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b. ROLES OUTSIDE LITIGATION

Problem p. 500-1, Question (b) Trents have two children: Dad wants to disinherit grown daughter who is “rejecting her heritage”, Mom doesn’t and asks L to help dissuade Dad. How far should L go, if he agrees with Mom but is untrained in philosophy, psychology, or counseling?

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b. ROLES OUTSIDE LITIGATION

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  1. Problem p. 500-1, Question (b) • Trents have two children: Dad wants to disinherit grown daughter who is “rejecting her heritage”, Mom doesn’t and asks L to help dissuade Dad. How far should L go, if he agrees with Mom but is untrained in philosophy, psychology, or counseling? • MRPC 2.1: permits L to refer to non-legal considerations – but what if Dad rejects them? • MRPC 1.1: requires “competent representation”, defined in terms of legal knowledge, skill, etc. • MRPC 2.1: requires “candor” • MRPC 1.4(b) requires explanation (1) Lawyer as Adviser b. ROLES OUTSIDE LITIGATION

  2. Problem pp. 500-1 c’t’d • Bresset, p. 501: in bankruptcy proceedings, property scheduled at less than half of an appraisal known to lawyer • Does the court assume that this was done by the lawyer intentionally, to “minimize the possibility of administration by the Trustee”? • if the lawyer and the associate, as they claim, “did not prepare the schedule”, what did they do wrong? • MRPC 1.4(b) failure to explain? • MRPC 2.1 Comment [5]!

  3. 2. Lawyer as Evaluator • Problem p. 500-1, Question (a): Richard Trent wants to establish a travel business as a close corporation with himself and Johnson (expert) as shareholders (60% and 40% resp.); Johnson wants a legal opinion about personal liability to customers for mess-ups; T asks L to write it • In writing the opinion, to whom is L responsible? • Is the op intended for Johnson’s use, and is he expected to rely on it? Martin, p. 504 • will the questions covered differ for the two? Is there a conflict of interest? MRCP 2.3 • does L reasonably believe that rendering the opinion is compatible with other aspects of the Atty-C relationship? • does L have C’s informed consent?

  4. Lawyer as Evaluator c’t’d • to the extent that T wants L to shade the opinion so as to make it more attractive to J, he is asking L to engage in deceptive behavior, advocate and evaluator are two distinct roles • Is L being asked to represent the corporation? Does it even exist yet? • How much of the uncertaintly L encounters in researching the issue should he include in the opinion? • Does it matter whether J has his own lawyer?

  5. 3. Lawyer in other Contexts • L receives confidential material inadvertently from opponent – what are his obligations? MRPC 4.4(b) • is he obliged to return the material to the sender? • is he obliged not to read it or use it? • if there is no obligation under the rules, what should you do? ABA FO 06-440

  6. C(1) Lawyer as Advocate in ADR • Problem p. 512 • 5 statements made in 4 different contexts • MRPC: different rules for different contexts • 3.3(a)(1) on statements to a tribunal: no knowingly false statements of fact or law • 4.1 on statements to “others”: no knowingly false statements of material fact or law • 8.4(c): no conduct involving, dishonesty, fraud, deceit or misrepresentation (no definition in comments, which only mention crimes/offenses) • Is any of them made to a tribunal (fed magistrate conducting mediation probably doesn’t count, only processes resulting in a binding decision by the mag.)

  7. Problem p. 512 c’t’d • Is any of the statements a knowingly false statement of material fact? (statements of value or intention don’t count – “puffery”) • Ausherman, n. 2 p. 516: suit by 25 Ps who had been solicited by L, against bank for unauthorized disclosure of customer info • L got P names from former client, who refused to name the bank employee or unauthorized recip. • none of the Ps had knowledge of facts • after filing, L wrote to Ds offering to settle, and to disclose 3d person who was “kingpin”, saying that he didn’t know who that was yet but had made arrangements to have the identity given to him (L) if the Ds agreed to the settlement – admitted to be false • Judge referred L to disciplinary authority

  8. C(2) Lawyer as Neutral in ADR • Original position of ABA was that mediator or conciliator was rep. of all • Rule 2.2 to that effect withdrawn in 2002 • now Rule 2.4 simply requires that L as 3d party neutral is not representing any side • Rule 1.12, for purposes of post-process duties of ADR neutrals toward participants, treats them same as judges (incl. application of 1.11 screening of former neutral’s partners and assocs.)

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