MRPC 1.2, 1.4, 1.13, 4.1: ATTORNEY/CLIENT COMMUNICATIONS

Question 1

Explain Rule 1.2: Scope of Representation

Answer 1

(a) Mandatory → A lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by 1.4, shall consult with the client as to the means by which they are pursued → (subject to parts (c) and (d) of this rule)
(b) Discretionary → A lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views or activities
(c) Discretionary → A lawyer may limit the scope of representation if reasonable under the circumstances and the client gives informed consent
(d) Mandatory → A lawyer shall not counsel a client to engage, or assist with, in conduct that the lawyer knows is criminal or fraudulent, BUT Discretionary → may discuss the legal consequences of the conduct in good faith.

Question 2

How do rules 1.2(b) and 1.16(b)(4) relate to each other?

Answer 2

They are in agreement with each other
+ Scope of disagreement is a continuum
+ Unless it’s repugnant, keep up with the representation

Question 3

True or false: A lawyer determines a client’s objectives as well as the means by which the objectives will be pursued

Answer 3

Half true, half false. Rule 1.2(a)

False: The CLIENT determines their own objectives
True: The lawyer determines the means

Question 4

What is a nickname for Rule 1.2(b)

Answer 4

Principal of non-accountability: some firms take this to heart and others don’t believe it

A lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views or activities

Question 5

True or false: When a client hires a lawyer for a specific objective, the lawyer then represents the client for all future needs

Answer 5

False.
1.2(c) A lawyer may limit the scope of representation if reasonable under the circumstances and the client gives informed consent

When clients aren’t sophisticated, they may believe when they hire a lawyer, it’s for ALL legal purposes. “It’s MY lawyer”

Not true in a world of legal specialization
Be specific in what you can/cannot do for clients → limit the scope

Question 6

Can a lawyer assist a client in fraudulent conduct?

Answer 6

NO. Rule 1.2(d)
A lawyer shall not counsel a client to engage, or assist with, in conduct that the lawyer knows is criminal or fraudulent, but may discuss the legal consequences of the conduct in good faith.

Explain the law → OK
Assisting on following through → NOT OK
Withdraw mandatory under 1.16, even if you don’t have discretion to disclose under 1.6, BUT in Colorado you do have the discretion

Question 7

True or false: When in doubt, communicate with the client

Answer 7

True Rule 1.4(a)(1) Communication with Clients → MANDATORY
+ Trend has been to expand scope of Rule 1.4
+ There’s very little excuses for not getting back to clients these days (smart phones and wifi everywhere).

Question 8

What does it mean to keep a client reasonably informed under Rule 1.4(a)(3)?

Answer 8

Keep client reasonably informed about the status of the matter
Ex: My Cousin Vinny → six attempts to pass the Bar Exam. Not a violation to keep that info to yourself, the lawyer’s qualifications not related to the status of the matter

Ex: Client A is suing you. Should you tell Client B? It depends on status of the matter context.

Question 9

Can a lawyer consult with a client regarding her limitation in assisting client with their objective, due to illegal repercussions?

Answer 9

Yes! Rule 1.4(a)(5)
Consult with client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules or other law.

You are always allowed to tell the client the law and the relevant circumstances BUT you cannot assist the client in the commission of a crime.

Question 10

Can a lawyer skim over the means by which he’s trying to reach the client’s objectives?

Answer 10

Not really. Rule 1.4
Open-ended standard: A lawyer SHALL (mandatory) explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding representation
[5] Sufficient information to participate intelligently in the decisions re: objectives
Ex: DO explain the procedural aspects of a divorce proceeding.
Ex: DON’T describe the various theories of marriage law and how it’s progressed
over the last 50 years

Question 11

True or false: Confidentiality attaches between co-clients

Answer 11

False
+ Confidentiality attaches between co-clients and the lawyer
+ Confidentiality does NOT attach between the co-clients

Invokes Rule 1.4(3)(a) keep client reasonably informed about the status of the matter

Ex: If a co-client reveals material information that relates to the case at-hand and the other co-client doesn’t know, Rule 1.4(3)(a) requires the lawyer to tell both parties. C1: “I know this about you and I am going to tell C2” C2: “I have to tell you some important information about your case.”

Question 12

How does a lawyer know if he’s helping one client or co-clients in a given case.

Answer 12

Look at the facts.
+ How did the clients describe the relationship? Ex: “We worked on this issue together” or “He helped X with the matter”
+ With whom did the lawyer meet with and interact?
+ Who’s paying the bill?
+ How was the relationship initiated?

Question 13

True or false: Not all accidental disclosures need to be revealed

Answer 13

True
Non-material mistakes or material mistakes that have been remedied do not need to be revealed.

Ex: Lawyer tells a senior partner a client’s middle name and that fact has no bearing on the case.

Ex: Lawyer accidentally sends client files to opposing counsel, but calls right away and the file is deleted by all accounts. Remedy is appropriate.

Question 14

True or false: When in doubt of whether a disclosure is a material fact or if it’s been properly rectified, tell the client

Answer 14

True.

Question 15

When communicating with clients who are entities (not a real live person), what are the “parts”, according to Rule 1.13?

Answer 15

Part 1: Whom does the lawyer represent?
Part 2: Reporting/Communication structure?
Part 3: Exceptions

Question 16

Explain Part 1 of Rule 1.13 and provide an example

Answer 16

Part 1 ⇒ Whom does the Lawyer Represent?
(a) Applies to any client not living or breathing → broader than “entity”
+ Literally applies to anything and everything
+ Organizations can only communicate via authorized constituents:
+ Authorized constituents can hire and fire the lawyer BUT THEY ARE NOT THE CLIENT → THE CLIENT IS THE ENTITY (organization)

(f) In dealing with an organization’s directors, officer, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing:
THE LAWYER MAKES CLEAR THEY REPRESENT THE BEST INTERESTS OF THE COMPANY, AND NOT WHATEVER FUCKWIT CONSTITUENT IS TALKING TO THEM. Those interests are not always aligned.

(g) A lawyer representing an organization may also represent the constituents, so long as there is no conflict of interest under Rule 1.7: If consent required under 1.7, consent shall be given by an appropriate official of the organization other than the individual who is to be represented.
+ Be careful of confidentiality in this scenario, under Rule 1.6

Example: Law school representation in a gender discrimination case

(a) Client is the law school as an entity
(g) Constituents of the law school become your clients during discovery
(f) Constituents and client have different opinions → STOP and tell the constituent that they may want to stop talking due to confidentiality concerns AND secure independent counsel due to potential conflict of interest concerns

Question 17

True or false: A lawyer representing an organization may also represent the constituents, so long as there is no conflict of interest under Rule 1.7

Answer 17

True. Rule 1.13(g)

If consent required under 1.7, consent shall be given by an appropriate official of the organization other than the individual who is to be represented.

Be careful of confidentiality in this scenario, under Rule 1.6

Question 18

Explain Part 2 of Rule 1.13 and provide an example

Answer 18

Reporting/Communication Structure (b) and (c)

(b) if lawyer knows that the entity may have violated the law, (or someone within the entity has violated the law), the lawyer representing the entity needs to gradually escalate the level of communication:

Work your way up the chain of command that can act
Hierarchies:
For-Profit Entity: 
\+ Highest authority = Board of Directors
\+ Second highest authority = CEO
\+ Non-Profit Entity:
\+ Highest authority = Board of Directors
\+ Second highest authority = Chancellor

(c) LAST EXCEPTION TO CONFIDENTIALITY, exhaustion of remedies → A lawyer may report outside the entity regardless of 1.6 permits ONLY IF and TO THE EXTENT the lawyer reasonably believes necessary to prevent injury to organization
The highest authority doesn’t act AND
The lawyer reasonably believes the violation is reasonably certain to result to result in substantial injury to the organization

Involves the interplay between 1.13(c) and 1.6(b)(2) & (3):

Ex: Fact pattern regarding fraud
If conduct by entity leads to INJURY TO THIRD PARTIES, lawyer has discretion to reveal, invoking 1.6(b)(2) & (3)

If the injury is to the CLIENT, invoke 1.13(c)
Only confers on lawyers the discretion to reveal confidential information if the lawyer reasonably believes the violation is reasonably certain to result in substantial injury to the organization (entity)

Question 19

Explain Part 3 of Rule 1.13

Answer 19

Part 3 ⇒ Exceptions to 1.13 (d) and (e)

(d) If the entity hired the lawyer to investigate an alleged violation of law or defend the org OR a constituent of a violation of law, (c) does not apply
(e) Whistleblower protection for the lawyer in case of entity’s wrongdoing

1.16(a) When a client fires a lawyer, then the lawyer has to withdraw immediately. BUT, once the lawyer has been fired, the lawyer cannot report to anyone the wrongdoing of the entity, since confidentiality belongs to the CLIENT.
This is where 1.13(e) comes in and the lawyer can report.

Question 20

True or false: Rule 4.1 applies whether or not a lawyer is representing a client

Answer 20

False. Does NOT apply if you’re not representing a client

Question 21

What does Rule 4.1 say? And is it mandatory?

Answer 21

In the course of representing a client, a lawyer SHALL NOT knowingly (mandatory)

(a) make a false statement of material fact or law to a 3rd person:
Ex: a witness

(b) Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, UNLESS disclosure is prohibited Rule 1.6

Question 22

Explain the 1.6 and 4.1 interplay

Answer 22

Rule 1.6(a) > Rule 4.1(b)

If Rule 1.6 exceptions apply, 4.1 can be enforced

Question 23

Is puffery a material fact in relation to Rule 4.1?

Answer 23

No! Comment [5]
Certain types of statements are not material facts, like

Estimates of price or value placed on the subject of a transaction and a party’s intentions as to acceptable settlement of a claim are ordinarily in this category and so is the existence of an undisclosed principal EXCEPT where nondisclosure of the principal would constitute fraud

Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation

Question 24

What rules of conduct did the lawyer in US v. Quest violate?

Answer 24

The lawyer disclosed way more than reasonably necessary by being a party to the lawsuit.

He was able to disclose under 1.6(b)(2) & (3), as well as 1.13, but he disclosed more than REASONABLY NECESSARY.

+ Corporation’s conduct triggered 1.13(b)
+ BUT attorney did not report conduct to the board of directors per 1.13(c)

Question 25

What is the False Claims Act and why do courts dislike it?

Answer 25

False Claims Act: If you are a lawyer and whistle-blow and help the federal government uncover fraud and seek a hefty fine, you can get a bounty. Why does the court hate this? Pulls the rug under Rule 1.6(a) Confidentiality is the basis of legal representation → Without confidentiality, lawyers could never have clients FCA < 1.6(b)

Question 26

How should a lawyer and client approach a situation where there's disagreement about the means used to achieve the client's objectives?

Answer 26

Rule 1.2 [2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. + Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. + Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. + Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. + Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. + If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). + Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

Question 27

Can lawyers rely on a client's advance authorization to make decisions/take action on the client's behalf without further consultation?

Answer 27

[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. ***Absent a material change in circumstances and subject to Rule 1.4****, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

Question 28

True or false: If a client makes a reasonable request for information, the lawyer must respond promptly in-full.

Answer 28

False. Rule 1.4(a)(4) [4] When a client makes a reasonable request for information, a lawyer must promptly respond OR (if not feasible) the lawyer or a member of the lawyer's staff can acknowledge receipt of the message and advise client on when a response may be expected.

Question 29

True or false: Under Rule 1.4, lawyers are not allowed to delay transmission of information to clients.

Answer 29

False. Rule 1.4 [7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Ex: temporary withholding a psychiatric evaluation where disclosure would harm the client Lawyers are NOT allowed to withhold information that serves their interests or conveniences or the interests/conveniences of another person not the client.

Question 30

True or false: If a lawyer knows that the organization is likely to be substantially injured by action of an officer or other constituent that violates a legal obligation to the organization or is in violation of the law that might be imputed to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization .

Answer 30

True. Rule 1.13 [3] Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province. Paragraph (b) makes clear, however, that when the lawyer knows that the organization is likely to be substantially injured by action of an officer or other constituent that violates a legal obligation to the organization or is in violation of law that might be imputed to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization. As defined in Rule 1.0(f), knowledge can be inferred from circumstances, and a lawyer *cannot* ignore the obvious.

Question 31

If a lawyer knows that a constituent is violating the law, should the lawyer consult that constituent before going to a higher authority?

Answer 31

Rule 1.13(b) [4] The lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Ordinarily, referral to a higher authority would be necessary. In some circumstances, however, it may be appropriate for the lawyer to ask the constituent to reconsider the matter; for example, if the circumstances involve a constituent's innocent misunderstanding of law and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority. If a constituent persists in conduct contrary to the lawyer's advice, it will be necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. If the matter is of sufficient seriousness and importance or urgency to the organization, referral to higher authority in the organization may be necessary even if the lawyer has not communicated with the constituent. ***Any measures taken should, to the extent practicable, minimize the risk of revealing information relating to the representation to persons outside the organization.***

Question 32

What should a lawyer do when the organization's interests are adverse to that of the constituents within?

Answer 32

Rule 1.13 [10] There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.

Question 33

Can a lawyer represent an organization and a constituent of the organization?

Answer 33

Yes! Paragraph (g) recognizes that a lawyer for an organization may also represent a principal officer or major shareholder.

Question 34

Can a lawyer represent a constituent and client organization in a serious claim (ex: serious wrongdoing)?

Answer 34

Most derivative actions are a normal incident of an organization's affairs, to be defended by the organization's lawyer like any other suit. However, if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer's duty to the organization and the lawyer's relationship with the board. In those circumstances, Rule 1.7 governs who should represent the directors and the organization.

Question 35

What are the ways in which misrepresentation can occur under Rule 4.1?

Answer 35

[1] A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.

Question 36

How do we know if a particular statement should be regarded as statement of fact?

Answer 36

Rule 4.1 [2] Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

Question 37

What should a lawyer do if the client lies or misrepresents themselves?

Answer 37

Rule 4.1 [3] Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.