ETHICS Jasmin Mize & Ken Troccoli, AFPDs (Alex.) W E S T - - PDF document
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
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Jasmin Mize & Ken Troccoli, AFPDs (Alex.)
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QUESTION 1-W (1 POINT) According to the VA Bar, “the loss
profession stems, in large part, from the diminishment of the quality of . . . .
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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:
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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
Practitioners of professions “gave of themselves for the benefit of those they serve, willing to face deprivations, including loss of life itself.”
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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.
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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.
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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?
represent B.
represent A.
written waivers from both clients.
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RPC RULES IMPLICATED
(Communication)
Duty to inform client about pertinent facts and communications from another party so client can make informed decisions.
Representation of one client cannot be directly adverse to another or where there is a significant risk that representation of one will be “materially limited” by duties to another. 11
Prohibits attorney from taking action adverse to former client in the same matter in which attorney had represented former client.
WHY DOES A CONFLICT EXIST?
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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.
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WHY IS THERE STILL A CONFLICT IF ATTY W/D FROM ONE OR THE OTHER CASE?
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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.
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
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QUESTION 2-E (1 point)
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WHY IS THE RESULT THE SAME IF THE PROSECUTOR DISAVOWS ANY INTEREST IN USING A’S INFO?
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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).
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QUESTION 3–W (1 POINT)
You represent a client in a drug case. AUSA Hyde Debaul says your client’s goose is
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
conditions.
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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
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QUESTION 3-E (1 POINT)
Hyde Debaul also makes a favorable plea offer to your
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.
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Condition: you may not share the identities
Q: Is it ethical for (1) the prosecutor to impose this condition; or (2) you to agree to this condition?
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QUESTION 3-E (1 point)
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QUESTION 3 ANSWERS
Sharing Reports with Client
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.”
requires atty to provide contents of his file to the client upon client’s request.
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Sharing Reports with Client
LEO 1864 (2012):
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.”
Govt, but only with the client’s “informed consent, preferably in writing.” Otherwise, “the lawyer should not accept” the materials.
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QUESTION 3 ANSWERS
Withholding Identities from Client
inform client of “facts pertinent to the matter” so as to permit client “to make informed decisions.”
Counsel) – “A lawyer shall not . . . Request a person other than a client to refrain from voluntarily giving relevant information to another party.”
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Withholding Identities from Client: LEO 1854 (2010): DEFENSE COUNSEL
withhold from the defendant salient facts or information that would be pertinent to the defendant’s decision” to plead guilty or proceed with trial.
info is not necessary for client to make informed decision.
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Withholding Identities from Client LEO 1854 (2010): PROSECUTOR
[prosecuting attorneys] from requesting a person (the defense counsel) to refrain from voluntarily giving relevant information to another party (the defendant).”
specifically limited to civil cases.
chooses not to reveal the identities at all.
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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
prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the
when disclosure is precluded or modified by
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QUESTION 4-W (1 POINT)
Does Rule 3.8(d) require disclosure earlier than the Brady standard requires? Yes No
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QUESTION 4-E (1 POINT)
AUSA Heidi DeBaul has charged your client with conspiracy to commit bank fraud. Others in the conspiracy are still under investigation. During the course of her trial preparation, DeBaul comes across exculpatory evidence in the form of a witness statement accusing another individual of the offense and exonerating your client. Debaul is concerned that disclosure of this information to you would jeopardize her investigation. Which of the following actions may DeBaul take without running afoul of her ethical obligations under Rule 3.8(d)? 28
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QUESTION 4-E (1 POINT)
statements to you as soon as practicable.
concludes that her investigation would not be jeopardized by disclosure.
excused from disclosure, at least temporarily, to avoid jeopardizing the investigation.
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QUESTION 4 ANSWERS
in time for the D to make effective use of it at trial.
disclosure of exculpatory evidence under R. 3.8(d) requires “earlier disclosure than the Brady standard.”
– Timely disclosure is one that is made “as soon as practicable” under the circumstances of the case.
prosecutor “intentionally delays making the disclosure without lawful justification or good cause.”
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QUESTION 4 ANSWERS
because her legal obligations under Brady have not yet been triggered.
“precluded or modified by order of a court.”
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QUESTION 5-W (1 POINT)
You have been appointed to represent a client in federal district court who has filed a pro se § 2255 motion alleging actual innocence based upon a change in the law related to his charged offense. Upon a careful review, you determine that the client’s pro se motion is without merit.
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QUESTION 5-W (1 POINT)
Should you advise the Court that the client’s pro se motion should be denied? YES NO
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QUESTION 5-E (1 POINT)
Same fact pattern. After determining that your client’s motion has no merit, you file a pleading with the Court stating that you have no representations to make on your client’s behalf other than those in the pro se motion. The Court is not satisfied with your pleading, and orders you to advise it as to the merits of the pro se motion. Should you advise the Court that the client’s pro se motion should be denied? YES NO
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QUESTION 5 ANSWERS
not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 (Confidentiality of Information) or 3.3 (Candor Toward the Tribunal).”
– COUNSEL IS THE CLIENT’S ADVOCATE! Sum: counsel should not voluntarily tell the Court
anything that could damage the client’s case.
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QUESTION 5 ANSWERS
unless client consents, counsel shall not reveal A/C confidences or information gained in the professional relationship if disclosure would likely be detrimental to the client.
– NB: RPC 1.6(b)(1) permits (but does not require) you to answer “to comply with law or a court order.”
– Politely remind Court that your role is to serve as an advocate and the RPC don’t permit you to intentionally damage the client. Merits of the motion is for Court to decide, not appointed counsel. – Move to withdraw. See RPCs 3.1 (counsel shall not bring
representation).
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ROLE PLAY: CANDOR TOWARD THE TRIBUNAL & PROTECTING YOUR CLIENT’S INTERESTS
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3 Style Points QUESTIONS 6 A THRU D (2 PTS EACH)
Your client Olivia Outlaw (an attorney from Chicago) has been indicted for fraud involving complex securities
Outlaw had a retained (“real”) lawyer, who has since withdrawn because Outlaw can no longer pay her fees.
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After the Court appointed you to the case, Outlaw met with you several times at your
best option and have told her so, but Outlaw has rejected your advice. Over the past month, Outlaw has missed every appointment you have scheduled. You have tried to keep her informed by letter and emails, but you are not certain that she has received or read your correspondence.
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At Outlaw’s insistence, you filed a pre-trial motion to dismiss the indictment, which is scheduled to be heard today, one month before the start of trial. You filed the motion reluctantly because there is a 4th
prosecutor (a new SAUSA) has brought this case to the attention of the Court in the pleadings. One hour before the hearing on the motion, Outlaw calls you.
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She tells you that she is not coming to Court today because she is traveling to Chicago to watch a Cubs vs. Nats game with some “acquaintances.” Outlaw instructs you to go forward with the hearing in her absence saying, “I need this case dismissed immediately! When I had a ‘real’ lawyer, he told me he could get the charges thrown out!” Mindful of R. 8.4 (Lawyer Misconduct), you tell Outlaw that her bond does not permit her to travel to Chicago, and that she must appear in court as
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QUESTIONS (2 PTS EACH)
here?
without your client?
case that you want to bring to my attention?
response to your client’s statements?
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QUESTIONS (2 PTS EACH)
here?
without your client?
case that you want to bring to my attention?
response to your client’s statements?
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Relevant Rules:
shall not intentionally . . . damage a client . . . except as permitted” under the Rules.
consent, a lawyer shall not reveal confidential information, e.g., info that is “embarrassing” or “detrimental” to the client.
may be revealed “to comply with law or a court order.” “My client is aware of this court date.” BAD ANSWER
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Relevant Rules:
“A lawyer shall not use information relating to representation of a client for the advantage of the lawyer . . . or to the disadvantage of the client unless the client consents after consultation” except as permitted by the Rules.
“I told my client that she needed to be present today.”
BAD ANSWER
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Relevant Rules:
the Tribunal): “A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.”
shall not knowingly . . . fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6.” “I do not know if my client is aware of her court date.” “I do not know why my client is not here.” BAD ANSWERS
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Relevant Rules: Minimizes harm to client. (R. 1.3 – diligence). Does not reveal any confidential information. (R. 1.6 – confidentiality). Does not put lawyer’s interest before client’s. (R. 1.8 – conflict of interest). Truthful. (R. 3.3 – candor).
“I have no representations to make at this time regarding the whereabouts of my client.” “I respectfully decline to answer since doing so would be a violation
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Relevant Rule:
Representation): “A lawyer shall abide by a client’s decisions concerning the objectives
shall consult with the client as to the means by which they are to be pursued.” 1.2(a).
“Yes”
“No” GOOD ANSWERS
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CLIENT DECISIONS - SCT
5 decisions over which D has control:
tantamount to pleading guilty
These are “personal” or “fundamental” decisions.
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ATTORNEY DECISIONS (EGS: STRATEGY & TACTICS)
Supreme Court:
from using unconstitutionally obtained evidence
clothing during the trial
jury instruction
4th Circuit:
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Relevant Rules:
Tribunal): “A lawyer shall not knowingly . . . fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel.”
was pro se.
BAD ANSWER
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“No.”
Relevant Rules:
not intentionally . . . damage a client . . . except as permitted” under the Rules.
consent, a lawyer shall not reveal confidential information, e.g., info that is “embarrassing” or “detrimental” to the client.
lawyer shall not use information relating to representation of a client for the advantage of the lawyer . . . or to the disadvantage
consents after consultation” except as permitted by the Rules.
GOOD ANSWERS
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CLIENT’S STATEMENTS?”
“No.” or “The ethical rules prohibit me from answering.” BAD ANSWER “Yes, my client is a liar.”
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Relevant Rules:
(Confidentiality): “To the extent a lawyer reasonably believes necessary, the lawyer may reveal: such information . . . to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”
WHAT ABOUT THE “SELF- DEFENSE EXCEPTION”?
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CLIENT’S STATEMENTS?”
■Grows out of agency law and rests on considerations of fairness.
■Has been narrowly construed because it undermines atty/client trust.
confidential info whenever atty is attacked.
proceedings alleging atty misconduct or IAC. ■Can disclose confidential info only w/client consent or as “reasonably necessary” to respond to the allegations.
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■Reasonably Necessary Means:
in a formal proceeding” or pursuant to a court
by client. [LEO 1859 (2012)].
“after a full determination of what information should be revealed, and without the danger
permitted by Rule 1.6(b)(2).” Id.; see also ABA Formal Op. 10-456 (2010).
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3 Style Points
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QUESTION 7-W (1 POINT)
An attorney makes the following statements to the Court in support of the attorney’s motion for the judge to recuse himself:
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QUESTION 7-W (CONT.)
“I don’t feel that you’re appropriate to hear any cases that I might be defending.” “It makes me feel uncomfortable for you to hear any jury trial against any of my clients.” “I believe you harbor animosity toward me and that you will treat my client unfairly.” “I believe that you are biased for the government in criminal cases.”
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QUESTION 7-W (CONT.)
Do these statements violate RPC 8.2 (Judicial Officials) which states that : “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or other judicial
Yes No
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QUESTION 7–E (1 POINT)
Which of the following is the rationale for RPC 8.2 (Judicial Officials):
A. Members of the public may give great weight to lawyer criticism of judges. B. Judges are constrained from public response to criticism. C. Lawyers are assumed to have special knowledge about the quality of the legal system. D. All of the above. E. A & B only.
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VA STATE BAR V. CURTIS BROWN (NO. CL09-5166, 12-18-09)
support of his oral motion for judge to recuse himself. (Atty had prior history with the judge stemming from when judge was Commonwealth’s Atty.)
trial.
CB violated Rs. 8.2 and 3.5 (Impartiality and Decorum
intended to disrupt a tribunal.”).
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PROFESSIONALISM COURSE: Judicial Criticism
system and for those who serve it . . . “ While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”
about the quality of the legal system . . . [and] consequently the assessments of lawyers may carry disproportionate weight.”
response . . . out of a proper concern not to involve judges in public controversy.”
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QUESTION 8-W
Match the Topic w/the Rule (5 points)
Judicial Officials Scope of Representation Additional Responsibilities
Confidentiality of Information Impartiality & Decorum
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QUESTION 8-E
Match the Topic w/the Rule (5 points)
Communication Misconduct Diligence Candor Toward Tribunal Fairness to Opposing Party & Counsel
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BONUS QUESTION (8 POSSIBLE POINTS) Identify these ethically- challenged persons:
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