd persons.
MR 4.4(b): It may be a misrepresentation in trial situation if you’re doing it to do nothing more than stall/misrepresent info to ct/other side (wasting resources, etc.)
HYPO: P in employment discrimination case, client says 10G, but no less, but you think that you can get more. What can you do, if anything?
You can’t make the deal for your client, ultimately must be your client’s decision.
MR 4.1: shall not knowingly make false statements to other side.
See comment 2, generally certain statements aren’t generally taken as statements of material fact. No material misstatements.
comment: no misrepresentation of fact. Never said client won’t take less than 25G, on that it would be hard.
There aren’t many grievence sections.
LAWYER & 1ST AMENDMENT: Pty’s have rt to fair trial & attny’s have 1st Amend rts as
SHEPARD v. MAXWELL p.616: Addresses issue of excessive media attention.
US Sup Ct: writ of Habeus Corpus. Ct didn’t maintain ct room. No due process was afforded to D.
Key to case: excessive media attention prevents D from getting a fair trial.
Insulate witnesses, sequestor jurors, change venue, etc.
CLASS NOTES 7/13/95: Advertising & Solicitation:
Bates Case, p.399: Whether the absolute ban of Attny Advertising is Constitutional? Attorney’s can advertise, but restrictions have been placed
3. misleading Argument that advertising will stir up litigation poses problems:
Not necessarily harmful.
May produce meritorious claims
MR 7.2A: subject to the rules an attny may advertise
MR 7.1: shall not make a false/misleading comm about the attny/the services.
Comm is false/misleading if:
1. material misrep of fact/law
2. omits a fact necc to make the statement as a whole false/misleading
B. Likely to create unjustified expectation of the results the attny may achieve.
State/implies attny can achieve results by means that violate the rules of law (PR Code).
Compares attny’s services w/other attny’s services, unless they can be factually substantiated.
IN RE RMJ Case, p. 419: Ct. says fields of practice indications aren’t necc misleading.
If you are entitled to practice in particular jurisdictions, then there is no problem w/you advertising as such.
Ct says it is bad faith, but no prof resp prob w/US Sup Ct advertising.
Announcement issues: Ct says they can be done to other attny’s & other client’s. Advertisement says, hi, I’m attny w/Personal Injury Services Inc. What is the issue here?
Trade names. Are they allowable?
Yes, see MR 7.2d
MR 7.2D: comm pursuant to rule, one attny must be related to
***MICH didn’t adopt MR 7.2D
I’m X, formerly w/the US Attny General’s Office.
Any problem w/this?
Issue: Whether this will be misleading?
Can mention prior affiliations, but can’t be misleading. Must have spent sub. per. time w/the job, not a one day job, etc.
Personal injuries: We practice dogbite, etc. Any problems
MR 7.4: may comm fact does/doesn’t practice in particular field of law, but shall not imply that you are a specialist in that
***MI 7.4: Attny may comm fact that attny does/does not practice in particular fields of law.
Rule permits attny to mention areas in (for example) in telephone directories, attny may comm the fact that he practices in those areas.
Ad goes on to say many other attny’s don’t practice in that Perhaps, if false & misleading, but no prob if can be factually substantiated.
SOLICITATION (VERSUS ADVERTISING): Practical diff b/t solicitation & advertising:
Advertising: to make a public announcement
Solicitation: trying to obtain something by persuasion, by making contact w/people.
NAACP v. Button, p. 492: Ct held that solicitation falls w/in scope of 1st Amendment
In Re Primus, p. 436 Ct finds that in this situation, particular letter, is entitled to 1st Amendment protection. They protect personal liberties by the litigation process, so they will protect those rts.
Couldn’t show that restrictions would further law.
Letter had single mailing to one particular indiv, to be wrong & involving particular litigation. (Indiv has been known to be wrong & involving particular litigation.) Ct says solicitation involves risk for more abuse than advertising. You can choose to seek out indivs, but w/advertising it is out to the general public. With solicitation, the solicitee is held captive, not as easily ignored/avoided.
Ohralik v. Ohio State Bar Ass., p. 445: Involves in person solicitation. Offer by attny to represent 2 young women injured in an auto accident.
1. Attny heard about accident & approached w/o invitation
2. Attny obtained written agreement from one of the clients in her hospital room.
3. 2nd girl’s mom sought to repudiate the agreement, & attny insisted it was binding & refused to let them out of it.
4. Filed suit to collect contingency fee & refused to acknowledge written refusal
Zauderer v. Office of Disciplinary Counsel for Sup Ct of Ohio: Attny was disciplined for placing ad in paper directed at women who had used the DELECON SHIELD. (looking for clients) Ad wasn’t found misleading, but an ad w/legal advise constituted solicitation & had to be banned. Sup Ct: said it was a paper ad, not a personal & in your face situation, so they allowed the ad.
Shapero v. Kentucky Bar Ass: Targeted direct mail in this case. Attny sent letter to certain indivs who were having their homes foreclosed & asked them to come see him. These actions were prohibited under the State Ethical Rules.
Sup Ct: said an absolute ban on this set of circs would be impossible & allowed this type of solicitation.
Mode of communication makes all the difference.
Direct mail doesn’t pose risk of overreaching the way personal contact does. Comm by mail is protected commercial speech.
1. What are chances of coercion overreaching? In person is more risky than mail
2. Mode of communication
MR 7.3: shall not solicit prof service from prospective client (w/no prior relationship) when motive is purely pecuniary gain.
MALPRACTICE: THIS IS A TORT ACTION
Biggest Complaints: fees, lack of comm, conflicts of interests, negligence, & attention to client’s needs.
Can avoid a lot of problems by communicating w/your clients.
When possible & appropriate, put things in writing. Send everything to your client (w/notice to call w/quests & comments).
Don’t create unreasonable expectations.
Don’t take on more work than you can do/handle.
Togstad v. Vesely, p227: [elements of attny malpractice]
1. Attny/Client relationship exists
2. Attny acted in neg manner or neg
3. Neg was prox cause of damages
4. But for attny’s conduct, client’s would have been successful in their case.
In deadline cases, a suit w/in a suit makes more sense.
You can find yourself arguing positons D’s would have presented had you filed it on time. You (attny) will want to prove in a malpractice case that the D’s would have won & your client didn’t lose b/c of your neg/malpractice.
How do you prove negligence? Expert testimony by other attny’s.
You may have other attny’s explain the comm. conduct & can use attny to show they’ve always done things in a certain way & failed to do it in your case.
Also may show violations of statutes or rules.
MR says showing violation of rules should not be a basis for civil liabilities.
MR 1.6: confidentiality vow, a violation of this will be strong evidence against you.
***MICH adopted preamble to the MR’s.
MI CT Rule 9: Attny Grievence Commission & Board
Duty of every attny to conduct themselves at all times in conformity w/standards imposed by members of the bar as a condition of the privilege to practice law.
Grounds for Discipline in General:
1. Conduct prejudicial to justice
2. Conduct which exposes legal profession or the cts to contempt, censure, or reproach
3. Conduct contrary to justice, ethics, honesty, or good morals:
Purpose of the rules is protective, not punitive Disbarment, suspension of license, reprimand, probation, & restitution.
Who can create an investigation.
Anyone. Not limited to attny’s or aggrieved person.
Requires an answer by the attny. Not to answer is misconduct, itself.
Required Conduct & Limitations on Conduct of Disbarred or Suspended Attorneys.
Must notify cts & clients
Conviction of Felony is automatic suspension, but board can overlook it.
Board can declare attny’s incompetent, impaired, etc.
(c): in response to formal filed complaint, attny must prove by preponderance of the evidence through litigation
1. during period when conduct in quest occurred, must show ability to practice was materially impaired phys/mental disability or by drug/alcohol addicition &
2. the impairment was the cause of the conduct &
3. the cause of the impairment can be treated
4. in good faith you intend to undergo treatment & you submit a schedule of your plan…
…..then you may be placed on probation, if it is found that you won’t impair the public interest.
MI approved Contractual Probation as an alternative to sanctions.
Probation up to 2 yrs in place of disciplinary procedures.
MR 5.3(c) Responsible for conduct if it would be a violation of
Basically zero efforts of attny & he gets 8,000 & the widow basically lied to the court.
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