Professional Responsibility Outline
Table of Contents
Introduction
Professionalism
Attorney as Advisor, Advocate, and Government
Representative
Duties of transactional lawyering
·
MR 2.1
o
Atty must give
candid advice taking everything into account, even non-legal matters.
·
Enron
·
Torture Memos
Special duties for prosecutors
·
MR 3.6
o
An atty who is
participating or has participated in the investigation or litigiation of a
matter shall not make a public statement that has a substantial likelihood of
prejudicing the proceedings.
o
Certain subjects
will always be prejudicial and barred from public statement. See Comment 5.
·
MR 3.8
o
A prosecutor
shall not bring charges that he knows is not supported by P/C.
o
This is a
subjective standard, almost impossible to prove
o
Prosecutors
must turn over exculpatory evidence; this is a constitutional right too.
·
Duke Lacrosse
case
o
The prosecutor
did not drop charges when irrefutable evidence came in absolving the
plaintiffs. He also made racially inflammatory remarks that could prejudice the
proceedings.
·
Connick v.
Thompson
o
The prosecutors
withheld exculpatory evidence from the defense; defendant spent years in jail, was
absolved, and sued the police and prosecutor departments. Divided SCT
overturned the damages award to the defendant.
Introduction to the MRPC
Discipline & legal recourse against attorneys,
attorney misconduct, duty to report
·
MR 8.3
o
An atty who has
actual knowledge of another lawyer’s or judge’s breach of the Rules that raises
a substantial question of fitness, honesty, etc. (except for MR 1.6
information) shall inform the disciplinary commission.
·
In re Himmel
o
Client retained
attorney Casey for a personal injury suit, the case was settled, and Casey
stole the settlement check.
o
The client
reported Casey to the bar and hired attorney Himmel to sue Casey for conversion.
o
Casey and
Himmel negotiated a settlement, which included an agreement that Himmel not
report Casey to the bar for the conversion.
o
The client
instructed Himmel to accept the settlement agreement, to not report Casey.
o
Himmel obeyed
o
When everything
came out, Himmel was summoned for violating MR 8.3, failing to report Casey.
o
Himmel argues
that he did not have to report Casey since the client had already reported him,
since the client instructed him not to do so, and that the information fell
under the MR 1.6 confidential information exception to MR 8.3.
o
Held: That one
person previously reported a violation of the MRPC does not negate another
person’s duty to report. The information did not fall under the MR 1.6
exception because the client met with Himmel in the presence of a third party.
A client’s instructions do not trump the attorney’s duties under the MRPC
·
MR 8.4
o
An atty can be
punished for committing an act, criminal or not, that reflects adversely on his
honesty or fitness to practice law.
o
Some crimes may
not reflect on honesty or fitness, and some non-crimes may so reflect. See
Comment 2.
o
Biased
statements only matter when they are prejudicial to the administration of
justice. See Comment 3.
·
Types of
discipline imposed by the bar
o
Disbarment
o
Suspension for
a definite time
o
Suspension
without automatic renewal
§ Suspended until the bar allows you to come back
o
Public
reprimand
o
Private
admonition
Responsibilities of junior and supervisory lawyers
·
Fortenberry
o
The junior
attorney should have disclosed the misconduct of the senior attorney when he
lied about the existence of documents.
·
MR 5.1
o
Supervisory
attorneys shall reasonably ensure the compliance with the MRPC of junior
attorneys and may be held responsible for certain misconduct by junior
attorneys
·
MR 5.2
o
Individual
responsibility of attorneys, regardless of direction from superiors.
Scope of client and attorney authority
·
MR 1.2
o
The client is
the master of the case and makes all final decisions with atty’s advice.
o
The client
decides the objectives of representation and the atty decides the means. Atty
must still defer to client’s wishes regarding the potential adverse effect on
third parties and the budget on certain means.
o
Certain means,
however, are always up to the client’s decision: settlement; and in a criminal
case, plea, jury trial, and client’s decision to testify.
·
Notes
o
Whether or not
to take and questions taken in a deposition are means of achieving the client’s
desired result. But this may implicate the client’s wishes to protect third
parties or lower costs, in which case the attorney must defer to the client’s
wishes.
Attorney advertising and solicitation of clients
·
MR 7.1
o
No false or
misleading statements in attorney advertising materials
o
May not create
an unjustified expectation of results based on past experiences without
reference to the specific legal and factual details.
o
Must include
“attorney advertising material” at the beginning and end of the statement.
·
MR 7.3
o
No in-person or
real-time electronic solicitation of clients.
o
Exceptions
§ Pro bono attorneys working on pro bono cases
§ When the client is an attorney, family member, or friend.
·
MR 7.5
o
Firm name must
comply with MR 7.1
o
See Indiana’s complicated
MR 7.5; certain info required in a trade name.
Conflicts of Interest
Concurrent, personal interest, and joint conflicts
·
MR 1.7
o
Concurrent
conflicts of interest occur when:
§ Representation of one client will be adverse to another client; or
§ When the representation of one client is materially limited by
responsibilities to another or former client or the atty’s personal interests.
o
The clients may
waive this if:
§ The atty objectively reasonably believes he can provide effective
representation notwithstanding the conflict;
§ It is not prohibited by law;
§ It does not include a claim by one client against the other (unless
it is a mediation); AND
§ Each client gives informed consent in writing.
o
One atty’s
conflict of interest is imputed to all other attys in the firm (except for
blood / marriage relation conflicts).
o
Comments
§ Comment 6: Even if another matter is unrelated, the atty may not
represent someone who is adverse to a current client, without consent (c.f.,
MR 1.9, duties to former clients).
§ Comment 10: Business interests as personal interests that could
limit the ability to give effective representation.
§ Comment 11: When opposing attys are related by blood or marriage,
all clients involved must give informed consent to the representation.
§ Comment 16: Some representations are nonconsentable because
prohibited by law.
§ Comment 18: Informed consent means disclosing the material and reasonably foreseeable
ways that the conflict could affect the client.
§ Comment 29: If common representation fails, the atty usually may
not represent any of the common clients.
§ Comment 30: There is no individual atty-client privilege in common
representations.
·
Westinghouse
o
An attorney-client
relationship is created when a person gives confidential information to an attorney
with the reasonable belief
that the attorney is working on her behalf.
·
Cuyler v.
Sullivan
o
Two attorneys
represented three criminal defendants
o
Defendant
Sullivan was convicted and appealed on ineffective assistance of counsel, that
the attorneys’ performance was impeded by a conflict of interest stemming from
the common representation, that – because Sullivan’s case was first – the
attorneys held back so that trial strategy would not be revealed for the two
other defendants’ cases.
o
Held: The
possibility of a conflict of interest is not enough for ineffective assistance
of counsel relief; it must be an actual conflict that adversely affected the attorney’s performance.
·
State v. Callahan
o
Callahan’s
longtime client and friend Mr. Lygrisse asked him to draw up a real estate
purchase agreement between him and Ms. Fulton.
o
The contract
was clearly favorable to Mr. Lygrisse and left Ms. Fulton with an unsecured
interest in the land.
o
When Lygrisse
stopped paying, Callahan assured Fulton that Lygrisse would soon pay.
o
Eventually,
Fulton retained separate counsel, discovered she had no security interest in
the land, and sued Callahan for
malpractice. Callahan was also summoned for disciplinary hearings.
o
Held: Callahan
is disciplined for failing to disclose his relationship with Lygrisse and for
the poor contract drafting.
Successive representation conflicts
·
MR 1.9(a)
o
An atty shall
not represent someone whose interests are adverse to a former client in the same or a substantially related
matter in which the atty represented the former client, unless the former
client gives informed consent.
o
Comment 3:
Substantially related means the same transaction or dispute where there is a
substantial risk that confidential factual information that would normally be
obtained in the prior representation could materially advance the new client’s
position in the subsequent adverse matter.
·
Brennan’s Inc.
v. Brennan’s Restaurants
o
The Brennan
family hired attorney Weggman to help with the formation of a chain of family
restaurants, prosecution of a trademark.
o
The family
business soon split up and one side sued the other, with defendants retaining
Weggman.
o
Plaintiffs
sought to have Weggman disqualified for the defendants, that his representation
raised a conflict of interest.
o
Held: Weggman
jointly represented both sides in previous dealings and is in possession of
sensitive information that is advantageous to the defendants, he must be
disqualified.
o
An atty
attacking his own work is a sure sign of a conflict.
·
Different
application of MR 1.9 for circuits
o
7th
Cir.
§ A conflict of interest exists if the attorney merely could have obtained
confidential information in the first matter that would be relevant to the
second matter.
§ Lower standard, more conflicts will occur.
o
2nd
Cir.
§ A conflict of interest exists in successive representation if the relationship
between the issues in both cases is patently clear and essentially the same.
§ Higher standard, less conflicts will occur.
o
5th
Cir.
§ A conflict of interest exists in successive representation if both
cases are akin in a way a reasonable person would understand as important to
the issues involved.
Imputed conflicts and migratory attorneys
·
MR 1.9(b)
o
A lawyer whose
previous firm represented an adverse party shall not represent a client in the
same or substantially related matter IF the lawyer obtained confidential information
just by working at the firm without actually having worked on any of the
adverse party’s cases.
o
Comment
5: An atty is only barred from representing a client that is adverse to the
interests of a former client that was represented by the atty’s former firm if
the atty had actual knowledge of MR 1.6 information about the former client
while he was working at the former firm.
·
Nemours
v. Gilbane
o
Attorney
Bradley at defendant’s law firm used to work at the law firm representing
plaintiff’s co-party and did some work on the co-party’s behalf.
o
Bradley
was not involved in the representation while at defendant’s law firm, but when
they discovered this, they made sure that Bradley would not be involved in any
way with discussions or representation.
o
Bradley
testified that he had no recollection of substantive information regarding the
prior representation.
o
On
the eve of trial, plaintiff seeks to disqualify the whole of defendant’s law
firm.
o
Held:
Bradley is disqualified from representation, but the law firm is not. The firm
must continue to ensure that Bradley be screened from all matters and
discussions concerning the representation. More importantly, Bradley must not
divulge any information. Further, plaintiff delayed in seeking
disqualification, prejudicing defendant’s ability to find a new lawyer after
years of litigation.
·
MR 1.10
o
In a firm,
conflicts of individual attorneys are imputed to all other attorneys UNLESS:
§ It is a personal interest conflict [see MR 1.7, cmt. 10] that does
not materially limit the other lawyer’s representation of the client; or
§ The conflict stems from a migratory attorney’s former work AND
·
He is screened
and receives no fee from the representation;
·
The former
client receives written notice containing:
o
A description
of the screening procedures;
o
A statement of
compliance by the firm and the attorney;
o
A statement
that review before a tribunal may be available; and
o
A statement
that the firm will reply promptly to any questions or objections; and
·
The firm and
the attorney provide periodic certifications of compliance with the screening
upon the former client’s request.
o
When a former
attorney represented a client, the firm is not prohibited from representing an
adverse party UNLESS
§ It is the same or substantially related matter; AND
§ ANY lawyer remaining has confidential information related to the
matter.
o
This rule may
be waived according to MR 1.7(b).
Duties to prospective clients
·
Togstad v.
Vesely
o
The lawyer met
with the plaintiff, discussed the issues surrounding the possible personal
injury claim, and never informed the plaintiff of the statute of limitations or
even that he was definitively declining taking the case (he said she probably
didn’t have a case, but he would speak with another attorney).
o
Held: The
lawyer was negligent in failing to inform plaintiff of the SoL and to
reasonably investigate the case because plaintiff had a great case.
·
MR 1.11
o
Duty of
confidentiality extends to prospective clients
o
A lawyer or any
lawyer in the firm shall not represent a client with interests adverse to a
prospective client in the same or substantially related matter the lawyer
received information that could be harmful to the prospective client
UNLESS:
§ Both clients give written, informed consent; OR
§ The lawyer cut himself off from the flow of information, is
screened and apportioned no fee, and written notice is given to the prospective
client.
Who is the client?
·
MR 1.13
o
Applies to any
lawyer employed OR retained by an organization (not just in-house counsel)
(b)
If an attorney knows that an officer is doing something harmful to the
organization, he SHALL report it to higher authority UNLESS doing so would not
be in the best interests of the organization
(c)
If the authority fails to act, he may reveal confidential information.
(e)
If the attorney is fired and believes that he was fired for complying with (b)
or (c), then he SHALL
inform the BoD.
(f)
The attorney SHALL mirandize directors, officers, and employees when their
interests are adverse to the organizational client’s
(g)
A lawyer may represent both the organization and an individual constituent,
subject to MR 1.7; but someone other than the individual constituent must
approve the dual representation on the organization’s behalf.
·
Yablonski v.
UMWA
o
Plaintiff
Yablonski and shareholders brought a derivative suit on behalf of UMWA against
the officers and directors of UMWA.
o
UMWA’s usual
counsel filed an appearance on behalf of UMWA and the individual officers and
directors
o
Plaintiffs
sought to have counsel disqualified, that counsel would use the UMWA as a
shield to protect the individuals
Attorney-client relations
ACP and work product
|
ACP
|
Duty of
Confidentiality
|
Work Product
|
|
·
A communication
between an attorney and his client made in furtherance of giving or receiving
legal advice
·
Applies to
any proceeding where evidence rules apply
·
Facts are not
covered
|
·
All
information relating to the representation of the client, whatever its source
·
The lawyer
may not volunteer information
|
·
Documents
prepared by lawyers in anticipation of litigation.
·
Discoverable,
but must show necessity
|
·
MR 3.4(a)
o
A lawyer shall
not obstruct opposing counsel’s access to, destroy, or counsel another to
destroy evidence.
·
Upjohn v. US
o
In-house
counsel conducted an internal investigation relating to corruption by foreign
branches involving interviews with several levels of employees.
o
The IRS wanted
access to the report, counsel asserted ACP
o
Trial ordered
turnover, that ACP for in-house counsel only extends to members of the “control
group”
o
Held: A
corp. is made up of more than just the control group. Denying ACP to low level
employees chills in-house counsel’s ability to adequately represent the client.
·
While the ACP
in a claim involving the corporation extends to all employees having relevant
information under Upjohn, the corporation is the ultimate client who holds the privilege.
Crime / fraud exception and waiver
·
MR 1.6(b)
o
A lawyer may reveal
information to
(2)
Prevent the
client from committing a crime
or fraud in furtherance of which the client used or is using the
lawyer’s services;
(3)
Mitigate injury
caused by a client’s commission of a crime or fraud in furtherance of which the client used the
lawyer’s services;
(5)
Defend himself in a civil or criminal charge concerning the client’s conduct.
·
U.S. v. Chen
o
Defendants
cheated ICE by undervaluing their imports, thus lowering their tariffs.
o
Defendant used
attorneys, but the attorneys never knew about the crime/fraud.
o
An employee of
defendant left, took revealing documents with her, and turned them over to ICE.
The employee also stated that the attorneys were aware of the wrongdoing.
o
Defendant
asserted ACP against the materials and affidavit given by the employee.
o
Held: While the
materials were not first submitted in compliance with Zolin, the other
evidence is sufficient to allow the materials in under the crime/fraud
exception.
o
Two step Zolin
process for discovering privileged materials under the crime/fraud exception
·
Discovering
party must show a factual basis adequate to support a good faith belief of a
reasonable person that the opposing party is using his attorney to commit a
crime or fraud;
·
If so, there
will be an in camera review of the evidence.
·
In re Columbia
o
In anticipation
of a DoJ investigation, defendant conducted internal audits to discover any
healthcare fraud that may have occurred in the organization.
o
The DoJ began
the investigation and sought access to the internal audits
o
At first,
defendant refused, that the audits were work product and ACP protected.
o
Later,
defendant turned over some of the audits with the agreement and understanding
that this was a one-time only, selective waiver.
o
After defendant
settled with the DoJ, several individuals filed suit against defendant based on
the same healthcare fraud issues and sought discovery of the audits, that
defendant waived the ACP by disclosing the audits to a third party (the DoJ).
o
Held: There is
no selective waiver; when the client reveals ACP communications to a third
party, the privilege is destroyed for always and for everyone (this is the
majority rule).
|
Waiver of Attorney-Client Privilege
|
||
|
Majority
Rules
|
Minority
Rules
|
|
|
No selective waiver
|
Selective waiver is allowed
|
Selective waiver is allowed ONLY IF cooperating with the
government AND IF the client asserts the ACP
|
·
Subject matter
waiver
o
When the entire
subject is generally waived
o
E.g., if the
lawyer forwards a client’s e-mail to the opposing counsel, the court may deem
the entire subject matter which the e-mail was about to be waived
·
Limited waiver
o
When only a
specific communication is waived
o
E.g., if the
client paraphrases to a friend what the attorney said in an ACP discussion, the
ACP as to the communication may be waived.
Duty of confidentiality
·
O.P.M.
o
The client ran
a Ponzi scheme, counsel had to have known that something fishy was going on,
but it could not be proved, counsel kept itself willfully ignorant of the
scheme and continued closing fraudulent transactions and collecting huge
attorney’s fees.
o
At the time,
disclosure for past fraud was prohibited and disclosure for future fraud was
allowed, but not required. The MRPC blessed the counsel’s conduct
o
Today,
disclosure for past and future acts is allowed and is required in some cases
involving organizational clients. Further, a lawyer is not allowed to assist a
client in perpetrating a crime or fraud.
·
MR 1.2(d)
o
A lawyer shall
not counsel or assist a client in the perpetration of a crime or fraud.
·
MR 4.1(b)
o
Rule:
·
A lawyer shall
not omit disclosure of a fact when necessary to avoid assisting a client in a
crime or fraud UNLESS disclosure is prohibited under MR 1.6
o
Corollary:
·
A lawyer shall
not omit disclosure of a fact when necessary to avoid assisting a client in a
crime or fraud IF disclosure is permissible under MR 1.6.
o
Comment 3
·
Ordinarily, a
silent withdrawal from a client’s case is sufficient to cut off the lawyer’s
assistance with the crime or fraud. Sometimes, for example, the lawyer may have
filed a brief based on statements made by the client before the lawyer was
aware of the client’s intent to perpetrate a crime or fraud. If the brief would
further the client’s criminal or fraudulent scheme, then the lawyer is required
to make a noisy withdrawal
to the extent that MR 1.6(a) (client’s permission, which is unlikely) or any of
the exceptions in MR 1.6(b) allow disclosure.
·
Balla v. Gambro
o
π in-house
counsel to ∆ healthcare device distributor in Illinois, an at-will employment
jurisdiction, warned ∆ that he would now allow ∆ to sell defective medical
devices.
o
∆ sold the
defective devices anyway and π reported ∆ to the FDA.
o
Later, ∆ fired
π and he sued for retaliatory discharge.
o
Held: Under MR
1.6(b)(1), π was within the MRPC when he reported the sale which was likely to
result in injury or death to buyers [the reporting of the incident is mandatory in Illinois].
But retaliatory discharge in an at-will jurisdiction is hard to come by and
only recognized for very special policy reasons (e.g., when an employee was
fired for filing a worker’s comp. claim; when an employee was fired for
reporting criminal conduct of coworkers). Here, the policy of ensuring safety
of medical devices is already furthered by 1.6(b)(1) which required π’s
disclosure. To further support the policy by allowing retaliatory discharge
claims by attorney-employees would provide little benefit on the one end while
damaging the candor and openness of the attorney-client relationship on the
other end.
·
Hawkins
o
Mr. Hawkins’s
mother, her attorney, and a psychiatrist told Mr. Sanders, Mr. Hawkins’s
attorney, that he was a danger to himself and others, should not be released on
bail, and should be committed.
o
After Mr.
Sanders arranged for Mr. Hawkins to be released on bail at his request, Hawkins
attacked his mother and attempted suicide.
o
Ms. Hawkins
sued Mr. Sanders on Tarasoff professional duty to warn theory
o
Held: [Tarasoff has not been extended to
attorneys yet]. First, Tarasoff is distinguishable because
Hawkins never conveyed any intent to carry out violence to Sanders; Sanders
received the information from the third parties. Second, the mother did not
need a Tarasoff warning of Hawkins’s violent intent because she herself
called Sanders and warned him that Hawkins was dangerous and should not be let
out on bail.
Transactions with clients
Sexual relations
·
MR 1.8(j)
o
No sexual
relations with a biological client or legal constituent of an organizational
client unless it predated the representation.
Client money
·
MR 1.15
(a)
Client and
third-party funds related to the representation shall be kept in an account
separate from the attorney’s personal account and property shall not be
commingled with the attorney’s own property. The attorney shall maintain
records in compliance with GAAP for five years after termination of the
representation.
(b)
The lawyer may
use personal funds to pay bank fees on the client account
(c)
[Special
retainer rule] When the client pays in advance, the lawyer must put the money
in his IOLTA and withdraw fees only as they are actually earned.
(d)
Notice,
delivery, and accounting
(e)
If any amount
in a client account is in dispute, it shall be frozen until the dispute is
settled.
·
Trust accounts
o
Primary means
§ Interest on Lawyer Trust Accounts (IOLTA)
·
An account
specifically for lawyers; all client winnings go into it
·
Interest goes
to assist pro bono work
o
Secondary means
§ There are two cases when an attorney can create a client account
separate from the attorney’s IOLTA account:
·
For a decedent’s
estate
o
A separate
account for the decedent is required
·
When the
attorney must hold the client’s funds for a long period of time
Business relationships
·
MR 1.8(a)
o A lawyer shall not enter into a business relationship with a client
UNLESS
§ The terms are fair to and understandable by the client;
§ The lawyer informs the client of the desirability of having
independent counsel; and
§ The client gives informed consent
·
Iowa Bar Ass’n
v. Mershon
o
Miller wanted
to develop his land but lacked the funds
o
Miller’s
longtime attorney Mershon suggested they form a corporation, Miller to put in
the land, Mershon to put in $6,000.
o
Held: Mershon
violated his ethical duties in the transaction. (Court uses the differing
interest standard: if the client and the attorney have differing interests in
the transaction, then the rule is triggered). Mershon’s interests were
different from Miller’s, so Mershon had a duty to treat Miller with absolute
fairness, obtain his consent to the deal, and inform him of the desirability of
independent counsel. But written consent was not obtained because nothing was
reduced to writing. Mershon should have advised Miller to obtain independent
counsel, the land was actually worth ten times the appraised amount. Obviously,
the terms of the transaction were not understandable by him because Mershon’s
shareholding was half that of Miller’s for only a small fraction of the actual
value of Miller’s land.
Fees and billing
·
MR 1.5
o
An attorney may
not charge an unreasonable fee, with eight different factors to determine the
reasonableness of a fee
o
A contingency
fee agreement requires two writings:
§ A detailed fee agreement at the beginning; and
§ A statement of the outcome and division of recovery, if any,
between the lawyer and the client.
o
A lawyer shall
not collect a fee contingent upon:
§ Securing a divorce or a set alimony or support amount;
§ A certain result for a criminal defendant
·
In re Fordham
o
Fordham was a
civil practice trial attorney with no criminal experience.
o
Clark asked
Fordham to represent him in a DUI.
o
Fordham agreed
but fully disclosed the risks involved:
§ He had no criminal experience, a criminal attorney would be cheaper
and safer, he would have to spend a lot of time learning, which would drive up
costs.
o
Clark agreed to
hire Fordham anyway
o
Fordham did a
great job, made a genius, novel argument, and got Clark off
o
Fordham’s final
bill came to $50,000
o
Experts
testified that the average billing for a DUI case was between $1,000 and
$7,500, but never in excess of $10,000
o
Fordham argued
that Clark received full disclosure of the risk of high costs and that he worked
every hour in good faith.
o
Held: The fee
is unreasonable according to the eight factors under MR 1.5(a). Experts
testified to the average fee for DUI cases in the locality. Attorneys may not
bill their clients for the time it takes to learn a new subject.
·
Illegal billing
practices
o
Double dipping
§ While working in a dual capacity for a client, the attorney may not
charge double
o
Double billing
§ Multi-tasking; e.g., an attorney cannot charge client X for time
spent on a flight and charge client Y for work done while on the flight, must
charge one or the other or split the cost between the two
o
Padding
§ Attorneys may not charge for work not done by rounding up the
numbers (but rounding up by sixths of an hour is OK).
o
Churning
§ An attorney may not do unnecessary work in order to create a fee.
o
Recycled work
§ An attorney may not charge a client for the time it takes to learn
something
Representing a client
Competence
·
MR 1.1
o
The skill of a
general practitioner is generally sufficient to competently represent a client;
but some situations call for specialized expertise.
·
MR 1.3 and 3.2
o
A lawyer shall
act with diligence, maintaining a reasonable workload so that unnecessary
anxiety and delay is not caused by his procrastination or inability to meet
deadlines
·
MR 1.4
o
A lawyer shall
inform the client of decisions or circumstances that require the client’s
informed consent and shall keep the client abreast of the status of the
representation, the means, and shall comply with requests for information.
·
Strickland v.
Washington
o
Two-pronged
test for Sixth Amendment ineffective assistance of counsel claim:
§ Counsel’s performance was deficient according to an objective
standard of reasonableness under prevailing professional norms; AND
§ Counsel’s deficient performance was prejudicial to the defendant’s
case that, but for the deficient performance, the outcome would have been
different.
o
Here, counsel
did not seek character witnesses or request a psychiatric evaluation for the
possible mitigation of defendant’s punishment.
o
SCT: Counsel’s
performance was not deficient under the first prong but, even so, there is no
evidence to support that the outcome would have been different under the second
prong had counsel obtained the witnesses and psychiatric evaluation.
o
Certain
circumstances call for a presumption that the defense was prejudiced
§ Absence of counsel
·
Actual
·
Constructive
o
E.g., sleeping
during important segments of the trial
§ Government interference with counsel’s ability to represent the
client
§ A conflict of interest inhibiting counsel’s ability to represent
the client
Candor to the court
·
MR 3.3(a)(2)
o
The lawyer must
at least mention adverse authority that opposing counsel failed to bring up.
·
MR 3.3(a)(3)
o
A lawyer may
not offer false evidence, except for the testimony of a criminal defendant. If
the lawyer subsequently learns of the falsity of previously offered evidence,
he shall take reasonable remedial measures, including if necessary disclosure
to the court.
o
Five Rs of
dealing with false evidence
§ Recess
·
Ask the court
for a break to confer with the client
§ Remonstrate
·
Inform the
client or witness of your duties and admonish them to be truthful
§ Rectify
·
Instruct the
client or witness to withdraw his statement
§ Resign
·
If the client
or witness refuses to rectify the falsity, withdraw from representation
§ Reveal
·
A lawyer may
not offer false evidence. If the client or witness refuses to admit the falsity
of testimony, the lawyer may be required to make a noisy withdrawal under MR
4.1(b) because perjury is a criminal offense.
·
U.S. v. Shaffer
Equipment
o
The EPA’s
expert witness lied about his credentials in depositions and testimony
o
The EPA knew of
the discrepancies, but let the expert testify anyway
o
Defendants
sought dismissal of the case
o
The EPA argued
that the question of his credentials was not material and, thus, not governed
by MR 3.3.
o
Held: The
expert wrote the report and conducted the investigation, the chief evidence in
the EPA’s case, so his credentials are material to the case and the lawyers
should not have allowed him to offer false testimony of his credentials. But
dismissal is too severe a sanction.
·
Nix v.
Whiteside
o
Criminal
defendant on trial for murder made previous statements that he had not seen a
gun in the victim’s hand.
o
He told his
attorney that he planned to testify at trial that he saw something metallic in
the victim’s hand.
o
The attorney
informed defendant of his ethical obligations to report perjury.
o
At trial, the
defendant testified that he thought the victim had a gun but did not see it.
o
Defendant was
convicted and sought habeas relief, that he received ineffective assistance of
counsel because counsel’s warning forced him to tell the truth instead of
lying.
o
Held: It is not
ineffective assistance for counsel to warn clients of his ethical duties.
Perjury is a criminal offense that the attorney must report.
Declining and ending representation
·
MR 1.16
o
Mandatory
withdrawal
§ A lawyer shall not represent a client or shall withdraw from
representing a client when:
·
His physical or
mental condition impedes his ability to adequately represent the client;
·
He is fired by
the client.
o
Permissive
withdrawal
§ Client stops paying, crime or fraud, etc.
o
The lawyer must
notify the court when withdrawing, but MUST CONTINUE representation if ordered
to do so by the court, even if good cause for withdrawing exists.
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