Professional Responsibility : Examples and Explanations

by Wendel, W. Bradley

• ISBN13: 9780735540927
• ISBN10: 0735540926
• Format: Paperback
• Copyright: 2004-02-01
• Publisher: Wolters Kluwer

Summary

For a truly balanced approach To The complex issues surrounding professional responsibility, your students will appreciate this sophisticated guide. it acknowledges the complicated interplay between the Model Rules and other law, while explaining the law clearly in the voice of a senior associate speaking to a newly hired lawyer. Professional Responsibility: Examples and Explanations is not simple march through the Model Rules. Instead, it is structured around concepts, with the rules And The generally applicable law introduced as needed: Includes the Ethics 2000 Rules, including the 2003 amendments And The Restatement of the Law governing Lawyers. Tackles difficult issues head-on, such as conflicts of interest, client fraud problems And The intersection between confidentiality And The attorney-client privilege. Includes charts, Venn diagrams and other visual aids. Draws examples from actual cases so they are representative of the problems students can expect to encounter in practice. for a complete teaching package in professional responsibility, require or recommend this new study guide for your next course.

Author Biography

W. Bradley Wendel, Washington and Lee University

Table of Contents

Preface	xix
Acknowledgments	xxi
Citations and Other Stylistic Practices	xxiii
The Many Ways of Regulating Lawyers	1	(14)
Introduction	1	(3)
Who Should Regulate Lawyers	4	(3)
The Organized Bar: Models and Legally Binding Rules	4	(2)
Courts and Legislatures	6	(1)
A Bit of Ancient History, and Why It Matters	7	(4)
The ABA Canons	7	(1)
The Model Code	8	(2)
The Model Rules	10	(1)
Recent Developments	11	(2)
Ethics 2000	11	(1)
The Restatement	12	(1)
A Word About the MPRE	13	(2)
PART ONE: THE ATTORNEY-CLIENT RELATIONSHIP	15	(162)
Formation and Termination	17	(14)
Introduction	17	(1)
Shall We Dance? Formation of the Relationship	17	(8)
Quasi-Client Relationships	19	(2)
Prospective Clients and ``Beauty Contests''	21	(4)
Fifty Ways to Leave Your Client: Termination of the Professional Relationship	25	(6)
Client Fires the Lawyer	26	(1)
Lawyer Fires the Client	26	(1)
Breaking Up Is Hard to Do: Relationship Erodes over Time	27	(4)
Aspects of an Ongoing Relationship	31	(26)
Introduction	31	(1)
Division of Labor in the Attorney-Client Relationship	32	(6)
Some Basic Agency Principles	32	(2)
Allocation of Authority Between Attorney and Client	34	(4)
Clients with Diminished Capacity	38	(1)
Duty to Communicate	38	(7)
Interference with the Attorney-Client Relationship	45	(12)
Anti-Contact Rule	45	(2)
Anti-Contact Rule Where an Entity Is the Client	47	(3)
Surveillance, Surreptitious Taping, and Other Sneaky Evidence-Gathering	50	(2)
Anti-Contact Rule in Criminal Cases	52	(5)
Attorneys' Fees and Transactions with Clients	57	(20)
Reasonableness of Fees	57	(7)
Contingent Fees	64	(5)
Taking Stock in Clients	69	(2)
Splitting Fees with Other Lawyers	71	(1)
Holding Client Funds: Trust Accounts	72	(5)
Representing Entities and Groups	77	(20)
Introduction	77	(1)
Complex Clients: Understanding the Structure of the Entity	78	(12)
Publicly Traded Corporations	79	(1)
Structure of MR 1.13	80	(1)
Corporate Wrongdoing	81	(2)
The Sarbanes-Oxley Act	83	(1)
Shareholder Derivative Actions	83	(2)
Corporate Families	85	(1)
Closely Held Corporations and Partnerships	85	(2)
Government Agencies	87	(3)
Dealing with Agents of the Entity	90	(7)
Incompetence: Remedies for Malpractice and Constitutional Ineffectiveness	97	(18)
Introduction	97	(1)
The Duty of Competence	98	(1)
The Tort of Malpractice	98	(11)
Duty and Standard of Care	99	(2)
Breach of Duty	101	(2)
Causation	103	(1)
Damages	104	(5)
The Sixth Amendment	109	(6)
Confidentiality and Secrecy	115	(10)
Introduction	115	(1)
Voluntary and Involuntary Disclosure	116	(9)
Attorney-Client Privilege and Work Product Doctrine	125	(32)
Attorney-Client Privilege: Policy	125	(2)
Attorney-Client Privilege: Elements	127	(3)
Communication	127	(1)
Privileged Persons	128	(1)
In Confidence	129	(1)
Purpose	129	(1)
Facts Not Protected	130	(6)
The Attorney-Client Privilege for Entities	136	(6)
Exceptions to the Privilege and Waiver	142	(8)
Crime-Fraud Exception	143	(1)
Intentional Revelation	144	(1)
Inadvertent Disclosure	145	(2)
Putting in Issue	147	(3)
No ``Borrowed Wits'': The Work Product Doctrine	150	(7)
Professional Duty of Confidentiality	157	(20)
Introduction	157	(1)
Our Lips Are Sealed: The Professional Duty of Confidentiality	158	(4)
Exceptions to the Professional Duty	162	(15)
Authorized in Order to Carry Out Representation---MR 1.6(a)	162	(1)
Disclosure to Prevent Wrongdoing---MR 1.6(b)(I)	163	(1)
Physical Injury to Others	164	(3)
Financial Harms	167	(2)
Securing Legal Advice---Mr 1.6(b)(2)	169	(1)
Self-Defense---MR 1.6(b)(3)	169	(2)
Compliance with Law---MR 1.6(b)(4)	171	(6)
PART TWO: SECRETS AND LIES: PERJURY AND THE PROBLEM OF CLIENT FRAUD	177	(76)
Perjury in Civil and Criminal Litigation: The Lawyer's ``Trilemma''	179	(26)
Introduction	179	(1)
Model Rule 3.3 on Perjury	180	(12)
Prospective	181	(1)
Active Participation by the Lawyer	181	(1)
Passive Involvement by the Lawyer	181	(1)
Actual Knowledge of Falsity	182	(2)
Retrospective	184	(8)
Criminal Cases: Professional Duties in Tension	192	(3)
Alternative Responses to Perjury in Criminal Cases	195	(10)
``Tell the Court What Happened'': The Narrative Solution	195	(1)
Passing the Buck: Withdrawal	196	(9)
Attorney Conduct in Litigation: Forensic Tactics, Fair and Foul	205	(26)
Introduction	205	(1)
Some Clear-Cut Rules	206	(3)
Ex Parte Contacts with Judges and Jurors	207	(1)
Disclosure of Adverse Authority	207	(2)
Taking Advantage of Your Opponent's Mistakes, Other than Failure to Cite Authority	209	(2)
Lying in Negotiations	211	(2)
Frivolous Pleadings, Motions, and Contentions	213	(4)
Witness Coaching	217	(4)
First Amendment Issues	221	(10)
Trying a Case in the Press	222	(2)
Criticism of Judges	224	(7)
The Client Fraud Problem	231	(22)
Introduction	231	(1)
Lawyer Liability for Participating in Client Wrongdoing	231	(3)
Common Law Fraud	232	(1)
Securities Fraud	232	(1)
Aiding and Abetting Breach of Fiduciary Duty	233	(1)
Legal Malpractice	233	(1)
Discipline for Making False Statements	234	(4)
Another ``Trilemma'': Confidentiality, Withdrawal, and Liability (Pre-2003 Model Rules)	238	(9)
Disciplinary Rules	239	(1)
Getting Mixed-Up with a Crooked Client	240	(1)
The Effect of Generally Applicable Law	241	(2)
Silence Is Not Golden: ``Noisy'' Withdrawals	243	(4)
An Eleventh-Hour Amendment to Model Rules 1.6 and 1.13	247	(1)
The Effect of Sarbanes-Oxley and the SEC Regulations	248	(5)
PART THREE: CONFLICTS OF INTEREST	253	(114)
Overview of Conflicts of Interest	255	(8)
Introduction	255	(4)
A Note on the Appearance of Impropriety	259	(4)
Current Client Conflicts	263	(36)
Introduction	263	(1)
Analysis of Current Client Conflicts Problems	263	(26)
Identify Client Relationships	263	(1)
Identify Conflicts	264	(1)
Significance of Direct Adversity and Material Limitation Language	265	(2)
Actual and Potential Conflicts	267	(2)
Ascertain Consentability	269	(1)
Prohibited by Law	270	(1)
Client v. Client in the Same Litigation	271	(1)
Zero-Sum	272	(1)
See if There Has Been Effective Consent	273	(3)
Withdrawal of Consent	276	(1)
Requirement of Written Consent	277	(1)
Advance Waivers	278	(11)
Imputation	289	(1)
Analysis of Current Client Conflicts Under the Model Code	290	(1)
Discipline and Punish: Remedies for Conflicts	291	(1)
Disqualification	291	(1)
Malpractice	292	(1)
Summing Up	292	(7)
Current Client Conflicts Issues in Specific Contexts	299	(24)
Criminal Cases	299	(7)
Transactional Matters	306	(8)
The Intermediation Rule	314	(1)
Positional Conflicts	315	(2)
The ``Eternal Triangle'' for Insurance Defense Lawyers	317	(6)
Client Identification	318	(1)
Conflicts	319	(1)
Reservation of Rights	319	(1)
Settlement	320	(1)
Multiple Parties	321	(1)
Duty to Communicate and Confidentiality	321	(2)
Former Client Conflicts and Migratory Lawyers	323	(30)
Introduction	323	(1)
Side-Switching Former Client Conflicts	323	(12)
Review: Termination of the Attorney-Client Relationship	324	(1)
Analysis of Side-Switching Former Client Conflicts Problems	325	(1)
Representing a Client	325	(2)
Identify the Matter	327	(1)
The ``Substantial Relationship'' Test	327	(3)
Material Adversity	330	(1)
Consent	331	(1)
Appearance of Impropriety Is Not the Standard	331	(4)
Migratory Lawyers	335	(12)
Analysis of Migratory Lawyer Problems	336	(1)
Definition of Representation: The Silver Chrysler Rule	336	(3)
Substantial Relationship	339	(1)
The ``Typhoid Mary'' Problem: Imputed Conflicts and Screening	340	(2)
Elements of an Effective Screen	342	(2)
Lingering Taints of the Departed Lawyer	344	(3)
The Special Situation of Former Government Lawyers	347	(6)
Miscellaneous Conflicts Issues	353	(14)
Lawyer-Client Conflicts	353	(7)
Business Transactions with Clients	353	(2)
Fee-Payor Conflicts	355	(1)
Gifts to Lawyers	356	(1)
Media Rights	357	(1)
Family Relationships	357	(1)
Sexual Relationships with Clients	358	(2)
Lawyer-Witness Rule	360	(7)
PART FOUR: ORGANIZATION AND REGULATION OF THE LEGAL PROFESSION	367	(54)
Attracting Clients: Advertising and Solicitation	369	(22)
Introduction	369	(4)
Constitutional Decisions	373	(8)
Advertising Cases	373	(3)
Solicitation Cases	376	(5)
Disciplinary Rules	381	(10)
General Prohibition on False or Misleading Communications	382	(2)
Generally Advertising Is Permitted	384	(1)
Lawyer Referral Services	385	(1)
Solicitation Is More Tightly Restricted	385	(6)
Associations of Lawyers	391	(10)
Practicing with Other Lawyers	391	(5)
Responsibilities of Supervising Lawyers	391	(1)
``Just Following Orders'': Responsibilities of Subordinate Lawyers	392	(4)
Practicing with Non-Lawyers: The MDP ``Problem''	396	(5)
Fee-Splitting	397	(1)
Partnerships and Corporations with Non-Lawyer Members	397	(1)
Professional Judgment	398	(1)
Attorney-Client Privilege and Confidentiality	398	(3)
The Organized Bar	401	(20)
Regulating Entry into the Profession	401	(7)
Legal Authority to Regulate	401	(1)
Requirements for Admission	402	(1)
Physical Presence Requirements	403	(1)
Character and Fitness Screening	403	(5)
The Organized Bar: Regulating the Practice of Law	408	(13)
Reporting Professional Misconduct	408	(1)
Unauthorized Practice of Law (UPL)	409	(5)
Multi-Jurisdictional Practice	414	(1)
The Birbrower Bombshell	414	(3)
Multi-Jurisdictional Practice Reform	417	(4)
Index	421