4/20/2016 ETHICS Jasmin Mize & Ken Troccoli, AFPDs (Alex.) W E S T 2 1
4/20/2016 PROFESSIONALISM COURSE QUESTION 1-W (1 POINT) According to the VA Bar, “the loss of public esteem” for the legal profession stems, in large part, from the diminishment of the quality of . . . . A. the work performed. B. selflessness. C. respect for the client. D. joy in the work. 4 2
4/20/2016 QUESTION 1-E (1 POINT) According to the VA Bar, which of the following do lawyers frequently cite to justify unprofessional behavior on behalf of their clients: A. time constraints. B. workload. C. personal problems. D. need to be zealous. 5 VA STATE BAR PROFESSIONALISM COURSE 2015-2016 “Historically, law is one of the four original professions (along with medicine, ministry and soldiering).” What distinguishes a profession from an occupation is the concept of selflessness. Practitioners of professions “gave of themselves for the benefit of those they serve, willing to face deprivations, including loss of life itself.” 6 3
4/20/2016 VA STATE BAR PROFESSIONALISM COURSE 2015-2016 “The phrase zealous advocacy has been replaced [in RPC 1.3] with the concept of diligence, largely because lawyers frequently invoke the phrase zealous advocacy to justify unprofessional behavior.” “Zealous advocacy is the doctrine which excuses, without apology, outrageous and unconscionable conduct, so long as it is done ostensibly for a client, and of course, for a price. Zealous advocacy is the modern day plague which weakens the truth finding process and makes a mockery of the lawyers’ claim to officer of the court status.” (Hon. Richard Curry, Ill. 7 Cir. Ct.). CONFLICTS OF INTEREST 4
4/20/2016 QUESTION 2-W (1 POINT) You represent clients Adams and Battle in unrelated criminal matters. During the course of the representations, Adams tells you that he has information about Battle’s involvement in the offense for which you are representing Battle, and that he would like to cooperate with the govt against Battle. 9 After consulting the RPC, you conclude that a conflict now exists with your representations of Adams and Battle. What action should you take according to the RPC? A. Withdraw from A’s case, but continue to represent B. B. Withdraw from B’s case, but continue to represent A. C. Withdraw from both cases. D. Withdraw from neither case, but get written waivers from both clients. 10 5
4/20/2016 RPC RULES IMPLICATED R. 1.4 R. 1.7 (Conflict of Interest) (Communication) Representation of one client cannot be directly adverse to Duty to inform client another or where there is a about pertinent facts significant risk that and communications representation of one will be from another party “materially limited” by duties to so client can make another. informed decisions. R. 1.9 (Former Clients) Prohibits attorney from taking action adverse to former client in the same matter in which attorney had represented former client. 11 WHY DOES A CONFLICT EXIST? The atty is unable to advise A re what to do because any advice that would further A’s interests would be detrimental to B. Atty can’t satisfy his duty of communication to B because he can’t tell B that A is attempting to offer evidence against B, since that info is confidential as to A. Atty can’t attempt to cure the conflict by getting informed consent from both clients since to do so he would have to reveal info that is detrimental to at least one client. 12 6
4/20/2016 WHY IS THERE STILL A CONFLICT IF ATTY W/D FROM ONE OR THE OTHER CASE? Withdrawing from A’s Case Only: atty’s ability to fulfill his obligation to B is “materially limited” (R. 1.7) by his duty of confidentiality to A since atty can’t tell B what he knows of A’s information. Also, if A testifies against B, atty likely will be unable to cross-examine A given the duty of confidentiality owed to A. Withdrawing from B’s Case Only: R. 1.9 prohibits atty from taking any action adverse to interests of a former client (B) in the same matter in which atty represented the client. 13 QUESTION 2-E (1 point) Would the answer be different if the prosecutor tells the atty that the govt is not interested in using any of the information that Adams has against Battle? YES NO 14 7
4/20/2016 WHY IS THE RESULT THE SAME IF THE PROSECUTOR DISAVOWS ANY INTEREST IN USING A’S INFO? Fact that prosecutor initially refuses to consider A’s info doesn’t eliminate atty’s duty to advise A about how to use the info to A’s advantage, eg, by continuing to pursue cooperation from the prosecutor. The obligation atty owes to A creates the conflict, not whether any actual use will be made of any of A’s info. LEO 1882 (July, 2015). 15 HIDING THE BALL: FAIRNESS TO OPPOSING PARTY 8
4/20/2016 QUESTION 3–W (1 POINT) You represent a client in a drug case. AUSA Hyde Debaul says your client’s goose is cooked. He offers to provide you with unclassified investigative reports that include the statements of material witnesses, but with two conditions: (1) you may share the reports with your client but not provide copies to her; (2) you will return the reports to the government at the conclusion of the representation. Your client agrees to these conditions. 17 Conditions: (1) you may share the reports with your client but not provide copies to her; (2) you will return the reports to the government at the conclusion of the representation. Q: May you agree to these conditions without running afoul of your ethical obligations to the client? A. No to both B. No to (1), but yes to (2) C. Yes to (1), but no to (2) D. Yes to both 18 9
4/20/2016 QUESTION 3-E (1 POINT) Hyde Debaul also makes a favorable plea offer to your client. He explains that he is doing so because he is concerned for the safety of his material witnesses. Before Debaul is obligated to do so, he chooses to reveal to you the identities of those witnesses, but then asks that you not share the identities with your client. 19 QUESTION 3-E (1 point) Condition: you may not share the identities of the material witnesses with your client. Q: Is it ethical for (1) the prosecutor to impose this condition; or (2) you to agree to this condition? A. No to both. B. No to (1), but yes to (2). C. Yes to (1), but no to (2). D. Yes to both. 20 10
4/20/2016 QUESTION 3 ANSWERS Sharing Reports with Client R. 1.4 (Communication) – requires atty to inform client of “facts pertinent to the matter” and to comply with “reasonable requests for information” so as to permit client “to make informed decisions.” R. 1.16(e) (Terminating Representation) – requires atty to provide contents of his file to the client upon client’s request. 21 Sharing Reports with Client LEO 1864 (2012): • “Rule 1.4 does not require that the lawyer provide copies of any of these materials, even upon request of the client” so long as he “can explain all pertinent facts” to client and “comply with a reasonable request for information by meeting with the client to view and discuss the discovery materials.” • R. 1.16(e) permits return of the reports to the Govt, but only with the client’s “informed consent, preferably in writing.” Otherwise, “the lawyer should not accept” the materials. 22 11
4/20/2016 QUESTION 3 ANSWERS Withholding Identities from Client R. 1.4(c) (Communication) – requires atty to inform client of “facts pertinent to the matter” so as to permit client “to make informed decisions.” R. 3.4(h) (Fairness to Opposing Party and Counsel) – “A lawyer shall not . . . Request a person other than a client to refrain from voluntarily giving relevant information to another party.” 23 Withholding Identities from Client: LEO 1854 (2010): DEFENSE COUNSEL • Defense counsel “cannot withhold from the defendant salient facts or information that would be pertinent to the defendant’s decision” to plead guilty or proceed with trial. • Sequestering info may be ok if info is not necessary for client to make informed decision. 24 12
4/20/2016 Withholding Identities from Client LEO 1854 (2010): PROSECUTOR • “Rule 3.4(h) directly prohibits [prosecuting attorneys] from requesting a person (the defense counsel) to refrain from voluntarily giving relevant information to another party (the defendant).” • Exceptions noted in Rule 3.4(h) are specifically limited to civil cases. • However, no ethical problem if prosecutor chooses not to reveal the identities at all. 25 QUESTION 4-W (1 POINT) RPC 3.8(d) (Additional Responsibilities of a Prosecutor) states that a prosecutor must: “make timely disclosure” to defense counsel of the existence of evidence that “the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court.” 26 13
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