ETHICS: GAME SHOW POTPOURRI ROUND III TIEBREAKER MATCH

Transcription

1 ETHICS: GAME SHOW POTPOURRI ROUND III TIEBREAKER MATCH Kenneth P. Troccoli Jasmin Mize DISCUSSION OVERVIEW Note: Paper print-outs of the PowerPoint slides will be available for pick-up at the conclusion of this session I. Professionalism Course A. RPC 1.3 (Diligence) II. Conflicts of Interest A. RPC 1.4 (Communication) B. RPC 1.7 (Conflict of Interest: General Rule) C. RPC 1.9 (Conflict of Interest: Former Client) D. LEO 1882 (2015) III. Hiding the Ball: Fairness to Opposing Party A. RPC 1.4 (Communication) B. RPC 1.16 (Terminating Representation) C LEO 1864 (2012) (Sharing Reports with Clients) D. RPC 3.4 (Fairness to Opposing Party and Counsel) E. LEO 1854 (2010) (Withholding Identities from Client) IV. Hiding the Ball (cont.) A. RPC 3.8 (Additional Responsibilities of a Prosecutor) B. LEO 1862 (2012) (Disclosure of Exculpatory Evidence) FDFCDC 237

2 V. Loyalty to Your Client A. RPC 1.3 (Diligence) B. RPC 1.6 (Confidentiality of Information) C. RPC 1.16 (Terminating Representation) D. RPC 3.1 (Meritorious Claims and Contentions) E. RPC 3.3 (Candor Toward the Tribunal) VI. Candor Toward the Tribunal and Protecting Your Client s Interests A. RPC 1.2 (Scope of Representation) B. RPC 1.3 (Diligence) C. RPC 1.6 (Confidentiality) D. RPC 1.8 (Conflict of Interest) E. RPC 3.3 (Candor Toward Tribunal) F. LEO 1859 (2012) (Self-Defense Exception) G. ABA Formal Opinion (2010) VII. Judicial Criticism A. RPC 8.2 (Judicial Officials) FDFCDC 238

3 Document available online at I. INTRODUCTION II. III. IV. OBLIGATION TO PROFESSION OBLIGATION TO SOCIETY THE LAWYER'S DUTY: SERVICE IN THE PUBLIC INTEREST I. INTRODUCTION OBLIGATION TO PROFESSION AND TO COMMUNITY Historically, law is one of the four original professions (along with medicine, ministry and soldiering). What distinguished these four professions from occupations was the concept of selflessness. The practitioners of these professions gave of themselves for the benefit of those they serve, willing to face deprivations, including loss of life itself. The loss of public esteem for all the professions stems, in large part, from the diminishment of the quality of selflessness. Lawyers who engage in pro bono services or participate in community services contribute to a renewal of the historical giving nature of the legal profession. back to top II. OBLIGATION TO PROFESSION A. Maintaining and Improving the Standards of Professionalism The privilege of practicing law carries with it the obligation to not only maintain our legal system, but to constantly improve the legal system so that it continues to meet the ever changing demands of our society. Dedication to service of the organized bar and vigilance regarding the competence and integrity of those who administer our system of justice assures efficient and responsive justice for all members of our society. 1. What is Professionalism? Barrie Althoff, Director of Lawyer Discipline and Chief Disciplinary Counsel, Washington State Bar Association since 1994 stated: The professional [legal ethics] rules are merely the basement level, the lowest common denominator, of acceptable lawyer conduct. Lawyers who consider compliance with them to be complete fulfillment of legal ethics are the equivalent of the cave dwellers in Platos The Republic who sincerely believe that mere shadows are reality. But believing it so does not make it so. Barrie Althoff, Big Brother is Watching: Discipline for Private Conduct, 2000 Symposium Issue of THE PROFESSIONAL LAWYER of the ABA Center for Professional Responsibility 87 (2000). Professionalism goes beyond observance of the legal professions ethical rules and serves the best interests of clients and the public in general; it fosters respect and trust among lawyers and between lawyers and the public, promotes the efficient resolution of disputes, and makes the practice of law more enjoyable and satisfying. Oregon Supreme Court/Oregon State Bar Joint Commission on Professionalism (est., 1994). ABA Center for Professional Responsibility, A Guide to Professionalism Commissions, January, As Joe Condo observed in the film Professionalism Among Lawyers in Virginia (2003), professionalism is demonstrated when lawyers act with decency, dignity, courage and perspective. As an advocate, they can argue more effectively without belittling their opponent; they can question FDFCDC 239

4 adverse parties and witnesses without personally attacking them. There is a line that can be drawn between being adversarial and being combative. As another commentator observes: there is no inconsistency between civility and zealous, effective advocacy. In fact, quite the contrary, advocacy which is both civil and professional is by far the most effective. Joseph W. Ryan, Jr., Things Your Mother Should Have Taught You, 23 ABA Litigation News, No. 4 (May 1998). Professionals act with courage by admitting to the court that they dont know the answer instead of bluffing; by representing unpopular clients; and, by refusing to take positions or actions they find repugnant merely because the client insists and is paying them. Professionals have perspective when they do not become personally involved in their clients causes. 2. What Standards or Principles Embody Professionalism? In 2008, the Supreme Court of Virginia endorsed the Principles of Professionalism adopted by the Virginia Bar Association. Those principles, stated in the first person admonish the lawyer: In my conduct toward everyone with whom I deal, I should: Remember that I am part of a self-governing profession, and that my actions and demeanor reflect upon my profession. Act at all times with professional integrity, so that others will know that my word is my bond. Avoid all bigotry, discrimination, or prejudice. Treat everyone as I want to be treated with respect and courtesy. Act as a mentor for less experienced lawyers and as a role model for future generations of lawyers. Contribute my skills, knowledge and influence in the service of my community. Encourage those I supervise to act with the same professionalism to which I aspire. In my conduct toward my clients, I should: Act with diligence and dedication tempered with, but never compromised by, my professional conduct toward others. Act with respect and courtesy. Explain to clients that my courteous conduct toward to others does not reflect a lack of zeal in advancing their interests, but rather is more likely to successfully advance their interests. In my conduct toward courts and other institutions with which I deal, I should: Treat all judges and court personnel with respect and courtesy. Be punctual in attending all court appearances and other scheduled events. FDFCDC 240

5 Avoid any conduct that offends the dignity or decorum of any courts or other institutions, such as inappropriate displays of emotion or unbecoming language directed at the courts or any other participants. Explain to my clients that they should also act with respect and courtesy when dealing with courts and other institutions. In my conduct toward opposing counsel, I should: Treat both opposing counsel and their staff with respect and courtesy. Avoid ad hominem attacks, recognizing that in nearly every situation opposing lawyers are simply serving their clients as I am trying to serve my clients. Avoid reciprocating any unprofessional conduct by opposing counsel, explaining to my clients that such behavior harms rather than advances the clients interests. Cooperate as much as possible on procedural and logistical matters, so that the clients and lawyers efforts can be directed toward the substance of disputes or disagreements. Cooperate in scheduling and discovery, negations, meetings, closing, hearings or other litigation or transactional events, accommodating opposing counsels schedules whenever possible. Agree whenever possible to opposing counsels reasonable requests for extensions of time that are consistent with my primary duties to advance my clients interests. Notify opposing counsel of any schedule changes as soon as possible. Return telephone calls, s and other communications as promptly as I can, even if we disagree about the subject matter of the communication, resolving to disagree without being disagreeable. Be punctual in attending all scheduled events. Resist being affected by any ill feelings opposing clients may have toward each other, remembering that any conflict is between the clients and not between the lawyers. 3. Why should we be concerned about professionalism? a. Our system of justice can ill-afford to devote scarce resources to supervising matters that do not advance the resolution of the merits of a case; nor can justice long remain available to deserving litigants if the costs of litigation are fueled unnecessarily to the point of being prohibitive... Whether the increased size of the bar has decreased collegiality, or the legal profession has become only a business, or experienced lawyers have ceased to teach new lawyers the standards to be observed, or because of other factors not readily categorized, we observe patterns of behavior that forebode ill of our system of justice. Dondi Properties Corp. v. Commerce Savings & Loan Assn, 121 F.R.D. 284, 286 (N.D. Tex. 1998). FDFCDC 241

6 b. Richard A. Gilbert, then Chairperson of the Hillsborough County Bar Association's Professional Conduct Committee, Tampa, Florida, wrote in 1991 about the threat that lawyer misconduct poses for the role of the legal profession: Many believe that relations between lawyers have so deteriorated that our profession nears a crisis--one that not only implicates how we deal with each other but threatens our usefulness to society, the ability of our clients to bear the cost of our work, and the essential values that mark us as professionals. Some perceive abusive conduct as gaining new adherence cloaked in the mantle of forceful advocacy. They perceive that clients are best served by the intimidation of opponents, a relentless refusal to accommodate, and the use of tactics that impose escalating expenses on an adversary. 4. What are the causes of the decline in professionalism? One of the most cited reasons for the decline in professionalism is the belief, thought to be shared among many lawyers, that Canon 7s duty of zealous representation is a requirement carried over into the ABA Model Rules of Professional Conduct, a version of which has been adopted in most states, including Virginia. The duty of zealous representation was purposefully omitted from Model Rule 1.3 and Virginias Rule 1.3. The phrase zealous advocacy has been replaced with the concept of diligence, largely because lawyers frequently invoke the phrase zealous advocacy to justify unprofessional behavior. A frequently cited court order issued by Illinois Circuit Court Judge Richard Curry states: Zealous advocacy is the buzz word which is squeezing decency and civility out of the law profession. 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." Hanna v. American National Bank & Trust Co. of Chicago, No. 87CH4561, (Cir. Ct., Cook County, Ill.). 5. We are more than legal technicians that carry our our clients bidding Rule 2.1 provides that in counseling a client a lawyer may refer not only to law but other considerations such as moral, economic, social and political factors that may be relevant to the clients situation. In other words, as lawyers, we are more than merely legal technicians. Comment [4] under this rule states that a lawyer is not expected to give advice until asked by the client: [h]owever, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal, moral or ethical consequences to the client or to others, the duty [of communication] to the client under Rule 1.4 FDFCDC 242

7 may require that the lawyer act if the clients action is related to the representation. 6. Hardball Tactics Hurt the Profession. Stanford legal ethics scholar Deborah L. Rhode describes the motivation of many hard-ball lawyers to engage in zealous representation: In a market-based system of legal representation, it is convenient to leave no stone unturned for clients who pay by the stone. She describes hardball lawyering as: A mind-set that litigation is war and that describes trial practice in military terms. A conviction that it is invariably in your interest to make life miserable for your opponent. A disdain for common courtesy and civility, assuming that they ill-befit the true warrior. A wondrous facility for manipulating facts and engaging in revisionist history. A hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than factfinding. An urge to put the lawyer on center stage rather than the client or his cause. Deborah L. Rhode, An Adversarial Exchange on Adversarial Ethics: Text, Subtext and Context, 41 J. Legal Educ. 29 at 37 (1991). Washington, D.C. trial lawyer, Robert Saylor stated that Rambo trial tactics or hardball lawyering is like pornography, you know it when you see it. Saylor also said I never lost to a Rambo style litigator. Robert N. Saylor, Rambo Litigation: Why Hardball Tactics Dont Work, ABA Journal (March 1, 1988) at 79. B. Service 7. Egregious Acts of Unprofessional Conduct May Form the Basis for Discipline (a) For example, under Rule 3.4 (j), a lawyer may not file a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another. (b) Similarly, Rule 4.4 states that [i]n representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. 1. The Preamble of the Virginia Rules of Professional Conduct opens with the statement: [a] lawyer is a representative of clients or a neutral third party, an officer of the legal system and a public citizen having special responsibility for the quality of justice. 2 A lawyer should render at least two percent per year of the lawyers professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal FDFCDC 243

8 services. Rule 6.1(a). 3. Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral. Cmt. [1], Rule 6.1. C. Improper Criticism of Judges A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. 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. Preamble, Va. Rules of Prof. Conduct. RULE 8.2 Judicial Officials 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 officer. Rationale or Policy in Support of Rule: Lawyers, correctly or otherwise, are assumed to have special knowledge about the quality of the legal system and the actors within it. Consequently, the assessments of lawyers may carry disproportionate weight, Hazard & Hodes, Judicial and Legal Officials, The Law of Lawyering 63 (3rd Ed. 2004). Members of the public, similarly notes another commentary, may regard lawyers as possessed of special knowledge about the qualifications and integrity of judicial officers and, hence, may give stronger weight to lawyer criticism than to comments of nonlawyers, A Lawyers Statements Concerning a Judicial Officer, Restatement of the Law (Third) Governing Lawyers 114 (2000). Precisely because lawyers are perceived to have special competence in assessing judges, the public tends to believe what lawyers say about judges, even when lawyers speak inappropriately or make claims about which they are uncertain. Essay, Three Discussions of Legal Ethics, 126 U. Pa. L. Rev. 452 (1977). A unique concern about judicial criticism is that the judiciary cannot defend itself. Special protection for judges can be justified. Judges are constrained from public response to charges made against them out of a proper concern not to involve judges in public controversy. Restatement of the Law (Third) Governing Lawyers, supra at 114. The judiciary cannot respond to, much less defend itself against scurrilous charges which, but for rules of professional conduct, are made without consequence. Codes of judicial conduct typically constrain judicial response to public comment. It is therefore doubly important that lawyers conscientiously strive to keep their negative comments about judges both accurate and germane. As a supplement to this self-control, the rules of professional conduct, such as ABA Model Rule of Professional Conduct 8.2, have traditionally placed some limits on a lawyers right of public criticism of judges and other public officials. Hazard & Hodes, supra at Anthony v. Virginia State Bar, 270 Va. 601, 621 S.E. 2d 121 (2005). Derogatory statements about judges in pleadings filed by lawyer were not protected speech. Lawyer publicly reprimanded for violating Rule 8.2. See also Pilli v. Virginia State Bar, 269 Va. 391, 611 S.E. 2d 389 (2005) (statements made by lawyer were not expressions of pure opinion and violated Rule 8.2; 90-day suspension based on prior disciplinary record); and Taboada v. Daly Seven, Inc. 272 VA 211, 636 S.E. 2d 889 (2006) (lawyers intemperate attack of courts decision in petition for FDFCDC 244

9 rehearing justified one-year suspension of lawyers privilege to practice before Virginia Supreme Court). 2. Kentucky Bar Association v. Waller, 929 S.W.2d 181 (Ky. 1996) (lawyer characterized judge as lying, incompetent asshole in court-filed papers and received a six-month suspension). 3. In Re Topp 129 Idaho 414, 925 P.2d 1113 (1996). In proceeding in which attorney is accused of making statements critical of judge, attorneys First Amendment interests must be balanced against protecting integrity of judicial system. Lawyer made statements to media that a judges decision was motivated by political concerns. Lawyer received public reprimand. 4. In re McClellan, 754 N.E.2d 500 (Ind. 2001). Attorney publicly reprimanded for filing a petition for rehearing criticizing the court's decision as being like a bad lawyer joke and encouraging lawyers to lie. The lawyer supports a negative perception of lawyers generally and impugns the integrity of the judges who decided that case. 5. Hanson v. Superior Court, 109 Cal.Rptr.2d 782 (Cal. Ct. App. 3d Dist. 2001). Court upheld direct contempt finding against attorney who told jury that his criminal defense client did not receive a fair trial. Court found that statement impugned the integrity of the judge, because indicated that judge had failed to provide defendant with fair trial. 6. In re Dinhofer, 690 N.Y.S.2d 245 (N.Y.A.D. 1 Dept. 1999). Attorney suspended for 90 days for telling a judge she was corrupt and her proceedings were a sham in a phone conference. 7. Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425 (Ohio 2003). In this case, the respondent was suspended for six months for filing a motion for reconsideration that accused the Ohio Court of Appeals of being dishonest and ignoring well-established law. Respondent stated, among other things: any fairminded judge would have been ashamed to attach his/her name to the decision; that the judges did not give a damn about how wrong, disingenuous, and biased its opinion is; that the judges had distorted the truth; and that wouldnt it be nice if this panel had the basic decency and honesty to write and acknowledge these simple unquestionable truths in its opinion? Would writing an opinion that actually reflected the truth be that hard? Id. at 427. The Ohio Supreme Court, in rejecting respondents argument that the First Amendment protected his speech, relied upon the U.S. Supreme Courts decisions in In re Sawyer, 360 U.S. 622 (1959) and Gentile v. Nevada Bar, 501 U.S (1991) to hold that an attorneys free speech rights were extremely circumscribed, and that lawyers in pending cases are subject to ethical restrictions on speech that an ordinary citizen would not be. Id. at 428. The Court said, [T]he First Amendment does not insulate an attorney from professional discipline even for expressing an opinion, during court proceedings, that a judge is corrupt when the attorney knows that the opinion has no factual basis or is reckless in that regard. Id. 8. After an evidentiary hearing in which Respondent and his client were sanctioned, Moseley also wrote a letter to the AAA, stating that the circuit court judge who had adjudicated the evidentiary hearing "was caught engaging in serious misconduct" and that the circuit court judge was the subject of an investigation by JIRC. Moseley sent an to colleagues in which he stated that the monetary sanctions award entered by the circuit court judge was "an absurd decision from a whacko judge, whom I believe was bribed," and that he believed that opposing counsel was demonically empowered. A three-judge court found that Moseley had violated Rules 3.3(a)(1), 3.4(e), 3.4(j), 4.1(a), 8.2 and 8.4(a), (b), and (c). The panel suspended Moseley s license to practice law for six months. The Va. S. Ct. affirmed. Moseley v. Virginia State Bar, 280 Va. 1 (2010). 9. Attempting to have a circuit judge disqualified, Respondent made several remarks that were found to have violated Rule 8.2: FDFCDC 245

10 - I dont feel that youre appropriate to hear any cases that I might be...defending. - It makes me feel comfortable for you not to hear any jury trial that I got against any of my clients. - Respondent accused the judge of harboring animosity toward Respondent and implied it would cause the judge to treat the defendant unfairly. - Respondent suggested that the judge was biased for the Commonwealth in criminal cases. A three-judge court found Respondent violated Rules 3.5(f)(conduct intended to disrupt a tribunal) and Rule 8.2 (attacking qualifications or integrity of a judge). Virginia State Bar v. Curtis Tyrone Brown, CL (Dec. 15, 2009). Respondent defaulted on his appeal by failing to timely file the notice of appeal with the trial court. Curtis Tyrone Brown v. Virginia State Bar, Record No (May 10, 2010) D. Improving the Profession As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Preamble, Virginia Rules of Professional Conduct. E. Support of the Organized Bar The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or selfinterested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. back to top III. OBLIGATION TO SOCIETY FDFCDC 246

11 A. Providing Access to the Legal System The privilege to practice law carries with it the clear and distinct responsibility to ensure that legal services are provided to those who, by reason of financial circumstances, are denied effective access to the legal system. The denial of access to the legal system by the indigent is, in reality, a denial of justice to a significant and definable segment of the public. B. Providing Affordable Legal Services Rule 6.1. Voluntary Pro Bono Publico Service (a) A lawyer should render at least two percent each year of the lawyer's professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase availability of pro bono legal services. (b) A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule. (c) Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer's responsibility under this Rule. 1. Definition of "Legal Services" Legal services should be viewed broadly as including any service which utilizes lawyer's training and skills. Pro bono publico legal services are defined as including any of the following: Pro Bono Representation a. Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral. Comment. [1], Rule 6.1 b. Pro bono services in poverty law consist of free or nominal fee professional services for people who do not have the financial resources to compensate a lawyer. Private attorneys participating in legal aid referral programs are typical examples of poverty law. Legal services for persons whose incomes exceed legal aid guidelines, but who nevertheless have insufficient resources to compensate counsel, would also qualify as poverty law, provided the free or nominal fee nature of any such legal work is established in advance. Comment [2], Rule 6.1 c. Pro bono publico legal services in civil rights law consists of free or nominal fee professional services to assert or protect rights of individuals in which society has an interest. Professional services for victims of discrimination based on FDFCDC 247

12 race, sex, age or handicap would be typical examples of civil rights law, provided the free or nominal fee nature of any such legal work is established in advance. Comment [3], Rule 6.1. d. Free or nominal fee provision of legal services to religious, charitable or civic groups in efforts such as setting up a shelter for the homeless, operating a hotline for battered spouses or providing public service information would be examples of public interest law. Comment [4], Rule 6.1. e. Training and mentoring lawyers who have volunteered to take legal aid referrals or helping recruit lawyers for pro bono referral programs would be examples of volunteer activities designed to increase the availability of pro bono legal services.comment [5], Rule Special Considerations a. Legal services should be rendered for free or a reduced fee to those who cannot afford legal counsel. b. Attorneys' fees statutes. c. Contingent fees: Service in any of the categories described is not pro bono publico if provided on a contingent fee basis. Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free or nominal fee legal services is essential. Accordingly, services for which fees go uncollected would not qualify. Comment [6], Rule 6.1. Rule 6.2. Accepting Appointments A lawyer should not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. 1. For good cause a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust. Comment [2], Rule An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain FDFCDC 248

13 from assisting the client in violation of the Rules. Comment [3], Rule 6.2. C. Participation In Legal Services Organizations Rule 6.3. Membership In Legal Services Organization A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or (b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer. Comments: Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer's clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession's involvement in such organizations would be severely curtailed. Comment [1], Rule 6.3. It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the credibility of such assurances. Comment [2], Rule 6.3. back to top IV. THE LAWYER'S DUTY: SERVICE IN THE PUBLIC INTEREST Competing with the responsibility for providing pro bono service to the public and active participation in the affairs of the local and state bars is the reality of the economics of law practice. Economic pressure has prompted law firms to increase the demand for more "billable hours" and for "increased billing rates." While economic pressure does not justify ignoring professional responsibilities, it undoubtedly provides a reasonable and not surprising explanation for the increase in lawyer reluctance to participate in pro bono services or in bar activities. However, the lawyer's objective of accumulating economic gain from the practice of law should not be incompatible with his or her professional obligation to participate actively in local and state bar affairs and to provide pro bono service to the disadvantaged and those unable to afford access to quality legal services. back to top Copyright 2015 Virginia State Bar. All rights reserved. Updated 11/01/15 FDFCDC 249

14 LEGAL ETHICS OPINION 1854 SETTLEMENT NEGOTIATIONS IN A CRIMINAL CASE. This hypothetical considers a criminal case in which the Commonwealth s Attorney (CA) and the defense counsel seek to negotiate a plea agreement. Generally, the CA has no legal or ethical obligation to a particular witness in this case; however, the CA wishes to protect Witness X by restricting dissemination of the witness identity and involvement. The CA communicates a settlement offer to the defense counsel, advising the defense counsel of material witnesses in the case, including the name and involvement of Witness X whom the CA wishes to protect. A condition of the proffered plea agreement requires that the defense counsel neither reveal to the client the identity of Witness X nor the scope of Witness X s involvement in the case. The CA makes it clear to the defense counsel that if the defendant is made aware of Witness X s identity and involvement, then the plea offer will be withdrawn. QUESTIONS PRESENTED 1) May a CA make a settlement offer to the defense counsel in a criminal case, requiring the defense counsel to refrain from providing relevant information to his or her client as a condition of the settlement offer? 2) May the defense counsel in a criminal case withhold from the client relevant information if withholding such information results in a desirable plea agreement for the client? APPLICABLE RULES AND ANALYSIS The appropriate and controlling rules relative to this hypothetical are Rules 1.4(c) and 3.4(h), which deal with communication and fairness to the opposing party and counsel. These issues and questions have not been addressed by this Committee in past legal ethics opinions. The first question is whether it is ethical, as part of the proffered plea agreement, to require the defense counsel to keep Witness X s identity and involvement secret from his or her client, the defendant. The CA is attempting to protect Witness X from possible retribution, but Rule 3.4(h) 1 directly prohibits the CA from requesting a person (the defense counsel) to refrain from voluntarily giving relevant information to another party (the defendant). The exceptions noted in Rule 3.4(h) are specifically limited to civil cases 2 ; therefore, the primary rule prohibits a lawyer from requesting that a person refrain from giving relevant information to another party. In this hypothetical, the CA cannot offer a plea agreement detailing the identity and involvement of 1 Rule 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: (h) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the information is relevant in a pending civil matter; (2) the person in a civil matter is a relative or a current or former employee or other agent of a client; and (3) the lawyer reasonably believes that the person s interests will not be adversely affected by refraining from giving such information. 2 Rule 3.4, Comment [4], Paragraph (h) prohibits lawyers from requesting persons other than clients to refrain from voluntarily giving relevant information. The Rule contains an exception permitting lawyers to advise current or former employees or other agents of a client to refrain from giving information to another party, because such persons may identify their interests with those of the client. The exception is limited to civil matters because of concerns with allegations of obstruction of justice (including perceived intimidation of witnesses) that could be made in a criminal investigation and prosecution. See also Rule 4.2. FDFCDC 250

15 Witness X and then ask the defense counsel to refrain from sharing Witness X s identity with the client, because the identity and involvement of Witness X is considered to be relevant information. Alternatively, because the CA is neither obligated to offer a plea agreement nor to provide all inculpatory evidence or witness testimony to the defense, the CA would be permitted to offer a plea based upon a nameless confidential informant for the defense counsel to present to his client. The defense counsel and his or her client would then have to assess the plea offer based upon the limited information available to them. The second question concerns the defense counsel s communication duties when presented with the CA s plea agreement that requires the defense counsel not to reveal Witness X s identity. In response to the first question, the Committee opines that Rule 3.4(h) prohibits the CA from imposing such a requirement after having disclosed material facts to the defense counsel. The Committee also finds it unethical for the defense counsel to sequester certain facts from his or her client, as Rule 1.4(c) 3 requires the defense counsel to inform the client of all of the matter s pertinent facts that will affect the determination of the defendant s plea. 4 Rule 1.4(c) would permit the defense counsel to withhold such information from the defendant if the defense counsel believes that the defendant has enough relevant information about the pertinent facts to make an informed decision; however, whether Witness X s identity and involvement is additional information that must be disclosed to the client in order for the client to make an informed decision about accepting or rejecting the plea offer is fact specific and must be determined on a case-by-case basis. Fundamentally, the defense counsel cannot withhold from the defendant salient facts or information that would be pertinent to the defendant s decision to accept a settlement or plea agreement in his or her matter. This opinion is advisory only and not binding on any court or tribunal. Committee Opinion October 5, Rule 1.4 Communication (c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter. 4 Rule 1.4, Comment [5] explains: The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party and take other reasonable steps that permit the client to make a decision regarding an offer from another party. A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea agreement in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. See Rule 1.2(a). FDFCDC 251

16 LEGAL ETHICS OPINION 1859 MAY A CRIMINAL DEFENSE LAWYER DISCLOSE INFORMATION TO A GOVERNMENT LAWYER AFTER A FORMER CLIENT MAKES A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL? In this hypothetical, a criminal defense lawyer has been contacted by a government lawyer who is responsible for handling a petition for habeas corpus filed by the defense lawyer s former client. The petition alleges that the defense lawyer provided ineffective assistance of counsel to the former client. Citing Virginia Code (B)(6) 1, the government lawyer requests that the defense lawyer provide information concerning his representation of the former client to the government in order for the government to prepare a response to the petition. The defense lawyer asks whether he can reveal this information in response to the government s request prior to any evidentiary hearing on the former client s petition and without a court order requiring disclosure of the information. The former client has not given informed consent to the disclosure of this information. The defense lawyer indicates that, in his experience, habeas petitions are overwhelmingly dismissed on legal or procedural grounds; in those cases, the court never reaches the substantive issues presented. QUESTION PRESENTED May a criminal defense lawyer whose former client claims that the lawyer provided constitutionally ineffective assistance of counsel disclose confidential information to government lawyers prior to any hearing on the defendant s claim, without a court order requiring the disclosure or the informed consent of the former client, in order to help to establish that the defense lawyer s representation was competent? APPLICABLE RULES AND OPINIONS The applicable Rule of Professional Conduct is Rule 1.6 (a) and (b)(2) 2. ANALYSIS Pursuant to Rule 1.6(a), a lawyer has a general duty to maintain the confidentiality of information learned during the representation of a client, even after the representation has concluded. 3 That duty is subject to the limited exceptions specified in Rule 1.6(b) and (c), 1 Virginia Code (B)(6) provides that a petitioner who alleges ineffective assistance of counsel as a ground for habeas relief is deemed to waive the attorney-client privilege with respect to communications between counsel and himself to the extent necessary to permit a full and fair hearing of the allegation. This statute alone is not dispositive of the lawyer s ethical duties, however, because the duty of confidentiality is broader than the attorneyclient privilege. See Rule 1.6 Comments [3] and [12]. 2 Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). (b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal: *** (2) such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer s representation of the client; 3 Comment [18], Rule 1.6: The duty of confidentiality continues after the client-lawyer relationship has terminated. FDFCDC 252

17 LEO 1859 Page 2 including the exception that is relevant to this question, found in Rule 1.6(b)(2). Thus, a lawyer may not reveal confidential information without either obtaining client consent or determining that one of the exceptions to the rule applies. In this hypothetical, the former client has not given consent to the lawyer s release of this confidential information. Thus, the lawyer can disclose the requested information to the government only if Rule 1.6(b)(2) applies to authorize the disclosure. The Committee opines that Rule 1.6(b)(2) generally does not authorize the disclosure of client confidences under these circumstances. The rule allows the disclosure of confidential information in order to respond to allegations in any proceeding concerning the lawyer s representation of the client. A habeas petition that alleges ineffective assistance of counsel undoubtedly concerns the lawyer s representation of the former client, since it is a claim that the former client s conviction should be set aside because of the lawyer s performance during the representation. However, the lawyer may reveal information only to the extent reasonably necessary to defend against these claims. It is unlikely that it is reasonably necessary for the lawyer to disclose confidential information at the time the petition is filed, when the court has not made a determination of whether the petition is legally and procedurally sufficient. Many habeas petitions fail on legal grounds, and in those cases there is no need for the lawyer to ever reveal information about his representation. Although a pre-litigation disclosure of all relevant information may make it more likely that the claim of ineffective assistance will be disposed of quickly, that fact alone does not make it necessary that the lawyer reveal the information. In the absence of additional facts and circumstances justifying an earlier release of the information, the lawyer can reach the same outcome by disclosing the information under judicial supervision in a formal proceeding, after a full determination of what information should be revealed, and without the danger of revealing more information than would be permitted by Rule 1.6(b)(2). 4 Finally, Rule 1.6(b) provides that a lawyer may reveal information as permitted by the Rule; but a lawyer does not violate the Rule under these circumstances by refusing to reveal information upon request. June 6, 2012 This opinion is advisory only and is not binding on any court or tribunal. 4 See LEO Even when disclosure is necessary to rebut a former client s accusation that the lawyer committed criminal conduct for which the former client has now been indicted, the lawyer is advised to seek a judicial ruling on the propriety and extent of the disclosure. See also Comment [10] to Rule 1.6, which cautions that, in any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable. FDFCDC 253

18 LEGAL ETHICS OPINION 1862 TIMELY DISCLOSURE OF EXCULPATORY EVIDENCE AND DUTIES TO DISCLOSE INFORMATION IN PLEA NEGOTIATIONS In this hypothetical, in a pending criminal prosecution, the prosecutor is aware of exculpatory evidence, in the form of witness statements accusing another individual of the offense with which the defendant is charged. The prosecutor is also aware that the primary inculpatory witness, an eyewitness to the offense, has died and therefore will not be available to testify in future proceedings in the case. There is an upcoming preliminary hearing scheduled in the case, although the prosecutor has offered a plea bargain in which the defendant would plead guilty to a lesser offense and waive the preliminary hearing. The prosecutor has not disclosed either the exculpatory evidence or the death of the primary witness. QUESTION PRESENTED 1. Is the timely disclosure of exculpatory evidence, as required by Rule 3.8(d), broader than the disclosure mandated by Brady v. Maryland, 373 U.S. 83 (1963), and other case law interpreting the Due Process clause of the Constitution? If so, what constitutes timely disclosure for the purpose of Rule 3.8(d)? 2. During plea negotiations, does a prosecutor have a duty to disclose the death or unavailability of a primary witness for the prosecution? APPLICABLE RULES AND OPINIONS The applicable Rules of Professional Conduct are Rule 3.8(d) 1, Rule 3.3(a)(1) 2, Rule 4.1 3, and Rule 8.4(c) 4. ANALYSIS Pursuant to Brady v. Maryland and subsequent cases, a prosecutor has the legal obligation to disclose material exculpatory evidence to a defendant in time for the defendant to make use of it at trial. A number of cases interpreting this legal obligation have noted that the 1 Rule 3.8 Additional Responsibilities Of A Prosecutor A lawyer engaged in a prosecutorial function shall: *** (d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which 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; 2 Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal; 3 Rule 4.1 Truthfulness In Statements To Others In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of fact or law; or (b) fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. 4 Rule 8.4 Misconduct It is professional misconduct for a lawyer to: *** (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer s fitness to practice law; FDFCDC 254