Ethical Dilemmas in Legal Representation: Confidentiality, Competence, and Conflicts, Exams of Law

Download Ethical Dilemmas in Legal Representation: Confidentiality, Competence, and Conflicts and more Exams Law in PDF only on Docsity! ID: Exam Name: ProfResp_LS1_(Benedetto)_Final_F08 Instructor: Michele Benedetto Grade: ____________ 1) Competence Under the model rules (MR), a lawyer must be competent when representing a client. This means they must have legal knowledge, skill, thoroughness, and preparation necessary to take the case. Here, Raja's (R's) experience had primarily been with real estate and the case he has decided to take on is a commercial eviction proceeding. Although R's experience is not in the same area of law that he is taking on, he may become competent by either associating with a knowledgeable attorney, or by acquiring the necessary knowledge and skill. Since R is learning a new area of law, he may not ethically charge the same as an attorney would who had experience with commercial evictions (cannot charge client for learning curve). Required Written Disclosure of Former Relationships Under CA Rules In CA, it is required that an attorney provides written disclosure to their client if they have, or have had, a previous professional, personal, legal, financial, or business relationship with a party or witness, or if he/she has an interest in the outcome. Here, this requirement is relevant because R both represented Big Bank (BB) in the past, which is a professional relationship. Further, R has children in the same school as the company's CEO, and they have a friendly relationship. Because R has had these ties to BB, he must provide written disclosure to SFB, the client he has agreed to represent. Conflict of Interest -- Former Client Conflict Although R is no longer represents BB, his duty of confidentiality to the company has not ended. Lawyers owe a duty of confidentiality to former clients (even dead ones), and there are certain procedures that must be followed to properly represent another client in the same or substantially related matter. A lawyer may not represent a client in the same or substantially similar matter if the former client and current client have a substantial relationship, unless he/she obtains consent confirmed in writing (CA further requires disclosure of adverse consequences). There are four different tests to determine if a substantial relationship exists: (1) Under the MR, you must ask: (1) is the matter the same/substantially similar?, (2) what was the nature of the former representation?, (3) are the interests of the parties materially adverse?, (4) will any of the clients complain?, and (5) has client given informed written consent. Here, R's former client BB is suing his new client SF Biotech (SFB). This is substantially similar, since he formerly represented BB in commercial lease transactions and has represented the CEO in multiple depositions. Additionally, the interests of the parties are materially adverse, and BB is likely to have complaints about the representation and will not likely consent. Under this test, there is a substantial relationship between the representations. (2) Secondly, the Trone test says there is a substantial relationship if the lawyer has obtained information that he/she can use against the former client (broader test). Here the facts show that R knows that BB's CEO Fiona is depended on coffee to withstand pressure from opposing counsel, and that without it she divulges too much information. Since this information is more than the regular practices and procedures of the company, this is sufficient to create a substantial relationship. R can use this information strategically to get as much information out of Fiona as possible in the representation of SFB, which would be an ethical violation of his duties. (3) Under CA rules, there is a substantial relationship if the lawyer has confidential information about the former client material to the representation. Here it is likely that the test is satisfied since R has represented BB multiple times. Under this test, it may not be enough that he knows of Fiona's dependency on coffee, but he likely knows other information like their financial situation and how the company approaches litigation and eviction proceedings. (4) Lastly, a CA court case created a test where you must ask: (1) are the cases similar legally?, (2), similar factually, and (3) what is the scope of the lawyer's involvement? Here again, the cases are similar legally and factually since it is another eviction proceeding concerning BB. R has previously represented BB in difficult depositions, so the extent of his involvement was significant. This test also produces the conclusion that there is a substantial relationship between the former and current representations. Since there is a substantial relationship between the former and current representations, R must first reasonably believe that he can provide SFB competent and diligent representation AND he needs consent confirmed in writing to waive the conflict. In CA, the rules additionally require that the client is informed of adverse consequences of the representation. Since BB has material interests at stake, the company is unlikely to consent to the representation of SFB. In the event that BB will not consent to R's representation of SFB, R cannot withdrawal from his representation SFB to return to BB as representation. The "hot potato doctrine" disallows attorneys from withdrawing from a case for a higher paying, or more interesting, one. This would be a violation of ethics. Here, although there is a conflict of interest, since R is a sole practitioner there is no imputation of conflict (if he worked in a firm, the conflict would apply to all). R does not have to deal with the presumption that a migrating client has shared confidential information with other clients in the firm, so the only conflicts of interest he must be concerned with are his own. The Lawyer's Duties There are 3 main views on how a lawyer's duties should be balanced: Attorney has an unwavering duty to the tribunal (cannot sacrifice), to the client (cannot deceive the court, but more importantly cannot sacrifice duty to client), and to the system as a whole (lets you deceive the court limitedly and necessarily). 1. MR Under the MR, you have a duty of candor toward the tribunal that cannot be sacrificed