BACKGROUND AND FUNDAMENTAL ISSUES

Legal Profession Prof. OBrien (Spring 2011)

I. 1983 ABA adopted Model Rules of Professional Conduct with black-letter rules
a. 2002 and 2003 revisions to the 1983 Model Rules
b. It is the adoption by the State S Ct that makes the Model Rules LAW in any particular state.
ABA Model Rules are NOT binding on any state, UNTIL they have been adopted by States S
Ct.
c. An assumption exists that our state has adopted ABAs Model Rules verbatim
II. Ethics of Aspiration
a. The wish to become the best attorneys we can be
b. The attorney ideal
c. Concentrate on how to avoid potentiality of attys falling into pitfalls
III.Professionalism
a. Relates back to Ethics of Aspiration
i. Profession: a group that pursues a learned art in a public service. Involves an occupation
that has special privileges
b. Privileges:
i. Practice requires substantial intellectual training and use of complex judgment
ii. Clients must trust
iii. Clients interest is put ABOVE interest of the profession
iv. Occupation is self-regulated
c. Rewards:
i. Attys have commitment to quality and a sincere desire to help. Being a professional is
not about money or professional fulfillment, but about a dedication to serve clients
interests
IV. Role of Ethics
a. Attys act in a role to pursue objectives and goals that the client wants
b. Atty may be asked by client or court to represent unpopular client, but atty can ALWAYS say
no? Can he?
i. No. There must be a valid reason why he cannot be counsel. gas, against morals.
ii. See R. 6.2
c. Ethics of Aspiration = (OBriens ideal)
i. Characteristics: honesty, candor, diligent, competent, trustworthy, loyalty, discreet, wise,
thoughtful, respectful, communicative, courteous and civil, keep ones word
d. Obligations of Attys to Legal Profession/Legal System
i. Work to improve legal system, to help reform it to make it better
ii. Attys should become involved in efforts to improve it
e. Legal Ethics
i. When admitted to the bar, attys will take oath & follow rules of professional conduct in
jurisdiction
V. Other important sources of law
a. Ethics Opinions: Attys give fact scenarios and ask Ethics Committee for proper procedure.
Ethics Committee provides recommendation/opinion.
i. Not authoritative = not binding, BUT court will consider information favorably of atty
gets in trouble

REGULATION OF THE LEGAL PROFESSION

I.

Admission to the Bar

A. RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS:
i. *Notes:
a. Applies to applicants and lawyers (if lawyer makes false statement and is then
admitted, could be disciplined after the fact)
b. Requires correction of any prior mistake by the applicant when they are a lawyer
c. Subject to 5th A self-incrimination, but applicant must do openly and not use
nondisclosure as justification
d. Atty representing applicant is subject to R. 1.6 (client-atty relationship) and R. 3.3
(candor toward tribunal about knowledge of applicant)
e. Applicant should disclose EVERYTHING
f. In class problem, dean of law school is supposed to disclose information to the Bar,
so subject to discipline under R. 8.1.
B. RULE 1.6 CONFIDENTIALITY OF INFORMATION:
i. *Notes:
a. Atty has obligation not to reveal information relating to the representation of a client
unless client gives informed consent
b. Para. (b) provides exceptions for the atty to reveal information
C. RULE 8.4 MISCONDUCT:
i. *Notes:
a. Look at offense involving moral turpitude of personal morality like adultery and
comparable offenses
1. Cannot be disciplined professionally for this because it does not go to a lack
of characteristic to practice law, but can be criminally liable
b. Peremptory challenges do not alone violate Para. (d)
c. Covers conduct which the atty engages in not in their capacity as an atty like
criminal conduct
D. Additional information
i. Requirement to volunteer information?
a. No affirmative obligation is required of lawyer about applicant to the Bar.
ii. R. 1.6 trumps obligation under R. 8.1(b)
a. R. 8.1(b) language is broad, but subject to R. 1.6
1. If this situation happened outside of A-C P, then atty has obligation to reveal
information and R. 8.1(b) governs
2. R. 8.1 applies to attys and atty charged with disciplinary proceeding (has to
cooperate with the process)
iii. Differences between R. 8.4 and R. 8.1
a. Burden of proof is different
1. Application burden on applicant to establish by preponderance of evidence
of his or her character to practice law
2. Atty burden on discipline committee to establish violation of rule
b. Scope and Nature of Inquiry
1. Application much broader. Inquires into education, background
2. Atty narrower. Specific charges are made
iv. Admission to the Bar
a. Must answer Qs accurately and truthfully on application
b. *failure to disclose information is likely to be huge problem
c. Can include unlawful conduct, false statements, misconduct in employment
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d. Unauthorized practice of law

e. Denial of application may not be forever
f. Bar can ask law school for academic, and non-academic reasons to deny/grant
application
g. Strange behavior can be denial of admission
h. Atty cannot present false testimony that he knows is untrue
i. Student is required to testify at hearing, cannot waive like criminal in a trial
v. Cheating at SLU Law
a. Student Honor Code
b. Seems improper for Dean to take over process
vi. Bar examiners look at factors of applicant:
a. Age, Recency of conduct, seriousness of conduct, cumulative effect of conduct,
evidence of rehabilitation, social contributions (like remorse, candor in disclosure)
vii. Uniform bar examination
a. Pro enable attys to more easily move from state to state
b. Con important for attys admitted to practice in state to learn the law
viii. After application:
a. If after applicant is admitted, I am atty and I have a duty to disclose information that
applicant has told me after the fact about being dishonest on bar application under R.
8.3
b. If I was atty for applicant, and applicant tells me information after the fact about his
application that I didnt know, then obligation of confidentiality continues past my
representation under R. 1.6
ix. State has a need to protect public from those who are incompetent or who lack integrity
a. Denied admission:
1. Embezzling money
2. Borrow money for law school, then file BK (courts differ)
a. Attys entrusted with clients money
3. Fleeing to avoid prosecution, undermined integrity of the judicial process
4. Political beliefs if abusive, hostile, disruptive, intemperate, irresponsible,
threatening or turbulent behavior is a proper basis for denial of admission to
the bar
b. Allowed admission:
1. Adolescent behavior not sufficient to disqualify applicant
x. Education, knowledge and character requirements:
a. Education most states require graduation from ABA-accredited law school
1. Schools that are not ABA, must have a substantial equivalent of legal
education
b. Knowledge bar examination administered in every state
c. Character applicant must have good character
1. Fraud, perjury, embezzlement, bribery, theft, and robbery are crimes involving
moral turpitude
2. Need to have passed MPRE in school and have ethics
xi. Atty can be disciplined for assisting in admission of an unqualified applicant
xii. Other Attempts at State and Federal Limits on Bar Admission
a. State may not require a bar applicant to be a US citizen
b. State cannot impose residency requirement on applicants
c. State may protect its citizens against attys who practice there occasionally and are not
up to date on the states law and practice

II.

Lawyer Discipline and Disabled Lawyer

A. RULE 8.4 MISCONDUCT:
i. *Notes:
a. Para. (a) - No prohibition on atty to advise client about action client is legally entitled to
take
b. Look to moral turpitude
c. Pattern of repeated offenses can indicate indifference to legal obligation
d. Attys holding public office have higher standard and presence of abuse suggests
inability to fulfill professional role of attys
e. Professional duties concerned with atty representing client and causing harm to client
f. Catch-all
B. RULE 1.1 COMPETENCY:
i. *Notes:
a. Required knowledge: look at variety of repeating factors complexity of case, attys
experience, attys training
b. No prior experience or training in a matter is required at onset of case
c. To maintain knowledge, atty must update knowledge of changes in law and engage in
CLE
d. Atty violates incompetence, negligence and neglect as violations of both R. 1.1 and R.
1.3
C. RULE 1.3 DILIGENCE:
i. *Notes:
a. Attys duty to act with reasonable diligence does not require the use of offensive tactics
or preclude the treating of all persons involved in the legal process with courtesy and
respect
b. Attys workload must be controlled has obligation to clients he has already undertaken
to represent
c. Act with reasonable promptness
d. Unless terminated, atty must follow-through to conclusion all matters undertaken for
client
e. Atty violates incompetence, negligence and neglect as violations of both R. 1.1 and R.
1.3
D. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT:
i. *Notes:
a. Legal profession is self-regulated = requires members to initiate disciplinary
investigation
b. Rule limits reporting obligation to those offenses that a self-regulating profession must
endeavor to prevent
c. Rule doesnt apply in cases of A-C P
d. In re Himmel reporting requirement trumps clients desire that misconduct of clients
former atty not be reported
e. States disciplinary counsel must evaluate all complaints filed by clients or other attys
f. Sanctions: disbarment, suspension, admonition, probation, restitution, assessment of
costs, limitation on practice, appointment of receiver
g. Atty discipline is to protect public, courts and legal profession
E. RULE 8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW:
i. *Notes:
a. Tribunal broader than a court
b. Conduct of a lawyer admitted to practice in jurisdiction A is subject to disciplinary
authority in jurisdiction A
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c. Disciplinary authority extends to lawyers not admitted for protection of jurisdictions

citizens
d. Para. (b) seeks to resolve conflicts of law, by minimizing conflicts only one set of rules
will apply
1. Pending proceeding = set of rules of that tribunal
2. Not yet pending proceeding = set of rules of jurisdiction where conduct occurred
3. In anticipation of proceeding to be before tribunal = set of rules of where conduct
occurred, where tribunal sits, or another jurisdiction
e. Para. (a) = Which states have authority to impose discipline
f. Para. (b) = Choice of law question, which bodies of rules applies
g. Example:
1. Atty license in FL, but engaging in misconduct in Jersey. FL can institute a
disciplinary case, but would be applying rules of NJ
F. Additional information
i. Substance abuse case
a. NOT a defense to disciplinary charge
b. Is it affecting work? Then need to report
c. Mental disorder rule:
1. Ability to manage mental disorder for a meaningful and substantial amount of
time and
2. Recurrence of misconduct is unlikely
ii. Interstate discipline
a. Any state in which the atty is licensed may discipline an atty for misconduct wherever it
occurs, and even a state to which the atty travels for temporary practice may try the atty
for conduct occurring there
b. If an atty is disbarred in one state, this does not mean the atty needs to be disbarred in a
second state
c. Federal courts adopt the ethics rules of the state in which they sit
iii. DR 1-102 Misconduct, p. 179
a. Disciplinary rule that defines ethical conduct that the public has a right to expect not
only of attys but of their employees and associates.
1. Mandatory in character
2. State minimum level of conduct
b. Similar to R. 8.4, but moral turpitude and engage in conduct that adversely reflects on
his fitness to practice law are factors
iv. DR 4-101 Confidences, p. 199
a. Confidence: information protected by A-C P
b. Secret: other information gained by atty in professional relationship that client wants not
disclosed
c. Similar to R. 1.6, except cannot reveal confidence or secret of his client
v. Report of misconduct to the proper authorities is absolutely privileged = no defamation action
vi. State may not disbar atty for taking the 5th A
vii. Knowledge definition is on p. 57 in the In re Riehlmann
a. Whenever supporting evidence would allow a reasonable lawyer under the
circumstances to form a firm belief that the conduct in question had more likely than not
occurred.
b.

III.

Regulating Lawyers Outside of Formal Discipline

A. RULE 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES:
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Agreement limiting attys malpractice is prohibited

Agreements settling a claim or potential claim for malpractice are not prohibited by this rle
a. BUT atty must first advise unrepresented or former client
1. In writing of appropriateness of independent representation of a settlement
AND
2. Give reasonable opportunity for them to find and consult independent counsel
B. Additional information:
i. Substantial consequences exist for atty apart from professional discipline = professional
malpractice, contempt of court, sanctions, loss of fees, disqualification
ii. Elements of a cause of action for professional discipline:
a. Employment of atty or other basis for imposing a duty
b. Failure of atty to exercise ordinary skill and knowledge and
c. Such negligence was proximate cause of damage to Pl
d. *Note: atty can show he made a legal, honest, and informed (legal research) legal
judgment to be free from malpractice liability.
iii. Restatement 3rd, Law Governing Lawyers 48-58
a. Good restatement of the rules of caselaw that regulate liability of attys for legal
malpractice and breach of fiduciary duty
iv. Insurance
a. Will exclude liability from intentional wrongs
v. Malpractice examples:
a. Failure to gain clients consent to settle
b. Failure to follow clients instructions
c. Failure to keep clients information private
d. Revealing confidential information of a prospective client
vi. Atty can avoid malpractice by:
a. Look for conflict of interest
b. Clients expectations and what are realities
c. Everything in writing
d. Dont try to cover up mistakes
e. Dont sue client for unpaid fees
vii. No malpractice liability for an honest exercise of professional judgment
viii. Malpractice standard for criminal D
a. Needs to prove himself innocent of the charges against him
ix. Malpractice remedies
a. Look to what client would have obtained by way of trial or settlement if atty had
handled matter non-negligently
x. Forfeiture of fees not justified when an atty violates a legal duty
xi. Criminal D must show ineffective counsel gave rise to actual prejudice
xii. Attys may be criminally charged as accomplices of their clients
xiii. Atty could also be disqualified from a case or a court may void transactions made in
violation of the attys professional obligations
i.
ii.

THE LAWYER-CLIENT RELATIONSHIP

I. Undertaking to Represent a Client
A. RULE 1.18 DUTIES TO PROSPECTIVE CLIENT
i. Comment 3 atty cannot reveal or use information learned in initial interview
ii. Comment 9 attys competence see R. 1.1; attys duty with valuables or papers, see R.
1.15
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B. RULE 1.2 SCOPE OF REPRESENTATION & ALLOCATION OF AUTH. B/W CLIENT

ATTY
i. Clients authority to settle case
C. RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS:
i. Atty cannot bring frivolous actions
D. Additional information:
i. Prospective clients:
1. Communications are legally privileged and protected by R. 1.6
2. If atty takes possession of docs, he must protect them
3. If atty gives advice, he may be responsible
ii. To be a prospective client, the person must have a reasonably expectation that the atty is
going to be representing
iii. Atty can obtain informed consent from prospective client that anything discussed will
prohibit the atty from representing someone else in the same matter
iv. Prospective clients may give items to atty to review
v. Prospective client receive some but not all protection afforded clients
1. If atty gives advise to client, atty can be responsible for malpractice if advice is
wrong
2. Professional standards require that atty did not render opinion b/f research
checking medical records/consulting with doctor
vi. A-C P governs prospective clients
vii. Para. (c) & (d) attys should not decline employment unless there is a conflict of some
sort
1. No fees for initial consultation
2. R. 6.2(c) atty can refuse employment if REPUGNANT or atty will inadequately
represent client
viii. Should not undertake if:
1. Area not competent to handle
2. Already have too many cases or
3. Cannot represent the client in conformity with morals
ix. Engagement letters (To clarify and document the terms of the representation)
1. Should include: who client is; scope of representation; fee for representation;
conflicts of interest; any departures from usual assumptions; undertakings the
client will be asked to make.
2. If no representation atty sends letter detailing no representation
x. If legal services is provided through an organization, atty doesnt need to look for
conflicts and will only be disciplined if he knows of conflicts with current or former
clients
xi. Atty must comply with ADA cost of interpreter
xii. An atty whose client never accepted the atty-client relationship, i.e. insists on
representing himself, has no relationship
xiii. Have to disclose statute of limitations
xiv. Client who refuses to settle because they dont want to turn over money to atty, atty has
cause of action
II. Billing for Legal Services
A. RULE 1.5 FEES
i. (c) - Requires a contingent fee to be in writing
ii. (b) written agreement is preferable
iii. (a) - expenses see factors
iv. Should be proportionate to the amount of time spent on the case and its difficulty
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v. Comment 5 proper to define scope of services for what client can pay
vi. Billing in one-hour increments = improper
B. Additional information
i. Retainer atty has to refund to client anything left over after representation has ended
ii. Contingent fees
1. Should be used when there is a risk of recovery (either of collecting the money
OR in winning the case)
2. Encourage litigation
3. R. 1.8(i)(2) atty can contract with client for a reasonable contingent fee in civil
case
4. Not for domestic relations or criminal cases
iii. Reverse contingent fee
1. D atty will get a percentage or fee based on lack of recovery
2. Amount saved has to be reasonably ascertainable
iv. Flat/fixed fee
1. Incentive of atty to spend as little time as possible because they know theyre
making same amount. Might be contrary to interests of client
v. Hourly fee
1. Incentive for atty to overwork the case, to engage in wasteful procedures in order
to build up # of hours and fee
vi. Unreasonable fee
1. Atty padded hours or billed to two different clients. Can lead to violation of 1.5 or
other rules dealing with dishonesty or conceit
2. Cannot double-bill
vii. Atty cannot increase fees during representation
viii. R. 1.8(e)
1. Will the client be responsible for extra fees? Should be in contract
ix. R. 1.15
1. If amounts are paid in advance, amounts still belong to client and should go into
client trust account
x. R. 3.8
1. Special rules for prosecutor
a. Responsibilities are greater than average trial atty
b. Administer of justice, not simply advocate
c. No contingent fees for prosecutors
xi. Nonrefundable fees violate fiduciary relationship b/w atty and client
xii. Excessive fees
1. When atty spent time doing tasks that would normally be delegated to assistants
excessive fee
2. Trial judge has no authority to lower a fee on his own
III. Handling Client Property and Withdrawing from Representation
A. RULE 1.15 SAFEKEEPING PROPERTY:
i. *Notes:
1. Applies to attys specifically
B. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION:
i. *Notes:
1. Can withdraw from representation at any time if withdrawal affects no material
interests of client adversely
2. If atty waits and matter goes before tribunal, (d) atty may not be able to withdraw
b/c of little time
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3. 1.16(a) scenarios where a lawyer must withdraw

a. Physical or mental impairment
b. When client discharges atty
4. 1.16(b) scenarios where a lawyer may withdraw
a. if withdrawal affects no material interest of client adversely
b. disclosure required to avoid reasonably certain death or substantial bodily
harm
C. Additional information
i. Atty has fiduciary relationship to the client
1. Violation of this relationship with respect to clients property calls for disbarment
ii. Dispute about money in client trust account?
1. Money should be kept separate until dispute is resolved. If dispute only about
certain amount, then hold that money and disburse the rest
2. Firm may only have one or a few client trust accounts, no requirement that a firm
have one per client
iii. ABA Formal Opinion upholds suits against clients to collect a fee, but without
enthusiasm
iv. Exceptions to Confidentiality R. 1.6
1. Atty is suing client and disclosure of information is permissible to make the claim
2. Atty can sue for the fee but will reveal little information about the client
v. Process for Client Trust Account funds
1. Client notified of the money to be deposited
2. Undisputed money should be dispersed
3. Remaining disputed money should be left in CTA
vi. If pools of CTAs can make substantial interest, IOLTA accounts can be set up with the
interest going to a Bar foundation to be used for public-interest services
vii. 2 kinds of liens
1. Charging lien lien for proceeds from a judgment or settlement
a. Atty must notify judgment debtor
2. Retaining lien not recognized in some jurisdictions and limited in others
a. Pertains to internal, limited work-produce
b. Doesnt apply when withholding would cause client irreparable harm
viii. Atty must keep his office accounts separate
ix. Atty cannot threaten client with disclosure
x. Quantum meruit recovery first lawyer can recover only if second lawyer wins the case
xi. Business transaction b/w atty and client
1. Can take a security interest in R. 1.8(a) and if atty takes possession, must
safeguard it according to 1.15(a)
IV. The Duty of Confidentiality
A. RULE 1.6 CONFIDENTIALITY OF INFORMATION:
i. (b) exceptions
-past misdeeds that atty is aware of can be protected by A-C P. NOT when client
speaks of new crimes in future
B. Additional Information
i. Made up of three bodies of law from R. 1.6:
1. A-C P (law of evidence)
2. Work product immunity (from discovery rules and civil procedure)
3. Professional duty of confidentiality (trustees, agents, and fiduciaries)
4. = There is work product, A-C P and duty of confidentiality that surrounds all of it
ii. A-C P
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1. Restatement 3rd 68
a. Privilege covers: communication; made between privileged persons; in
confidence; for the purpose of obtaining or providing legal assistance for
the client
b. Privileged persons: clients, prospective clients, facilitators, etc.
c. In confidence: reasonable belief that no one will learn contents of
communication
2. Applies to non-lawyer b/c she was an employee of atty
iii. Work Product doctrine
1. Legal grounds to exclude and prevent in a judicial proceeding disclosure of
information, to resist discovery = difference b/w confidentiality and atty-work
product
2. R. 1.6 = not a way to exclude evidence, instead it speaks to attys professional
discretion to safeguard information
3. Ordinary work product vs. Opinion work product
a. Ordinary work product prepared in anticipation of litigation by atty
b. Opinion work product mental impressions, conclusions, opinions, or
legal theories of any atty cannot be compelled even on showing of
substantial need/inability to obtain
4. Incorrect address is work produce
5. Not lost if turning over documents to auditors
iv. Duty of Confidentiality
1. Scope = R. 1.6 covers ALL information relating to representation of client
a. Information from client, banker, witnesses. Cant be revealed unless:
i. (a) Client gives informed consent OR It is impliedly authorized to
carry out clients representation
ii. (b) if disclosure is permitted by this part of rule
2. Relating to representation imposes confidentiality even if information was
acquired before/after client is represented
3. Client may waive privilege, but atty still bound by confidentiality
4. Even if information is publicly available, atty still cannot disclose
5. Continues after representation has ended
a. R. 1.9(c)(1) and (2)
i. Rules makes accommodation to the benefit of the client by
preventing atty from using information and by preventing atty
from revealing information
6. Failure to use encryption doesnt violate confidentiality
v. A-C P is lost if:
1. Waiver
a. Client voluntarily discloses or consents to disclose
b. Applies even if there is privileged communications
c. FRE 502??
d. Limited or selected waiver
i. Most caselaw rejects idea of selective waiver
e. Waiver is different from A-C P (can be waived by anyone outside of scope
of privileged people)
f. Waiver is different from work-product (concerned about falling into hands
of adversary. Hands in others not a big deal.)
2. Inadvertent disclosure shows privilege is lost
a. No, so long as parties took reasonable precautions
3. Recipients of disclosure
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4.
5.
6.
7.

a. R. 4.4(b)
i. Recipient shall promptly notify sender and not read information,
then atty should ask court for reinstatement of A-C P
ABA Formal Opinion 98-411
a. Atty should present matter in hypo terms
R. 1.6(b)(4)
a. Atty can reveal information, even when disclosure is not authorized b/c of
important of attys compliance
FRE 503
a. Atty can reveal information from a deceased client
Judge sua sponte can invoke exclusion of evidence even if neither parties nor
attys do

V. Confidentiality and the Organization as a Client

A. Corporations have same protection of A-C P, work product immunity and duty of confidentiality
B. Leading case = Upjohn v. US
i. A-C P is the oldest of the privileges and meant to encourage frank and full
communication b/w attys and clients and promote public interests in observance of law
and administration of justice
ii. Communication concerned matters w/in scope of employees corporate duties and
employees were aware they were being questioned so corp. could get legal advice
iii. Attys notes protected by opinion work product immunity
iv. Attys recording of information from client protected by A-C P
C. RULE 1.6 CONFIDENTIALITY OF INFORMATION:
i. (b) exceptions
-past misdeeds that atty is aware of can be protected by A-C P. NOT when client
speaks of new crimes in future
D. Additional information
i. A-C P applies when it concerns employees own conduct (Samaritan v. Goldfarb)
1. Example: A-C P for White House communications, but not against the President
in an impeachment, President must retain a personal atty
ii. Govt has a right to A-C P, but there are limits to what the atty can do. Need to make sure
the govt doesnt look for personal legal assistance.
iii. Scope of representation vs. Scope of privilege
1. If outside scope of privilege, check if inside scope of representation, may still not
be disclosed?
iv. Atty may not knowingly assist a client to commit a fraud under R. 1.2(d). If client insists
on going through, attys may have obligation to disclose or to mandatorily withdraw under
R. 1.16(a)(1).
v. R. 4.1(b) atty shall not fail to disclose a material fact
1. Comment 3 Atty can avoid assisting a clients crime by withdrawingquestion
becomes if atty can withdraw quietly
vi. When client is organization, whomever is in charge of organization at the moment
controls the waive of A-C P. Basic rule neither the privilege nor the duty of
confidentiality prevents successor corporate management from learning the content of
discussions of former management with corporate counsel
vii. Corporation can waive privilege, but officer may retain it with respect to their individual
acts

THE DUTY OF LOYALTY TO THE CLIENT

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I. Representing Multiple Parties

a. RULE 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS:
i. *Notes: [LOOK TO COMMENTS SECTION]
1. R. 1.10(a) imputes a single attys conflicts to all other attys in the firm
2. R. 1.0(e) defines informed consent
3. Comment 20 informed consent may be confirmed in writing (enough if atty
sends letter to client, no response is necessary)
b. Additional information
i. Conflict of interest can arise with former clients, current clients, and 3rd parties
1. Atty needs to be clear WHO the client is [because the rules change]
ii. Unless all affected persons give informed consentlawyer may not represent a client if
the representation would involve a conflict of interest
iii. Difference between consentable conflicts and non-consentable conflicts
1. Consentable conflicts:
a. R. 1.7(b) Atty may still represent client. Needs to be in writing.
b. Comment 18 atty must provide information to client, depends on:
i. Interest of client
ii. Implications of common representation
iii. Atty would give engagement letter and informed consent letter
together to client
2. Non-consentable conflicts:
a. Representing biological and adoptive parents in private adoption
b. Divorce
c. Cant represent both buyer and seller in commercial real estate deal
iv. Hypo
1. Conflict present, but clients cant consent, then what?
a. Atty must disqualify or withdraw from both clients. Disqualification
extends to all attorneys within the firm under R. 1.10(a). Can even extend
to 2 different firms operating as co-counsel
b. If atty withdraws client will need to find a new atty
v. R. 4.3 Atty cant give legal advice to someone not your client except to say seek legal
counsel
vi. Potential sanctions?
1. Professional discipline; atty could forfeit some or all fees; legal malpractice
II. The Duty of Loyalty look to rules outline
a. How a new clients interest might conflict with a current or former client
i. **Current clients always have veto power
1. Atty must get informed consent in writing from BOTH parties and atty must
reasonably believe he will be able to provide competent and diligent
representation to both (cant be prohibited by law)
ii. Former clients
1. Have residual duties of loyalty, much narrower, but look to R. 1.9 for narrower
rule of disqualification
b. RULE 1.7 above
i. *Notes:
1. Comment 7 even if matters are unrelated, violates duty of loyalty
2. Comment 24 allows attys to take inconsistent positions on behalf of different
clients at different times
c. Additional information
i. 1) Atty-client relationship formed?
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ii.
iii.
iv.

v.

1. Look to clients reasonable understanding on whether representation was or was

not being undertaken
2. Risks to leaving representation open?
a. Conflict rules apply. Need closing letter sent and client needs to know
representation has ended
2) Former or current client?
1. Look above for differences
Organizational clients (who within is client?)
1. R. 1.13
a. ?? Something about sharing space?
Hot Potato Rule/ Can atty drop less-favored client?
1. No. Atty faced with conflict of interest and drop current client, then becomes
former client then can proceed with new client. Courts do not accept this method
2. Rule also applies with merged firms
3. Rule doesnt apply with 2 corporations merged because not on the conduct of the
atty atty can withdraw representation from one client in this case
Waiver of future conflicts
1. Consent forms are in terms of adversity and will not apply to substantial matters
a. No advance consent is allowed for the use of confidential material

III. Conflicts of Interest in Criminal Litigation

a. 3 standards:
i. High - Client must show prejudice of counsel AND impact on the outcome of
proceedings
ii. Intermediate - Actual conflict of interest must be present
iii. Low - Objection made for atty representing more than one client
b. RULE 1.7
i. Comment 23 potential conflict of interest in representing multiple Ds in a criminal case
ii. Comment 16 some conflicts are non-consentable by law
c. RULE 1.13
i. (g) atty could represent anyone within organization within
ii. (f) atty represents organization and not constituent
d. RULE 1.8
i. (d) atty can[t make or negotiate an agreement giving the atty literary or media rights to
a portrayal or account based in substantial part on information relating to the
representation
1. OBrien believes rule applies to both defense counsel and prosecution (atty has
duty to state and client)
e. RULE 8.4
i. Misconduct for atty to violate or attempt to violate rules or do so through the acts of
another
f. Additional information
i. Atty faced with political ambition
ii. Too much of personal interest runs counter to role of political office
1. Like giving prosecutor a financial interest in the result of the litigation which is
incompatible with his role
2. Rule might be more relaxed in civil cases
iii. Atty writing book about event
1. Might increase publicity, or help sales of the book
2. Atty cannot give rights to family or someone else in the firm
a. Conflict of interest exists and cant get around R. 1.8(k)
13

IV. Conflicts Involving the Lawyers Personal Interests

a. RULE 1.7
i. (a)(2) Situations where there is a significant risk, generalization of the attys
responsibilities to others
b. RULE 1.8
i. Specific prohibition without any allowance to obtain consent
1. This does not apply to ALL fee agreements, such as the ordinary fee agreement
between atty and client.
2. This rule might apply where atty thinks it doesnt apply
ii. (c) gifts from clients
1. Atty may not solicit any substantial gift including a death benefit from a client
OR prepare a will for the client where the atty or anyone related to the atty
benefits UNLESS the atty and client are related
2. Rule prohibits solicitation and drawing up of docs, but if not solicited nor doc
drawn, then doesnt violate the rule
a. BUT it might be invalid to the fiduciary relationship between atty-client
iii. (j)
1. No sexual relationship between attys and clients
a. No sexual relations with a client unless a consensual sexual relationship
existed prior to the atty-client relationship
b. For organizations atty cannot have a sexual relationship with a
constituent of the organization who organizes, supervises, directs or
regularly consults with that atty
c. RULE 1.5
i. Value of stock must be reasonable
d. Additional information
i. An atty can acquire stock in a company so long as he complies with rules. If no
compliance = could be sanctioned
1. R. 1.8 must be objectively fair and reasonable, disclosed in writing in a fee
agreement
2. R. 1.5 the value of stock must be reasonable
ii. Insider trading is a violation of laws involving dishonesty, fraud and deceit
iii. Atty can proceed so long as they obtain informed consent from the clients
1. Nonconsentable
a. 1.8(c) gifts
b. 1.8(d) - media and literary rights
c. 1.8(e) financial assistance
i. Exceptions:
1. Atty may advance court expenses that could be contingent
on outcome of the matter
2. Atty can pay for indigent clients
ii. Comment 10
1. Atty may be given too great a financial stake in the
litigation, atty acquired too much of an interest
d. 1.8(h) limiting liability for malpractice
e. 1.8(i) acquiring property interest
iv. Must ask if the transaction is disadvantageous to the client.
1. Yes? violates R. 1.8(b)
14

a. Unless client consents to information relating to the representation of a

client to his disadvantage
v. Restatement 36
1. Atty cannot loan money to client because the atty would be in conflicting role of
creditor
vi. DR 5-103 Avoiding Acquisition of Interest in the Litigation
1. Atty shall not advance or guarantee monies, so long as client remains ultimately
liable for such expenses
2. Compare to R. 1.8(e)(1)
a. Atty can advance court costs which may be contingent on the outcome of
case
i. Atty doesnt hold client responsible [change from Model Code]
vii. Hypos
1. Rule applied to atty who was also CPA. Client could believe atty was acting in his
capacity as atty and not as CPA and R. 1.8(a) could apply and atty was suspended
from practice
2. When a clients representation is over, the atty still has to abide by the rule
because there was a prior professional relationship, the proximity of time between
the legal services and loan, and funds of client generated by legal work
3. Rule does NOT apply to regular transactions between client and atty, such as
buying something from client as a customer Jimmy Johns example
V. Representing the Insured and the Insurer
a. The three have a relationship.
i. Traditional view: atty represented both, by having 2 clients.
ii. Modern view: only insured is represented by atty
1. Therefore, atty owes obligations to the insured and must keep their interests
foremost in his mind
2. Insurer should get another atty to represent their interests
b. R. 1.7
i. Comment 11 p. 141
1. 3rd person will pay for service could be a relative or friend, indemnitor or coclient
2. One-client theory. Insurance company is NOT a co-client
c. R. 1.8(e)
i. Applies whether insurance company is viewed as a client or not
d. R. 5.4(c)
i. Atty shall not permit a person who pays the atty to direct or regulate the attys
professional judgment
e. Additional information
i. Settlement offers
1. Must keep insurer informed, but they get no say in whether insured will accept
2. Problems arise when atty forgets his primary duty is to the insured
ii. Malpractice liability
1. By insurance company against atty?
a. No. Not a client so limited situations of when a non-client can bring a
malpractice action in Restatement 51
i. Representation of the atty is to benefit the insured
b. Yes, if they are a client
VI. The Lawyer and His Former Client
15

a. Atty has broad duty to former clients

b. Rule 1.9
i. Protect former client from having his/her confidential information given to current clients
of atty
ii. Former client has legitimate interest not to have it used against them later
iii. Limited duty of loyalty to the former clients even if no confidential information is
available
iv. Atty should not attack the work he/she did for former client
v. (a)
1. Look at same matter or substantially related matter
a. Matter: litigation or transactional. Current clients interests are materially
adverse
i. Drafting documents, transaction, giving advice
ii. Substantially related: See Comment 3, p. 45
1. Substantially related: same transaction or legal dispute or
there is a risk that confidential factual information would
materially advance the clients position in the subsequent
matter
2. Adoption proceedings might look into financial records,
personal matters that might be helpful to Pl
3. Could make arguments that it was/was not substantially
related
2. Need informed consent of former client?
3. Atty cannot represent a current client when he represented a former client if it is
adverse
a. Materially adverse to interest of one client = doesnt mean the same
thing as directly adverse of R. 1.7 to another current client
i. Materially adverse: like switching sides and representing another
client in the same matter
c. Rule 1.18
i. Applies in terms of former prospective clients
1. If atty in firm acquired information from that person, required to safeguard even if
they never undertook representation
2. Atty represented co-D but not client
a. Idea that co-Ds would share information where 2 parties were freely
sharing confidential information
d. Rule 1.7
i. Some conflicts are consentable
1. If former client wants to, they can, but they may have no incentive to give consent
e. Additional information
i. If atty is disqualified, then current party reduces their choice of counsel find new
attys/firm, which will increase costs and work of litigation
1. Polish v. Hedabonk, 303 S.W.3d 591
ii. Hypo
1. Atty represented former client
a. Examples p. 243 where atty didnt represent client in past but was
involved in some matter that gave them confidential information about
that former client
b. Atty would not be subject to discipline under R. 1.9 because he had not
formerly represented former client [perfect defense in discipline case]
2. Non-atty has information
16

3.

4.
5.
6.

a. Non-atty acquires information then moves to a different firm

i. R. 1.9 doesnt apply because doesnt count to non-attys
Effective screening from participation in some matter
a. Allen and Actel cases, p. 253
i. Try to protect interests of client, but R. 1.9 doesnt apply in this
case
Kortum case, p. 247
a. Common knowledge or easily discoverable
Atty may have acquired knowledge of more specific facts
a. Cardona p. 246, not out there as general knowledge
Assuming firm is disqualified, can the work product be used?
a. May have confidential factual information and therefore should not want it
to be used against the former client
i. Look at distinction between types of information

VII.

Imputed Disqualification
a. RULE 1.10
i. (a) if atty is disqualified are other attys are disqualified as well?
1. Yes. Because of imputed disqualification (any member of the firm would be
disqualified so long as everyone is at the firm)
2. Screening: person from Firm A moved to Firm B. if the screen is set up then other
attys might be able to provide representation
a. Definition comes from R. 1.0(k), Comment 9
3. There is an incentive to disclose information within the ebb and flow of
information within the firm
4. If both firms have a mutual access to information and a short-term relationship,
THEN they CAN be considered as one for purposes of imputed disqualification
but in this case, they are NOT the same firm because of their relationship.
5. Atty must let former client know about screening procedures
b. Additional information
i. Rules that are not imputed personal interest conflicts
1. Strong philosophical or political aversion (like abortion)
ii. Atty needs consent from both clients for representation, but this doesnt need to be
imputed to other members of the firm
iii. R. 1.8(j) not imputed, the sexual relations with a client
iv. Disqualified atty cant share in fees
v. Hypo:
1. If a paralegal leaves the firm, does her new firm get disqualified by imputed
disqualification
2. Therefore, cant do a double imputed disqualification
a. BUT if new firm sets up a screen in a timely fashion, then can continue
representation. It is in the firms best interest to set up a screen.
3. Atty moves from private firm to government or from government to private
practice
a. R. 1.11 and maybe R. 1.12
b. Look to Problem 16

VIII.

Special Problems of Government Lawyers

a. 18 USCA 207
i. Statutes apply to government employees whether attys or not
17

b.

c.
d.

e.
f.

ii. Smithers (in fact scenario went from government to private practice and client comes to
firm because of Smithers resume)
1. As commissioner might have voted as commissioner on particular matters,
participated personally and substantially in this matter
iii. 207(a)(1) permanent restrictions on representation on particular matters
1. 3 different provisions of 207
a. Law may not be in violation of Professional Rules of Conduct
Rule 1.11
i. (a) Atty who served as public officer cannot work on same issue they participated in
personally or substantially
1. Matter: excludes more general proceedings conducted by governmental agencies.
Must be specific.
2. Look to mid-page 274
3. Disqualify atty only if they have been involved in a certain matter
Rule 1.9
i. Matters do not need to be materially adverse to each other
Rule 3.5
i. Atty cannot call to influence other commissioners nor can he call to communicate with
others
ii. 207 law that could prohibit communication and so would be a violation of R. 3.5
iii. (b) cannot communicate with a person
Rule 1.12
i. Rules on former judges are similar to government attys
Additional information
i. Hypo
1. Are any of Smithers actions permissible?
a. Cannot sign his name, constitutes representation
b. Cannot communicate, appear before agency
c. R. 1.11 prohibits him from representing client. But screening would be
permitted/requirement for firm to represent the client
d. R. 1.11(d) nothing about imputed disqualification
i. Comment 2 paragraph (d) doesnt impute the conflicts of an atty
currently serving as an officer or an employee of the govt to other
associated govt officers or employees although ordinarily it will
be prudent to screen such attys
ii. Smithers negotiating employment when participating in case before him
1. Falls under R. 1.11(d)(2) specific prohibition
a. Smithers could choose other firms to negotiate with OR recuse himself
from current case. Still improper even if no discussion with the firm

ADVISING CLIENTS
I. The Lawyer for an Individual Client
a. Rule 1.6
i. Better for atty to investigate before undertaking to represent the mother
ii. (a) - This is another exception to confidentiality rule
b. Rule 1.14
i. Atty should consult with friends instead of barging right into court when taking
protective action
1. Comment 5 - Necessary to take action in clients interest when its not possible to
obtain the clients consent.
18

2. Can reveal information necessary to take measures to protect the client (i.e. client
going to commit suicide)
a. Can notify family members, agencies and others to prevent suicide if
client is mentally ill
b. If objective reasons terminal illness, but can still make a rational
decision, then R. 1.14 will not be basis for atty to reveal info to others
c. Rule 2.1
i. Atty shall exercise independent professional judgment and render candid advice
d. Additional information
i. Child abuse/neglect proceedings
1. Advisor past facts and seeks to determine consequences from those facts
a. Determination will depend on what is going to happen/promised to happen
for the future
II. Advising the Business Corporation
a. RULE 1.13
i. Can only reveal information that was learned in an attempt to bring matter to their
attention (Need to go up organization ladder.President, CEO, Board)
ii. Rule provides additional safeguards to protect the client, does not overrule R. 1.6
iii. (b) Provision that needs to require the atty to go up the corporate ladder
1. Can be imputed to the organization
iv. (d) standard that atty should be more careful about making disclosures outside of
organization/client
b. RULE 1.6
i. Atty can disclose information outside of client if it would result in substantial bodily
harm
c. Additional information
i. If atty is discharged, is the atty released from any obligation?
ii. What is the liability to the victims?
iii. Attys have duty to warn - State v. Hansen
III. Contact with Represented and Unrepresented Parties
a. RULE 4.1
i. Truthfulness
b. RULE 4.2
i. Atty shall not communicate about subject of representation
ii. Applies to non-litigation situations, when a person is not even a party to a proceeding
iii. Strict rule!!!!
iv. Atty can ask for permission to speak with opposing counsels client
v. Applies even when opposing client contacts atty (FFR)
vi. Includes written/oral/electronic precludes atty from sending a copy of an email to the
attys client as well as to the atty
vii. Exceptions to obtaining consent:
1. 1) if atty is authorized to make the communication by law
2. 2) by court order
viii. Prosecutors are allowed to investigate activities
ix. Rule doesnt apply if:
1. Client wants to change attys, there is nothing improper with atty communicating
with person so long as atty doesnt represent someone else in the matter
2. New atty = okay, no violation of represented party
c. RULE 4.3
i. Cannot give advice except to seek independent counsel
d. RULE 4.4
19

i. Cannot violate the rights of a third person

e. Additional information
i. No-contact rule
1. Policy = strip them of protections by speaking with them, after they have hired an
atty
2. In representing a client
a. Rule applies when the atty is representing a client
ii. Various people:
1. Barry Winters CAN speak with him b/c just an accountant and used as a witness
of what he saw
a. R. 4.2 Comment 4 no prohibition of communications with a represented
person or an employee or agent of such a person, concerning matters
outside the representation
2. Mary Speedy CANNOT speak with him because she is a higher member of
corporation
a. R. 4.2 Comment 7 prohibits communications with a constituent of the
organization who supervises, directs, or regularly consults with the
organizations atty concerning the matter or has authority to obligate the
organization with respect to the matter
3. Truck driver CANNOT speak with him
a. Same Comment 7 as above, prohibits communication with someone who
may be imputed to the organization for purposes of civil or criminal
liability
4. Former employee CAN speak with them. No consent from organization is
needed.
5. Former employee retained as consultant CANNOT speak with them, need
consent of organization
iii. Contact with government officials
1. No-contact rule applies to negotiations and litigation of a specific claim. NOT
POLICY matters
2. R. 4.3 Comment 1 competitive process is to let both sides get at the evidence. If
one side tells person not to tale to other sidethat is improper. Not a violation of
the rule to talk to other sides. This allows the corporations atty to ask employees
not to talk to other attys.
IV. The Ethics of Negotiation
a. Duties diligence, confidentiality, competence, loyalty
i. Atty should make statements that will advance the clients interests if the atty is not clear,
then atty should get permission to reveal some facts
b. RULE 4.1 Truthfulness
i. Atty may lose the benefit of the bargain if atty has been less than honest in working out
the settlement
ii. Atty who engaged in making false statements in negotiations, may develop a reputation
among other attys and other attys wont trust them
iii. Comment 2 Statement of fact (whether it can be viewed as one of fact can depend on
the circumstances)
iv. Atty is prohibited from knowingly making a false statement
1. Knowledge can be inferred (atty saying I didnt know it)
a. Actual knowledge however is required by the rule
b. Atty making a false statement recklessly or negligently?
i. Purpose of Rule = for the statement to be true and atty knows it to
be true but speaks falsely
20

v. Could cover attys failure to say something

vi. Covers statements of law
1. If atty makes false statement about the law = could be a violation of R. 4.1
2. Material fact of law something that has influence or effect
a. Religious man example.can atty lie about what the client was doing, i.e.
going to church vs. playing pool??
i. DONT REMEMBER ANSWER (I HAVE yes material)
vii. (a) insurance example (100,000 dollars of coverage) could be a violation of R. 4.1(a)
because it could be a misrepresentation
c. RULE 3.8
i. (a) having once presented to both the court and defense atty that complaining witness
was available, does this create an affirmative duty to tell them that the witness is no
longer available?
1. At the time the atty made statement, he thought it was true
d. RULE 5.6
i. (b) settlements. Atty is prohibited from using subpoena of past client for former client
1. Because it would effectively bar the atty from future representations in violation
of R. 5.6(b) b/e attys inability to use that information would materially limit her
representation of a future client
e. Additional information
i. Agency law
1. Client = principal; atty = agent and has no authority except that which was given
to the atty by the client
ii. Hypo
1. Being sued for 30,000, spoke to client about settlement and client would like to
get 20,000
2. Clients communication and authorization is privileged information. Can decline
to answer opposing counsel
iii. CAN say client does not wish to spend more than 50,000
iv. Duty to volunteer information or correct misapprehension?
1. R. 4.1 Comment 1 atty generally has NO affirmative duty to inform other party
2. Rest. 98 similar to R. 4.1(a) a failure to make a disclosure of information is
required by law
v. Atty must disclose the death of a client
1. Might affect the value of the case because the client might have made a great
witness
2. ABA almost by its nature its deceptive on adverse counsel
vi. ABA Formal Opinion 94-387
1. Atty who knows of running the statute of limitations doesnt need to disclose to
opposing counsel
2. Atty needs to ensure that they dont make any knowing misrepresentations of fact
vii. Does prosecutor have an affirmative duty to volunteer information that witness is
deceased?
1. R. 3.8(d) should disclose
2. Witness is not the client of the prosecution, the State is the client
3. ????
viii. Can attys do for their clients what their clients do for themselves?
1. Attys silence could be seen as assisting the client in their fraud
a. R. 4.1 Comment 3 atty is prohibited from counseling or assisting a client
in conduct that the atty knows is criminal or fraudulent
ix. ABA Informal Opinion 86-1518
21

1. Affirmative obligation that requires atty to disclose information

x. ABA DR 7-105(A)
1. Atty shall not present, participate in presenting or threaten to present criminal
charges solely to obtain an advantage in a civil matter
2. No prohibition under ABA model rules
V. Problem 21
a. R. 2.3 - atty as evaluator
b. Rest. 51 Atty or attys client invites the non-client to rely on attys opinion or provision of
other legal services and so the non-client relies
VI. Duties When the Client May Be Engaged in Fraud
a. Consider when the client has crossed the line from risk-taking to dishonesty
i. Atty might have an obligation to investigate looking at the following rules
b. RULE 2.1 Atty as advisor
i. Dont offer advice without people asking for it
ii. Comment 5
1. Attys duty to the client under R. 1.4 where he may have to offer advice, if the
advice is related to the representation
c. RULE 1.4 Communication
i. Comment 6
1. Atty should address his communications to the appropriate officials of the
organization
d. RULE 1.13
i. (b) atty should bring corporate matter to those higher up in the corporation first
e. RULE 1.2
i. (d) if atty continued the representation would assist in committing a fraud, so then the
atty MUST withdraw
1. Could withdraw quietly disaffirm opinion, document, affirmation or the like
f. Additional information
i. When is the atty permitted to disclose vs. required to disclose?
1. R. 1.6 Confidentiality
a. (b)(2) or (b)(3) may reveal, but not a requirement
b. Not protected by R. 1.6 because there is an exception in R. 1.6
2. R. 4.1
a. (b) required to disclose
i. Have to disclose when its necessary to avoid assisting a criminal
or fraudulent act by a client
b. Comment 3
i. Necessary to disclose
ii. Atty can avoid assisting by withdrawal
3. Sarbanes-Oxley Act of 2002, p. 375 book; p. 502 supplement
4. R. 1.1(b)(3)
a. Atty may have obligation to act according to R. 1.13(b)
ii. Under SEC law, attys duty to act is triggered when he becomes aware of evidence of a
clients material violation of federal or state securities law OR a material breach of
fiduciary duty by an officer or agent of the client OR a similar violation of any other
federal or state law 205.2(i)
1. Main rule, p. 506-507
a. 205.3(b)(3)(ii) and (iii)
i. Issuer as client who to report the evidence of violation to:
1. Audit committee
2. BoD
22

ii. To supervising atty if they are subordinate

iii. Federal govt shall supersede the states requirements in the
jurisdiction
b. 205.3(d)2)
i. Atty may reveal to SEC, without issuers consent to the extent that
atty believes necessary
2. What is atty required to do?
a. R. 1.13(b) and (c) violation of the law
b. R. 1.13(e) if atty has been discharged then atty still has obligation to
bring discharged matter to attention of BoD or higher authority within the
organization
3. Asdele v. International Gain Technology 577 Fed 3d 589

ETHICAL PROBLEMS IN LITIGATION

I. The Decision to File a Civil Suit
a. RULE 3.1
i. Similar to FRCP 11 failure to state a claim
1. Enforced through professional disciplinary proceedings
2. If atty is planning on litigating the lawsuit, then no violation of R. 3.1 or R. 3.2
3. R. 3.1 broader than FRCP 11:
a. Stands for making objections, responding to objections
i. Should ask the question is there a basis for doing this that is not
frivolous
1. Idea that missing an essential element of claim then cant
prove it, i.e. an affirmative defense
4. Saheyerh, 560 F.3d 1241
a. Involves FRCP 11, but shows civility
b. RULE 3.4
i. (c) atty shall not knowingly disobey an obligation under the rules of a tribunal
a. Additional information
i. ABA 94-387, p. 340
1. Question: is there some ethical problem with asserting a claim that is time-barred
by statute of limitations?
a. Committee said improper to tell them. Atty has obligation of diligence,
without clients consent, it is okay to negotiate
ii. Criminal analog to FRCP 11
1. Vexatious, frivolous, and bad faith
a. US v. Gilbert, p. 396
i. An award that prosecution fees was barred by S/L
II. Litigation Tactics
a. Customs of dress for court
b. RULE 8.4
i. (d) action must be prejudicial to the administration of justice
1. Comment 3 knowingly manifests by words or conduct
c. RULE 3.3
i. Cross-examination of a truthful witness
1. Substantial purpose to discredit the person on the stand
2. Premise is you know witness is telling the truth
ii. Violations of this rule = making a false statement of fact to the court
d. RULE 3.4
23

i. No way to correct the problem involving the secretary through the adversary system
ii. Involves conduct of the atty
e. RULE 4.4
i. (b) attys have an obligation to send opposing counsel information immediately when an
inadvertent disclosure occurs
1. Atty should inform sender
2. Judge needs to re-instate privilege
f. Additional information
i. If an atty projects certain images = permissible within certain reasonable limits, but can
backfire
ii. Use of deception:
1. US v. Thoreen
a. Getting at the truth and its a good technique
i. To have someone in a different outfit sitting at counsel table.
1. Yes, so long as alerting judge to the proceedings
beforehand
2. Must be non-deceptive
iii. May an atty use deception as part of law enforcement or other investigatory functions?
1. An atty cannot impersonate someone else this was improper violation of RULE
8.4(c) and RULE 4.1
iv. Civility Rules
1. Attempt to go beyond the rules of professional conduct which set up the floor
a. Attys conducts would violate rules of professional conduct
2. US v. Wunsch
a. Rule abstain from all offensive personality (conduct that is personally
offensive to others)
b. Prejudicial to the administration of justice
i. Maybe. Depends on where it happened in court/deposition, then
could have been conduct that would disrupt the tribunal
3. Atty Creed of Professionalism
a. I will advise my client that civility and courtesy are not to be equated with
weakness
4. Civility Codes
a. Atty should request permission to approach bench prior to doing so
b. Atty shall stand when addressing the court
c. Atty should never directly address opposing counsel in Court
III. Disclosure of Law or Facts Favorable to the Other Side
a. RULE 3.3
i. (a)(1) and (a)(2) failure to disclose , obligation to correct if its a material fact of law
1. Make a false statement of fact or law to a tribunal duty of candor to the court as
the utmost duty of candor. Not to mislead them by fault or half-truths
ii. (a)(3) if attys client or witness called by the atty and knows testimony is false, they
should take remedial measures
1. Obligation may apply even if other side took deposition of witness that I consider
to be my witness
2. Applies to depositions
3. If witness didnt plan on committing perjury, just innocently misspoke, atty has
the obligation to disclose correct information
iii. (b) can also apply because the atty represents client, and then a person can testify
falsely
24

1. Atty who represents client and who knows the person is engaging in crim conduct
shall take remedial measures
a. Person = atty, co-counsel
b. Knowledge is a requirement, if knowledge is absent, then no violation of
the rule
iv. (c) Client gave false name, if necessary disclosure to tribunal, then atty has to take
measures to disclose the real name
1. Gets decided differently under ABA R. 3.3(a)(3) atty cant offer evidence that
atty knows to be false
v. (d) greater obligation on part of the atty in an ex parte proceeding
1. Information is protected by R.1.6
2. This subsection doesnt override duty of confidentiality or duty of atty-client
privilege
3. P. 329 grand juries are independent of the judicial branch and traditional judicial
regulation
b. Additional information
i. Legal authority
1. Needs to be in controlling jurisdiction
2. Other MO App. decisions w/in state need to be disclosed if adverse to my
situation
3. Fed court must disclose decisions of S Ct, in other 8th circuits
a. It is in the circuit you have to be in
ii. What constitutes legal authority
1. Unpublished decisions
a. Look to local rules
2. Case on appeal, and just came out after trial courts decision on first impression
a. Atty needs to disclose
b. Limit = R. 3.3(c)
i. Duties in (a) and (b) continue to the conclusion of the proceeding
and apply even if compliance requires disclosure of information
otherwise protected by R. 1.6
c. Need to look at what the status of those in particular jurisdiction, to see if
the court even accepts the decision. Dependent upon the status of the case
iii. Obligation of atty
1. Needs to make disclosures
a. To disclose if it is something the court would find influentially. If it is
disclosed then have the opportunity to argue it in favor of your client
iv. Witness supplies factual piece of evidence to case, but other side doesn't know of witness
1. FRCP 26 disclosure rules
a. If information is material, then need to disclose it under FRCP 26, but only
if it supports my claims and defenses
i. NO obligation to disclose to help opposing side
ii. Toledo v. Fell
1. Client dies at some point and atty doesnt disclose fact.
Court treated as violation of R. 4.1(a) and it would be
treated as violation of R. 3.3 as a false statement to the
court
v. Atty has no obligation to speak out if the court clerk mistakenly tells the court that D has
no criminal record
1. Atty cannot deceive court if the court asks information
25

2. Rather than answering the question about D having criminal record, atty should
request to be relieved from disclosing information
vi. Co-counsel cant allow the atty to mislead the court in a false statement
IV. Handling Physical Evidence
a. RULE 3.4
i. (a) atty shall not unlawfully prohibit others access
ii. Can only hold bag of money for safekeeping to test, examine physical evidence without
altering its essential qualities
b. Additional information
i. Is identity of client privileged?
1. No. Normally not. Privileged only when disclosure of identity would reveal
content of communication b/w client and atty
2. Duty of confidentiality atty might be required by court to reveal, but cannot
voluntarily reveal. It might be an act relating to the representation of the client
ii. Atty committed several crimes
1. BUT by consulting with several reputable persons only got 18 month
suspension
iii. Nondisclosure of evidence
1. Buried bodies case client told him where to find bodies
2. Atty could not reveal information
a. Criminal prosecution
b. Atty if took pictures, then was work product. Original evidence of the
crime, photos taken by D then it wouldnt be work product
3. McClure v. Thompson
a. Strong dissent: not enough to give atty reasonable grounds for believing
child was alive
i. Attempt to save child, atty was attempting to further interests of
the client and not being exposed to additional murder charges
iv. Destroying/altering evidence
1. RULE 3.4
a. Comment 2 destroying evidence in pending proceeding or one that
commencement is foreseen
b. Good strategy/good tactics?
i. Juror might find for other party because of the deletion, destroying
evidence
v. Atty who has gun and money dumped on his desk
1. Atty take possession?
a. Is not required to. Can tell client I dont want to take possession of
items, but atty might have option to tell client, don't destroy, dont hide,
put it back, dont alter it in any way
b. So long as atty adheres strictly to requirements to hold onto for a certain
amount of time and then turn it over immediately to pros. or PO then atty
not committing a crime
V. The Client Who Intends to Commit Perjury
a. RULE 3.3
i. Cannot knowingly offer false evidence
ii. Further obligations on part of atty = obligation to take remedial measures, including
disclosure to the tribunal even if that involves confidential communication
iii. Know that client/witness who intends to commit perjury then that knowledge is important
iv. (a)(3) for an atty not to offer evidence that he knows to be false
1. Look to knowledge requirement from R. 1.0
26

2. Then obligation to take remedial measures, which superseded the confidentiality

requirement under R. 1.6
3. Witness gives false testimony?
a. Language of this rule would apply if the atty called a witness and that
witness called by you to give false testimony
i. Attys obligation
1. Comment 12 protects tribunal against criminal or
fraudulent conduct
v. (b) gives atty an obligation to take reasonable remedial measures when atty knows
ANY PERSON who has engaged in criminal or fraudulent behavior relating to the
procedure
vi. Comment 7
1. Statement by the accused may be allowed to be given even if counsel knows it to
be false by narrative
vii. Comment 13
1. If proceeding is over, obligation is over
2. When proceeding is over, obligation is over
b. RULE 1.0
i. Knowing: actual knowledge, but knowledge can be inferred from circs
1. Atty should reserve doubts about testimony in favor of the client; atty cannot
ignore an obvious falsehood
2. Knowledge must be based on express admission of intent to testify untruthfully
c. RULE 1.2
i. (a) D has right to decide if they wish to testify
1. D gives false testimony, then atty has certain obligations under the rules
a. Speaks to client and gets client to agree to correct or withdraw false
testimony
b. Then if D refuses, have to take other remedial measures
i. This might solve the problem or might not might have to
withdraw
d. Additional information
i. Nix v. Whiteside, p. 456
1. Held that defense counsels conduct was not an effective assistance of counsel
2. 6th A holding, doesnt answer question as a matter of professional conduct
ii. State v. McDowell, p. 463
VI. The Verdict That May Be Tainted
a. RULE 3.5
i. Does atty know
1. If atty loses, contacts jurors, finds out information of a payoff no requirement to
report
2. If atty won, contacts jurors, finds out information of a payoff requirement to
report
ii. (c) no communication if prohibited by law or court order. Juror has made known to atty
not to communicate, then atty cant communicate
b. RULE 3.7
i. Atty as witness
1. Only applies to a trial on the merits with an uncontested issue
2. Atty can do pre-trial discovery based on wording of the rules and authorities
ii. (b) Atty should not be advocate as a necessary witness, but another atty can represent
client
27

c.

VII.
a.

b.

c.

1. Client doesnt give consent individual atty is disqualified, but disqualified is

imputed to other attys in the firm under R. 1.10(a)
a. Disqualification would extend to atty as the witness and to other attys in
the firm
b. Going back to R. 1.7, R. 1.9, R. 1.10 th/f not just an atty/witness
problem
iii. Rationale:
1. Designed to protect the tribunal, the system, the misleading implication and the
atty speaking to the tribunal as both a witness and an advocate
Additional information
i. Attys cannot contact jurors, before, during or after the trial
1. Pre-trial context, rules dont prohibit from communicating with prospective jurors
2. Attys and jurors told they cannot speak about ANYTHING!!
ii. Compensation of witnesses
1. Atty may not bribe a juror
iii. Secret tape recording
1. Not operating under color of law no violation of state civil or criminal law. NOT
a violation of federal law
iv. Authentication of the tape
1. Not in violation of R. 3.7(a)
The Crusading Prosecutor
RULE 3.6
i. Applies to ALL attorneys, not just prosecution
ii. Comment 5 list of potential violations of the rule in most cases
1. Provisions in this Comment are the kinds of things that the media would like to
know, which the atty cannot tell the media
iii. Buckley, Kennedy cases where atty would make statements
1. Attys would be concerned about more than just the risk of defamation and should
not believe that someone should be liable in tort
RULE 3.8
i. (a) standards of whether to prosecute
1. Probable cause R cause to believe D has caused the crime. Low standard
2. Under ABA standards, prosecutor should refrain from prosecuting a case in the
absence of sufficient admissible evidence to support a finding that the D is guilty
beyond a R doubt
ii. (d) Prosecutor needs to turn over all evidence known to prosecutor that tends to
mitigate offense
1. Evidence or information extends to things that would not be admissible in
evidence but might be useful in finding other leads of evidence
2. Broader obligation than Brady
3. material that which would create a R probability that would result would be
different
a. No use of the word material in R. 3.8
iii. (e) No subpoena of atty to present evidence of past or present client unless prosecutor
believes it is not protected and essential to completion and no other feasible alternative to
obtain information
1. If can be met, atty should disclose
iv. (f) goes beyond employees and covers persons who are making statements even if they
are not employees of the prosecutor or prosecutors office
Additional information
28

VIII.
a.
b.

c.

d.

i. Prosecution represents a party, and that party is the sovereignty, the State, US, people of
US, people of State
1. Th/f needs to govern impartially, more concerned with justice being done
2. Enormous amount of power, which means should be fair and evenhanded
3. Gets to make decisions on his own R. 1.2(a) doesnt apply
ii. Prosecution can provide information to the public for purposes of public safety
1. Safe Harbor provisions in R. 3.6
a. Prosecutor should be able to state what is in the indictment, falls within
safe harbor provision
iii. Exculpatory information to grand jury
1. Williams case
a. S Ct no C requirement to give exculpatory information to the grand jury
when seeking an indictment
b. Other thoughts: because after the indictment, atty will turn evidence over
to D
iv. Warrick case
1. Act promptly and do remedial measures
v. Special duty to be fair in civil litigation
1. EC 7-14
a. Govt atty may be constrained by additional duties
The Duty to See Justice Done
Confidential attys need to keep things confidential
RULE 1.6
i. Problem of duty of confidentiality
1. Possibilities
a. Go back to client and get informed consent disruption of negotiations,
then consent
b. Objections to the claimant
i. Claimant should have privilege to prevent disclosure if doctorpatient privilege, but this has been revealed to the other side which
might constitute a waiver
ii. Tremendous risk that faulty and erroneous results would be
breached
iii. Conviction based on eyewitness identification of the victim
c. Going to court
i. Court will want the atty to go through appropriate channels, via
attys
ii. (b)(1)
1. Substantial bodily harm if person is in prison wrongfully
2. Even in absence of consent, atty could consider this rule which would permit
disclosure as far as obligations to the client
RULE 3.8
i. (g) and (h) Prosecutor has an obligation once the prosecutor knows A didnt commit
offense and prosecutor is required to disclose this to appropriate court
ii. After trial and after time has passed
Additional information
i. Example:
1. Pl was minor, worked out settlement, prior to settlement Ds doctor found
aneurysm and withheld information. Issues raised?
a. Pls atty lack of simple discovery request will expose to med mal suit
i. Yes
29

b. Ds attys
i. Knew about dangerous serious condition, negotiated settlement,
never presented to the court.
ii. No violation of any professional rule for failure to disclose
information
iii. Ds atty suffered adverse conflict b/c lack of candor, vacated
settlement, and case went forward
iv. Violation of R. 3.3 candor toward tribunal-knowledge
requirement if atty knew the records were to be false, then false
impression of what medical evidence would show
1. Spalding is interesting case. Under Model Rules, atty in
position of D atty would be permitted at least to reveal
information over and above R. 1.6 violations to prevent
death or substantially bodily harm, NOT in the rules when
Spalding v. Zimmerman was decided

THE DELIVERY OF LEGAL SERVICES

I. Marketing Professional Services
a. RULE 7.3
i. Upheld state bar to prohibit certain forms of solicitation that carry with it improper
behavior and fraud on part of atty
1. Significant motive is attys pecuniary gain
a. Unless the person contacted is an atty or family, close personal or prior
relationship with the atty
2. Too much risk and state has a legitimate interest in prohibiting particular form of
solicitation
b. Additional information
i. Advertising, solicitation not unusual for Rules to change over the years to be amended
ii. Bates v. State Bar of AZ court prohibited advertising saying it violated constitutional
standards
iii. Central Hudson can only be regulated for substantial govt interests
1. State has no valid regulatory interest in preserving the dignity of the legal
professions image
iv. Testimonials by clients in ads might create unjustified results for potential client b/c every
case has to be decided on its own merits, otherwise would be a misleading case
1. Disclaimer in ad may be unduly burdensome because of additional cost that
might raise 1st A issues
v. Advertisements are solicitation as well
1. Can be general OR targeted; print OR electronic; Phone call OR in-person
vi. FL v. Went for It, p. 532
1. Solicited grieving family adopted a rule to bar atty from targeted mailings to
someone within 30 days
a. Look to Central Hudson case, held commercial speed could only be
regulated in pursuit of a substantial govt interest and by means narrowly
tailored to protect that interest
vii. Trade names
1. Misleading? Suggest connection with govt agency or misleading connotation
2. Other statements might be misleading if they suggest affiliation with govt agency
viii. Television advertising
1. Client testimonials
30

a. Needs to be a conspicuous disclosure not just a flash on the television

ix. Follow-up with personal visits
1. Flatly prohibited by R. 7.3(a)
x. Atty cannot say that he won cases without specifying that he won them while he was a
prosecutor
xi. Initial consultation
1. Allows people to shop for fees and try out different attys and not have to incur
fees to do that
II. The Ethics of Referral to a Specialist
a. RULE 7.4
i. Limits on attys on nature of practice and fields they practice in
1. Atty can limit the fields they practice in
ii. Comment 1 atty practices only in certain fields, or will not accept matters except in a
specified field or fields, the atty is permitted to so indicate except in a specified field or
fields, the atty is permitted to so indicate
iii. Rule is based on earlier version of ABA model rule that said atty shall not state or imply
that atty is a specialist unless the communication contains a disclaimer
b. RULE 1.5
i. Comment 7 Division of Fee
c. RULE 7.2
i. Advertising splitting between clients and non-clients
d. Additional information
i. Atty can keep a case or refer it to someone else if he feels he is not competent
1. Wants to do best he can for his clients. In order to do that, bring in a certified
specialist to give best possible representation to the client
ii. Payment of referral fee
1. P. 540 must be reasonable and must meet requirements in R. 1.4. Responsibility
must be assumed
e. Rule 7.1 Communications Concerning A Lawyers Service
i. Shall not make false or misleading communication about the lawyer or his services. A
communication is false or misleading if it contains material misrepresentation of fact or
law, or omits a fact necessary to make the state considered as a whole not materially
misleading.
f. COMMENTS
i. Rule governs advertising (Rule 7.2)
ii. Truthful statements that are misleading are also governed by this rule.
iii. Disclaimers might preclude the finding of a statement to be misleading.
iv. Rule 8.4(e) deals with implying an ability to influence Govt.
v.

III. Lawyers Duties and Roles in Their Firm

a. RULE 1.5
i. Charging unR fee
B. RULE 8.4
i. (c) engaging in false conduct when Able is charging more for his work
c. RULE 5.2 Responsibilities of subordinate atty
i. Arguable question
1. Comment 2 conflict of interest under R. 1.7, supervisor should advice
ii. (b) Arbie Able would be responsible for his actions, and would not have the following
orders defense in R. 5.2(b)
d. RULE 5.1
31

i. Comment 2 Attys with managerial authority within the firm to make reasonable efforts
to establish internal policies and procedures designed to provide reasonable assurances
that all attys will conform to Model Rules
ii. (b) atty with direct supervisory authority shall make reasonable efforts to make sure
other atty conforms to Model Rules
1. Specific legal work would apply in this fact scenario for Sarah Smart
iii. (c)(1) ratification can be express or implied, could be a ratification of Sarahs conduct
iv. (c)(2) supervisory authority Sarahs, she may be responsible
v. Comment 7 Besides R. 5.1 and R. 8.4(a) atty doesnt have disciplinary liability for
the conduct of a partner, associate or subordinate
e. RULE 5.3
i. Nonlawyer assistants compared to R. 5.1 this rule is comparable under subordinate
attys and nonlawyer assistants
f. Additional information
i. Conduct of associate Arnie Able work that is not performed, but charge an unR fee
1. Supervising atty could be responsible for another attys violations of the rules
ii. Rights of Atty who Refuses to Violate the Law
1. Model Rules do not prohibit in-house attys from filing a suit for retaliatory
discharge if the attys were discharged for complying with ethical obligations
iii. Other Legal Rights of Attys as Compared to Employees Generally
1. Attys employment with a firm is terminable at will
iv. 80% option to associates
1. A fast-track to nowhere, not a legitimate way to advance themselves in the firm
IV. Leaving One Law Firm For Another
a. When a atty leaves the firm, then the client
b. RULE 1.4
i. (a)(3) - Atty is permitted to notify client of leaving the firm, but might also be a
requirement under this rule
1. How to inform client?
a. Restatement 9(3) p. 565
b. Attys have prior professional relationship with the client
c. RULE 7.3
i. (a) solicitation is not violated by notifying the client that the atty is leaving the firm.
Not quite a solicitation to the client
d. RULE 1.17
i. Comment 14 Admission to or retirement from a law partnership or professional
association does not constitute a sale or purchase governed by the rule
ii. Doesnt apply to specific facts dealing here
iii. Allows a atty or firm under certain conditions to sell the firm
1. In the area practice or jurisdiction
2. Client cant be given notice then seller may disclose to the court and court may
order transfer
e. Additional information
i. Atty should be fair to firm notify the client, but then allow the firm to say if they are
willing to continue representation and then ultimately to leave the decision to the client,
without coercion by either side
ii. R. 7.3 and Restatement provide correct procedure for atty
iii. Hiring firm needs information from joining atty about their cases and clients to see if
there would be a conflict; atty has obligation under R. 1.6 to safeguard all information
relating to the representation of the client
1. How to resolve this?
32

a. To get client consent if possible

b. ABA Formal Opinion 09-455
i. Committee said impractical to get informed consent from all the
clients and then cant give disclosure to new firm, look at R. 1.6
ii. Atty should be permitted to disclose basic information necessary to
resolve conflict of interest issue = identity of persons, and issues
involved in the matter (ONLY INFO NECESSARY)
iii. Model Rules are rules of reason and sometimes have to resolve
seemingly irreconcilable conflicts
2. No agreement not to compete, but can impose substantial penalty directed at atty
who wishes to compete = violation of R. 5.6(a)
V. The Duty to Provide Pro Bono Legal Services
a. RULE
b. Additional information
i. Moral obligation to provide pro bono legal services
1. Yes, have some obligation that people have an opportunity to obtain justice
a. R. 6.1 sets out obligation to provide pro bono service; in terms of
should
b. R. 6.2 ii. Efforts to translate a moral obligation into a legal requirement
iii. The tradition of accepting court appointment in a criminal case
1. R. 1.16 withdrawal in Chaleff v. Superior Court
a. Court has to give approval and the earlier the atty sees the problem and
make a motion to withdraw the better
2. US v. Wendy
a. Atty in contempt for refusing to accept an assignment to defend a felony
tax case carrying a potential 5-year prison term
iv. Other sources of funding for legal services to the poor
1. Federal funding goes down, restrictions on types of cases, and sometimes can
prevent attys from handling those cases
2. IOLTA Atty can put interest earned on their clients account to law-related
public services
a. Clients are not losing out for using the money for this purpose. Creates
income where there wasnt any before
b. Challenges to IOLTA
i. Represented violation of 5th A
ii. Some states had mandatory programs
VI. The Future of the Practice of Law
a. RULE
b. Additional information
i. Unauthorized practice of law
1. Atty can inform person to do stuff themselves?
2. R. 5.5
a. Only where attys are authorized and licensed to do so
b. Could be implicated by plan to have insurance company refer matter to
atty
3. R. 5.4
a. No sharing fees with non-lawyers
b. Could be implicated by plan to have insurance company refer matter to
atty
4. R. 5.7
33

a. (c) p. 616 of book attys educated ability to relate the general body and
philosophy of law to a specific legal problem of the client
b. Not practice of law filling in blanks, names, but only when exercising
judgment to the appropriate clause being used
c. Have to distinction between those things that are and those that are not the
practice of law
d. Can be considered a crime or contempt of court can be enjoined by the
courts if the atty is involved he can be subject to professional discipline
e. If non-atty files pleadings or motions, will be stricken, adverse to the
client
ii. Multijurisdictional practice of law
1. New York attys, where client refused to pay their fees. Court agreed that attys lost
money.
a. No indication that attys services were in any way deficient
2. Sophisticated computer program giving assistance based on facts presented
unauthorized practice of law
a. Kistler case BK petition preparer is unauthorized practice of law
3. R. 5.5(c) and (d)
a. Applied to fact situations in cases
b. Atty admitted in State A
i. To what extent may atty practice outside of State A, may be risking
exposure to unauthorized practice of law
ii. (d)(1) atty performing services for attys employer
1. Licensed in Missouri, and providing employer of
corporation which is incorporated in Illinois where atty is
not licensed
iii. (d)(2) atty has safe harbor in federal law, like BK or patent,
which will preempt any state law to the contrary
1. Desilets, p. 628 atty was not licensed in MI, but practiced
BK there in federal court, was licensed in TX
2. Ferrey, p. 627 atty appeared pursuant to a rule that
permitted atty to appear if licensed in another state
iv. (c)(1) working together with local counsel
1. Fought & Co., p. 627 atty worked with someone locally
admitted to practice
v. (c)(2) pro hac vice motion to be admitted, associated with local
counsel
vi. Comment 14 factors that show evidence of a relationship
vii. (c)(4) transactional practice if services arise out of attys practice
or jurisdiction that atty is licensed to practice
iii. Prohibition of corporate practice of law
1. Corporations being separate entities, have to be represented by other counsel
iv. Law firm delivery of ancillary, not-traditionally-legal services

34