o The mere transfer of assets with no attempt to continue the pre-existing operation generally does not transfer the attorney-CL. relationship. Tekni-Plex, v . Meyner and Landis . o In a merger of one corporation into another, the privilege to disclose information does not completely pass to the buyer corporation. Tekni-Plex, v . Meyner and Landis . boxshadowdwn Dual representation o Can an attorney have both a corporation and its CEO as CL.s? Yes, if the representation is narrowly circumscribed and express, with a waiver if by the CEO. MR 1.13(e). o With partnerships, does the L. represent the partnership entity or the partners? Most courts say the entity, but it is helpful to look to the reasonable expectations of the individuals. o In general, L. has duty to disclose dual representation. boxshadowdwn Derivative actions o Usually no dual representation allowed. o When SHs in these actions wish to obtain corporate privileged documents, who controls the privilege? The corporation’s appointed representatives (i.e. a board member)? The SHs (One? Two? All?)? For factors to consider, see Garner v. Wolfinbarger . Agency and Client Autonomy p. 69-98; 102-106 barb2right MR 1.2 SCOPE OF REPRESENTATION (a) Objective v. Means / Implied Authorization: L. shall abide by Cl.'s decisions concerning objectives of representation and, shall consult with the CL. as to the means by which they are to be pursued . (as required by MR 1.4), L. may take such action on barb2right DR 7-101 (A) (1) REPRESENTING CLIENT ZEALOUSLY (1) OK “not be an ass-hole”: Not a violation for lawyer to accede to reasonable requests of opposing counsel which do not prejudice rights
Professional Responsibility --- Professor Yaroshefsky --- Fall 2002 © Tal Dickstein, 2002 6 behalf of the CL. as is impliedly authorized to carry out the representation . L. shall abide by a CL.'s decision whether to settle a matter L. shall abide by CL.'s decision, after consultation, as to plea to be entered , whether to waive jury trial and whether the CL. will testify barb2right But L. may have actual or apparent authority to settle. US v. Int’l Brotherhood of Teamsters (b) Non-endorsement of views: Representation of CL. (including representation by appointment) does not constitute an endorsement of the CL.'s political, economic, social or moral views or activities. (c) May limit Scope of Representation: L. may reasonably UTC limit the scope of the representation if the CL. gives informed consent . (d) May not assist fraud/crime: L. shall not counsel client to engage, or assist client in conduct that L. knows is criminal or fraudulent, but L. may discuss legal consequences w/client and may [should] make good faith effort to determine validity, scope, meaning or application of the law (e) May discuss limitations on representation: When L. knows client expects impermissible assistance, L. shall consult w/ client regarding relevant limitations on L.’s conduct.
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