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Pro Res Different Roles of the Lawyer
Terms in this set (14)
An insurance company retained Attorney to represent one of its policyholders (i.e., an insured) against a lawsuit. The insurance company that hired Attorney requires its retained counsel to follow its own litigation management guidelines, designed to monitor the fees and costs of the lawyers the insurer retains. The litigation management guidelines include the requirement of a third-party audit of legal bills. Although the guidelines usually serve the interests of both the insured and the insurer by keeping litigation costs low and expediting the resolution of the case, in this instance Attorney finds that the guidelines require tactical moves that are adverse to the insured's interests. The insurer claims that the insured impliedly consented to the guidelines by agreeing contractually
in the insurance policy to "cooperate" during litigation. The insurance company hired Attorney for the case. Should Attorney comply with the insurer's litigation management guidelines?
No, because a lawyer shall exercise independent professional judgment, and the insurer's litigation management guidelines in this instance materially impair the lawyer's professional judgment.
A prosecutor brought charges against a defendant for rape and murder, but only one witness could link the defendant to the crime, and that witness disappeared mysteriously while the defendant was out on bail awaiting trial. The prosecutor's case collapsed and the defendant won an easy acquittal, even though the defendant had confessed to the murder. The confessional turned out to be inadmissible because the police erred in failing to read the defendant all of his rights before taking his confession, which he later recanted. The prosecutor now has some evidence - less than probable cause but enough to be worth a try - that the defendant committed check fraud, so he brings charges in hopes that the attenuated charges will stick this time, and the dangerous murderer will be off the streets, regardless of the reason. Is the prosecutor in compliance with his ethical duties as a lawyer?
No, because the prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.
A prosecutor sees the backlog of prosecutions coming from his office and feels concern about whether all the cases will come to trial in time to comply with the Speedy Trial Act. In order to expedite some of the simpler cases, the prosecutor asks arrestees to waive their right to a pre-trial hearing, which saves up to a week due to scheduling complications, and allows the defendants' cases to come to trial sooner. Because most of the defendants in these cases are unrepresented by counsel, the prosecutor explains that they have a right to a preliminary hearing, but that defendants without a lawyer usually accomplish little or nothing at such hearings, and that the defendant will have a full trial at which to argue his innocence. He also explains that if the defendant believes he can win an acquittal, waiving a preliminary hearing might bring about the defendant's moment of freedom a bit sooner. Nearly all the defendants without representation agree to waive their preliminary hearings, which relieves some of the pressure on the local criminal docket and makes this more manageable for everyone. Is the prosecutor behaving properly in this regard?
No, because a prosecutor must not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.
Attorney works as a prosecutor and brings charges against a defendant. Attorney clearly has probable cause for alleging that the defendant committed the crime, but he also doubts that a judge or jury will find that the evidence satisfies the standard of "beyond a reasonable doubt." Attorney brings the case anyway, and the defendant wins an acquittal. Has Attorney acted improperly, under the Rules of Professional Conduct?
No, because a prosecutor may bring charges as long as the prosecutor knows the charges are supported by probable cause.
What is the basic difference between a prosecutor's duties under Brady v. Maryland and the duties under MRPC 3.8?
Brady requires prosecutors to turn over all material exculpatory information, while the Model Rules require prosecutors to turn over any information that tends to negate guilt of the accused or mitigate the offense, which is more inclusive.
Attorney is an Assistant U.S. Attorney (federal prosecutor) working for the Department of Justice, and he must prosecute the defendants arrested in a high-profile sting operation against a terrorist cell. Attorney faces tremendous political and media pressure to win convictions at any cost. Attorney argues with his supervisor that he is not subject to local ethics rules, as he is litigating exclusively in federal court in cases involving federal law, and that he should therefore be immune from state bar disciplinary proceedings. Is Attorney correct?
No, because federal statute, as well as Department of Justice regulations, subject federal prosecutors to the ethics rules of the state where such attorney engages in that attorney's duties.
A prosecutor receives a call from a crime lab about some DNA samples that someone had misplaced years before in a freezer at the lab. The DNA related to one of the prosecutor's former cases. Someone at the crime lab had checked the files and realized that the defendant in the case had been convicted of rape and murder, and was serving a life sentence in prison, but that the DNA evidence absolutely exonerates the defendant and points instead to the victim's cousin as the perpetrator. Does the prosecutor have specific ethical duties about what to do regarding this information?
Yes, the prosecutor shall seek to remedy the conviction.
A prosecutor in New York is engaged in plea bargain negotiations with a defendant and defense counsel. The defendant offers to confess to a much more serious crime, committed several years ago in California, if the prosecutor will drop the current charges, which will put the defendant in danger of retaliation from his gang once he is in prison. The prosecutor agrees, and the defendant confesses to a notorious armored car robbery in California ten years earlier that made national news, and for which another man had been convicted and was serving his sentence. The defendant describes the crime with sufficient detail that the prosecutor doubts that he could be fabricating the story. Does the prosecutor have any ethical duties about what to do with this information?
Yes, the prosecutor must promptly disclose that evidence to an appropriate court or authority.
Three years after prosecuting a defendant and obtaining a conviction for murder, another individual comes to the police station and confesses to committing the very murder for which the defendant is already serving time. The defendant always maintained his innocence and the basis of his conviction was an identification (in a lineup) by a single eyewitness. The person now confessing to the crime also fits the description given by the eyewitness and had a plausible motive for committing the murder. Does the prosecutor have a duty report this to the convicted defendant's lawyer?
Yes, when a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant in his jurisdiction did not commit an offense of which the defendant was convicted, the prosecutor shall promptly disclose that evidence to the defendant unless a court authorizes delay, and undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
Attorney testified before a state legislative committee about the need for the state to privatize its dysfunctional prison system. Attorney said he was there to testify as a concerned citizen of the state and a taxpayer, and Attorney did in fact believe that prison privatization was smart public policy. Attorney did not disclose that he was representing Alcatraz Incorporated, the largest private prison company in the country, which hoped to secure the lucrative contracts to operate the state's prisons after the legislature votes to privatize them. Was it improper for Attorney to neglect to disclose his representation of the private prison company?
Yes, because a lawyer representing a client before a legislative body or administrative agency in a non-adjudicative proceeding shall disclose that the appearance is in a representative capacity.
An attorney worked for a corporation as in-house counsel. The attorney discovered that the Chief Financial Officer falsified the corporation's quarterly earnings report in order to prop up the firm's share price, as the CFO's compensation is partly in stock options. The attorney knows that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission, and will eventually result in severe regulatory fines or civil liability for the corporation. The attorney thus reasonably believes that the violation is reasonably certain to result in substantial injury to the organization. The Chief Financial Officer hired the attorney, and he directly supervises the attorney in the organizational chain of command. The attorney confronted the Chief Financial Officer, but this proved unfruitful, and then the Chief Financial Officer discharged the attorney. What should the attorney do in this situation?
The attorney should proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge.
A corporation consents to having the attorney who serves as its in-house counsel represent the corporation's officers and directors on matters related even tangentially to the company. The consent came by a vote of the shareholders. Can an attorney be subject to discipline for representing both a corporation and its officers or directors individually?
Yes, because shareholders of a corporation cannot consent or grant a waiver to a potential conflict of interest.
An attorney served as general counsel for a municipal auditing and enforcement bureau, which monitored the internal affairs and expenditures of the municipal government. The attorney discovered that the head of the bureau engaged in selective enforcement and self-dealing, and suspected that bribery had occurred in a few instances. The attorney's confrontation of the bureau head proved futile, so the attorney then needed to proceed up the chain of command. Can the attorney serving as general counsel for a government bureau report wrongdoing to anyone higher within that municipality?
Yes, because if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of
government may be the client for purposes of the Rules of Professional Conduct.
According to the official Comment to Rule 1.13 of the Model Rules of Professional Conduct, when it is reasonably necessary to enable the organization to address the matter in a timely and appropriate manner, a lawyer must refer the matter to higher authority. This includes, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law. Ordinarily (unless applicable law specifies otherwise), which of the following would be an organization's highest authority to whom a lawyer might refer the matter?
The board of directors or similar governing body.
THIS SET IS OFTEN IN FOLDERS WITH...
Pro Res Regulation of the Legal Profession
Pro Res Maintaining the Integrity of the Profession
Pro Res Chapter 2
Pro Res Communications About Legal Services
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