Notes 66-114
[66] ABA Comment, RPC 1.2. The Comment also provides that the attorney “is required to give an honest opinion about the actual consequences that appear likely to result from a client’s conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action.”
[67] See RPC 1.16(a) & (b); ABA Comment, RPC 1.2.
[68] See RPC 2.1 and previous discussion indicating that it is proper for an attorney to refer to moral, economic and social, as well as legal, factors relevant to the client’s situation.
[69] RPC 1.16 requires that the attorney withdraw if the representation “will result in violation of the rules of professional conduct or other law,” and permits withdrawal if the client “insists upon pursuing an objective that the lawyer considers repugnant or imprudent.”
[70] See, e.g., Ruden v. Jenk, 543 N.W.2d 605, 610 (Iowa 1996) (attorney owes duty to administrator of estate as to legal aspects of assignments of deceased beneficiary’s interest); Disciplinary Proceedings Against Noble, 100 Wash.2d 88, 101, 667 P.2d 608, 615 (1983) (Stafford, J., concurring and dissenting in part) (as a fiduciary, attorney owed highest degree of “good faith, care, loyalty, and integrity, as well as the obligation to fully, timely, and honestly inform beneficiaries of all facts which would aid them in protecting their respective interests”).
[71] ABA Comment to RPC 1.14. See also ABA Comment to RPC 1.2: “Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.”
[72] See, e.g., Ann. Cal. Fam. Code § 721(b) (1998) (“[I]n transactions between themselves, husband and wife are subject to the general rules governing fiduciary relationships” and which impose “a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.”). See In re Marriage of Cottin, 63 Cal.App.3d 139, 133 Cal.Rptr. 583 (1976) (husband owed fiduciary duty to disclose all community assets in marital settlement agreement); In re Marriage of Modnick, 33 Cal.3d 897, 906, 191 Cal.Rptr. 629, 663 P.2d 187 (1983) (“[A] duty arises from the fiduciary relationship that exists between spouses with respect to the control of community property.”); In re Marriage of Eltzroth, 67 Or.App. 520, 525-26, 679 P.2d 1369, 1372-73 (1984) (“Oregon courts have long recognized that a husband and a wife do not deal at arms’ length and have imposed a fiduciary duty of the highest degree in transactions between them. . . . Husband had a duty to deal with his wife fairly and to make a full and frank disclosure of all circumstances materially bearing on the contemplated agreement, including a full disclosure of marital assets”).
[73] While the lawyer may not limit the objectives of the representation without the client’s consent, RPC 1.2(a), the means by which those objectives are pursued are normally within the lawyer’s discretion, RPC 1.2(a). According to the Comment to RPC 1.2(a), however: “In questions of means, the lawyer should assume responsibility for technical and tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.” In most cases, the lawyer’s explanation of the benefits of therapy and the harm in involving the child unnecessarily in the divorce and obtaining repeated evaluations, coupled with the parent’s concern for the child’s welfare, should be sufficient to obtain the client’s consent to the lawyer’s adherence to this Goal.
[74] See, e.g., Pa. Bar Op. 95-134 (1996) (lawyer for parent in child custody proceeding may interview unrepresented child only if, after sensitive consideration, lawyer determines that advantages of interview outweigh any risk of harm to child; lawyer should consult with parent, carefully consider content of interview, and explain lawyer’s role to child; and, if child is represented by guardian ad litem, child advocate or attorney, lawyer must secure representative’s permission).
[75] In some jurisdictions, the child may be required, have the right, or be permitted to testify or appear in court proceedings. In such jurisdictions, this Goal would not apply. See Kathleen Nemechek, Note, Child Preference in Custody Decisions: Where We Have Been, Where We Are Now, Where We Should Go, 83 Iowa L. Rev. 437 (1998) (surveying the law in different jurisdictions). Compare Texas Family Code § 153.009 (court “shall” interview a child ten years or older if requested by a party); Tenn. Family Code § 36-6-106(7) (“The court shall consider all relevant factors including the following where applicable: . . . “The reasonable preference of a child of twelve (12) years of age or older. The court may hear the preference of a younger child upon request.”).
[76] RPC 1.6(b)(1). The ABA Comment to Rule 1.6 states:
The lawyer’s exercise of discretion requires consideration of such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to the purpose.
[77] See Robert Aronson, What About the Children? Are Family Lawyers the Same (Ethically) As Criminal Lawyers?, 1 Journ. of Inst. for Study of Leg. Ethics 141 (1996); Robin Rosencrantz, Rejecting “Hear No Evil Speak No Evil”: Expanding the Attorney’s Role in Child Abuse Reporting, 8 Geo. J. Legal Ethics 327 (1995). Goal 6.5 and the Comment reflect the collective judgment of the Fellows of the Academy and should be followed to the extent possible under the law of the jurisdiction. If the law of the jurisdiction prohibits such disclosure, this Goal does not apply.
[78] See also Restatement of the Law Third, The Law Governing Lawyers, Proposed Final Draft No.2 §117A (ALI 1998).
[79] In some jurisdictions, however, such an effort might be prohibited as conduct adverse to the client and based on confidential information.
[80] RPC 4.1 provides that 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.” As noted in the Comment to Goal 6.5, jurisdictions differ concerning the scope of the exception to the duty of confidentiality for client criminal conduct or fraud. An attorney may be permitted to reveal confidences necessary to avoid a future crime or fraud, and, in some jurisdictions, a past fraud committed during the course of the representation or with the lawyer’s assistance. Even if a jurisdiction would not permit disclosure of past crimes or frauds, the attorney would be obligated to advise the client to rectify the fraud. If the client refuses, the attorney must withdraw from the representation. RPC 1.16(a); 8.4(c). See RPC 1.2 and ABA Comment: “A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required.”
[81] See RPC 1.6.
[82] But cf. RPC 3.3(a)(3) (duty to disclose to the court “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”).
[83] See RPC 4.1; 8.4.
[84] See, e.g., In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989): “[I]f a client wishes to preserve the privilege, it must treat the confidentiality of attorney-client communications like jewels — if not crown jewels. Short of court compelled disclosure, [citation omitted] or equally extraordinary circumstances, we will not distinguish between various degrees of ‘voluntariness’ in waivers of attorney-client privilege.”
[85] Hartman v. El Paso Natural Gas Co., 107 N.M. 679, 763 P.2d 1144, 1152 (1988). See also Mendenhall v. Barber-Greene Co., 531 F.Supp. 951, 959 (N.D. Ill. 1982): “Mendenhall’s lawyer (not trial counsel) might well have been negligent in failing to cull the files of the letters before turning over the files. But if we are serious about the attorney-client privilege and its relation to the client’s welfare, we should require more than such negligence by counsel before the client can be deemed to have given up the privilege.”
[86] ABA Formal Opinion 92-368 (1992) provides that once the inadvertence is discovered, the receiving attorney should notify the sending lawyer of receipt of the documents and should abide by that lawyer’s instructions as to their disposition. See also ABA Formal Opinion 94-382 (1994).
[87] ABA Formal Opinion 92-368 (1992). The ABA Committee relied on the following analysis from Informal Opinion 86-1518 (1986) (Notice to Opposing Counsel of Inadvertent Omission of Contract Provision) as equally applicable to the inadvertent receipt of confidential materials:
The opinion concluded that [the sending client’s] lawyer had no duty to notify [the sending client] of the error under Model Rule 1.4 because the client has no decision to make. Nor was the lawyer barred by the confidentiality provisions of Model Rule 1.6 from informing the other side because this disclosure was “impliedly authorized” by the representation. Because under Model Rule 1.2 the lawyer has the authority to decide the technical means to carry out the representation and because the client’s right under the same Model Rule to committed and dedicated representation is not unlimited, the opinion concluded that the “error is appropriate for correction between the lawyers without client consultation.” . . . . While Informal Opinion 86-1516 is not on all fours with the instant situation, its charitable view toward inadvertence, its unwillingness to permit parties to capitalize on errors, its recognition of a limitation on client decision-making authority and its respect for the role of counsel all support the position advanced in this opinion as to counsel’s proper conduct upon the inadvertent receipt of confidential information.
[88] ABA Formal Opinion 94-382 (1994) deals with the situation where the confidential materials were intentionally sent by a person not authorized to send them. For the most part, the Committee applied the same analysis as in Formal Op. 92-368 (1992) (discussed in the Comment to Goal 7.6). However, the opinion indicates that if the receiving lawyer has a legitimate claim that the documents should have been, but were not, produced by an adverse party in response to pending discovery requests, the receiving lawyer may seek to obtain from a court a definitive resolution of the proper disposition of the materials. See, e.g., In re Shell, 1992 W.L. 275426 (E.D. La. 1992) (ordering that such documents not be used by receiving party unless they “were the subject of a proper discovery request and were improperly withheld by adverse parties”).
[89] Cf. RPC 3.4(d). Protection of the client and sound pretrial practice often dictate that information be obtained under oath. Nothing in this Goal or Comment is intended to suggest that cooperation in the exchange of information should be informal when that is not appropriate.
[90] See, e.g., Colo. R. Civ. P. 26.2; Ann. Cal. Fam. Code § 721 (1998); E.D. Wis. Local Rule 7.07; D. Ariz. Rule 2.5 (requiring use of uniform interrogatories).
[91] See, e.g., Colo. R. Civ. P. 33 and 34; Ann. Cal. Fam. Code § 721 (1998); E.D. Wis. Local Rule 7.07.
[92] See, e.g., Colo. R. Civ. P. 26.2; E.D. Wis. Local Rule 7.07.
[93] Even when authorized by law, ex parte proceedings present the potential for unfairness since “there is no balance of presentation by opposing advocates.” ABA Comment, RPC 3.3(d). The lawyer for the represented party has a duty to make disclosure of “material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.” RPC 3.3(d). Fairness and professional courtesy call for notice to other counsel as well.
[94]See Draft Standards of Practice for Lawyer Mediators in Family Disputes (preamble) (ABA 1986); Standards of Conduct for Mediators IV (Americcan Arbitration Assn., ABA, and Society of Professionals in Dispute Resolution, 1994). It is assumed in this Standard that the attorney does not represent either of the parties to the dispute. Cf. RPC 2.2 (intermediaries).
[95] Society of Professionals in Dispute Resolution, Ethical Standards of Professional Responsibility, Standard 6 (1986).
[96] Donald T. Weckstein, In Praise of Party Empowerment—And of Mediator Activism, 33 Willamette L. Rev. 501, 537 (1997).
[97] “The mediator may provide information about the process, raise issues, and help parties explore options. The primary role of the mediator is to facilitate a voluntary resolution of a dispute. Parties shall be given the opportunity to consider all proposed options.” American Arbitration Association/American Bar Association/Society of Professionals in Dispute Resolution, Model Standards of Conduct for Mediators, Comment to Standard I. (1995).
[98] “A mediator cannot personally ensure that each party has made a fully informed choice to reach a particular agreement, but it is a good practice for the mediator to make the parties aware of the importance of consulting other professionals, where appropriate, to help them make informed decisions.” Id.
[99] See, e.g., American Bar Association Family Law Section Task Force, Standard VII E. (July 1997): “The mediator should facilitate the parties’ understanding of the applicable doctrines and practices of family law before reaching an agreement. The mediator may define the legal issues that may influence the parties’ resolution of their dispute, but should refrain from giving the parties legal advice based upon the mediator's interpretation of the law as applied to the facts of their situation.”
[100] See, e.g., RPC 2.2 (intermediation).
[101]See Donald T. Weckstein, In Praise of Party Empowerment—And of Mediator Activism, 33 Willamette L. Rev. 501 (1997):
[It] is important to note that the accepted definitions of mediation do not preclude the mediator from offering suggestions, recommendations, opinions, information, predictions, or even advice and proposals. The key criterion is a mediator's facilitation of self-determination by the disputants. Rather than interfering with the self-determination of parties to resolve their own dispute, activist interventions by the mediator may enhance the parties' empowerment by educating them and by aiding their realistic understanding of the alternatives to agreement. It is imperative, however, that in employing activist interventions, the mediator not attempt to decide the dispute, direct a resolution, or coerce the parties into accepting a solution. For the process to remain a mediation, the parties must retain their power to reject the mediator's analysis or information. Therefore, the mediator's activist intervention must be offered only as an educational aid to give the parties a better information base on which to reach or reject voluntary agreement.
See also Robert B. Moberly, Mediator Gag Rules: Is it Ethical for Mediators to Evaluate or Advise?, 38 S. Tex. L. Rev. 669, 672 (1997) (“If a mediator decides to evaluate, I argue that he or she ought to be required to provide the parties with information sufficient for them to make reasonably informed decisions about their rights and responsibilities”); comments of Leonard Riskin in Symposium, Standards of Professional Conduct in Alternative Dispute Resolution, 1995 J. Disp. Resol. 95, 100 (1995) (“if the parties intelligently decide that they want the narrow evaluative mediation, . . . the mediator ought to evaluate and it’s ethical . . . evaluation can enhance self-determination.”). John Feerick, Chair of the AAA/ABA/SPIDR Standards Commission, has stated that the Commission's draft standards “do not prohibit mediators from taking on an evaluative role per se in mediation," although he cautions against a "loss of neutrality in the process." John D. Feerick, Standards of Conduct for Mediator and Annotated Comparisons, 38 S. Tex. L. Rev. 455, 459 (1997). And the director of a law school mediation clinic states: “I think it is misguided to argue that a mediator with knowledge of the law should not share her knowledge with the parties in a law-based mediation—especially if the parties are pro-se….When settling their disputes, disputants must be permitted to invoke legal norms if they choose to, and the mediator must take steps to ensure that the parties' choices are knowing and informed." James H. Stark, Preliminary Reflections on the Establishment of a Mediation Clinic, 2 Clinical L. Rev. 457, 487 (1996). See Nancy H. Rogers & Craig A. McEwen, Mediation: Law, Practice, Policy, Ch.10 at pp.12-13 (1994) (“advice” may be given in a nonpartisan way; and providing only “information” may harm a participant if it is wrong, incomplete, or given in a manner that in reality or appearance detracts from impartiality).
[102] "The mediator may…offer opinions about the strengths and weaknesses of a case…. It is acceptable for the mediator to suggest options in response to parties' requests, but not to coerce the parties to accept any particular option." Order of the Supreme Court of Minnesota Promulgating Amendments to the Minnesota General Rules of Practice (Aug. 8, 1997).
[103] Weckstein, supra note 101, at 552.
[104] Id. at 520.
[105] Cf. RPC 2.2.
[106] See, e.g., Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, §§ B.1 & C.1.a (Nat’l Academy of Arbitrators, American Arbitration Assn., Federal Mediation and Conciliation Service) (hereafter “CPR for Arbitrators”); Code of Ethics for Arbitrators in Commercial Disputes IV.B. (American Arbitration Assn., ABA Special Comm., 1977) (hereafter “Code of Ethics for Arbitrators”).
[107] Stump v. Sparkman, 435 U.S. 349, 356, (1978).
[108] Id., 435 U.S. at 356-357.
[109] Hoosac Tunnel Dock & Elevator Co. v. O’Brien, 137 Mass.424 (1884). See also Int’l Union United Auto Workers v. Greyhound Lines, Inc., 701 F.2d. 1181, 1186 (6th Cir, 1983); Claxarano v. Liebowitz, 550 F. Supp. 1389, 1390 (S.D. N. Y. 1982). See generally, Nolan & Abrams, Vol II, Industrial Relations Law Journal, number 2, p.228 (1989).
[110] See e.g., RPC 1.12 (“Former Judge or Arbitrator”).
[111] See Comment to ABA MRPC 1.10.
[112] See also CJC Canons 3(C)(1), 3(E)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned”) (1990); CPR for Arbitrators 2.B.3 (“might reasonably raise a question as to the arbitrator’s impartiality”). An analysis of the CJC as it applies to arbitrators can be found in J. Lapinski & A. Jorgensen, Arbitrator’s Ethics—The Role of the Judicial Code of Ethics in Arbitration, 13 Arb. Q. of the NW 18 (1992).
[113] See CPR for Arbitrators § 2.B; Code of Ethics for Arbitrators Canon II.A.(1)&(2). See also Nassau County (New York) Ethics Op. No. 89-16 (1989) (lawyer-arbitrator who has previously arbitrated a dispute involving one of the parties in a present dispute should disclose the prior dealing).
[114] RPC 1.12(a).