Question 1
Indeed, the brother to the accused thinks that he is ethically oblige to provide privilege to her sister with the same level of protection given to other defendants . However she ought to understand that , according to the access to information act no. 31 of 2016 204(4) , just as other criminal defenders are presumed innocent until they are proven Guilty , the Clients’ brother should have treated the case and the information confidential until the party that sought disclosure through legal means to prove that it is true. From such a standpoint , the clients brother claims can be considered as frivolous than a plea of “not guilty ” even if the records in question were never examined nor the necessary laws of privilege researched by the court . This is often known as the “knee-jerk” claims of attorney -client privilege.
According to Rule 502 of Attorney-Client Privilege , neither the law of privilege nor any other systematic privilege litigations often support the posture of the client’s brother to claim privilege. In such criminal cases , the court can take the legal assumption of innocence , offering strong foundation for the ethical perspectives of the presumptively pleading client not guilty . Therefore , in this case , the legal burden of offering privilege are in direct opposition to the practice of law of presumptively claiming privilege. In terms of the evidence they shared , the presumption of the court is in favor of compulsion for the revelation of such information on the Brother’s side and the burden now fall to the party that claimed privilege to prove that the information they shared met the legal test for privilege.Therefore , in terms of law, , it is very possible for the client’s brother to make a frivolous claim of privilege , and in such a case the court ought to impose a wide range of sanctions on the brother together with the client . This is on the grounds that , such frivolous claims of privilege , irrespective of whether they are successful revealed , it is necessary to impose further litigation costs on both the brother and the client and apply scarce judicial resources . Indeed, the court does not have such much time to go through all such claims . As a result , the punitive measures taken by the courts on some egregiously frivolous claims of privilege might not be satisfactory to offset the strategic value of successful , yet unwarranted non-disclosure in the vast majority of such cases.
Question 2
While attorneys love the job as lawyers , most don’t like the business side of the law . Collection of client fee begins with the original client intake . According to the American Bar , attorneys should have a retainer as upfront payment . In this case , However , the lawyer made a promise to the defendant . According to the client protection law under the American Bar, any promise made by the attorney to a client will be implemented .
According to WOLFRAM, MODERN LEGAL ETHICS 250 (1986) , While the defendant’s promises to the lawyer might be reviewed by the court , the promises he made to the defendant earlier will be prioritized . This is due to the fact that a lawyer is bound by their terms of practice as lawyers and therefore they he is not entitled to any additional fee from the defendant. It is often normal for such lawyers to negotiate such fees in the middle of such an engagement. It will be the obligation of courts and bars association to review such claims for clear evidence that the lawyer applied improper leverage. You ought to feel compelled to pay your lawyer to pay more than what you might have agreed initially .
In this case, the attorney did not provide clear fee arrangements in great detail during their initial meetings . This should have been confirmed in writing before the case commenced and the defendant signing it .And since that was never the case , the attorney , under the American Bar association should wait for at least a year after their relation ended . This will provide him time to pursue any claims and evaluate its worth . In addition , by initiating such as claim, the attorney can be countersued on the grounds of malpractice . According to the American bar Association , a majority of all malpractice cases are often about counterclaims for suits for fees. The case is not about how much time the attorney spent on this case . Instead the action of tv royalties should be placed under a new review and dissected properly for any ethical malpractices.
Question 3
Loyalty to Frackers restrict the lawyers from carrying out directly adverse to the company without informed consent from the client .Therefore , lack of consent in this case , the law is not supposed to act as an advocate in one matter against the company in some other matters , even when such matters are related. This is due to the fact that the resulting damage to the relationship is likely to destroy the ability of the lawyer to represent her case effectively . In addition, the lawyer might have challenging moment undertaking reasonable position on the case out of defense from the company. This implies that , the representation of the case might be limited by the company’s interest in the case . In addition , a direct adverse conflict may arise when the lawyer is required to cross-examine the information, she tabled in a lawsuit involving his initial client. In some extent a directly adverse conflict of interest might arise when unrelated matters to the client whose main objective is directed to only the economically adverse situations that might be brought about by the lawsuit . Such situations would constitute a conflict of interest and thus might require written confirmation from the Frackers.
Indeed, the lawyer is not prevented from accepting a conflicting representation of Frackers in an unrelated matter , unless the situation is such that Frackers declares itself a client of the lawyer , thus indicating there is an understanding between the company and the organizational client . This further dictate that the lawyer ought to avoid representation of adversaries to the clients’ affiliate . This ties the lawyer as to the organizational client or risk being sued for malpractices.
According to Rule 1.7 Conflict of Interest: Current Clients, of the American Bar Association , a lawyer for an organization while at the same time is a member of its board ought to determine whether the obligation of the two roles might conflict . In this case the lawyer was called to advise the organization on matters that involved actions of the directors. The lawyer, must therefore put more considerations to the frequency with which such misleading details arise , the potential level of conflict , the impact of her resignation from the board and the likelihood of the company obtaining legal guidance from another attorney in such circumstances . In case there is a martial risk that the lawyer’s dual role will compromise her independent professional judgement , the lawyer should not serve and the company lawyer once such conflict of interest arises .
Question 4
The lawyer faces personal liability for misleading client’ brother . The disciplinary rule under the American Bar association(Model Rules 7.1 – 7.5) restricts in conducts that involves deceit , misrepresentation of fraud . It is the obligations of the lawyer to ensure that the involved parties were all informed about the status of the matter .When considering the potential liability for fraud on the lawyers side , is the restatement under section 18 of the American bar association , that fraud might be predicated on a statement of opinion . Infact , a review of the case will actually reveal ample recent authority holding that a statement of opinion will not back a cause of action for fraud .
The existence of obligation to disclose such information’s on schedule to the Client’s brother is the threshold in a fraudulent concealment case . The duty of disclosure on the lawyers side might be equitable and arises where the involved parties had a relation or trust and confidence as well as the fact that there was inequality if condition and knowledge.Clearly the client had the knowledge of the subject fact to have the obligation to disclose his intentions to his brother . Therefore , the liability for fraudulent concealment requires the accused to have the obligation to disclose which the lawyer already had .
Question 5
It is important for the lawyer to understand that when the two companies merge , antitrust issues might develop . Indeed, for such huge transactions . It is important for the lawyer to guide the companies to fill the parties will have to file what is called a Hart-Scott-Rodina filing. This would ensure that the antitrust agencies are on notice of thirty days to determine whether to issues a second request . This will ensure that the antitrust attorney serve the client with the best explanation regarding the levels of risks associated with a certain action , the elaborate how variation of such actions might add or reduce the risk . To do this the antitrust lawyer must understand the industry as well as the business objectives . Indeed , in their role , within this case , they are business partners that would assist in developing the best strategy of understanding the levels of risk of different alternatives for the company .
References
Books and Articles
Birkinshaw, P. (2010). Freedom of Information: the Law, the Practice and the Ideal. Cambridge University Press.
Lawry, R. (2010). The Law and Ethics of Lawyers’ Conflict of Interest. Trust and Integrity in Biomedical Research: The Case of Financial Conflicts of Interest, 150.
Hylton, K. N. (Ed.). (2010). Antitrust Law and Economics (Vol. 4). Edward Elgar Publishing.
Naffier, A. (2010). Attorney-Client Privilege for Nonlawyers-A Study of Board of Immigration Appeals-Accredited Representatives, Privilege, and Confidentiality. Drake L. Rev., 59, 583.
Pozen, D. E. (2016). Freedom of information beyond the Freedom of Information Act. U. Pa. L. Rev., 165, 1097.
Russo, F., Schinkel, M. P., Günster, A., & Carree, M. (2010). European commission decisions on competition: economic perspectives on landmark antitrust and merger cases. Cambridge University Press.
Rotunda, R. D. (2010). Resolving Client Conflicts by Hiring Conflicts Counsel. Hastings LJ, 62, 677.
Reich, R. B. (2010). The work of nations: Preparing ourselves for 21st century capitalis. Vintage.
Sisk, G. C., & Abbate, P. J. (2010). The Dynamic Attorney-Client Privilege. Geo. J. Legal Ethics, 23, 201.
Sokol, D. D. (2010). Explaining the importance of public choice for law. Mich. L. Rev., 109, 1029.
Wils, W. P. (2010). Increased Level of EU Antitrust Fines, Judicial Review and the ECHR, The. World Competition, 33, 5.
Others
American Bar association(Model Rules 7.1 – 7.5)
Access to information act no. 31 of 2016.
Rule 1.7 Conflict of Interest: Current Clients, of the American Bar Association.
WOLFRAM, MODERN LEGAL ETHICS 250 (1986).
Restatement of the law governing lawyers 118 tentative draft no 1 1988
