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Practicing Law Inst Prison Law 2010 Hypotheticals

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LITIGATION AND ADMINISTRATIVE PRACTICE SERIES
Criminal Law and Urban Problems
Course Handbook Series
Number C-224

Prison Law 2010

Chair

Alexander A. Reinert

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Practising Law Institute
810 Seventh Avenue
New York, New York 10019

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PROGRAM HYPOTHETICALS

Submitted by:
Ellen Yaroshefsky
Benjamin N. Cardozo School of Law
Selected ABA Model Rules of Professional Conduct:
ABA Model Rules of Professional Conduct, 2009
Edition. Copyright © 2009 by the American Bar
Association. Reprinted with permission. Copies of ABA
Model Rules of Professional Conduct, 2009 Edition are
available from Service Center, American Bar
Association, 321 North Clark Street, Chicago, IL
60654, 1-800-285-2221.

If you find this article helpful, you can learn more about the subject by going
to www.pli.edu to view the on demand program or segment for which it
was written.

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1.

RETAINER AGREEMENTS

Your standard retainer agreement in civil rights cases attempts to
provide, in part, regarding settlement that:
“If the case results in the recovery of a single sum of money, without
a separate award of attorneys’ fees, the attorneys fees will be the greater
of a) 1/3 of the recovery or b) the attorneys’ fees computed at their
regular hourly rate. The attorney’s current hourly rates are Boss: $450;
Associates 175-250; paralegals $125.
Under no circumstances shall the client’s obligations to the attorney
at the end of the case exceed the total monies recovered from the
defendant.”
You have a signed standard agreement with John Jones in a 1983
action for money damages. After extensive discovery, Jones, who has
been extremely difficult during the case, is offered $67,000 to settle the
case. He is ecstatic. Your firm has 80,000 worth of fees in the case. You
believe the case to be worth $250,000 and encourage Jones to wait but he
is adamant about taking the settlement.
What may the attorney do regarding the attorneys’ fees?
What provisions should you include in your retainer agreement to
deal with this issue?
2.

MULTIPLE PLAINTIFFS

Your office represents five plaintiffs in a 1983 action for money damages
against State Facility and other named defendants. The plaintiffs, who
are all physically disabled sustained significant injuries in State Facility
which has had a reputation for dangerous conditions for many years.
Your clients have different injuries. Your standard retainer
agreement acknowledges the possibility of a potential conflict because
some plaintiffs may have stronger claims than others. It specifies that the
plaintiffs may be offered a lump sum payment to settle all claims and
the attorneys’ fees and that each plaintiff agrees that the claims will not
be settled without agreement among all of them. You indicate that you
will advise each of them as to the appropriate distribution upon a
proposed settlement. You have successfully navigated settlement with
plaintiffs in past cases with such an agreement.
After depositions have been completed, the State offered $1 million
to settle the case. The state has not imposed any conditions on the
distribution of the monies.
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You prepare an analysis of the damage claims and send it to the
plaintiffs with your recommendation for damages to be awarded to each
plaintiff.
Four of the five plaintiffs consent to settle on the proposed terms.
One plaintiff objects and claims that she is entitled to an additional
$50,000. You meet with the plaintiffs as a group and will each plaintiff
individually. She still refuses to settle.
What are your options and obligations?
3.

THE NO CONTACT RULE

You represent three clients who were assaulted by the Triage Gang at the
local prison. Triage it has operated in State Facility for many years with
little intervention by the prison authorities. You file suit alleging that the
prison and named supervisory personnel have been aware of the Triage
gang for at least five years and have inadequate policies, practices,
training and supervision to prevent gang violence.
In discovery, you learn that a low level sergeant, Sam Sneed, is
likely to provide information supporting the claim that the prison has
known about the Triage gang for years and has inadequate policies to
protect against gang violence. You take his deposition. During the
deposition, as is the policy, he refuses to give his home address.
Three years elapse and you are preparing for trial. You plan to serve
Sneed with a trial subpoena. You contact the Assistant Attorney General
defending the case but they will not accept service for Sneed because he
is no longer a State employee. The Assistant Attorney General will not
tell you his last known address.
You hire an investigator who finds Sneed. As you prepare to
conduct an interview with Sneed, you receive a telephone call, followed
by a letter from the Assistant Attorney General telling you that you are
prohibited from interviewing Sneed because his statements may be
deemed admissions on behalf of the State.
What do you do?
4.

PROTECTION AND ADVOCACY ORGANIZATIONS

The Protection and Advocacy for Individuals with Mental Illness Act
(PAIMI) (42 USC 10801 et seq permits advocacy organizations to sue on
behalf of institutionalized individuals with mental illness.

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Disability Rights Inc., one such organization, files suit on behalf of
thirty people housed in State Mental Facility for grossly inadequate care.
There are no individually named plaintiffs in the lawsuit.
Disability Rights Inc., lawyers have minimal contact with the individuals at State Mental Facility, other than to obtain factual information
in support of the lawsuit. They have not discussed potential remedies
with the individuals nor explained the lawsuit.
What are the lawyers’ obligations toward the individuals at State
Mental Facility in connection with this case?
5.

CLASS ACTION

Your office filed a state court class action on behalf of prisoners alleging
lack of adequate treatment for those who test as HIV positive. There are
two named plaintiffs. The complaint alleges injunctive relief for the class
and includes a damage claim for the named plaintiffs only.
Your office has a retainer agreement with the named plaintiffs that
specifies, inter alia, that the damage claim is for those two persons only
and that to extent that there is any conflict between them as to differing
amounts for the damage claims that they agree that neither will settle
without consent of the other plaintiff. The class has been certified.
What are your options and obligations?

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SELECTED ABA MODEL RULES OF PROFESSIONAL CONDUCT

Client-Lawyer Relationship
Rule 1.0 Terminology
(a)

“Belief” or “believes” denotes that the person involved actually
supposed the fact in question to be true. A person’s belief may be
inferred from circumstances.

(b)

“Confirmed in writing,” when used in reference to the informed
consent of a person, denotes informed consent that is given in
writing by the person or a writing that a lawyer promptly transmits
to the person confirming an oral informed consent. See paragraph
(e) for the definition of “informed consent.” If it is not feasible to
obtain or transmit the writing at the time the person gives informed
consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter.

(c)

“Firm” or “law firm” denotes a lawyer or lawyers in a law
partnership, professional corporation, sole proprietorship or other
association authorized to practice law; or lawyers employed in a
legal services organization or the legal department of a corporation
or other organization.

(d)

“Fraud” or “fraudulent” denotes conduct that is fraudulent under
the substantive or procedural law of the applicable jurisdiction and
has a purpose to deceive.

(e)

“Informed consent” denotes the agreement by a person to a
proposed course of conduct after the lawyer has communicated
adequate information and explanation about the material risks of
and reasonably available alternatives to the proposed course of
conduct.

(f)

“Knowingly,” “known,” or “knows” denotes actual knowledge of
the fact in question. A person’s knowledge may be inferred from
circumstances.

(g)

“Partner” denotes a member of a partnership, a shareholder in a law
firm organized as a professional corporation, or a member of an
association authorized to practice law.

(h)

“Reasonable” or “reasonably” when used in relation to conduct by
a lawyer denotes the conduct of a reasonably prudent and
competent lawyer.

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(i)

“Reasonable belief” or “reasonably believes” when used in
reference to a lawyer denotes that the lawyer believes the matter in
question and that the circumstances are such that the belief is
reasonable.

(j)

“Reasonably should know” when used in reference to a lawyer
denotes that a lawyer of reasonable prudence and competence
would ascertain the matter in question.

(k)

“Screened” denotes the isolation of a lawyer from any participation
in a matter through the timely imposition of procedures within a
firm that are reasonably adequate under the circumstances to
protect information that the isolated lawyer is obligated to protect
under these Rules or other law.

(l)

“Substantial” when used in reference to degree or extent denotes a
material matter of clear and weighty importance.

(m) “Tribunal” denotes a court, an arbitrator in a binding arbitration
proceeding or a legislative body, administrative agency or other
body acting in an adjudicative capacity. A legislative body,
administrative agency or other body acts in an adjudicative capacity
when a neutral official, after the presentation of evidence or legal
argument by a party or parties, will render a binding legal judgment
directly affecting a party’s interests in a particular matter.
(n)

“Writing” or “written” denotes a tangible or electronic record of a
communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording
and e-mail. A “signed” writing includes an electronic sound,
symbol or process attached to or logically associated with a writing
and executed or adopted by a person with the intent to sign the
writing.

Client-Lawyer Relationship
Rule 1.5 Fees
(a)

A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The
factors to be considered in determining the reasonableness of a fee
include the following:
(1)

the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;

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(2)

the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment
by the lawyer;

(3)

the fee customarily charged in the locality for similar legal
services;

(4)

the amount involved and the results obtained;

(5)

the time limitations imposed by the client or by the
circumstances;

(6)

the nature and length of the professional relationship with the
client;

(7)

the experience, reputation, and ability of the lawyer or
lawyers performing the services; and

(8)

whether the fee is fixed or contingent.

(b)

The scope of the representation and the basis or rate of the fee and
expenses for which the client will be responsible shall be
communicated to the client, preferably in writing, before or within
a reasonable time after commencing the representation, except
when the lawyer will charge a regularly represented client on the
same basis or rate. Any changes in the basis or rate of the fee or
expenses shall also be communicated to the client.

(c)

A fee may be contingent on the outcome of the matter for which the
service is rendered, except in a matter in which a contingent fee is
prohibited by paragraph (d) or other law. A contingent fee
agreement shall be in a writing signed by the client and shall
state the method by which the fee is to be determined, including the
percentage or percentages that shall accrue to the lawyer in the
event of settlement, trial or appeal; litigation and other expenses to
be deducted from the recovery; and whether such expenses are to
be deducted before or after the contingent fee is calculated. The
agreement must clearly notify the client of any expenses for which
the client will be liable whether or not the client is the prevailing
party. Upon conclusion of a contingent fee matter, the lawyer shall
provide the client with a written statement stating the outcome of
the matter and, if there is a recovery, showing the remittance to the
client and the method of its determination.

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(d)

(e)

A lawyer shall not enter into an arrangement for, charge, or collect:
(1)

any fee in a domestic relations matter, the payment or amount
of which is contingent upon the securing of a divorce or upon
the amount of alimony or support, or property settlement in
lieu thereof; or

(2)

a contingent fee for representing a defendant in a criminal
case.

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.

Client-Lawyer Relationship
Rule 1.7 Conflict Of Interest: Current Clients
(a)

(b)

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.

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
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(4)

each affected client gives informed consent, confirmed in
writing.

Advocate
Rule 3.3 Candor Toward The Tribunal
(a)

A lawyer shall not knowingly:
(1)

make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer;

(2)

fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel;
or

(3)

offer evidence that the lawyer knows to be false. If a lawyer,
the lawyer’s client, or a witness called by the lawyer, has
offered material evidence and the lawyer comes to know of its
falsity, the lawyer shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal. A lawyer
may refuse to offer evidence, other than the testimony of a
defendant in a criminal matter, that the lawyer reasonably
believes is false.

(b)

A lawyer who represents a client in an adjudicative proceeding and
who knows that a person intends to engage, is engaging or has
engaged in criminal or fraudulent conduct related to the proceeding
shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.

(c)

The duties stated in paragraphs (a) and (b) continue to the
conclusion of the proceeding, and apply even if compliance
requires disclosure of information otherwise protected by Rule 1.6.

(d)

In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to
make an informed decision, whether or not the facts are adverse.

Advocate
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 a document or other material
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having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
(b)

falsify evidence, counsel or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by law;

(c)

knowingly disobey an obligation under the rules of a tribunal
except for an open refusal based on an assertion that no valid
obligation exists;

(d)

in pretrial procedure, make a frivolous discovery request or fail to
make reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;

(e)

in trial, allude to any matter that the lawyer does not reasonably
believe is relevant or that will not be supported by admissible
evidence, assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness
of a cause, the credibility of a witness, the culpability of a civil
litigant or the guilt or innocence of an accused; or

(f)

request a person other than a client to refrain from voluntarily
giving relevant information to another party unless:
(1)

the person is a relative or an employee or other agent of a
client; and

(2)

the lawyer reasonably believes that the person’s interests will
not be adversely affected by refraining from giving such
information.

Transactions With Persons Other Than Clients
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; or

(b)

fail to disclose a material fact to a third person when disclosure is
necessary to avoid assisting a criminal or fraudulent act by a client,
unless disclosure is prohibited by Rule 1.6.

Transactions With Persons Other Than Clients
Rule 4.2 Communication With Person Represented By Counsel
In representing a client, a lawyer shall not communicate about the subject
of the representation with a person the lawyer knows to be represented
by another lawyer in the matter, unless the lawyer has the consent of the
other lawyer or is authorized to do so by law or a court order.
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Maintaining The Integrity Of The Profession
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;

(e)

state or imply an ability to influence improperly a government
agency or official or to achieve results by means that violate the
Rules of Professional Conduct or other law; or

(f)

knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law.

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NOTES

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