answer

16(b)

10(b)(5)

Duty of Loyalty

Lawyer violated the duty of loyalty to Officer, the duty of confidentiality, the duty of care, and engaged in deceitful, dishonest/fraudulent conduct that both negatively reflects on Lawyer’s ability to practice law and that harms the dignity of the profession.

Duty of Care

A lawyer has a duty to act as a reasonable lawyer of ordinary skill, judgment and preparation. Here, Lawyer’s actions were patently unreasonable. Use of a client’s corporation information fell below the standard of care of a reasonable attorney.

Duty of Confidentiality/Confidential Communications

A lawyer has a duty to keep all communications from his client related to his representation of the client confidential. Courts interpret “related to the representation” quite broadly.

Duty Not to Engage in Deceit, Fraud in Personal Dealings

A lawyer has a duty not to use deceit or fraud in private dealings.

Duty to Maintain Dignity of Profession/Duty to uphold the law

A lawyer also has a duty to maintain the dignity of the profession.

A. Duty of Loyalty

(1) In-house counsel

Lawyer owes a duty to act in good faith and in the corporation's best interest. He has a duty to go higher up and discuss the wrongful activity.

(1) Potential conflict

Lawyer may only accept the representation if he reasonably believes the potential conflict will not impact his ability to effectively represent each client, if he discloses the conflict to each client, if he gets consent from each client and if the consent is reasonable.

(2) Actual conflict

As lawyer owes a duty to the corporation, he cannot keep the information confidential so he could give no advice other than to seek indepdent counsel.

B. Withdrawal

Lawyer may withdraw from his representation. Permissive withdrawal is aceptable when representation becomes financially burdensone to Lawyer, when the client has in the past engaged in a crime or fraud by using his services, when the client acts in a way repugnant to him, or when the client refuses to stop engaging in conduct that the lawyer tells him to sop doing. Withdrawal is mandatory if the client is presently using the lawyer's services to engage in a crime or fraud. In such a case, the lawyer might have to make a "noisy withdrawal" by disclaiming work he prepared that furthered the crime or fraud.

A. Duty of Candor

As an attorney, Lawyer owes a duty of candor to the public and the legal system which requires him to produce evidence when he is reasonably certain that the evidence is the fruit or instrumentality of a crime.

B. Duty of Confidentiality

A lawyer may only violate the duty of confidentiality if the client consents, if he is ordered to disclose by law, if he does so to defend himself in a malpractice action or a suit to recover legal fees or under ABA rules, to prevent a crime involving imminent death or serious bodily harm. In California, no exception to the ethical duty of confidentiality has been carved out for warnings of death or substantial bodily harm. The ethical duty is broader than the attorney-client privilege.

February 2003 Question 3 [Criminal Law] [Criminal Procedure]

1. Did the court err in denying Don’s motion?

The issue here is whether the court properly denied Don’s motion to exclude evidence

of the courthouse identification.

Right to Counsel:

Don’s first ground for having the identification evidence excluded is that the procedure

violated his federal constitutional rights to counsel.

Sixth Amendment: The Sixth Amendment of the US Constitution, which is applicable to

the states through the Due Process Clause of the Fourteenth Amendment, affords

citizens the right to counsel during all post-charge proceedings. The Sixth Amendment

right to counsel only applies after a Defendant has been formerly charged. Here, Don

was arraigned and therefore the Sixth Amendment right to counsel for his post-charge

proceedings applies.

Don is arguing that the identification should be excluded on the grounds that it violated

his federal constitutional grounds that the identification procedure violated Don’s federal

constitutional rights to counsel. However, Don’s attorney was present with him during

the identification. Don is going to argue that they were not made aware of the

identification and given an opportunity to object to it. His lawyer was told of the

identification and its methods, however, it is unclear as to when the attorney was

advised of this information. It seems more likely that he was told after the identification

had already been made.

However, the Sixth Amendment right to counsel does not apply to identifications of the

suspect, since it’s not a proceedings for purposes of the Sixth Amendment right to

counsel.

Fifth Amendment: Miranda warning: Miranda warnings also afford the defendant of right

to counsel. This right is to have an attorney present during all interrogation or

questioning by the police. Miranda warnings are given to someone upon arrest. They

include the right to remain silent and that everything said can be used in court against

him, the right to have an attorney present and the right to have an attorney appointed

by the court if the arrestee cannot afford one. [In] this case the right to counsel issue did

not arise as a Miranda violation, since there was no questioning or interrogation of the

police, and the Defendant has already been arraigned.

This case involves the Sixth Amendment right to counsel in all post charge proceedings.

There are certain occasions where there is no right to counsel, for example, a photo

identification of a suspect, taking of handwriting or voice samples, etc.

Because the identification of a suspect by a witness does not afford the Si[x]th

Amendment right to counsel, and because Don’s lawyer was actually present with him

during the identification, the court was probably correct in denying Don’s motion to

exclude the evidence on this ground.

Due Process:

Don’s second ground for having the identification evidence excluded is violation of due

process of law.

Identification

The police may use different methods wherein witnesses can identify suspects as the

crime doer. These methods include photo identification, lineups and in-court

identifications. The identification process must be fair to the suspect and not involve

prejudice and therefore not violate his due process rights. For example, the lineup must

include others of similar build and appearance as the suspect.

The police in this case were going to have the Wes [sic]identify Don (or the murderer)

through photo identification. However, they took him to the courthouse knowing that

Don was having his preliminary hearing that day. The photo lineup did not have to be

at the courthouse, in fact it is usually at the police station. This questions the officers’

conduct and intent. Don is going to argue that this was done with the express purpose

of having Wes see him at the hearing and associate him to the crime. This is prejudicial

to Don and a possible due process violation.

The police will argue that it was mere coincidence that they ran into Don in the

courthouse and that their intent was to have Wes identify the murderer [sic] through a

photo identification. They will further argue that Wes told the officer he recognized Don

as the killer without any request by the officer. Therefore his identification was

spontaneous and not prompted. Therefore it did not violate Don’s due process rights.

However it is very suggestive to a witness to see a defendant charged with the crime

and make the identification that way. If Wes had identified Don independent of that

situation then the identification would have been valid and there would be no due

process violation. However, that was Wes’ first and only identification of Don, and Don

is going to argue that it was prejudicial and violated due process of law.