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Professional Responsibility

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Professional Responsibility

Course Info

Professor: Unknown Semester: Fall 2016 Source: Prof Resp_FL16.txt

Topics Covered

  • Distribution of regulatory authority over the legal profession (state, federal, interstate)
  • Unauthorized practice of law; what counts as “practice of law”
  • Bar associations; constitutional limits (Keller; NC Dental)
  • Choice of law and disciplinary authority (MRPC 8.5)
  • The Pepper/Luban/Dworkin debate on lawyer’s amoral ethical role
  • Attorney-client privilege: Wigmore elements; scope; exceptions; waiver
  • Work-product doctrine: ordinary vs. opinion work product
  • Professional duty of confidentiality (MR 1.6): exceptions for future crimes, fraud, bodily harm
  • Complicity in client illegality: fraud, obstruction of justice, document destruction
  • Conflicts of interest: concurrent (MR 1.7), successive (MR 1.9), imputed (MR 1.10)
  • Organizational clients: who is the client? Upjohn standard; privilege; intra-organizational conflicts
  • Anti-contact rule (MR 4.2); application to prosecutors

Detailed Outline

I. Regulatory Framework

Sources of regulation:

  1. State disciplinary rules (ABA Model Rules, adopted with variations)
  2. Enforcement by disciplinary committees; sanctions: reprimand, suspension, disbarment
  3. Federal courts incorporate state rules via local rules (e.g., S.D.N.Y. Local Rule 1.5)
  4. Administrative agencies incorporate state rules
  5. Courts incorporate disciplinary rules into common law tort (breach of duty of care)
  6. Special statutes: Sarbanes-Oxley (2002); IRS Circular 230; IRC § 6050I; Bankruptcy § 526

Inherent Power Doctrine:

  • Primary authority over regulation of legal practice is judicial, not legislative
  • Three versions: (1) Exclusive (only courts — PA); (2) Comity (allow non-lawyer officers — CA, ID); (3) Shared coequal regulation (NY)
  • No general federal regulation of law practice

Scope of “Practice of Law”:

  • Representation in court + preparing documents with legal effect + giving advice + representing in negotiation
  • State Bar of Arizona v. Arizona Land & Title Co.: preparing real estate documents = practice of law
  • N.Y. Co. Lawyers Assoc. v. Dacey: self-help law materials = constitutionally protected under 1st Am.
  • LegalZoom factors: advice customized, for consideration, complex vs. simple transaction

Bar Associations:

  • Voluntary (NY) vs. Integrated/Mandatory (CA)
  • Constitutional limits: Keller v. California State Bar — compulsory dues for political/ideological expenditures (not professional ones) violates 1st Am.
  • NC Board of Dental Examiners v. FTC: state action exemption from antitrust requires active supervision by non-market-participants

Choice of Law (NY Rule 8.5):

  • Jurisdiction: State where lawyer is licensed
  • Choice of law: Rules of state where lawyer predominantly practices; if conduct has predominant effects elsewhere, rules of that state apply

Unauthorized Practice:

  • Civil/criminal penalties; disciplinary rules (Rule 5.5)
  • Birbrower (Cal. 1998): NY lawyers representing CA client in arbitration in SF = unauthorized practice in CA (overruled by statute)
  • Constitutional limits: In re Griffiths — excluding aliens violates EPC; Piper v. NH — residence requirement violates P&I Clause

II. Lawyer’s Role and Ethics Theory

The Pepper View (Amoral Ethical Role):

  • Lawyers should take all reasonably available action to advance client goals unless plainly prohibited by law
  • Client autonomy is the right to do whatever subject only to legally protected interests of others
  • Duty only to client autonomy; other constraints are subjective impositions of lawyer’s morality

Dworkin’s Critique (attacks premise that law is separable from morality):

  • Legal positivism (Holmes; Hart’s secondary rules) insufficiently accounts for legal principles
  • Riggs v. Palmer: will reinterpreted to not allow nephew to profit by murdering uncle — equitable principle

Luban’s Critique (attacks premise that client autonomy is the only duty):

  • Non-legal morality is sufficient basis for lawyer decision-making
  • Values shared widely throughout society beyond autonomy should be weighed against client interests

III. Attorney-Client Privilege

Wigmore’s Eight Elements:

  1. Legal advice of any kind is sought
  2. From a professional legal adviser in his capacity as such
  3. Communications relating to that purpose
  4. Made in confidence
  5. By the client
  6. Permanently protected from disclosure by him or by the legal adviser
  7. At client’s instance
  8. Except it be waived

Key Applications:

  • Purpose element: whether client expects legal advice triggers the privilege (People v. Fentress); even advice sought in legal-social context (Purcell v. DA)
  • Business vs. legal advice: Visa USA v. First Data Corp. — “business advice” not privileged; on corporate boards, depends on how much legal advice is exchanged
  • Crime-fraud exception: where client seeks advice to commit or further a crime or fraud (In re Grand Jury Subpoena; In re Sealed Case)
  • Not protected: physical facts observed by lawyer; objects; documents not prepared for lawyer; identity, fact of consultation, payment, whereabouts (generally)
  • Duration: privilege survives client’s death (Swidler & Berlin v. US)

Waiver:

  • By explicit consent (People v. Fentress)
  • By putting at issue (advice-of-counsel defense)
  • By subsequent disclosure (judicial: Von Bulow; extrajudicial: Von Bulow 2d Cir.)
  • Disclosure to government agency waives as to private litigants (Westinghouse, 3d Cir.)
  • Inadvertent disclosure in discovery: FRE 502 — no waiver if reasonable steps taken to prevent and rectify

Joint Representation / Common Defense:

  • Communications privileged against third parties; not between jointly represented clients in a later dispute
  • Each can waive only as to own statements; same rule for common defense with separately represented clients

IV. Work-Product Doctrine

Sources:

  • FRCP 26(b)(3): documents and tangible things prepared for trial
  • Hickman doctrine: attorney’s mental impressions and litigation strategy

Types:

  • Ordinary work product: available to adversary on showing of “substantial need” and inability to obtain without undue hardship
  • Opinion work product (mental impressions, legal theories): near absolute protection

Contour:

  • Narrower than ACP: applies only in connection with litigation
  • Broader than ACP: can apply to things, documents, testimony (not just communications)

V. Professional Duty of Confidentiality

Blanket duty: Any information concerning client’s representation (MR 1.6)

Exceptions:

  • Self-defense (MR 1.6(b)(2), (b)(5)): client vs. lawyer (malpractice), lawyer vs. client (fee dispute), third party vs. lawyer (defend against wrongdoing) — Meyerhoffer v. Empire Fire
  • Third-party future interests — rules vary:
    • CA 3-100 / Old ABA MR 1.6(b)(2): only for death or substantial bodily harm from criminal act
    • ABA MR 1.6(b)(1) (2003): reasonably certain death or substantial bodily injury
    • ABA MR 1.6(b)(2), (3): financial harm if client used lawyer’s services and harm reasonably certain
    • NY Rule 1.6(b): may disclose to prevent reasonably certain death/substantial bodily harm OR any crime

Past Acts / Rectification of Fraud:

  • Old ABA / CA: no explicit exception for rectification of past fraud; implicit permission for “noisy withdrawal”
  • New ABA MR 1.6(b)(3): may disclose to mitigate/rectify substantial financial injury from client crime/fraud using lawyer’s services
  • ABA MR 4.1(b): must disclose material fact to avoid assisting criminal/fraudulent client act (if permitted by 1.6)
  • NY 1.6(b)(3): codifies “noisy withdrawal” — may disclose extent implicit in withdrawing opinion believed still relied upon by third person

VI. Complicity in Client Illegality

Fraud:

  • Duty not to assist: MR 1.2(d), CA 3-210 — shall not counsel or assist conduct lawyer knows is criminal or fraudulent
  • “Knows” standard:
    • Disciplinary purposes: actual knowledge (MR 1.0(f))
    • Civil liability (10b-5): recklessness
    • Malpractice: negligence (reasonable lawyer standard)
  • Passive advice vs. active assistance: Reves v. Ernst & Young (RICO) — accounts who gave advice did not “participate” in management
  • Primary vs. secondary violations: secondary liability requires substantial assistance with knowledge

Obstruction of Justice:

  • MR 3.4(a), CA 7-102(a)(3): duty not to “unlawfully” conceal or destroy what lawyer required by law to reveal
  • [Witness Tampering and Obstruction (18 U.S.C. § 1512)|18 U.S.C. § 1512]: corruptly alters/destroys/conceals document with intent to impair availability in official proceeding
    • Scienter: expects altered document will obstruct
    • Nexus: act must be in contemplation of particular official proceeding (Arthur Andersen v. US)
  • Pre-litigation destruction: duty if “reasonably anticipate litigation” (spoliation doctrine)
  • Evidence doctrine: adverse inference against party who destroys relevant evidence (res ipsa of bad faith)

Arthur Andersen document destruction:

  • Nancy Temple email to “keep in mind” document retention policy shortly after SEC inquiry was highly probable
  • Deleting references to misleading statements and consulting = obstruction
  • General retention policy not a defense when on notice of likely litigation

VII. Conflicts of Interest

Concurrent Conflicts (MR 1.7):

  • Triggering condition: representations involve “differing interests” (direct adversity OR material limitation on one representation)
  • Cure: (1) subjective — client gives informed consent; (2) objective — disinterested lawyer could competently and diligently represent each client
  • Positional conflicts: advocating position that creates precedent adverse to another client’s interests is a conflict only if significant risk of material limitation in effectiveness
  • “Hot potato” rule: cannot fire current client to take on adverse and substantially unrelated matter (Picker v. Varian Associates)

Successive Conflicts (MR 1.9):

  • Triggering conditions: (1) adversity of client interests and (2) substantial relation of current to former representation
  • Concerns: independence of judgment, confidentiality, loyalty

Imputed/Vicarious Disqualification (MR 1.10):

  • Basic rule: when any lawyer in firm disqualified, all are disqualified (ABA pre-2009)
  • Exception: personal interests (not responsibilities) — no imputation (ABA, not NY)
  • Lawyer movement: former firm represented client → lawyer and colleagues not disqualified unless lawyer acquired confidences (1.9(b), 1.10(c))
  • Screening: ABA MR 1.10 (as amended 2009) approves screening for lawyer changing firms; minority position
  • Former government lawyers: screened under MR 1.11 in most versions

VIII. Organizational Clients

The Entity Rule (MR 1.13):

  • Lawyer employed by organization represents the organization acting through its duly authorized constituents
  • Corporate authority structure: plenary board authority (DGCL 141), senior officer authority for ordinary business, fiduciary duties for both

Privilege in Corporate Context:

  • Core area: communications where agent seeks advice re: matter she has authority to act on
  • Upjohn v. US (1981): extends to communications by employees at direction of corporate superiors, in order to secure legal advice, concerning matters within scope of employee’s duties, where employees aware they were questioned for legal advice
  • Control group test (narrow, some states): only senior managers and those seeking advice for decisions they control
  • Broader protection (Rest. § 123): confidential communications concerning any legal matter of interest to corporation

Intra-organizational Disputes:

  • Garner v. Wolfenbarger (5th Cir. 1970): whether management may assert privilege in shareholder suit depends on case-by-case balancing (bona fides of claim, nature/colorability, necessity)
  • Privilege belongs to entity; current board controls waiver (CFTC v. Weintraub)

Conflict — Organization Adverse to Agent:

  • MR 1.13(f): lawyer must clarify to agent that lawyer represents organization, not the agent
  • MR 4.3: lawyer cannot give legal advice (other than to consult own lawyer) to unrepresented person whose interests may conflict with client’s interests

IX. Anti-Contact Rule (MR 4.2)

Rule: Lawyer shall not communicate about the subject of the representation with a party known to be represented by another lawyer in the matter, without consent of other lawyer or authorization by law.

Application to Prosecutors:

  • Pre-indictment: investigatory activities not subject to anti-contact rule
  • Post-indictment: contacts with D’s consent not permitted because Ds cannot waive (rule of representation — lawyer must consent)
  • DOJ resolution: authorized pre-indictment contacts with non-targets and targets with magistrate approval
  • McDade Amendment (28 U.S.C. § 530B): federal attorneys subject to state rules to same extent as other attorneys

Key Doctrines

Key Cases

Exam Approach

1. Regulatory Authority

  • Is this a state-regulated practice? → inherent judicial power; legislature is secondary
  • Unauthorized practice? → Apply Birbrower criteria (presence, subject matter, domicile, parties)
  • Which state’s rules apply? → MR 8.5: disciplined by licensing state; choice of law by predominant practice/effects

2. Attorney-Client Privilege

  • Walk through Wigmore elements: legal advice? professional capacity? communication? confidential? by client? not waived?
  • Watch for crime-fraud exception: was advice sought to further a crime or fraud?
  • Waiver: intentional, by putting at issue, judicial disclosure, extrajudicial disclosure, inadvertent (FRE 502)?
  • Corporate context: Upjohn (federal) vs. control group test (some states)?

3. Confidentiality vs. Privilege

  • ACP: evidentiary — prevents compelled disclosure in proceedings
  • MR 1.6 confidentiality: broader — professional duty re any information relating to representation
  • Know the exceptions to 1.6: future crimes/bodily harm (varies by jurisdiction); self-defense; fraud rectification (varies)

4. Conflicts of Interest

  • Concurrent conflict (MR 1.7): direct adversity OR material limitation? → informed consent + objective reasonableness to cure
  • Successive conflict (MR 1.9): adversity + substantial relation to former representation?
  • Imputed disqualification (MR 1.10): firm-wide when one lawyer disqualified; screening for lateral moves?

5. Organizational Clients

  • Who speaks for the entity? → corporate authority structure (MR 1.13)
  • Privilege: Upjohn vs. control group; corporate privilege vs. individual’s privilege (belongs to entity)
  • Conflict between organization and constituent? → lawyer must clarify role (MR 1.13(f))

6. Obstruction/Document Destruction

  • Is there a pending or contemplated proceeding? → nexus requirement (Arthur Andersen)
  • General retention policy vs. destruction after notice of likely litigation → need to suspend routine destruction
  • Temple memo: reminder of retention policy without explanation when SEC inquiry likely = evidence of corrupt intent

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