R. 3.3 – conduct before a tribunal Tribunal = agency (in definitions under 1.0) There’s a memo written by someone at the firm. When you read the memo, you can tell the facts aren’t totally clear. What the true facts are makes a major impact on what the attorney should do under the ethical rules. We have rules and we have to look at and analyze those rules, and then we must conduct a risk analysis for each action we can take. No one action will fully eliminate risk, it’s about balancing/minimizing risk If you’re in court you want to be on the judge’s side Rules that protect client – confidentiality vs. Concerns for yourself vs. Concerns for third parties Case of the Complex Formula Rstmt §155 Sumeral v. Goodyear Tire Staircase 91 Cal. Reporter 264 Fire Insurance Exchange v. Bell Attorney (of the insurance company) makes misrepresentation about a client’s policy limit, said it’s lower than it is. Client took settlement for lower limit even tho he had higher limit. Client finds out. Client sues attorney of insurance company. Can client sue the insurance’s attorney (not his attorney)? 8.4 – misconduct by lying about the insurance limit o Also malpractice on the part of client’s own attorney b/c double checking the policy limit is basic due diligence o Ct relies on rule 8.4, it’s a catch-all provision for misconduct 4.1(a) – definitely a misrepresentation of the limit, attorney intended to misrepresent o Ct doesn’t mention this rule although it’s 100% applicable Hoyt Properties, Inc. v. Production Resource Group, L.L.C. Company A brought suit to evict Company B. Attorney for Company B spoke to someone and gave that person incorrect information about the structure of Company A. That affected how the trial was structured. 4.1 – misrepresentation – even if it’s just an opinion about how to go about the corporate veil issue, court says that the response the attorney gave sounded like a fact, not like an opinion, and a misrepresentation of fact like this is actionable (whereas opinion can’t be false therefore cannot be actionable) Also, attorney owed due diligence to find out the corporate structure before responding 4.2 – the person the attorney spoke to was represented by a lawyer, we should also look at whether the communication was permitted o Also an issue with due diligence b/c it’s more likely than not that people asking about this case are interested parties and are represented by counsel
A mere nondisclosure does not equal fraud in the eyes of the court – it depends on the degree of the omission The Case of the Dead Witness A key witness in a criminal case dies. Because of the strength of her testimony the criminal is considering a plea deal. Now that the witness is dead there’s a much weaker case. The criminal’s side doesn’t know that she’s dead.
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- Spring '14
- Law, criminal law, Lawyer, Confidentiality, attorney, Attorney-client privilege