Download b. ROLES OUTSIDE LITIGATION

B. ROLES OUTSIDE LITIGATION
(1) Lawyer as Adviser
Problem p. 500-1, Question (b)
 Trents have two children: Dad wants to disinherit
grown daughter who is “rejecting her heritage”, Mom
doesn’t and asks L to help dissuade Dad. How far
should L go, if he agrees with Mom but is untrained in
philosophy, psychology, or counseling?
 MRPC 2.1: permits L to refer to non-legal
considerations – but what if Dad rejects them?
 MRPC 1.1: requires “competent representation”,
defined in terms of legal knowledge, skill, etc.
 MRPC 2.1: requires “candor”
 MRPC 1.4(b) requires explanation
Problem pp. 500-1 c’t’d
 Bresset, p. 501: in bankruptcy proceedings,
property scheduled at less than half of an
appraisal known to lawyer
 Does the court assume that this was done by the
lawyer intentionally, to “minimize the possibility
of administration by the Trustee”?
 if the lawyer and the associate, as they claim,
“did not prepare the schedule”, what did they do
wrong?
 MRPC 1.4(b) failure to explain?
 MRPC 2.1 Comment [5]!
2.
Lawyer as Evaluator
 Problem p. 500-1, Question (a): Richard Trent
wants to establish a travel business as a close
corporation with himself and Johnson (expert) as
shareholders (60% and 40% resp.); Johnson wants a
legal opinion about personal liability to customers
for mess-ups; T asks L to write it

In writing the opinion, to whom is L responsible?
 Is the op intended for Johnson’s use, and is he expected to
rely on it? Martin, p. 504
 will the questions covered differ for the two? Is there a
conflict of interest? MRCP 2.3
 does L reasonably believe that rendering the opinion is
compatible with other aspects of the Atty-C relationship?
 does L have C’s informed consent?
Lawyer as Evaluator c’t’d
 to the extent that T wants L to shade the opinion
so as to make it more attractive to J, he is asking L
to engage in deceptive behavior, advocate and
evaluator are two distinct roles
 Is L being asked to represent the corporation?
Does it even exist yet?
 How much of the uncertaintly L encounters
in researching the issue should he include in
the opinion?
 Does it matter whether J has his own lawyer?
3. Lawyer in other Contexts
 L receives confidential material
inadvertently from opponent – what are
his obligations? MRPC 4.4(b)
 is he obliged to return the material to the
sender?
 is he obliged not to read it or use it?
 if there is no obligation under the rules,
what should you do? ABA FO 06-440
C(1) Lawyer as Advocate in ADR
 Problem p. 512
 5 statements made in 4 different contexts
 MRPC: different rules for different contexts
 3.3(a)(1) on statements to a tribunal: no knowingly
false statements of fact or law
 4.1 on statements to “others”: no knowingly false
statements of material fact or law
 8.4(c): no conduct involving, dishonesty, fraud, deceit
or misrepresentation (no definition in comments, which
only mention crimes/offenses)
 Is any of them made to a tribunal (fed magistrate
conducting mediation probably doesn’t count, only
processes resulting in a binding decision by the mag.)
Problem p. 512 c’t’d
 Is any of the statements a knowingly false
statement of material fact? (statements of
value or intention don’t count – “puffery”)
 Ausherman, n. 2 p. 516: suit by 25 Ps who had been
solicited by L, against bank for unauthorized
disclosure of customer info
 L got P names from former client, who refused to
name the bank employee or unauthorized recip.
 none of the Ps had knowledge of facts
 after filing, L wrote to Ds offering to settle, and to
disclose 3d person who was “kingpin”, saying that he
didn’t know who that was yet but had made
arrangements to have the identity given to him (L) if
the Ds agreed to the settlement – admitted to be false
 Judge referred L to disciplinary authority
C(2) Lawyer as Neutral in ADR
 Original position of ABA was that
mediator or conciliator was rep. of all
 Rule 2.2 to that effect withdrawn in 2002
 now Rule 2.4 simply requires that L as 3d
party neutral is not representing any side
 Rule 1.12, for purposes of post-process
duties of ADR neutrals toward participants,
treats them same as judges (incl.
application of 1.11 screening of former
neutral’s partners and assocs.)