Attorneys and Clients

js5389's version from 2015-12-10 22:32


Question Answer
Rule 11(c)(4)doesn’t shift fees; penalties less—deterrence only
Rule 11(c)(1)law firm jointly liable
Rule 11(c)(2)safe harbor provision. 21 days to amend/correct/withdraw.
Rule 26(b)(3)Codifies Hickman v. Taylor.
Rule 68See Zuk.
Prior to 1983Rule 11 required signature to guarantee a certain level of investigation; stand behind complaint.
Between 1983-1993Rule 11 sanctions became standard part of litigation; meant that lawyers were exceedingly cautious about filing cases; shifted fees for compensation.
Created tension between attorney and client interests.

Attorneys and Clients

Question Answer
Hickman v. Taylor FactsAttorney interviews witnesses and takes notes. Opposing counsel requests contents of notes in interrogatory. Attorney claims privilege. Discovery does not apply to privileged information.
Hickman v. Taylor Holdingattorney-work product counts as privileged along with atty-client interactions.
Hickman v. Taylor Rationale- Protects due process. You can’t be adequately represented if you can’t confide in your attorney.
- Extends the logic of privilege to work products if they are prepared by council in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)
Marek v. ChesneyDefendant gives Plaintiff settlement offer of $100,000 when Plaintiff attorney fees are $32,000. Plaintiff rejects offer. At trial, Plaintiff wins $60,000 after expending $172,000 in attorney’s fees. Plaintiff claims Defendant must pay attorneys fees under fee shifting for § 1983 claims.
Zuk v. EEPI Factsπ had ∆ film family therapy sessions; ∆ rented through its library; π put transcripts into copywritten books. 15 years later, π tries to retrieve. Files lawsuit for copyright infringement. ∆ files 12(b)(6) MTD. Also moves for sanctions under Rule 11(c)(2). MTD granted; court rules that client and atty are jointly and severally liable for ∆s atty fees. Atty(lippman) appeals.
Zuk v. EEPI HoldingSanctions cannot be imposed under 28 USCA §1927; no error under Rule 11. Must be remanded to look at only under 11, where penalty is likely to be less. §1927 requires show of bad faith. But sanctions definitely appropriate as lawyerdid not investigate either the facts or the law well enough.
Evans v. Jeff D. Factsπ is disabled, institutionalized children, and ∆ is state of Idaho(Governor); Lawyer: Charles Johnson, represents the π class and is also their Special Friend. Settlement proposed granting 100% of injunctive relief asked for but waiver for any fees or costs. Johnson asked court to approve settlement except that clause. Court approved in its entirety.
Evans v. Jeff D. HoldingSettlement allowed to stand. No ethical conflict for Johnson?
Evans v. Jeff D. DissentContradicts purpose of Fees act. Ex-ante, it will be harder for πs to find lawyers to take their cases when they are seeking injunctive relief. Purpose in Fees Act: promoting respect for civil rights.

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