Chapter 6-3

1. Chapter 6-3

2. Chapter 6-26 • An attorney represented a real estate developer who was trying to buy several properties. The attorney arranged a meeting with an owner of two large parcels of land, hoping to arrange a sale to the developer. When the attorney scheduled this meeting, he neither knew nor asked whether the owner was represented by counsel in the matter. Shortly after the meeting began, the owner disclosed that he had retained counsel to assist in the sale of the two parcels of land, but that his lawyer could not be present that day. He further stated that he would be meeting with his lawyer the next day. The attorney asked the owner if they could talk anyway, and stated that he wouldn't ask the owner to sign anything until his lawyer had a chance to look over anything they discussed. The owner, an experienced businessman and negotiator, agreed to continue as suggested, and a tentative agreement was soon worked out. Was the attorney's conduct proper? • Yes, because the owner knowingly agreed to continue the discussions without his own lawyer being present. • Yes, because the attorney did not present the owner with any documents to sign during the meeting. • No, because the attorney negotiated with the owner after learning that the owner was represented by a lawyer in the matter. • No, because the attorney failed to ascertain whether the owner was represented by a lawyer before beginning the negotiation session.

3. Rule 4.2 • In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

4. 6-27 • An attorney represented the plaintiff in a personal injury matter. The attorney had heard that the defendant in the matter was anxious to settle the case and reasonably believed that the defendant's lawyer had not informed the defendant about the attorney's recent offer of settlement. The attorney instructed her nonlawyer investigator to tell the defendant about the settlement offer so that the attorney could be sure that the defendant's lawyer did not force the case to trial merely to increase the defendant's lawyer's fee. Is the attorney subject to discipline? • Yes, because the defendant was represented by counsel. • Yes, because the attorney was assisting the investigator in the unauthorized practice of law. • No, because the investigator is not a lawyer. • No, because the attorney reasonably believed that the defendant's lawyer was not keeping the defendant informed.

5. Rule 4.2 • In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

6. Rule 8.4 (a) • It is professional misconduct for a lawyer to: • (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

7. Chapter 6-28 • Lawrence Lawyer receives a fax from Anne Adversary Attorney. Lawrence quickly realizes that Anne has mistakenly sent him a document containing confidential client information. Under the Rules, Lawrence must: • notify Anne • notify Anne and return the document without keeping a copy • notify Anne and refuse to read the document • read the document without notifying Anne

8. Rule 4.4 (b) • (b)  A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

9. Rule 4.4 Comment • Must a lawyer return the document? • How does the rule apply to metadata? • Is the privilege waived by inadvertent • Does lawyer or client decide whether to return the document or delete metadata w/o reading? • [2]  . . . Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. For purposes of this Rule, ‘‘document or electronically stored information’’ includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form.  Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer. • [3]  Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving it that it was inadvertently sent. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document ordelete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.

10. Chapter 6-29 • Attorney Alpha represents Wife in a marriage dissolution proceeding that involves bitterly contested issues of property division and child custody. Husband is represented by Attorney Beta. After one day of trial, Husband, through Beta, made a settlement offer. Because of Husband's intense dislike for Alpha, the proposed settlement requires that Alpha agree not to represent Wife in any subsequent proceeding, brought by either party, to modify or enforce the provisions of the decree. Wife wants to accept the offer, and Alpha believes that the settlement offer made by Husband is better than any award Wife would get if the case went to judgment. Is it proper for Alpha to agree that Alpha will not represent Wife in any subsequent proceeding? • Yes, because the restriction on Alpha is limited to subsequent proceedings in the same matter. • Yes, if Alpha believes that it is in Wife's best interests to accept the proposed settlement. • No, because the proposed settlement would restrict Alpha's right to represent Wife in the future. • No, unless Alpha believes that Wife's interests can be adequately protected by another lawyer in the future.

11. Rule5.6 (b) • A lawyer shall not participate in offering or making: • (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.

12. Chapter 6-30 • Anne Attorney and Lawrence Lawyer have been friends since their days at law school classmates. Recently, when she has met with him during the work day, she has smelled alcohol on his breath. She has noticed him being nasty and abusive to colleagues, adversary lawyers, and even, on occasion, to clients. She recently litigated a case against him where his performance failed to meet even minimum standards as a matter of competence. Anne then recommended to Larry that he seek help from the bar's lawyer assistance program for his alcohol problem. Larry angrily refused. Worried that any further action might jeopardize her longstanding friendship with Larry, Anne does nothing. Is Anne subject to discipline? • Yes, because Anne failed to inform the appropriate authorities about Larry's conduct. • Yes, unless because Anne did not ask the client in her recent case whether the client wanted her to inform the authorities. • No, because Anne suggested Larry seek help from a lawyer assistance program. • No, because Anne reasonably feared that Larry would end their friendship if she reported him.

13. Rule 8.3 • (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. • (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. • (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

14. Duties to Legal System Review - 1 • When can a lawyer face discipline for a frivolous pleading but not a civil sanction? • FRCP Rule 11 provides a 21 day after service safe harbor, bur Rule 3.1 does not. • When must a lawyer disclose client perjury? • Rule 3.3 • Material evidence • Lawyer knows false • Remedial measures including disclosure to tribunal if necessary • Can a lawyer refuse to offer evidence she reasonably believes is false? • Rule 3.3: Yes “other than the testimony of a defendant in a criminal matter.” • When can a lawyer “request a person other than a client to refrain from voluntarily giving relevant information to another party?” • Rule 3.4 (f): • (1) the person is a relative or an employee or other agent of a client; and • (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

15. Duties to Legal System Review-2 • What does Rule 3.6 generally forbid and when? • Rule 3.6 (a) forbids extra-judicial statements when • 1. A lawyer “is participating or has participated in the investigation or litigation of a matter” • 2. “the lawyer knows or reasonably should know [“that an extra-judicial statement”] will be disseminated by means of public communication and” • 3. “ will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” • What are the exceptions to the prohibition on extra-judicial statements? • (b) Notwithstanding paragraph (a), a lawyer may state: • (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; • (2) information contained in a public record; • (3) that an investigation of a matter is in progress; • (4) the scheduling or result of any step in litigation; • (5) a request for assistance in obtaining evidence and information necessary thereto; • (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and • (7) in a criminal case, in addition to subparagraphs (1) through (6): • (i) the identity, residence, occupation and family status of the accused; • (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; • (iii) the fact, time and place of arrest; and • (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. • (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

16. Duties to Legal System Review-3 • When are ex parte conversations permitted? • Rule 3.5 (b): “authorized to do so by law or court order” • Rule 3.4 (d): “ In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” • Scheduling: Code of Judicial Conduct • Rule 3.5 (c): after discharge, a lawyer may communicate with a juror unless: • (1) the communication is prohibited by law or court order; • (2) the juror has made known to the lawyer a desire not to communicate; or • (3) the communication involves misrepresentation, coercion, duress or harassment. • Comment [3]:A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer.  • Must a lawyer’s statements in negotiations be truthful? • Rule 4.1 provides that In the course of representing a client a lawyer shall not knowingly: • (a) make a false statement of material fact or law to a third person; or • (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. • The Comment to Rule 4.1 describes a limited exception for negotiation: • This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.

17. Duties to Legal System Review-4 • When can a lawyer communicate with a represented party? • Rule 4.2: with the permission of that party’s lawyer. • What can a lawyer say to an unrepresented adversary? • Rule 4.3: The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. • What must a lawyer do when she receives an inadvertently sent fax? • Rule 4.4 (b)  A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. • If a lawyer reasonably believes a client is engaged in a crime or fraud, may a lawyer “counsel a client to engage, or assist a client” in engaging in that conduct? Must the lawyer withdraw from representation? • Rule 1.2 (d) knows • Rule 1.16 (a) the representation will result in violation of the rules of professional conduct or other law • May the lawyer withdraw? • Rule 1.16(b)(2)the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; Note also: (3) the client has used the lawyer's services to perpetrate a crime or fraud; • When can a lawyer face civil liability for assisting a client’s crime or fraud, but not discipline? • Compare Hazard Test (“knowledge of the facts sufficient to reasonably discern that the client's course of conduct is such a violation” with Rules 1.2(d) and 1.13(knows) • Why would the Sarbanes-Oxley regulations probably not have prevented lawyers from assisting the Enron scandal? • “lawyer becomes aware of evidence of a material violation of law”