A lawyer must disclose a material fact to avoid assisting a criminal or fraudulent act, unless prohibited by MR 1.6 (Confidentiality) Required to withdraw, and take additional steps Potentially disaffirming an opinion, document, or like to avoid assisting in client’s crime or fraud “I withdraw and disaffirm any work done on his behalf” MR amendments on technology and confidentiality Lawyer shall make reasonable efforts to avoid inadvertent or unauthorized disclosure of or access to confidential information Usually doesn’t require any special security measures, just reasonable steps Clawback agreements for discovery To maintain competence, a lawyer must keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology Lawyer’s duty with respect to inadvertently disclosed information, specifically misaddressed emails, inadvertently produced information, and metadata CRPC: Lawyer shall not reveal information (client confidences and secrets) without informed consent of a client, unless an exception applies Exceptions: Lawyer may reveal confidential information relating to the representation of a client to the extent reasonably necessary to prevent a criminal act reasonably certain to result in death or substantial bodily harm to an individual Also, under common law, can reveal confidential information to: Establish a fee Establish a defense of accused of wrongdoing or misconduct Before revealing, Duty to Counsel Try to persuade client not to commit act Inform client of intent to reveal information Atty-client privilege Protects against compelled disclosure by subpoena or contempt in a fact-finding proceeding Protects confidential communications between atty and client Protects only disclosure of info (not use of info) Ethical duty of confidentiality MR: Lawyers must keep client confidences and secrets unless client gives informed consent, implied authority, or an exception applies Protects disclosure regarding representation in any setting Protects confidential communications, AND info regarding client obtained by lawyer from other sources Protect disclosure AND use of client info Work-product doctrine Only protects tangible things, created in anticipation of litigation (not in the ordinary course of business) By or for a party, counsel, or at counsel’s direction Protects against discovery of the document, not the information itself 1. Pure/opinion work product has mental impressions of attorney – protected from disclosure unless waived 2. Everything else – subject to balancing test (need for material, inability to obtain by other means, etc) Rico v. Mitsubishi Motors Attorney inadvertently gave opposing counsel his notes from a strategy meeting
make reasonable efforts to correct a misunderstanding. For former employees, MR 4.2: consent is not required for a former employee Clients can directly communicate without violating rules Which employees are represented by company counsel? MR 4.2: Those with managerial authority, acts or omissions could be imputed to company Lawyer must have actual knowledge of the representation Problem 6: Paying a testifying witness’s expenses Lay witness: cannot compensate for time and trouble (beyond making the witness whole) MR 3.4(b): Expert witness: can compensate for professional services, but cannot be contingent on outcome of case or content of testimony CRPC 5-310(B): Expert fee cannot be contingent on outcome of case Problem 7: Adversary intentionally made copies hard to read MR: can’t alter evidence or unlawfully obstruct access, must make reasonably diligent effort to comply with discovery CRPC: Can’t continue representation if the objective is to harass another person, can’t suppress evidence that you have a legal obligation to produce. If attorney is guilty of deceit, misdemeanor Problem 8: Best way to call a judge’s attention to a new appellate decision MR 3.5(b): Can’t communicate ex parte with judge, unless local law or court order permits it Written communication with judicial officer is not considered ex parte if also served on the other side CRPC 5-300(B): Can communicate in open court, with consent of other counsel, in the presence of other counsel, in writing with a copy furnished to opposing counsel Can get an ex parte motion with 1 day notice Look at local rules, talk to clerk at court Problem 9: Trial tactics with reporters MR 3.6: restrictions on what attorneys can share with media. Balance right to a fair trial and free expression and public’s right to know Right of reply - Lawyer can make a public statement if that statement is required to protect the client from substantial undue prejudicial effect of publicity that the client didn’t initiate MR 3.8(f): additional constraints on criminal prosecutors. Prosecutor must refrain from statements that may heighten public condemnation of accused, and take reasonable care to CRPC 5-120: similar to MR Right of reply
2. Advertising (statements must be truthful and not misleading) 3. Solicitation (cannot engage personally for purpose of obtaining fee-paying legal business) Attendee can approach lawyer after the presentation Can list name with local court for court-appointed cases – good for business, experience. But cannot contribute to campaign fund for local judge for specific purpose of garnering legal work Can list name with lawyer referral service of local bar – MR 7.2: okay to pay charges for a qualified referral service Usually, lawyer remits part of initial fee to referral service, then lawyer negotiates own fee if client stays on Advertising services – can place general ads, but they cannot be false or misleading Any media can be advertising, depending on content (blog) Can post schedule of fees and certain specializations – can say specialist, if not misleading. Certified is only permissible if granted under particular circumstances (patent law, admiralty law) Super Lawyer title – can list, as long as you make it clear who gave you the title B&P: Same CRPC 1-600: Approves of services if consistent with rules Bates – 1st amend. protests atty advertising that is truthful and not misleading (intermediate scrutiny) Went for It – 30 day restriction on targeted mail after accident 1-400(D)(6): Presumes a violation if you set out a fee, and charge a greater fee within 90 days of dissemination Includes electronic medium Website url could also be misleading No ethics opinions on adding titles to advertisements Problem 2: Reaching a group of clients who may have contracted a disease Can place newspaper ad inviting interested people to contact atty, as long as statements are truthful and not misleading Can send a direct, narrowly targeted mail (still more like an ad than face to face solicitation) Cannot have a team of telephone callers contacting people – live telephone conversation crosses the line into solicitation, more opportunities for abuse and overreach MR: allows solicited recorded messages CRPC: does not allow recorded solicitation messages