Writing Tip:

Every Sentence should include whether or not:

"Attorney ...:

or

"Attorney 

Try starting essay sentences w/ 

is subject to discipline and/or

should not be subject to discipline"

"Under the ABA and/or CA rules..." 

Client perjury:

Must first distinguish civil v. criminal

CIVIL: MUST refuse to call CL as a witness if you know he will perjure himself

CRIM: D has 5th Amend right to testify on own behalf & 6th Amend right to effective counsel.

IF CL perjures: CA = allows D to tesify in narrative

ABA = Tell judge AFTER asking to w/draw from rep.

GR: D has Constit. rt to testify in crim proceeding 

CA: CANNOT use false testimony of CL in closing arg.

Preserving Dignity of the Court

Atty has duty to preserve impartiality & decorum of tribunal

- Atty cannot try to influence anyone improperly or speak w/ jurors

Atty has duty to expedite cases - cannot delay (AKA duty of diligence)

CA= Has no rule on confidentiality but instead governed by Atty's oath "to maintain.."

ABA= You can't reveal anything related to the representation of a client w/out their consent.

- EXCEPT

1. ABA - fraud or financial crimes (must reveal)

CA - Nope on fraud or fin. crimes

2. ABA - Death or risk of substantial bodily injury (may)

CA - (may, but need gf effort to persuade CL not to commit)

3. ABA - Defending atty self v. client - (yes)

CA - (yes)

Distinguish between Atty-CL privilege which is narrower, where atty has right not to tesify about confidential communicaitons

Duty of confidentiality protects ANY info learned during representation that is RELEVANT to current proceeding.

Atty MUST NOT represent CL unless other CL consents.

Protects communications "during course of the relationship"

- lasts AFTER CL's death

- & even though not formally retained, atty/CL relationship can still be formed EXCEPT

1.CL seeks the atty's services to commit crime or fraud - ABA

2. Civil lit between joint CLs & atty was rep-ABA

1. Does NOT apply in order to prevent substantial bodily injury - CA

Means that you and all the members of your firm share conflicts

Former gov't lawyer in private practice, = other members of firm MAY continue rep IF:

1. Atty is screened off;

2. Atty's former gov't employer is informed; 

3. Conflicted atty does not share in any part of the fee

CA: Can - send truthful, non-deceptive letters to people known to face a legal problem

Cannot - initiate live, telephone, email contact w/ prospective client w/ whom no prior professional relationship exists

- if CL makes clear they don't wish to communicate, can't call them

ABA: All written communications w/ prospective CLs must include words of: "Advertising Materials"

CL Solicitation 2

Giving gifts to potential CL

-- look to see if item was given at a time of physical & mental distress

-- was it clearly identified as "advertising materials"

Duty of Loyalty (Conflicts of Interest)

[Clients Love Fierce Counsel, Courts Feel Differently]

1. Confidentiality - CL

2. Loyalty - CL

3. Fiduciary Responsibility - CL

4. Competence - CL

5. Candor/truthiness - CT

6. Fairness - CT

7. Dignity/decorum - CT

Atty MUST disclose ANY conflict of interest to other client

- goes hand in hand w/ duty of confidentiality - discuss if on essay (breach of both)

- atty MAY continue ONLY if he rx believes he can effectively rep ALL parties.

- also subissue to discuss - duty of effective assistance of counsel

- self-dealing also triggers duty of loyalty

Atty has duty to keep CL informed abou the case, including settlement offers and returning phone calls & emails 

(falls under duty of competence as well)

Mandatory W/draw - if continuing rep would violate law & ethical rules

Permissive w/draw - if continuing rep financially burdens atty, CL acts illegally or if insists on pursuing and objective atty finds repugnant or if CL refuses to fulfill obligation after atty warns not to

- atty who w/draws must take rx steps to protect CLs interest

-prohibits conduct of dishonesty, fraud & deceit

1. duty to present facts & evidence truthfully (no false stmts of material fact)

2. duty to produce evidence - may not obstruct, tamper or block access to proof of a crime

3. duty to state law truthfully - must not make false stmt of the law

4. must deal fairly w/ others - must not lie or mislead them as to your interests

Client perjury - if CL says intends to lie on stand

CA - Allow D to testify in narrative fashion but cannot further deception in Crim cases

Advertising - must not be false or misleading

...US Supreme Cort has held that lawyers have Constitutional right to engage in truthful, non-misleading advertisment