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Litigation Ethics Confidentiality: Part IV (Non-Clients' Misconduct) McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/17) ABA Master CONFIDENTIALITY: PART IV (NON-CLIENTS' MISCONDUCT) Hypotheticals and Analyses* Thomas E. Spahn McGuireWoods LLP * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For ease of use, these analyses and citations use the generic term "legal ethics opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. ______________________ © 2017 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work. You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn ([email protected]) with any questions or requests. 65833122_6 Confidentiality: Part IV (Non-Clients' Misconduct) McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/17) ABA Master TABLE OF CONTENTS Hypo No. Subject Page (A) Choice of Applicable Ethics Rules 1 General Rule ............................................................................................... 1 2 Choice of Ethics Rules for Litigators: While a Matter is Pending Before a Tribunal ........................................................................................ 53 3 Choice of Ethics Rules for Litigators: Before a Matter is Pending Before a Tribunal ........................................................................................ 62 4 Choice of Ethics Rules for Non-Litigation Conduct: Where the Conduct Occurs .......................................................................................... 64 5 Choice of Ethics Rules for Non-Litigation Conduct: Where the "Predominant" Effect of the Conduct Occurs .......................................... 68 6 Avoiding Punishment on the Basis of Inconsistent Ethics Rules .......... 73 (B) Non-Clients' Misconduct in Non-Legal Contexts 7 Misprision of Felonies ................................................................................ 76 8 Non-Clients' Child Abuse ........................................................................... 95 (C) Non-Clients' Misconduct in a Corporate Contexts 9 Non-Client Employees' Non-Material Misconduct ................................... 120 10 Non-Client Employees' Misconduct Unrelated to the Representation ........................................................................................... 125 11 Non-Client Employees' Serious Misconduct ............................................ 128 (D) Non-Clients' Misconduct in a Litigation Contexts 12 Lawyers' Correction of Their False Statements of Fact to Tribunals .................................................................................................... 166 13 Friendly Non-Client's False Testimony ..................................................... 170 14 Unfriendly Non-Clients' Harmful False Testimony .................................. 197 15 Unfriendly Non-Clients' Helpful False Testimony .................................... 205 65833122_6 i Confidentiality: Part IV (Non-Clients' Misconduct) McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/17) ABA Master Hypo No. Subject Page 16 Other Proceeding Participants' Misconduct ............................................ 209 (E) Other Lawyers' Misconduct 17 Lawyers Subject to the Disclosure Duty .................................................. 217 18 Lawyers Whose Misconduct Must Be Reported ...................................... 235 19 Knowledge Standard Triggering Lawyers' Reporting Duty .................... 262 20 Misconduct Lawyers Must Report ............................................................. 276 21 Lawyers' Reporting Duty Logistics ........................................................... 321 22 Timing and Risk of Reporting Other Lawyers' Misconduct .................... 333 23 Confidentiality Duty's Role ........................................................................ 364 65833122_6 ii Confidentiality: Part IV (Non-Clients' Misconduct) McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/17) ABA Master General Rule Hypothetical 1 Your practice primarily involves representing local governments, which keeps you close to home nearly every day. The lawyer with an office next to you seems to travel constantly, because her practice involves union campaigns, employment discrimination cases, and sexual harassment training for your firm's clients across the country. During one recent ethics program, you jokingly told your colleague that you can only be punished by one state's bar, while she is at risk for punishment by many states' bars. She wonders what you mean. Can your colleague be punished by a state bar other than her home state's bar? (A) YES Analysis As complicated as the ABA Model Rules or a particular state's ethics rules can be to interpret and apply, ethics issues become even more complex if more than one jurisdiction's ethics rules might govern the pertinent conduct. Some lawyers mistakenly believe that the ABA Model Rules provide what amounts to a consensus formulation for guidance to lawyers in every state. In fact, the ABA Model Rules merely represent a voluntary organization's suggested guidelines. No state has adopted the ABA Model Rules in toto, and there can be enormous variation even among neighboring states' ethics rules. The ABA's evolving rules reflect the growing mobility of the legal profession, and its difficulty wrestling with which jurisdiction's ethics rules should govern lawyers' conduct. 1 65833122_6 Confidentiality: Part IV (Non-Clients' Misconduct) McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/17) ABA Master ABA Canons1 The American Bar Association adopted its initial set of Canons of Professional Ethics in 1908 (Canons 1-32). The ABA adopted an additional set of canons in 1928 (Canons 33-45). Between 1908 and 1969, the ABA revised several of its canons. The 1908 ABA Canons of Professional Ethics and their later supplements did not deal with choice of law issues. This should come as no surprise, given the likely rarity as of that time of lawyers venturing across state lines to engage in any professional activities. 1969 ABA Model Code After a five-year effort,2 in 1969 the ABA adopted a much more elaborate set of ethics rules, labeled the Model Code of Professional Responsibility. 1 Model Rules of Professional Conduct and Code of Judicial Conduct, Preface, American Bar Association as amended August, 1984 ("For seventy-five years, the American Bar Association has provided leadership in legal ethics and professional responsibility through the adoption of professional standards which serve as models of the regulatory law governing the legal profession. On August 27, 1908, the Association adopted the original Canons of Professional Ethics. These were based principally on the Code of Ethics adopted by the Alabama Bar Association in 1887, which in turn had been borrowed largely from the lectures of Judge George Sharswood, published in 1854 under the title of Professional Ethics, and from the fifty resolutions included in David Hoffman's A Course of Legal Study (2d ed. 1836). The Canons of Judicial Ethics were adopted by the Association at a meeting in Philadelphia on July 9, 1924. After their initial adoption, the Canons of Professional Ethics and of Judicial Ethics were amended and clarified. In 1913, the Standing Committee on Professional Ethics of the American Bar Association was established to communicate to the Association information on the activity of state and local bar associations in respect to the ethics of the legal profession. In 1919 the name of the Committee was changed to the Committee on Professional Ethics and Grievances and in 1922 its purpose was amended to authorize the Committee to 'express its opinion concerning professional conduct, and particularly concerning the application of the tenets of ethics thereto. .' In 1958 the Committee on Professional Ethics and Grievances was separated into two committees: a Committee on Professional Grievances with authority to investigate charges of professional misconduct by its members and a Committee on Professional Ethics with responsibility to express its opinion concerning proper professional and judicial conduct."). 2 Id. ("In 1964, at the request of [ABA] President Lewis F. Powell, Jr., the House of Delegates of the American Bar Association created a Special Committee on Evaluation of Ethical Standards (the 'Wright Committee') to assess whether changes should be made in the then current Canons of Professional Ethics. As a result of its deliberations, the Committee produced the Model Code of Professional Responsibility in response to a perceived need for change in the statement of professional 2 65833122_6 Confidentiality: Part IV (Non-Clients' Misconduct) McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/17) ABA Master The 1969 ABA Model Code followed (and triggered) a widespread national debate about lawyer ethics. Even the Model Code's title seems to have involved controversy. In 1982, the Roscoe Pound-American Trial Lawyers Foundation Commission on Professional Responsibility adopted a report entitled "The American Lawyer's Code
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