Transcript Wait…. Can I do that? - Memphis Bar Association

Wait…. Can I do that?
Presented by:
Valerie Smith and Adam Johnson
May 7, 2015
(This presentation is HEAVY on sarcasm. The rules are real.)
Don’t call me- I’ll call you
• My client Needy won’t leave me alone
• He texts and calls all the time!
• He wants to talk to me about EVERYTHING
• I think I’m just going to quit returning his calls.
WAIT……
Can I do THAT?
Don’t call me- I’ll call you
• Not really…. You have to talk to clients
• RULE 1.0: TERMINOLOGY
• (f) "Knowingly," "known," or "knows" denotes actual awareness of the
fact in question. A person's knowledge may be inferred from
circumstances.
RULE 1.4: COMMUNICATION
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance
with respect to which the client's informed consent, as defined in
RPC 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which
the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the
matter;
(4) promptly comply with reasonable requests for information;
and
(5) consult with the client about any relevant limitation on the
lawyer's conduct when the lawyer knows that the client expects
assistance not permitted by the Rules of Professional Conduct or
other law.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
Guess Who’s Back??
• He was in an accident!
• Hit by a truck owned by a giant corporation….
• The good news….
• We are getting back together!!
Guess Who’s Back?
• I think my representation will really bring us closer together…..
• That’s not a problem is it???
WAIT……
Can I do THAT?
Guess Who’s Back?
• RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
• (a) Except as provided in paragraph (b), a lawyer shall not represent a
client if the representation involves a concurrent conflict of interest. A
concurrent conflict of interest exists if:
• (1) the representation of one client will be directly adverse to another
client; or
• (2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer’s responsibilities to another
client, a former client or a third person or by a personal interest of the
lawyer.
Guess Who’s Back?
• COMMENT: Sexual Relations Between Lawyer and Client
• [12]
The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and
confidence. Because of this fiduciary duty to clients, combining a professional relationship with any intimate personal relationship may
raise concerns about conflict of interest, impairment of the judgment of both lawyer and client, and preservation of attorney-client
privilege. These concerns may be particularly acute when a lawyer has a sexual relationship with a client. Such a relationship may create
a conflict of interest under paragraph (a)(2) or violate other disciplinary rules, and it generally is imprudent even in the absence of an
actual violation of these Rules.
• [12a]
Especially when the client is an individual, the client’s dependence on the lawyer’s knowledge of the law is likely to make the
relationship between the lawyer and client unequal. A sexual relationship between lawyer and client can involve unfair exploitation of
the lawyer’s fiduciary role and thereby violate the lawyer’s basic obligation not to use the trust of the client to the client’s disadvantage.
In addition, such a relationship presents a significant risk that the lawyer’s emotional involvement will impair the lawyer’s independent
professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict the
extent to which communications will be protected by the attorney-client privilege, because communications are protected by privilege
only when they are imparted in the context of the client-lawyer relationship. The client’s own emotional involvement may make it
impossible for the client to give informed consent to these risks.
• [12b]
Sexual relationships with the representative of an organizational client may not present the same questions of inherent
inequality as the relationship with an individual client. Nonetheless, impairment of the lawyer’s independent professional judgment and
protection of the attorney-client privilege are still of concern, particularly if outside counsel has a sexual relationship with a
representative of the organization who supervises, directs, or regularly consults with an outside lawyer concerning the organization’s legal
matters. An in-house employee in an intimate personal relationship with outside counsel may not be able to assess and waive any
conflict of interest for the organization because of the employee’s personal involvement, and another representative of the organization
may be required to determine whether to give informed consent to a waiver. The lawyer should consider not only the disciplinary rules
but also the organization’s personnel policies regarding sexual relationships (for example, prohibiting such relationships between
supervisors and subordinates).
My fraudulent client:
• So my client came in and had an accident
• He hired a hooker who was driving
• He’s thinking he will just report the car stolen and not have to deal with
all of that!
My fraudulent client:
• It’s not really my problem
• I represent him for something else- it’s not even the same hooker!
• So I just told him how best to mislead the insurance company.
WAIT……
Can I do THAT?
My fraudulent Client:
• RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF
AUTHORITY BETWEEN CLIENT AND LAWYER
• (b) A lawyer’s representation of a client, including representation by
appointment, does not constitute an endorsement of the client’s political,
economic, social, or moral views or activities.
• (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyer knows or reasonably should know is criminal or fraudulent, but
a lawyer may discuss the legal consequences of any proposed course of
conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning, or application of the law.
•
Client is committing insurance fraud, and also happens to be with a
hooker. Whoops.
I Need My Money!
• You know David’s client- Gary- always causing trouble!
• He’s gotten arrested again.
• I usually handle those things for him
• I think I’m just going take a % of the PI case!
WAIT……
Can I do THAT?
I Need My Money!
• RULE 1.5: FEES
• (d) A lawyer shall not enter into an arrangement for, charge, or collect:
• (2) a contingent fee for representing a defendant in a criminal case.
Gifts!
• My client gave me such a nice gift!
• I should probably get him something….
• It’s super nice- look!
WAIT……
Can I do THAT?
Gifts!
• RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS:
SPECIFIC RULES
• (c) A lawyer shall not solicit any substantial gift from a client to the
lawyer or a person related to the lawyer, including a testamentary gift, or
prepare on behalf of a client an instrument giving the lawyer or a person
related to the lawyer any substantial gift, unless the lawyer or other
recipient of the gift is related to the client. For purposes of this
paragraph, related persons include a spouse, child, grandchild, parent,
grandparent or other relative or individual with whom the lawyer or the
client maintains a close, familial relationship.
Gifts!
• COMMENT: Gifts to Lawyers
• [6] A lawyer may accept a gift from a client, if the transaction meets general standards of
fairness. For example, a simple gift such as a present given at a holiday or as a token of
appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c)
does not prohibit the lawyer from accepting it, although such a gift may be voidable by the
client under the doctrine of undue influence, which treats client gifts as presumptively
fraudulent. In any event, due to concerns about overreaching and imposition on clients, a
lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer’s
benefit, except where the lawyer is related to the client as set forth in paragraph (c). This
Rule does not prohibit a lawyer from soliciting a gift or financial contribution from a client to
a civic or charitable organization, so long as the lawyer or a person related to the lawyer does
not receive any personal benefit from the gift or contribution.
• [7] If effectuation of a substantial gift requires preparing a legal instrument, such as a will
or conveyance, the client should have the detached advice that another lawyer can provide.
The sole exception to this Rule is where the client is a relative of the donee.
I’ve always wanted to be a writer…
• You know about Joe’s case right?
• What a great story!
• I think I’m going to go ahead and approach a publisher.
• No one can tell it like me! And the case is Almost settled.
WAIT……
Can I do THAT?
I’ve Always Wanted to Be a Writer…
• RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC
RULES
• (d) Prior to the conclusion of the representation of a client, a lawyer shall not
make or negotiate an agreement giving the lawyer literary or media rights to a
portrayal or account based in substantial part on information relating to the
representation.
• Literary Rights
• [9] An agreement by which a lawyer acquires literary or media rights concerning
the conduct of the representation creates a conflict between the interests of the
client and the personal interests of the lawyer. Measures suitable in the
representation of the client may detract from the publication value of an account of
the representation. Paragraph (d) does not prohibit a lawyer representing a client in a
transaction concerning literary property from agreeing that the lawyer’s fee shall
consist of a share in ownership in the property, if the arrangement conforms to RPC
1.5 and paragraphs (a) and (i) of this Rule.
A Vacation in Candor
• So I have this trial set….
• But I really want to go out of town! I need a break.
• I think I’ll tell the Judge that my client is the one with the trip plannedthen I don’t look bad.
• It’s Practically the SAME THING.
WAIT……
Can I do THAT?
A Vacation in Candor
• RULE 3.3: CANDOR TOWARD THE TRIBUNAL
• (a) A lawyer shall not knowingly:
• (1) make a false statement of fact or law to a tribunal; or
• (2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of
the client and not disclosed by opposing counsel
A Vacation in Candor
• Misleading Legal Argument
• [4] Legal argument based on a knowingly false representation of law
constitutes dishonesty toward the tribunal. A lawyer is not required to
make a disinterested exposition of the law, but must recognize the
existence of pertinent legal authorities. Furthermore, as stated in
paragraph (a)(2), an advocate has a duty to disclose directly adverse
authority in the controlling jurisdiction that has not been disclosed by the
opposing party. The underlying concept is that legal argument is a
discussion seeking to determine the legal premises properly applicable to
the case.
A Vacation in Candor
•
•
•
•
RULE 3.2: EXPEDITING LITIGATION
A lawyer shall make reasonable efforts to expedite litigation.
Comment
[1] Dilatory practices bring the administration of justice into disrepute. Although
there will be occasions when a lawyer may properly seek a postponement for
personal reasons, such as illness or a conflict with an important family
engagement, it is not proper for a lawyer to routinely fail to expedite litigation
solely for the convenience of the advocates. Nor will a failure to expedite be
reasonable if done for the purpose of frustrating an opposing party’s attempt to
obtain rightful redress or repose. It is not a justification that similar conduct is often
tolerated by the bench and bar. The question is whether a competent lawyer acting in
good faith would regard the course of action as having some substantial purpose
other than delay. For purposes of this Rule, realizing financial or other benefit from
otherwise improper delay in litigation is not a legitimate interest of the client.
The Best Cross Ever
• I’m SO ready for my trial!
• You know – My friend Lucy is a friend of the Defendant.
• I have it on GOOD authority that she had a big affair, is a liar, and I
heard even beat her dog.
• I’m totally letting her have it on cross!
• She deserves it after all….
• So what if it has nothing to do with this case!
The Best Cross Ever
• RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD
PERSONS
• (a) In representing a client, a lawyer shall not:
• (1) use means that have no substantial purpose other than to embarrass,
delay, or burden a third person or knowingly use methods of obtaining
evidence that violate the legal rights of such a person; or
• (2) threaten to present a criminal or lawyer disciplinary charge for the
purpose of obtaining an advantage in a civil matter.
Call Your Next Witness
• I have that Declaratory Judgment action
• The lawyer is in both cases
• I need to know what he did to actually try to communicate with his
insured.
• I think I need to depose him.
WAIT……
Can I do THAT?
Call Your Next Witness
• RULE 3.7: LAWYER AS WITNESS
• (a) A lawyer shall not act as an advocate at a trial in which the lawyer is
likely to be a necessary witness unless:
• (1) the testimony relates to an uncontested issue;
• (2) the testimony relates to the nature and value of legal services
rendered in the case; or
• (3) disqualification of the lawyer would work substantial hardship on
the client.
BPR for YOU!
• I have that case with Joe.
• He is so unreasonable!
• And he threatened to file a BPR Complaint Against me!
• I’m going to show him…. I’ll file one against him FIRST!
WAIT……
Can I do THAT?
BPR for YOU!
• RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD
PERSONS
• (a) In representing a client, a lawyer shall not:
• (1) use means that have no substantial purpose other than to embarrass,
delay, or burden a third person or knowingly use methods of obtaining
evidence that violate the legal rights of such a person; or
• (2) threaten to present a criminal or lawyer disciplinary charge for the
purpose of obtaining an advantage in a civil matter.
I KNOW he is unethical
• Did you see what Sam was driving??
• I am quite certain that he’s not making that kind of money
• He MUST be borrowing from his trust account.
• I am so going to report him.
WAIT……
Can I do THAT?
I KNOW he is unethical
• We come back to “knowingly”
• Defined in RULE 1.0: TERMINOLOGY
(f) "Knowingly," "known," or "knows" denotes actual awareness of the
fact in question. A person's knowledge may be inferred from
circumstances.
• RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT
•
• (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 Disciplinary Counsel of the Board of Professional Responsibility.
• (c) This Rule does not require disclosure of information otherwise protected
by RPC 1.6 or information gained by a lawyer or judge while serving as a
member of a lawyer assistance program approved by the Supreme Court of
Tennessee or by the Board of Professional Responsibility.
Speaking of BPR complaints…
• I got one…
• And the response was due today.
• But I am here at the beach!
• I have no time for that….
WAIT……
Can I do THAT?
NO- ANSWER IT!
• RULE 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS
• An applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall not:
• (a) knowingly make a false statement of material fact; or
• (b) fail to disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter, or knowingly fail to respond to a
lawful demand for information from an admissions or disciplinary authority,
except that this Rule does not require disclosure of information otherwise
protected by RPC 1.6.
I Just Work There…
• So we are really getting deep into discovery on that Bates case.
• I found some really bad stuff for us!
• You know Mr. X (the super senior partner) told me to just shred it.
• I guess I know where I’ll be tonight!
• After all- It’s really his call.
WAIT……
Can I do THAT?
I Just Work There…
• RULE 5.2: RESPONSIBILITIES OF A SUBORDINATE
LAWYER
• (a) A lawyer is bound by the Rules of Professional Conduct
notwithstanding that the lawyer acted at the direction of another person.
• (b) A subordinate lawyer does not violate the Rules of Professional
Conduct if that lawyer acts in accordance with a supervisory lawyer’s
reasonable resolution of an arguable question of professional duty.
I Just Work There…
• Comment
• [1]
Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer
acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had
the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed
a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a
professional violation unless the subordinate knew of the document’s frivolous character.
• [2]
When lawyers in a supervisor-subordinate relationship encounter a matter involving
professional judgment as to ethical duty, the supervisor may assume responsibility for making the
judgment. Otherwise a consistent course of action or position could not be taken. If the question
can reasonably be answered only one way, the duty of both lawyers is clear, and they are equally
responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide
upon the course of action. That authority ordinarily reposes in the subordinate lawyer’s supervisor, in
another lawyer who has primary responsibility for the representation, or in a lawyer who has authority
to resolve such matters on behalf of the firm, and a subordinate may be guided accordingly. For
example, if a question arises whether the interests of two clients conflict under RPC 1.7, the
supervisor’s reasonable resolution of the question should protect the subordinate professionally if the
resolution is subsequently challenged.
That was my cousin!
• I am just swamped
• My cousin needs a job
• I’m totally just going to let him handle the trust account
• I can’t keep up with paying all those bills!
• If he steals something- he will go to jail
• It’s not like it will be on me!
WAIT……
Can I do THAT?
That was my cousin!
•
•
•
•
Actually – yes- that is “on you.”
RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(b) a lawyer having direct supervisory authority over a nonlawyer shall make reasonable
efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations
of the lawyer; and
• (c) a lawyer shall be responsible for conduct of a nonlawyer that would be a violation of the
Rules of Professional Conduct if engaged in by a lawyer if:
• (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
• (2) the lawyer is a partner or has comparable managerial authority in the law firm in which
the nonlawyer is employed, or has direct supervisory authority over the nonlawyer, and
knows of the nonlawyer's conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.
Looks Good on The Letterhead
• So I’m starting my own Firm!
• And there is so much to do….
• I think I need some credibility on my letterhead!
• I’m going to say I’m a…….
• “Master Trial Advocator.”
WAIT……
Can I do THAT?
Looks Good on the Letterhead
• RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
• A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s
services. A communication is false or misleading if it contains a material misrepresentation
of fact or law, or omits a fact necessary to make the statement considered as a whole not
materially misleading.
• Comment
• [1] This Rule governs all communications about a lawyer’s services, including advertising
permitted by RPC 7.2 and solicitations directed to specific recipients permitted by RPC 7.3.
Whatever means are used to make known a lawyer’s services, statements about them must be
truthful.
• [5] A lawyer may advertise the fact that a subjective characterization or description has
been conferred upon him or her by an organization as long as the organization has made
inquiry into the lawyer’s fitness and does not issue or confer such designations
indiscriminately or for a price.
Looks Good on The Letterhead
• RULE 7.4: COMMUNICATION OF FIELDS OF PRACTICE AND
SPECIALIZATION
• (b) Except as permitted by paragraphs (c) and (d), a lawyer shall not state that the lawyer is
a specialist, specializes, or is certified or recognized as a specialist in a particular field of law.
• (c) A lawyer admitted to engage in patent practice before the United States Patent and
Trademark Office may use the designation “Patent Attorney” or a substantially similar
designation.
• (d) A lawyer who has been certified as a specialist in a field of law by the Tennessee
Commission on Continuing Legal Education and Specialization may state that the lawyer “is
certified as a specialist in [field of law] by the Tennessee Commission on C.L.E. and
Specialization.” A lawyer so certified may also state that the lawyer is certified as a specialist
in that field of law by an organization recognized or accredited by the Tennessee
Commission on Continuing Legal Education and Specialization as complying with its
requirements, provided the statement is made in the following format: “[Lawyer] is certified
as a specialist in [field of law] by [organization]."
Looks Good on The Letterhead
• RULE 7.5: FIRM NAMES AND LETTERHEADS
• (a) A lawyer shall not use a firm name, letterhead, or other professional
designation that violates RPC 7.1. A trade name may be used by a lawyer
in private practice if it does not imply a connection with a government
agency or with a public or charitable legal services organization and is
not otherwise in violation of RPC 7.1.
Oh- I know HIM!
• I picked up a new Criminal Case!
• Yeah- I don’t normally do that- but I found out who they Judge was….
• I mean- really? This case will be undone in no time- and I told him that!
WAIT……
Can I do THAT?
Oh- I know HIM!
• RULE 8.4: MISCONDUCT
• It is professional misconduct for a lawyer to:
• (e) state or imply an ability to influence a tribunal or a governmental
agency or official on grounds unrelated to the merits of, or the
procedures governing, the matter under consideration;
Judge Clown is here
• I don’t like him!
• He’s made terrible rulings in this case…
• On a good day- he’s a clown
• Most of the time he’s a snake.
• I think he’s here! I shall tell him! In front of as many people as possible!
• And yes- this case is still pending. Perhaps he will make a better ruling at
our hearing next week!
WAIT……
Can I do THAT?
NO!
• Mainly because that’s just a bad idea
• RULE 3.5: IMPARTIALITY AND DECORUM OF THE
TRIBUNAL
• A lawyer shall not:
• (b) communicate ex parte with such a person during the proceeding
unless authorized to do so by law or court order;
• (e) engage in conduct intended to disrupt a tribunal