LEGAL ETHICS ASSIGNMENT 3

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University of California, Berkeley *

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201

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Law

Date

Apr 26, 2024

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Has Diane violated Model Rule 1.1? Competency is at issue because Diane, a tax attorney is asked to represent her friend’s son in a criminal matter. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Although Diane is a tax attorney with no criminal law experience, she can still take on the matter if she is able to get up to speed on the matter. However, it is unclear if Diane actually got up to speed because she did not engage in any legal research and was given copies of standard motions from her friend. The fact that there is no evidence/facts to support that Diane attempted to educate herself on the matter or study before the court appearance means that she likely violated 1.1 because she did not provide competent representation since she lacked legal knowledge regarding criminal matters and did not prepare for the appearance, she just used Lilith’s standard motions as a starting point. Although Diane did consult with her Friend Lilith who is an experienced criminal lawyer but before contracting or consulting another lawyer from an outside firm to assist in legal services to a client, a lawyer must obtain written informed consent, which Diane failed to do, accordingly this is a violation of 1.1. In addition, Diane misled Sam and failed to obtain informed consent when she introduced Lilith as her colleague which was a blatant lie and did not give Sam the option to decide whether he wanted Lilith’s advice. Diane will argue that she reasonably believed that Lilith’s retention would contribute to the competent and ethical representation of her client, however that does not excuse the need for Sam to consent to the assistance from Lilith, thus a violation of 1.1 occurred. Further, both Diane and Lilith did not ordinarily consult with each other and the client about the scope of their representation and the allocation of responsibility between the two, instead after the interview of Sam Diane informs Lilith that she will take it from here and hands her an unknown payment. Diane also failed to investigate Sam’s story and follow up on Lilith’s assertion that if Sam’s story was truthful then the prosecution’s case was very weak and there was a strong entrapment defense. Sam also continues to express that he is innocent and wants to know whether there are other options available to him, but Diane does not do any research to corroborate the statements he provides, nor does she try to research any other viable options that would be beneficial to him. Further, there are no facts to support that Diane adequately prepared for the matter with the attention it deserved as she failed to determine whether Lilith’s statement about Sam’s case was a viable route for her to pursue. Accordingly, Diane failed to provide competent handling of the matter as she did not inquire into or analyze the factual and legal elements of the problem and failed to receive informed consent from her client Sam regarding Lilith. Diane has violated 1.1. Has Diane violated Model Rule 1.4? Communication is at issue because Diane failed to tell Sam very important information regarding his representation. A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;(3) keep the client reasonably informed about the status of the matter (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Diane did not tell Sam about alleged association with Lilith and her limited role. Lilith sent motions, was present during interview, and provided post interview advice yet Diane failed to receive informed written consent from Sam regarding her help with his representation because Lilith was not employed by the same firm. In addition, Diane was not honest about her lack of criminal law experience and the need for her to rely on Lilith as well as Lilith’s expertise in criminal matters. Thus, Sam was unable to make an informed decision regarding who he should hire to represent him on the matter that would be knowledgeable and able to guide him in deciding who should represent/advise him. Further, Diane failed to tell Sam about the extent of Lilith’s role, the conflict since they did not work at the same firm, and the payment she would receive for the work she has done. Thus, Sam did not have the capacity to make an insightful/thoughtful decision regarding whether to retain Lilith, whether the conflict was something he was fine with, and whether he was willing to make a payment to her as well. Lastly, Diane failed to Sam about all of his options and that if his story was true then the prosecution would have a weak case, which severely diminished his representation, this is apparent through Sam’s questioning if he had any other choice and she withheld information regarding other strategy and the likelihood of success. Yet, Diane decided to take Sam’s mother, Carla interest into favor more than his own and advised him that the reduced charge with probation and drug rehabilitation would be Sam’s best chance. This ultimately led Sam to not have sufficient information to participate intelligently in decisions concerning his representation. Accordingly, Sam’s representation was detrimentally impacted due to the lack of communication from Diane and her failing to reasonably inform Sam of the matter so that he could make informed decisions regarding the matter/his representation and decide what was best for himself rather than being pegged into the outcome that his mother wanted. Diane has likely violated 1.4. Has Diane violated Model Rule 1.8(f)? At issue is a Conflict because there are no facts showing that Sam consented for his mother to pay Diane to represent him. A lawyer shall not accept compensation for representing a client from one other than the client unless: the client gives informed consent; there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and information relating to representation of a client is protected as required by Rule 1.6. Carla, a prominent politician comes to Diane and asks her to represent her son, however Sam never consents to this representation nor has any say in the matter. The fact that Diane has a prior

relationship with Carla means that it is not reasonable for her to believe that she can proceed with representation because she lacks independent judgment due to the fact that Carla has influence since she is a prominent politician and one of Diane’s good friends. Diane is aware that Carla needs the matter resolved immediately and would like her son to be sent to rehab, which is the ultimate outcome that Diane provides. Diane is able to accomplish what Carla want’s rather than provide representation that benefits sam, this is supported by the fact that she failed to tell Sam about his options or follow up on the story about him being set up. The fact that Diane failed to investigate and followed Carla’s plan demonstrates that there was a clear conflict that detrimentally impacted the representation of Sam in this criminal matters. It appears that Diane only thought about her future relationship with Carla, whether it be personal or business and not about Sam and the best outcome for him. Further, Carla was a third-party-payer, yet Sam never explicitly consented to this, which ultimately led Carla to retain control over the matter. Further, there may have been a breach of confidentiality because there is a possibility that Diane disclosed information to Carla since the two were friends, however there is uncertainty whether they previously discussed the case. Ultimately, Sam never provided any informed consent verbally or written. It is likely that Diane has violated 1.8 (f). Has Diane violated Model Rule 1.5? At issue is the fee division because Diane and Lilith do not work at the same firm. e) A division of a fee between lawyers who are not in the same firm may be made only if:(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and(3) the total fee is reasonable. First and foremost, Diane and Lilith do not work at the same firm, Diane is a tax attorney while Lilith specializes in criminal law. There is uncertainty surrounding the proportion of services because there is no information regarding the breakdown of fees, this would violate 1.5 as two lawyers from outside firms can only split the fees if the division is proportional yet we have no information regarding the fee or the actual extent of Lilith’s work. In addition, Lilith’s role seemed to be limited to providing the standard motions, being present at the interview, and providing post-interview advice. It is hard to quantify the costs associated with her help and there is no information regarding what Carla agreed to pay Diane. In addition, the two do not act jointly responsible for the matter, instead there is no oversight and Diane randomly decides to take over the matter completely even though she does not get up to speed regarding criminal matters, accordingly 1.5 is violated because Diane expresses they are working together then after Lilith’s limited role she says she will do the rest. Further, there is uncertainty about what Diane gave to Lilith as the facts do not state what the total amount given was. Lastly, Sam never consented to the arrangement, Diane misrepresented Lilith’s role when she referred to her as a colleague and entered the appearance as the sole defense attorney. Although Sam did not object to Lilith’s presence, he is unable to consent to a lie, so regardless of Lilith being competent on

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the matter there was no informed written consent regarding her representation/the division of fees. Diane has likely violated 1.5. Has Diane violated Model Rule 1.7(a)(2)? At issue is whether a conflict of interest exists because of Diane’s relationship with Carla. (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: (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. There is a significant risk that Sam’s representation was materially limited by Diane’s friendship with Carla because she likely wants to maintain/preserve the friendship. Diane fails to clearly identify that her client is Sam rather than Carla, fails to determine if a conflict exists, and doesn’t question whether the representation should be undertaken even though a conflict exists. In addition, Carla explicitly told Diane that she wanted a quick resolution of the matter and for Sam to attend rehab and that is precisely what ends up happening as Diane fails to keep Sam reasonably informed about his options and informs him that the outcome his mother wants is the best option. This demonstrates that there was a lack of consent from Sam regarding his representation as his mother was the one who sought out Carla and expressed what outcome she wanted. Diane seems to do what Carla wants rather than trying to consult with Sam and see what he wants. Further, Carla is paying Diane, accordingly because the payment is from her rather than Sam, she may act in a way that benefits Carla so that she can ensure payment and potentially future business between the two. Another thing to keep in mind is that Carla is a political figure which may benefit Diane, so she may want to stay on her good side for future benefit, which ultimately impacts Sam’s representation, especially because he keeps expressing that he is innocent and that the police set him up. Diane has likely violated 1.7(a)(2).

LEGAL ETHICS ASSIGNMENT 3

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