4/20/2016 ETHICS. Jasmin Mize & Ken Troccoli, AFPDs (Alex.) W E S T

Transcription

1 ETHICS Jasmin Mize & Ken Troccoli, AFPDs (Alex.) W E S T 2 1

2 PROFESSIONALISM COURSE QUESTION 1-W (1 POINT) According to the VA Bar, the loss of public esteem for the legal profession stems, in large part, from the diminishment of the quality of.... A. the work performed. B. selflessness. C. respect for the client. D. joy in the work. 4 2

3 QUESTION 1-E (1 POINT) According to the VA Bar, which of the following do lawyers frequently cite to justify unprofessional behavior on behalf of their clients: A. time constraints. B. workload. C. personal problems. D. need to be zealous. 5 VA STATE BAR PROFESSIONALISM COURSE Historically, law is one of the four original professions (along with medicine, ministry and soldiering). What distinguishes a profession from an occupation is the concept of selflessness. Practitioners of professions gave of themselves for the benefit of those they serve, willing to face deprivations, including loss of life itself. 6 3

4 VA STATE BAR PROFESSIONALISM COURSE 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. Cir. Ct.). 7 CONFLICTS OF INTEREST 4

5 QUESTION 2-W (1 POINT) You represent clients Adams and Battle in unrelated criminal matters. During the course of the representations, Adams tells you that he has information about Battle s involvement in the offense for which you are representing Battle, and that he would like to cooperate with the govt against Battle. 9 After consulting the RPC, you conclude that a conflict now exists with your representations of Adams and Battle. What action should you take according to the RPC? A. Withdraw from A s case, but continue to represent B. B. Withdraw from B s case, but continue to represent A. C. Withdraw from both cases. D. Withdraw from neither case, but get written waivers from both clients. 10 5

6 RPC RULES IMPLICATED R. 1.4 (Communication) Duty to inform client about pertinent facts and communications from another party so client can make informed decisions. R. 1.7 (Conflict of Interest) 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. R. 1.9 (Former Clients) Prohibits attorney from taking action adverse to former client in the same matter in which attorney had represented former client. 11 WHY DOES A CONFLICT EXIST? The atty is unable to advise A re what to do because any advice that would further A s interests would be detrimental to B. Atty can t satisfy his duty of communication to B because he can t tell B that A is attempting to offer evidence against B, since that info is confidential as to A. Atty can t attempt to cure the conflict by getting informed consent from both clients since to do so he would have to reveal info that is detrimental to at least one client. 12 6

7 WHY IS THERE STILL A CONFLICT IF ATTY W/D FROM ONE OR THE OTHER CASE? Withdrawing from A s Case Only: atty s ability to fulfill his obligation to B is materially limited (R. 1.7) by his duty of confidentiality to A since atty can t tell B what he knows of A s information. Also, if A testifies against B, atty likely will be unable to cross-examine A given the duty of confidentiality owed to A. Withdrawing from B s Case Only: R. 1.9 prohibits atty from taking any action adverse to interests of a former client (B) in the same matter in which atty represented the client. 13 QUESTION 2-E (1 point) Would the answer be different if the prosecutor tells the atty that the govt is not interested in using any of the information that Adams has against Battle? YES NO 14 7

8 WHY IS THE RESULT THE SAME IF THE PROSECUTOR DISAVOWS ANY INTEREST IN USING A S INFO? Fact that prosecutor initially refuses to consider A s info doesn t eliminate atty s duty to advise A about how to use the info to A s advantage, eg, by continuing to pursue cooperation from the prosecutor. The obligation atty owes to A creates the conflict, not whether any actual use will be made of any of A s info. LEO 1882 (July, 2015). 15 HIDING THE BALL: FAIRNESS TO OPPOSING PARTY 8

9 QUESTION 3 W (1 POINT) You represent a client in a drug case. AUSA Hyde Debaul says your client s goose is cooked. He offers to provide you with unclassified investigative reports that include the statements of material witnesses, but with two conditions: (1) you may share the reports with your client but not provide copies to her; (2) you will return the reports to the government at the conclusion of the representation. Your client agrees to these conditions. 17 Conditions: (1) you may share the reports with your client but not provide copies to her; (2) you will return the reports to the government at the conclusion of the representation. Q: May you agree to these conditions without running afoul of your ethical obligations to the client? A. No to both B. No to (1), but yes to (2) C. Yes to (1), but no to (2) D. Yes to both 18 9

10 QUESTION 3-E (1 POINT) Hyde Debaul also makes a favorable plea offer to your client. He explains that he is doing so because he is concerned for the safety of his material witnesses. Before Debaul is obligated to do so, he chooses to reveal to you the identities of those witnesses, but then asks that you not share the identities with your client. 19 QUESTION 3-E (1 point) Condition: you may not share the identities of the material witnesses with your client. Q: Is it ethical for (1) the prosecutor to impose this condition; or (2) you to agree to this condition? A. No to both. B. No to (1), but yes to (2). C. Yes to (1), but no to (2). D. Yes to both

11 QUESTION 3 ANSWERS Sharing Reports with Client R. 1.4 (Communication) requires atty to inform client of facts pertinent to the matter and to comply with reasonable requests for information so as to permit client to make informed decisions. R. 1.16(e) (Terminating Representation) requires atty to provide contents of his file to the client upon client s request. 21 Sharing Reports with Client LEO 1864 (2012): Rule 1.4 does not require that the lawyer provide copies of any of these materials, even upon request of the client so long as he can explain all pertinent facts to client and comply with a reasonable request for information by meeting with the client to view and discuss the discovery materials. R. 1.16(e) permits return of the reports to the Govt, but only with the client s informed consent, preferably in writing. Otherwise, the lawyer should not accept the materials

12 QUESTION 3 ANSWERS Withholding Identities from Client R. 1.4(c) (Communication) requires atty to inform client of facts pertinent to the matter so as to permit client to make informed decisions. R. 3.4(h) (Fairness to Opposing Party and Counsel) A lawyer shall not... Request a person other than a client to refrain from voluntarily giving relevant information to another party. 23 Withholding Identities from Client: LEO 1854 (2010): DEFENSE COUNSEL Defense counsel cannot withhold from the defendant salient facts or information that would be pertinent to the defendant s decision to plead guilty or proceed with trial. Sequestering info may be ok if info is not necessary for client to make informed decision

13 Withholding Identities from Client LEO 1854 (2010): PROSECUTOR Rule 3.4(h) directly prohibits [prosecuting attorneys] from requesting a person (the defense counsel) to refrain from voluntarily giving relevant information to another party (the defendant). Exceptions noted in Rule 3.4(h) are specifically limited to civil cases. However, no ethical problem if prosecutor chooses not to reveal the identities at all. 25 QUESTION 4-W (1 POINT) RPC 3.8(d) (Additional Responsibilities of a Prosecutor) states that a prosecutor must: make timely disclosure to defense counsel of the existence of evidence that the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court

14 QUESTION 4-W (1 POINT) Does Rule 3.8(d) require disclosure earlier than the Brady standard requires? Yes No 27 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 14

15 QUESTION 4-E (1 POINT) A. Disclose the substance of the witness statements to you as soon as practicable. B. Withhold the statements until Debaul concludes that her investigation would not be jeopardized by disclosure. C. Seek a protective order from the court to be excused from disclosure, at least temporarily, to avoid jeopardizing the investigation. D. All of the above. E. A and C. 29 QUESTION 4 ANSWERS Brady standard: prosecutor has legal (Due Process) obligation to disclose material exculpatory evidence in time for the D to make effective use of it at trial. LEO 1862 (2012) states that the duty of timely 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. The duty of timely disclosure is violated when the prosecutor intentionally delays making the disclosure without lawful justification or good cause

16 QUESTION 4 ANSWERS The prosecutor may not withhold evidence merely because her legal obligations under Brady have not yet been triggered. Rule 3.8(d) does state that disclosure can be precluded or modified by order of a court. Any modification of the disclosure must be by court order. LEO 1862 (2012). 31 LOYALTY TO YOUR CLIENT 16

17 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. 33 QUESTION 5-W (1 POINT) Should you advise the Court that the client s pro se motion should be denied? YES NO 34 17

18 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 35 QUESTION 5 ANSWERS RPC 1.3(c) (Diligence) states that A lawyer shall 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

19 QUESTION 5 ANSWERS Further, RPC 1.6(a) (Confidentiality) states that, 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. OPTIONS? 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 or defend frivolous actions), 1.16 (terminating representation). 37 ROLE PLAY: CANDOR TOWARD THE TRIBUNAL & PROTECTING YOUR CLIENT S INTERESTS 19

20 3 Style Points Polltogo 39 QUESTIONS 6 A THRU D (2 PTS EACH) Your client Olivia Outlaw (an attorney from Chicago) has been indicted for fraud involving complex securities transactions. Prior to her indictment, Outlaw had a retained ( real ) lawyer, who has since withdrawn because Outlaw can no longer pay her fees

21 After the Court appointed you to the case, Outlaw met with you several times at your office to review the charges and the discovery. You believe a guilty plea is her 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 s, but you are not certain that she has received or read your correspondence. 41 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 4 th Cir. case squarely adverse to your argument. However, neither you nor the 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

22 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 directed. Outlaw then hangs up on you. 43 QUESTIONS (2 PTS EACH) 6A. Where is your client/why is she not here? 6B. Do you want to go forward today without your client? 6C. Re your motion, is there any other case that you want to bring to my attention? 6D. Do you have anything to say in response to your client s statements? 44 22

23 QUESTIONS (2 PTS EACH) 6A. Where is your client/why is she not here? 6B. Do you want to go forward today without your client? 6C. Re your motion, is there any other case that you want to bring to my attention? 6D. Do you have anything to say in response to your client s statements? 45 A. WHERE IS YOUR CLIENT/WHY IS SHE NOT HERE? BAD ANSWER My client is aware of this court date. Relevant Rules: R. 1.3 (Diligence): A lawyer shall not intentionally... damage a client... except as permitted under the Rules. R. 1.6 (Confidentiality): W/O consent, a lawyer shall not reveal confidential information, e.g., info that is embarrassing or detrimental to the client. Note exceptions, e.g., info may be revealed to comply with law or a court order

24 A. WHERE IS YOUR CLIENT/WHY IS SHE NOT HERE? BAD ANSWER I told my client that she needed to be present today. Relevant Rules: R. 1.3 (Diligence) R. 1.6 (Confidentiality) R. 1.8 (Conflict of Interest): 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. 47 A. WHERE IS YOUR CLIENT/WHY IS SHE NOT HERE? BAD ANSWERS I do not know if my client is aware of her court date. I do not know why my client is not here. Relevant Rules: R. 3.3(a)(1) (Candor Toward the Tribunal): A lawyer shall not knowingly... make a false statement of fact or law to a tribunal. Cf. R. 3.3(a)(2): A lawyer 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

25 A. WHERE IS YOUR CLIENT/WHY IS SHE NOT HERE? GOOD ANSWERS 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 of my ethical obligations. 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). 49 B. DO YOU WANT TO GO FORWARD TODAY W/O YOUR CLIENT? GOOD ANSWERS Yes or No Relevant Rule: R. 1.2 (Scope of Representation): A lawyer shall abide by a client s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. 1.2(a). Goals vs. Tactics 50 25

26 CLIENT DECISIONS - SCT 5 decisions over which D has control: To plead guilty or take steps tantamount to pleading guilty To waive the right to a jury trial To testify on his own behalf To take an appeal To be present at trial These are personal or fundamental decisions. 51 ATTORNEY DECISIONS (EGS: STRATEGY & TACTICS) Supreme Court: 4 th Circuit: To bar the prosecution from using unconstitutionally obtained evidence To dismiss the indictment To have D wear civilian clothing during the trial To forgo an objection to a jury instruction - Evidence to introduce - Witnesses to call/interview - Stipulations - Trial objections - Pre-trial motions - Peremptory challenges - Requesting a mistrial 52 26

27 C. IS THERE ANY OTHER CASE TO BRING TO MY ATTENTION? BAD ANSWER No. Relevant Rules: R. 3.3(a)(3) (Candor Toward 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. Note difference if motion was pro se. Doesn t apply to evidence. 53 D. DO YOU HAVE ANYTHING TO SAY IN RESPONSE TO YOUR CLIENT S STATEMENTS? GOOD ANSWERS No. or The ethical rules prohibit me from answering. BAD ANSWER Yes, my client is a liar. Relevant Rules: R. 1.3 (Diligence): A lawyer shall not intentionally... damage a client... except as permitted under the Rules. R. 1.6 (Confidentiality): W/O consent, a lawyer shall not reveal confidential information, e.g., info that is embarrassing or detrimental to the client. R. 1.8 (Conflict of Interest): 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

28 D. DO YOU HAVE ANYTHING TO SAY IN RESPONSE TO YOUR CLIENT S STATEMENTS? WHAT ABOUT THE SELF- DEFENSE EXCEPTION? Relevant Rules: R. 1.6(b)(2) (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. 55 SELF-DEFENSE EXCEPTION Grows out of agency law and rests on considerations of fairness. Has been narrowly construed because it undermines atty/client trust. does not allow atty to disclose confidential info whenever atty is attacked. generally limited to civil/criminal proceedings alleging atty misconduct or IAC. Can disclose confidential info only w/client consent or as reasonably necessary to respond to the allegations. 28

29 SELF-DEFENSE EXCEPTION Reasonably Necessary Means: -- Should be done under judicial supervision in a formal proceeding or pursuant to a court order that the A/C privilege has been waived by client. [LEO 1859 (2012)]. -- In that way, the disclosure can be limited 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). Id.; see also ABA Formal Op (2010). 3 Style Points Polltogo

30 JUDICIAL CRITICISM 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: 60 30

31 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. 61 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 official. Yes No 62 31

32 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. 63 VA STATE BAR V. CURTIS BROWN (NO. CL , ) Atty represented criminal D in Norf. Cir. Ct. On day of jury trial, Atty made above comments in 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.) Judge granted recusal motion, resulting in delay of trial. 3-judge disciplinary court unanimously found that CB violated Rs. 8.2 and 3.5 (Impartiality and Decorum of the Tribunal) ( A lawyer shall not engage in conduct intended to disrupt a tribunal. )

33 PROFESSIONALISM COURSE: Judicial Criticism A lawyer should demonstrate respect for the legal 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. Lawyers are assumed to have special knowledge about the quality of the legal system... [and] consequently the assessments of lawyers may carry disproportionate weight. Moreover judges are constrained from public response... out of a proper concern not to involve judges in public controversy. 65 MIX & MATCH or HAVE YOU BEEN PAYING ATTENTION? 33

34 QUESTION 8-W Match the Topic w/the Rule (5 points) Judicial Officials Scope of Representation Additional Responsibilities of a Prosecutor Confidentiality of Information Impartiality & Decorum of the Tribunal R. 1.2 R. 1.6 R. 3.5 R. 3.8 R QUESTION 8-E Match the Topic w/the Rule (5 points) Communication Misconduct Diligence Candor Toward Tribunal Fairness to Opposing Party & Counsel R. 1.3 R. 1.4 R. 3.3 R. 3.4 R

35 BONUS QUESTION (8 POSSIBLE POINTS) Identify these ethicallychallenged persons: