avoid breaking bad under the rules of professional conduct ... · avoid breaking bad under the...

Seminar Title

Presented by: Wendy MuchmanChief of Litigation and Professional EducationAttorney Registration and Disciplinary Commission (ARDC)

Scott RenfroeChief of Supreme Court PracticeAttorney Registration and Disciplinary Commission (ARDC)

Avoid Breaking Bad under the Rules of Professional Conduct – or “Don’t Call Saul”July 10, 2014

Today’s program will look at legal ethics through the eyes of one of the most unethical lawyers in fiction: Saul Goodman. For those of you unfortunate souls who have not journeyed through the epic saga of Breaking Bad, you will need a little background on the storyline and information on key characters in order to better understand today’s presentation.

Breaking Bad covers the upward but ultimately downward spiral of milquetoast Albuquerque high school chemistry teacher, Walter White, from teaching his uninspired students to becoming the notorious methamphetamine lord of the Southwest known as “Heisenberg.” The metamorphosis occurs when Walter is diagnosed with terminal cancer and realizes he can neither afford proper treatment nor provide for his pregnant wife, Skyler, and their cerebral palsy-inflicted son.

Walter encounters one of his former, underachieving chemistry students, Jesse Pinkman, who is now a drug addict and smalltime dealer, and the cataclysmic events changing Walter’s life emerge. As the unholy partnership between Walter and Jesse develops and Heisenberg’s blue meth becomes the rage, ever-darkening circumstances lead them to seek legal counsel on numerous issues. Jesse steers them to Albuquerque’s late-night TV advertising counselor: Saul Goodman. From that point forward, “Better Call Saul” advises and misadvises his often conflicting clients on a variety of legal matters in what has become their unethical world.

Cast of main characters you need to know:

Walter White (Bryan Cranston)

Mild-mannered, but extremely intelligent Albuquerque high school chemistry teacher, who is diagnosed with advanced lung cancer and then uses his training and brains to ultimately become the ruthless, blue meth cook, “Heisenberg,” for the Southwest’s largest drug distributor.

Jesse Pinkman (Aaron Paul)

Walter’s former student who is alienated from his wealthy family and has slipped into the world of drug addiction and petty crime and becomes Walter’s partner.

Saul Goodman (Bob Odenkirk)

Unscrupulous sole practitioner who gives new meaning to the term, “criminal lawyer,” and provides occasional comic relief along with questionable advice to his clients, Walter and Jesse.

Skyler White (Anna Gunn)

Walter’s unexpectedly pregnant wife who suffers through the unfamiliar behavior of her husband and the ultimate terror that threatens her entire family.

Synopsis

Harold I. Levine Real Estate Institute July 10, 2014 page 1 of 2

Walter White, Jr. (RJ Mitte)

Walter’s and Sky’s teenage son who has a mild form of cerebral palsy.

Hank Schrader (Dean Norris)

Walter’s brother-in-law who is a DEA agent and begins to investigate the Heisenberg case.

Mike Ehrmantraut (Jonathan Banks)

An aging, but still masterfully effective muscle/hit man for Walter’s drug boss.

Ted Beneke (Christopher Cousins)

Skyler’s financially strapped boss under investigation by the IRS with whom Skyler has a brief affair.

Brandon “Badger” Mayhew (Matt L. Jones)

Jesse’s rather dim-witted but endearing friend who helps out with distribution until caught and thrown in jail.

Harold I. Levine Real Estate Institute July 10, 2014 page 2 of 2

http://en.wikipedia.org/wiki/Mike_Ehrmantraut

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Harold I. Levine Real Estate Institute: The New Era in Responsible Real Estate

Advertising


A Brief Overview of Lawyer Advertising

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Rule 7.1: Communications Concerning Lawyer’s Services

Communications:– cannot be false;

– cannot be misleading;

– cannot contain material misrepresentation.

A truthful statement can also be misleading if it omits facts necessary to make the statement as a whole not misleading.


Rule 7.2: Advertising

Subject to Rules 7.1 and 7.3, lawyers may advertise through written, recorded, or electronic communication, including public media.

Advertising through electronic media is also governed by the Rules. – See Rule 7.2 Comment 3

Cannot give anything of value to person for recommending lawyer’s services.

Advertisements must have the name of at least one lawyer responsible for content.

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Rule 7.3: Direct Contact with Prospective Clients

When the motive is financial, lawyers cannot solicit through in-person, phone, or real-time electronic contact unless it is family, another lawyer, or a prior professional relationship.

Even if contact is not prohibited by Rule, a lawyer cannot contact a person directly if he/she knows the person does not want to be contacted of if contact involves coercion, duress, or harassment– Why?


Rates and Fees

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Fees

Rule 1.5– A lawyer shall not:

collect an unreasonable fee; or

charge an unreasonable amount for expenses.


Basis or Rate of Fee

Rule 1.5 Comment 2– In a new client-lawyer relationship, however, an

understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer’s customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate, or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses, or disbursements in the course of the representation.

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Is a writing required?

A written statement concerning the terms of the engagement reduces the possibility of misunderstanding. – Rule 1.5 Comment 2

Yes, if the fee is contingent, a writing is required. – See Rule 1.5(c)


Where are fees deposited?

See Rule 1.15 (c) – Fixed fees, general retainers, and advance payment

retainers shall be deposited in the lawyer’s general account or other account belonging to the lawyer.

– See also for specifics of advance payment retainers.

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Misconduct


Misconduct

It is the part of the genius of our profession that attorneys have been able to competently and effectively represent criminal clients objectively and abstractly without personal involvement, and without incurring the disapprobation society tends to cast upon those convicted of crimes.

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Misconduct

However, when an attorney exceeds the accepted bounds of legal representation and enters the area of personal involvement in the criminal client’s illegal activities, the image of the profession is severely damaged and the public, in leveling its condemnations, understandably finds it difficult to distinguish between the criminal and his attorney. – In re Ciardelli, 118 Ill.2d 233, 242-43 (1987)


Preamble to the Rules of Professional Conduct

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.– Comment 5

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Preamble to the Rules of Professional Conduct

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. – Comment 9


Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:– (a) violate or attempt to violate the Rules of

Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

– (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

– (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

– (d) engage in conduct that is prejudicial to the administration of justice.

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Scope of Representation


Rule 1.2: Scope of Representation

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.

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Rule 1.2 Comment 9

[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct.


Rule 1.2 Comment 9

Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

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Rule 1.2 Comment 10

[10] When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed.


Rule 1.2 Comment 10

A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter.– See Rule 1.16(a).

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Rule 1.2 Comment 10

In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. – See Rule 4.1.


Rule 1.2 Comment 10

In such situations, the lawyer should also consider whether disclosure of information relating to the representation is appropriate. – See Rule 1.6(b).

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Conflict of Interest

Current Client – Specific Rules– Rule 1.8(a)

A lawyer shall not enter a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless:

– (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that may be reasonable understood by the client;





– (2) the client is informed in writing that the client may seek the advice of independent legal counsel on the transaction, and is given a reasonable opportunity to do so; and

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– (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction, including whether the lawyer is representing the client in the transaction.


Rule 3.4: Fairness to Opposing Party and Counsel

A lawyer shall not:– (a) unlawfully obstruct another party’s access to

evidence or unlawfully alter, destroy, or conceal [evidence] …;

– (b) falsify evidence, counsel or assist a witness to testify falsely, …;

– (c) knowingly disobey an obligation under the rules …;

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Fraud/Misrepresentation


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 material fact or law to a

third person;

– (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 by Rule 1.6.

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Rule 1.2 Comment 1: Misrepresentation

[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. 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. For dishonest conduct that does not amount to a false statement or for misrepresentations by lawyer other than the course of representing a client, see Rule 8.4.

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Rule 1.2 Comment 2: Statements of Fact

[2] This Rule refers to statements of fact as well as law. 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.

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Rule 1.2 Comment 3: Crime or Fraud by Client

[3] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. 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.

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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.


Rule 4.4: Respect for Rights of Third Persons

In representing a client, a lawyer shall not use means that have no substantial 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.

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Example of a 4.4(a) Violation

This letter is to advise you that this harassment … will no longer be tolerated. Should (the victim) have reason to complain because of any actions from either one of you, please be advised that criminal charges will immediately be filed and warrants for your arrest will be issued and DCFS will be contacted at that time to secure your children.– In re Guzman, M.R. 18943, 2003PR00015 (Ill. Nov. 14,

2003)



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Rule 1.7: Conflict of Interest – Current Clients

What You Cannot Do– Rule 1.7

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

– (1) the representation of one client will be directly adverse to another client; or

– (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.


Rule 1.7: Conflict of Interest – Current Clients

How You Can Fix It– Rule 1.7

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

– (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

– (2) the representation is not prohibited by law;

– (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

– (4) each affected client gives informed consent.

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Rule 1.7 Comment 1: General Principles

[1] Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client, or a third person or from the lawyer’s own interests.


Rule 1.7 Comment 1: General Principles

For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8.

For former client conflicts of interest, see Rule 1.9.

For conflicts of interest involving prospective clients, see Rule 1.18.

For a definition of “informed consent,” see Rule 1.0(e).

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Rule 1.7 Comment 2

[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: – (1) clearly identify the client or clients;

– (2) determine whether a conflict of interest exists;

– (3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and


Rule 1.7 Comment 2

[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: – (4) if so, consult with the clients affected under

paragraph (a) and obtain their informed consent. The clients affected under paragraph (a) include both of the clients referred to in paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2).

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Rule 1.7 Comment 4

[4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). – See Rule 1.16.


Rule 1.7 Comment 4

Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. – See Rule 1.9.

– See also Comments [5] and [29].

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Rule 1.7 Comment 14: Prohibited Representations

[14] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client.



[15] Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest.

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Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. – See Rule 1.1 (competence) and Rule 1.3 (diligence).


Confidentiality

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Rule 1.6: Confidentiality

A lawyer shall not reveal information relating to the representation unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted or required by the rule …


Truthfulness in Statements to Others

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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 material fact or law to a

third person;

– (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 by Rule 1.6.



[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false.

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Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by lawyer other than the course of representing a client, see Rule 8.4.



[2] This Rule refers to statements of fact as well as law. 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.

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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.



[3] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation.

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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.

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Advice to Client


Who is your client?

Duty to Intended Beneficiaries of Lawyer’s Services – See In re Estate of Powell, 2014IL 115997

– … general rule that an attorney is liable only to his client, not to third persons …. However, if a nonclient is an intended third-party beneficiary of the relationship between the client and the attorney, the attorney’s duty to the client may extend to the nonclient as well …. The key consideration is whether the attorney is acting at the direction of or on behalf of the client to benefit or influence a third-party …. (citations omitted)

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Rule 2.1: Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client’s situation.


Rule 2.1 Comment 1

[1] A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.

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Rule 2.1 Comment 1

In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.


Rule 2.1 Comment 2

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate.

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Rule 2.1 Comment 2

It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.


Fairness to Opposing Party and Counsel

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Rule 3.4: Fairness to Opposing Party and Counsel

A lawyer shall not:(a) unlawfully obstruct another party’s access to evidenceor unlawfully alter, destroy, or conceal [evidence] …;(b) falsify evidence, counsel, or assist a witness to testifyfalsely …;(c) knowingly disobey an obligation under the rules …;…(f) request a person other than a client to refrain fromvoluntarily giving relevant information ….

avoid breaking bad under the rules of professional conduct ... · avoid breaking bad under the...

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