1

Overview
Regulation oI the ProIession: The Rule Givers
4 rieI History and Overview oI Regulation oI the ProIession:
ProIessor HoIIman published 50 'Resolutions in Regard to Professional Deportment
(1836)
labama published 'Code oI Ethics (1887)
adopted Iirst 'Canons oI ProIessional Ethics (1980) |Supp. 753-765|
Model Code oI ProI. Resp. 1969 |Supp. 177-273|
Model Rules oI ProI. Conduct |Supp. 1-146|
O OTE: These are Model Rules and OT binding on you. See individual state Ior
rules that govern you.
Restatement (Third) Law Governing Lawyers |Supp. 274-319|
Mississippi Rules oI ProIessional Responsibility |J&C, ppendix|
4 Rounding out the Rules Supplement
ppendix ' State speciIic rules regarding client conIidences |Supp. 152-167|
ppendix ' State speciIic rules on lawyer screening |Supp. 168-173|
ppendix 'C State speciIic rules on necessity oI written Iee agreements |Supp. 174-
176|
CaliIornia Rules oI ProI. Conduct |Supp. 320394|
ew York Rules oI ProI. Conduct |Supp. 395-565|
Standards re: dministration oI Criminal Justice |Supp. 566-600|
ed. Statutes/Rules |Supp. 601-654|
CIC (revised 2007) |Supp. 655-692|
CaliIornia CIC and Rules beIore Comm. On Judicial PerIormance |Supp. 693-726|
ederal Statutes re: Judiciary |Supp. 727-752|
Miscellaneous Rules |Supp. 766-776|
Civility Codes |Supp. 777-792|
4 Other uthority to Know bout
Judicial Opinions (case law)
Ethics Opinions and state
O Ex.: Mississippi (http://www.msbar.org/ethicopinions.php)
Restatement (Third) oI Law Governing Lawyers
4 Thinking about legal education
History oI Legal Education
O Prior to 1928: law school was voluntary
O 1928: West Virginia makes 1 year oI law school compulsory
O 1950: law school compulsory in all states
4 To improve 'standards and to exclude
dmitted to the ar
O 1975 admitted: 34,930
O 2006 admitted: 54,000
O 2008 admitted: 56,915
4 touch oI morality
Morality v. legal ethics
O 'ProIessional ethics are not synonymous with moral conduct. (p. 17)
Role diIIerentiation: 'the role oI the proIessional (like that oI the parent) is to preIer in a
variety oI ways the interest oI the client or patient over those oI individuals generally.
ProIessionalism: The current call Ior civility

2

Problem 1: dmission to the ar
Requirements to receive license
4 Ex.: Miss. Code nn. Sec. 73-3-2
(1) Power to admit vested solely in the state supreme court
(2) QualiIications |inIo submitted to oard oI ar dmissions| to sit Ior bar exam:
O (a) at least 21 years oI age
4 This is an extra requirement oI MS. ot all states have similar
requirements.
O (b) good moral character
O (c) graduated Irom an accredited law school
O (d) pass Mississippi ar examination
|J&C, Sec. 3:3|
oes the Supreme Court really review the bar application?
4 o delegated to the oard oI ar Examiners
oard is an agency or arm oI Supreme Court that evaluates the applications
9 members
ppointed by the Supreme Court
'The board shall promulgate the necessary rules Ior administration oI their duties, subject
to the approval oI the ChieI Justice oI the Supreme Court.
dmission Requirement 1: 'Character and itness
4 Why?
'Power oI the license
O ttorneys can use their being attorneys to get things that others wouldn`t get, etc.
It can be prestigious, so it can easily be taken advantage oI.
Protect clients
Protect the image oI the proIession
See n re Bitter, 969 .2d 71 (Vt. 2008)
O Gives good explanation oI character and Iitness
4 What does it mean to have good 'character and Iitness?
II you were on the character and Iitness committee, what type oI conduct would you Iind
disqualiIying? Why?
4 See Handout with Case Studies Ior Character and itness Committee
n re Hinson-Lyles, 864 So. 2d 108 (La. 2008)
4 Teacher had sexual relations with 14 year old student. She was convicted.
4 She then goes to law school and wants to sit Ior the L ar. L lets her sit Ior the ar
conditionally and tells her they`ll consider her C& iI she passes.
4 She passes. They have to consider her C&. They deny her.
She was put in a position oI authority over this student. She breached that position oI
authority and took advantage oI her position and the trust given to her.
lso, the recentness oI the acts only Iour years prior to her application to the ar.
4 See p. 34, n. 2(d)
C&
4 What violates?
4 Key considerations when evaluating application:
How recent?
How Irequent?
How severe?
Is it likely to be repeated?
Relevance to practice oI law
3

Was there remorse/rehabilitation? |J&C, Sec. 3:11|
4 What potentially violates?
Money problems
O iling Ior bankruptcy
O Too many student loans?
O inancial misconduct
4 n re Mustafa (p. 34, n. 3(a) and on TWE)
Stole Irom moot court account to pay Ior sister`s bail and to help
another sister leave an abusive husband one year beIore Iiling
application
enied
O ased on C&, the recentness and the Iact that it dealt with
money make it impossible Ior him to sit Ior the ar.
ote
O MustaIa was able to sit Ior the C ar. Ten years later, he
was charged with serious misconduct including Iailing to
return clients` calls, comingling personal and business
Iunds, using money to write personal checks, etc. He was
suspended Ior 2 years.
Criminal record
rug or alcohol abuse
Repeated traIIic oIIenses
ishonesty in business transactions
Plagiarism in other cheating in school
&nauthorized practice oI law
Psychiatric treatment
ondisclosure/Ialse statements/evasive answers on law school application or bar exam
4 The importance oI when conduct occurred
'adolescent misbehavior not suIIicient
O Hallian v. Committee of Bar Examiners |p., 35, n. 4(a)|
4 ote:
More likely to be denied a license than to have license taken away Ior same conduct
In MS, commission/conviction oI a Ielony is a per se disqualiIication on character and
Iitness grounds (except Ielony manslaughter)
4 The Concerns
Evaluation oI 'C& is elusive and can lead to arbitrary, unpredictable and intrusive
results
&se as a barrier to bar unpopular individuals
O o criminal conduct -Had numerous disputes with administration ('eanie on a
Weenie); denied admission because Iailed to resolve dispute in peaceIul manner,
and within proper channels. |Converse, p. 36, It.nt. 5(a)|
O White supremacist denied admission because oI belieIs principles over
equality and non-discrimination preIerred over irst mendment rights. |Hale, p.
36, It.nt. 5(b)|
O eing a member oI Communist Party: not a valid basis Ior denying application
|$.are, p. 36, It.nt. 6|
Word to the Wise: 'an applicant is more likely to be denied admission Ior covering up
his or her past than Ior what that past contains. (p. 37)
4

O Myers, p. 37, n. (1)(a) (attorney disbarred Ior non-disclosure Ior conduct that
would not have denied admissions.)
O n re $tern (Iailure to provide credit card accounts, and judgment entered against
him)
O n re Esukpa (applied Ior admission 14 times and Iailed to disclose prior arrests
and a civil action he was named a )
Committees are sympathetic to remorse, restitution, and rehabilitation
'C&: Hard Issues
4 Should mental illnesses/addictions be relevant to a determination oI applicant`s character/Iitness?
4 Should committee be able to inquire into the details oI the illness? What are the pros/cons?
Doe v. Members of nd. $tate Bar, 2009 WL 4841113 (S.. Ind. 2009)
O Pet. provided names oI treatment providers, but doesn`t want to provide medical
records that go with that. Question oI whether it violates the to request
medical records
4 P. 38, n. 2(b)
These questions have been limited to illnesses that will deIinitely aIIect law practice, etc.
Methods oI determining C&
4 Personal interview
4 Request Ior additional document
4 Request Ior additional written explanation
II this doesn`t satisIy, then there will be a personal interview, but this is mostly done Iirst
Obligations in Submitting/Supporting an pplication
Supporting an pplication
4 Rule 8.1
Obligation oI the applicant
O II an applicant makes Ialse admission and is then admitted to the ar and then it is
discovered, he can be disciplined as a lawyer
Obligation oI the lawyer supporting application
Comment |3|: oes this distinction make any sense?
O See acts oI Problem 1 on p. 32
4 Rule 1.6 is the trump card. Rule 8.1 doesn`t apply when there is
representation by the attorney in an attorney-client relationship
4 II you are representing the guy, then you do not have to disclose it; but iI
you`re not representing him, then you do have to report it.
dmission Requirement 2: Educational Requirement
Requirement that Law School be accredited
This is enIorced because the comes out and places certain requirements on schools
it accredits, so it can be trusted that accredited schools` graduates can be trusted to
practice law
4 &naccredited schools
4 What requirements should be imposed to ensure competence?
Concord &niversity School oI Law (p. 42, n. 3(c)) |See Mit.ell v. Bd. of Bar Examiners,
897 .E.2d 7 (Mass. 2008)|
dmission Requirement 3: Pass the ar Exam
What about a nationwide &niIorm ar Exam?
4 ME, 6 MEEs, and 2 MPTs diIIerent multistate tests/exams
4 Coming? 6-10 jurisdictions in next 2 years are going to try it out
Should there be a maximum number oI times to take the bar exam?
What about the issues?
5

4 DAmi.o v. Ne York $tate Bd. (M&R, p. 45, 7(a)) and Bartlett v. Ne York $tate Bd. (M&R, p.
45, 7(b))
Miscellaneous points
State may not require a bar applicant to be a &S citizen. n re Griffits
State cannot limit bar admissions to state`s own residents. $upreme Court of Ne Hampsire v. Piper
However can require lawyer to have a bona Iide oIIice in the state and attend CLEs there.
Review Questions
When does an applicant Ior bar admissions lack suIIicient character and Iitness to be admitted to the
bar?
Can an applicant Ior bar admissions be excluded Irom the bar Ior behavior that would not cause an
admitted lawyer to lose her license?
What are the obligations oI candor oI an applicant Ior bar admissions?
What are the obligations oI candor oI an attorney recommending an applicant Ior admission to the bar?
!roblem Lawyer Discipline & The Disabled Lawyer
How does this Iit in?
4 Lawyer iscipline
dmitted (has 'character and Iitness) but still regulated
O Why?
O How?
O or what?
Why?
4 Why do we have a process oI discipline Ior attorneys?
(a) 'cleansing Iunction
O Get rid oI the bad eggs
(b) 'deterrence Iunction
O eter other lawyers Irom not Iollowing the lead oI the deviant lawyer
(c) 'public image Iunction
O We like the public to know we`re taking care oI this and keeping our proIession
clean
4 Why do we 'selI-regulate?
Lawyers regulate themselves disciplinary actions do not go . . .
(a) protect Iuture clients (other types oI regulation criminal/tort regulate past
conduct);
(b) can be tougher on lawyers than juries (who may not appreciate the technical` aspects
oI misconduct)
(c) do not want regulation to get out oI the club`
What? What conduct is subject to discipline aIter you`re admitted?
4 irst remember that we are just talking about discipline under the Rules now
lso regulation through the 'M word
4 Restatement (Third) Sec. 5, comment b (48)
isciplinary code mainly concerned with lawyer Iunction perIormed by a lawyer in the
course oI representing a client
ut extend beyond what is done in practice oI law to conduct that 'draw into question
the ability or willingness oI the lawyer to abide by proIessional responsibility
Rule 8.4(a) (I)
O 'It is proIessional misconduct Ior a lawyer to .
O OTE: Includes personal conduct-beyond conduct while practicing law
4 Rule 8.4(a)
n re Cusing, 646 .E.2d 662 (Ind. 1995) (attempting to violate the rules)
6

n re Bron, 2002 WL 449793 (La. 2002)(assisting another in violating the rules)
Emil v. Miss. Bar, 690 So. 2d 301 (Miss. 1997)(inducing another the lawyer and the
highway patrolman)
O The attorney says he`ll pay a percentage to the patrolman Ior sending people in
accidents, etc. to him. The patrolman says no. The attorney`s attempt to induce
the patrolman to do this was subject to discipline.
n re Paferoski, 721 .2d 992 (.J. 1998)(The mbulance Chaser)
O It is unethical to hire someone (whether it is an attempted solicitation or whether
it is successIul) to go to the hospital and solicit business.
4 Rule 8.4(b)
P. 182 in Supp. the old code; R 1-102 Misconduct
O moral turpitude`
O See p. 131 in Supp., Comment |2| to Rule 8.4
What type oI criminal act` subjects to discipline?
O Attorney Grievan.e Commn v. Protokoi., 619 .2d 100 (Md. 1993)(cooking
kitty - breaking and entering/cruelty to animals)
O Violent crimes |n re Grella, 777 .E.2d 167 (Mass. 2002)|
O Sex oIIenses |Boudreau, 815 So.2d 76 (La. 2002)(importing child pornography
disbarred)|
O Tax crimes (see Comment |2|)
o conviction required
O Just have to commit an act no conviction required
O People v. Musi.k, 960 P.2d 89 (Colo. 1998):
4 3 assaults on gI between 1992-93
4 o criminal charges/convictions
4 Expressly Iound no eIIect on clients ('throughout the relevant time he had
a very successIul practice with well-satisIied clients.)
4 ature oI violent assault more important than criminal charges
4 'Such conduct on the part oI an oIIicer oI the court is very serious
indeed. (92)
4 Suspended one year and one day
4 Rule 8.4(c)
oesn`t even have to be a crime, just an act that can be considered one oI these
o relation to practice oI law required
O raudulent conduct to anyone inside or outside oI practice oI law
4 n re Wong, 672 .Y.S.2d 323 (1998)(Iinancial problems the scheme
goes wrong suspended Ior 1 year)
4 n re $.ruggs, 475 .W.2d 160 (Wis. 1991)(resume Iraud)
4 Matter of Diggs, 544 S.E.2d 628 (S.C. 2001)(lying about attending CLE)
4 n re Fornari (submitting Iraudulent claims to insurer)
Looking Ior things that are not crimes but are misrepresentations or Iraud even iI it has
nothing to do with the practice oI law because iI you`re engaging in Iraud, it aIIects your
ability to practice law
ddiction/other mental diseases: cause Ior iscipline or Leniency?
O ar trying to deal with this: eIIort to identiIy substance abuse problems beIore
they cause harm (elley); 'disability inactive status (Model Rules Ior Lawyer
isciplinary EnIorcement, Rule 23)
O n Matter of Walker (seen as a mitigating Iactor)
7

O Condu.t of Loe (continually avoiding client/lying to client about appeal being
Iiled 'burnt out syndrome mitigation suspended Ior 30 days)
O People v. Lufan (head injury leads to 'compulsion to shop charge personal
expenses on Iirm credit card and make up justiIications)
4 Rule 8.4(d): The 'catch-all
Attorney Grievan.e Commn v. Elmendorf, 2008 WL 1745290 (Md. pril 17,
2008)(Internet dating but she needs a divorce Iirst)
isrespect to the court
O n re M.Clellan, 754 .E.2d 500 (Ind. 2001) (in petition Ior rehearing stated
court`s decision 'reads like a bad lawyer joke . 'When it is okay Ior a lawyer to
lie? When his lips are moving to an insurance adjuster.)
O n re Wyllie (court appearances while intoxicated)
ehavior toward opposing parties or counsel
Who can discipline
4 Jurisdictions that can impose discipline:
8.5(a)
What law will apply?
O Remember ad hoc adoption oI diIIerent versions oI Rules/court interpretations
4 Especially conIidentiality rules
4 Rule 8.5(b)
Reciprocity oI iscipline
4 Goal to have all courts recognize same standard. Rule 8.5(b) standards
4 Jurisdictions typically respect the Iindings oI other jurisdictions and will impose reciprocal
discipline. |Rule 8.5, Comment |1||
uty to report misconduct oI other lawyers
4 Rule 8.3(a)
4 ormal Opinion 03-431 (duty to report lawyer suspected oI suIIering Irom alcoholism/drug
addiction/mental impairment) (ex. Miss deadlines, Iail to Iile documents, etc.). Who would be
the lawyer most likely to know this?
4 n re Rivers (inexperienced lawyer contacting jurors told by experienced partner okay, should
have reported conduct, ignorance is no excuse)
Key points to disclosure under 8.3
4 'knows: Rule 1.0(I) on p. 7
What does this mean? Attorney U. v. Miss. Bar. the standard must be an objective one
. not tied to the subjective belieIs oI the lawyer in question. The supporting evidence
must be such that a reasonable lawyer under the circumstances would have Iormed a Iirm
opinion that the conduct in question had more likely than not occurred.
Cf. R.I. Ethics Op. 95-40 (determination is subjective and to be made by the lawyer)
4 'another lawyer
on`t have an obligation to report your own misconduct
4 'shall
ormal Ethics Op. 94-383 (July 25, 1994)
You shall report it
4 'substantial question |MR 1.0(l)|
4 OI 'honesty, trustworthiness or Iitness as a lawyer (see comment 3)
4 See Rule 8.3, Comment 2
Question about When reporting should occur
4 When Iirst learns? Wait until litigation is completed that misconduct occurred? |Risk that
lawyer will use to coerce settlement|
8

Client ConIidences v. Reporting
4 Ethics dvisory Panel Opinion, 627 .2d 317 (R.I. 1993)|M&R, p. 59 n.3(c)|
Client represented by long-time attorney who embezzles Iunds
Subsequent lawyer learns oI embezzlement during course oI rep.
Client does not want disclosure (repayment/Iriendship)
ConIlict between 1.6 and 8.3
O 1.6 trumps
isciplinary Procedures
4 o right to have complaint actively pursued
4 Complaint
4 Initial evaluation (dismissal)
4 Investigation (dismissal)
4 iscipline (admonish reprimand suspension disbar) |what did the lawyer do? What conduct
intentional? Injury (actual/potential)? Other Iactors? ote: o real standards?|
4 Too Iorgiving? Too conIidential? Merely a 'private preserve oI lawyers?
Hypos
4 Larry Lawyer knows that it is unethical to approach an accident victim at the scene and oIIer his
services. To get around the prohibition, Larry gives the cards to his brother-in-law (who is a
cop) to hand out cards. Is Larry subject to discipline?
4 Larry Lawyer is arrested Ior soliciting sex Irom an undercover police oIIicer whom Larry
believed to be a prostitute. Is Larry subject to discipline Ior this conduct?

!roblem Regulating Lawyers Outside of the Formal Disciplinary System
What is this all about?
4 Regulating/disciplining lawyers outside the Iormal state bar disciplinary system:
Tort/contract claims legal malpractice; types oI claims:
O C v. L (tort: negligence)
O C v. L (contract ex. ee dispute)
O C v. L (tort: breach oI Iiduciary duties)
ote: ot determined by Model Rules instead by tort, contract, Iiduciary law
Legal Malpractice
4 Elements:
In order to recover Ior legal malpractice, a plaintiII must prove by a preponderance oI the
evidence |1| the existence oI a lawyer-client relationship, |2| negligence on the part oI
the lawyer in handling his client`s aIIairs entrusted to him, |3| some injury proximately
caused by the lawyer`s negligence. Baker Donelson Bearman & Caldell, PC v.
Muiread
Legal Malpractice: ttorney-Client relationship |Iorthcoming|
Legal Malpractice: egligence: (a) uty (b) reach
Malpractice Standard: uty
4 Restatement (Third), The Law Governing Lawyers Section 52(a):
' lawyer who owes a duty oI care must exercise the competence and diligence
normally exercised by lawyers in similar circumstances. |Supp. p. 298|
oes a lawyer have a duty to reIer a case to a specialist?
4 Horne v. Pe.kam (M&R, 67) Yes iI 'under the circumstances a reasonably careIul and
skillIul practitioner would do so.
Proving the Malpractice Claim
4 (a) duty and
4 (b) Iailure to exercise ordinary skill and knowledge
9

How do you prove this?
Malpractice ction
4 Important Question: o the disciplinary rules establish the duty owed? oes the violation oI an
ethical obligation demonstrate a breach oI the lawyer`s duty to a client?
Rule, Scope: Par. 20 |p. 6| |Is this merely 'whistling past a graveyard?|
May be 'some evidence but not basis Ior liability
4 See also Restatement (Third): Sec. 52(2)(a)-(c) |Supp. 296|
Proving Malpractice
4 egligence
(a) uty
(b) reach the mere violation oI a rule doesn`t establish breach
(c) !roximate cause
Proving Proximate Cause
4 egligence was 'proximate cause oI damages
Most diIIicult element to satisIy:
O 'suit-within-a-suit requirement
4 'll the issues that would have been litigated in the previous action are
litigated between the plaintiII and the plaintiII`s Iormer lawyer, with the
latter taking the place and bearing the burdens that properly would have
Iallen on the deIendant in the original action. |Restatement, Third, The
Law Governing Lawyers, Section 53, comment b|
4 'but Ior lawyers conduct materially diIIerent and better outcome this
is what the person bring the malpractice claim would have to show the
legal validity in order to establish proximate cause that would prove
negligence
The ultimate irony. oes it make sense? Is it really the same case?
4 Messenger v. Heos, 2008 WL 5158901 (Mich. pp. Ct. ec. 9, 2008)
Legal Malpractice: amages
4 What damages can the client recover?
What the client could have recovered iI the claim had been handled non-negligently
amages caused by Lawyer conduct (disclosure oI trade secrets amount oI harm to the
client`s business); out oI pocket damages; possibly punitive damages
Split among jurisdictions should the attorney be able to deduct the amount oI original
contingency Iee agreement? ($100,000 in damages; 30 contingency Iee agreement)
|M&R, p. 75|: Yes (Campagnola); o (Horn)
4 o damages as a result oI lawyer negligence
Particularly an issue in a conIlict oI interest situation
O Hendry v. Pelland, 73 .3d 397 (.C. Cir. 1996): In sell oI land (held as tenants
in common), attorney represented Iive Iamily members: mom wanted to keep
house on land, but agreed to develop it, son and daughter opposed development oI
land because would destroy trees, other two were inIants (maximize proIits)
4 iIIerent interests oI all parties conIlict
4 ConIlict oI interest sued Ior punitive damages, disgorgement oI legal
Iees
4 Were able to prove duty, breach, causation, but were stuck on damages
because they couldn`t show that they lost any money. So, what should the
damages be?
The court said that although they could not prove actual damages,
the attorney would have to IorIeit his Iee.
Malpractice Standard Ior Criminal eIendants
10

4 ote: We are talking about malpractice claims Ior damages Ior representation in criminal case
not about challenges to conviction/sentence
4 criminal suing his L Ior malpractice ($$) in handling criminal case in addition to the
ordinary elements oI a legal malpractice claim a criminal defendant must demonstrate he is
actually innocent of the charges
4 Why? What policy reasons are behind this distinction between civil and criminal malpractice:
(a) 'permitting a convicted criminal to pursue a legal malpractice claim without requiring
prooI oI innocence would allow the criminal to take advantage of his own wrong.
Wiley v. $an Diego
(b) 'allowing civil recovery Ior convicts impermissibly shifts responsibility for the
crime away Irom the convict. d. ny negligence by the attorney is 'superceded by the
greater culpability oI the plaintiII`s criminal conduct.
(c) 'guilty deIendants have an adequate remedy in the form of postconviction relief
Ior ineIIective assistance oI counsel. d.
(d) judicial system should avoid ~conflicting resolutions Irom the same actions. d.
(e) eIendants come in with more protections than just their attorney to protect
them Irom abuses in the system.
What does a criminal have to do to bring malpractice claim? ('actual innocence)
4 1. Show exoneration (conviction reversed)
4 2. Once exonerated then must prove to the jury that is actually innocent oI the crime by a
preponderance oI the evidence.
Top Ten practices that trigger malpractice liability
4 (1) ignore conIlict oI interests
4 (2) sue Iormer client Ior unpaid Iee
4 (3) accept any client and any matter that comes in the door
4 (4) 'do business with your client
4 (5) practice outside your area oI expertise
4 (6) go overboard in opening branch oIIices and making hires
4 (7) Iailure to properly monitor/supervise lawyers in Iirm
4 (8) ignoring a potential claim
4 (9) setting matter without authorization Irom client
4 (10) Iailing to communicate with client
Top ten areas Ior malpractice claims
4 (1) personal injury (against plaintiII lawyer) 25
4 (2) real estate 17
4 (3) domestic relations 10
4 (4) estate, trust and probate cases 9
n issue that has become more oI a rhetorical dart thrown at lawyers is lawyers who don`t have
malpractice insurance. Should the ar require attorneys to post signs/inIorm clients that they don`t have
malpractice coverage?
4 C has now enacted a rule that requires attorneys to disclose whether or not they have
malpractice coverage.
Malpractice Liability to on-Clients (controversial)
4 Liability in Legal Malpractice to third parties (non-clients)
ightmare scenario Ior lawyer 4 Possible Scenarios:
O 1. Prospective clients
4 ConIidential inIormation breach
4 ailure to inIorm re: statute oI limitations (Miller v. Metinger, M&R 69)
O 2. eneIiciaries oI a will: iI due to the negligence oI L testator`s will does not
carry out wishes oI testator
11

O 3. Where lawyer assumes a duty on behalI oI a non-client to investigate Iacts and
accurately report
4 Grey.as, n.. v. Proud, 826 .2d 1560 (7
th
Cir. 1987)
o good brother in law needs a loan
Loan Ior 1.3 million subject to no liens
Proud letter: 'in |capacity oI CrawIord`s lawyer|, I have been
asked to render my opinion in connection with the loan. 'This
opinion is being delivered in accordance with the requirements oI
the Loan greement and represents that 'conducted search and
are 'Iree and clear oI all liens.
rother in law deIaults
Person who relied on attorney`s letter sues Ior malpractice
Malpractice claim representation no liens when did not
check/veriIy CrawIord`s statement
O Posner: 'no general duty to adversary`s client
4 'sharp dealing to opposing counsel not liable
4 Typically deals with 'wrongIul conduct toward
client
4 Reliance/express representations under the
circumstances
4 Ma.Millan v. $.effy
Restrictive covenant on property (can`t build structure over 250
Ieet)
Seek to sell property Sellers attorney prepares deed but Iails to
include covenant
uyer later Iinds out about it and sues alleging reliance on the
deed prepared by the attorney
Result?
Court: no malpractice claim
O ot the client
O uyers not intended beneIiciaries oI lawyer`s services
O 'primary purpose and intent oI the attorney-client
relationship itselI must be to beneIit/inIluence third party
O Here: no evidence primary purpose was to beneIit buyers.
Seller/client not interested in title search. Property
transactions adversarial in nature would interIere with
undivided loyalty to client
O 4. Lawyer represents trustee-like Iiduciary in breach oI an obligation to intended
beneIiciary oI Iiduciary
4 Guardiansip of aran |M&R, p. 70|
What iI a client agrees to settlement oI claim and later becomes dissatisIied can that be the basis oI a
malpractice action?
4 The inadequate settlement dilemma
Old Rule: no malpractice regarding settlement because would not have signed settlement
papers iI client was unhappy with settlement
More recent rule: clients rely on lawyers and have no independent basis Ior evaluation
cause oI action Ior inadequate settlement. uty to Iully investigate (Woodruff) and to
Iully advise (Wood) beIore recommending settlement.
How have lawyers dealt with the threat oI legal malpractice claims?
12

4 greements prospectively waiving malpractice
Rule 1.8(h)(1) on p. 38 oI Supp.
O When might this actually happen?
4 ot a likely situation, but may occur in the corporate context when you
have a corporation and in-house counsel isn`t a specialist in the area and
so they make an agreement with an attorney that is.
4 Charge less Ior services
4 usiness device
4 Malpractice
Provision in Iee agreement stating arbitrate malpractice claim? |Rule 1.8, comment 14|
4 uty to tell client oI lawyer`s own malpractice/settle the malpractice claim?
Rule 1.8(h)(2)
ut see n re Tallon (car wreck claim missed statute oI limitations paid client`s
medical bills and property damage aIter complaint Iiled) Court: obligation is to (1)
notiIy oI malpractice; (2) withdraw; (3) advise oI right to retain other counsel; (4) and
then settle)
4 uty to tell oI Iormer attorney`s malpractice
Rule 1.4 (generally): uty to communicate to keep client inIormed and allow to
evaluate options
4 Malpractice: who is liable?
Lawyer committing malpractice
What about Iirm where lawyer works: limited liability company purpose is to shield
other lawyers in Iirm |Rule 1.8, comment 14, sentence beginning 'or does this . . .|
O ut: independent duties: to supervise other lawyers/non-lawyers
4 Other ways to regulate lawyer conduct
So Iar: state disciplinary system and tort system (malpractice)
Courts also have inherent authority to regulate lawyers appearing in their courtroom. In
what ways?
O Contempt
4 Civil contempt
4 Criminal contempt
4 n re Hampton, Iailed to appear at hearing; held in contempt oI court: $100
Iine, 3 days in jail
4 Civil contempt:
Primary purpose 'enIorce the rights oI private party litigants or
enIorce compliance with a court order . . . the contemnor may be
jailed or Iined in civil contempt; however the contemnor must be
relieved oI the penalty when he perIorms the required act.
(Hampton)
4 Criminal contempt:
'esigned to punish the contemnor Ior disobedience oI a court;
punishment is Ior past oIIenses and does not terminate upon
compliance with court order. (Hampton)
4 Misconduct in the Criminal Context: Can a lawyer`s poor representation be the basis oI reversal
oI conviction?
$tri.kland v. Wasington, 466 &.S. 668 (1984)
O must show two things to establish ineIIective assistance oI counsel (violation oI
Sixth mendment right to counsel) to justiIy reversal oI sentence:
13

4 (1) Lawyer`s act/omission 'outside the wide range oI proIessionally
competent assistance (errors so serious that counsel was not Iunctioning
as 'counsel); and
4 (2) actual prejudice to the eIendant (reasonable probability that but Ior
Counsel`s actions the outcome would have been diIIerent)
O couldn`t establish Iirst element. o matter what amount oI work the attorney
does, the Iirst element can`t be established iI the attorney can say it was done
because oI strategy.
O couldn`t oI established the second element either. There would have been a
small, iI any, change iI certain things had been produced, and the outcome would
have been the same.
O Important! Know case name and standard established!
4 Examples oI actions by lawyer
Cottle v. $tate
O ailure to tell criminal client about a plea oIIer Irom prosecution and give the
client the right to decide whether to take it
Burdine v. Jonson, 262 .3d 336 (5
th
Cir.)
O Lawyer slept through large parts oI trial as iI counsel was absent Irom trial
Wiggins v. $mit, 539 &.S. 510 (2003)
O ailure to put on any evidence oI childhood Ior mitigation purposes at trial
ineIIective despite Iact lawyer said it was strategy`
'II one oI you has to go to jail, make sure it`s your client.
Durie v. $tate (p. 81)
O ight at a topless bar; recovery Irom bar; Medicaid lien on recovery oI one P; had
disbursed to non-medicaid client; convicted oI grand theIt (Irom Medicaid): 60
days in jail and 10 years probation
hapter III Fundamentals of the Lawyer-lient Relationship
!roblem 4 The Lawyer`s Duties to a !rospective lient (or all current clients were at one time
prospective clients)
Prospective Clients
4 asic uties Restatement Sec. 15 |Supp., p. 283|
(1) protect conIidences
(2) saIeguard property
(3) give competent advice
Model Rule pproach to 'prospective clients
4 Rule 1.18
4 Hypo: The Secret IIair see handout
issecting Rule 1.18
4 Lawyer receives 'disqualifying information
4 Client and prospective client give informed consent, conIirmed in writing, or
4 Lawyer who received the inIormation took reasonable measures to avoid exposure to more
disqualiIying inIormation than was necessary` to determine whether to accept representation and
Lawyer is timely screened |See R. 1.0(k)|
Prompt notice is given to prospective client
Participating in Pro ono Legal Services (the Stewpot Legal Clinic)
4 Rule 6.5
Treats as actual client (as opposed to prospective client`)
Representation is limited (not continuing)
Impractical to do on site conIlicts checks |Comment 3|
14

Implicates conIlict/imputation rules only iI lawyer 'knows that the representation
presents a conIlict oI interest |Comment 3|
Even iI the lawyer is disqualiIied based on inIormation received Iirm may continue
representation
ote: o express requirement Ior lawyer to be screened
Chat Rooms
4 Lawyer sets up a chat room to give 'inIormation (not 'advice) to those who inquire.
ine as long as they know there is no attorney-client relationship
ecision to accept client representation
4 o obligation to accept any case (except in the appointed context)
4 Easier to turn down representation than to withdraw once representation accepted
ccepting Representation
4 Moral (as well as Iinancial) decision regarding representation
4 Rule 1.2(b): ' lawyer`s representation oI a client . . . does not constitute an endorsement oI the
client`s political, economic, social, or moral views or activities
Limitations on Right to Reject a case
4 Natanson & Wisnatsky (p. 90 n.3a & b)
Rejecting client Ior no reason v. rejecting client Ior discriminatory reason
Client ccommodation under
4 Client entitled to accommodation
ttorneys as 'public accommodations under
4 Gregg settlement (p. 91): Iailed to provide a qualiIied interpreter cost client more and could
not adequately understand what was going on
$22,000 settlement and Iorego any additional Iees

When does a prospective client become an actual client
4 Scope, paragraph |17| (Supp., p. 5)
'principles oI substantive law external to those Rules determine whether a client-lawyer
relationship exists.
4 Restatement Sec. 14 (Supp., p. 283)
4 Commencement oI /C Relationship under Contract
Express agreement
y implication
4 Commencement oI /C Relationship Ior purposes oI tort law
Togstad v. Jesley, Otto, Miller & eefe, 291 .W.2d 686 (Minn. 1980) on TWE
DeJaux
4 Hypo about rank alldown and Linda Lawyer
rank alldown wrote a letter to Linda Lawyer asking Linda to represent him in a
personal injury case. Linda never responds to the letter. One year later the SOL runs on
rank`s claim and he sues Linda Ior malpractice Ior Iailure to Iile the suit. What result?
O One oI the elements to bring a malpractice suit is that the person must show that
there was an attorney-client relationship.
O Sec. 14 oI the Restatement
4 Two ways to establish attorney-client relationship
1. Contractual consent
2. Lawyer Iails to say that there is not a relationship and the
lawyer knows that the client is relying on her. re there actions on
the part oI the attorney that the client can rely on?
4 Here there is no contractual consent and there is also no reasonable
reliance by the client on the actions oI the attorney.
15

4 Hypo about Mary Misdemeanor and dam ttorney
Mary Misdemeanor calls dam ttorney`s oIIice seeking representation Ior a recent &I
charge. dam is known as the premier &I attorney in SpringIield. dam is out oI the
oIIice, but dam`s secretary tells Mary, 'send over all documents. Mary tells the
secretary that she is anxious because the hearing is ten days away. On day beIore the
hearing, dam contacts Mary and declines to represent her. Is there an attorney-client
relationship Iormed?
O Mary could justiIiably rely on the actions oI the agent oI the attorney
The Engagement and on-Engagement Letter
4 Sample engagement letter on slide (or on MS ar website)
IdentiIy oI the client (particularly important iI corp)
Scope oI rep (to make sure everyone is on same page)
ee arrangement (per hour/contingent including how expenses handled)
4 Sample disengagement letter on slide (or on MS ar website)
o justiIiable reliance on actions oI attorney iI there is a disengagement letter
ot representing
ot giving any advice regarding merits oI case
otice oI SOL that they could be running quickly
Limiting Scope oI Representation
4 MR 1.2(c) |Supp., p. 12|
4 Common Contexts
Insurance; wills; divorce; tax; criminal
or ex.: lawyer retained to draIt a contract Ior a client is not obligated thereaIter to
handle the litigation regarding its breach. |See J&C, Sec. 8:2|
4 e aware: limiting scope oI representation does not eliminate the obligation to Iully inIorm
client oI options (and reIer iI necessary). Ni.ols v. eller, 19 Cal.Rptr.2d 601 (Cal. Ct. pp.
1993)
4 iscuss limitations on the practice up Iront and put it in Iee agreement |J&C, Sec. 8:2|
Trend: &nbundled Legal Services
4 'Limited Service clients
4 Prepare Iorms to persons who are acting pro se
4 lorida; Virginia |R 1.2(c): ' lawyer may assist in the preparation oI pleadings or other Iilings
in court on behalI oI an unrepresented person.|
ecision Making uring Representation: What decisions are leIt to lawyer and which are the clients
4 'Objectives v. 'Means
Rule 1.2(a) |Supp., p. 12|
O Comment 2
'expert model
'servant model
O The client is the agent and the attorney is the servant and will do whatever the
client wants
'cooperative model
O Certain things leIt to client objectives; certain things leIt to attorney means;
try to draw middle ground
Technical/Tactical Legal ecisions (L only) |means oI representation| |J&C, Sec. 8.3|
O raIting a contract
O Write a brieI
O Give an opening statement
O Order oI witnesses at trial
16

O Objections to make at trial
Objectives oI representation (client has authority) |J&C, Sec. 8.3|
O Expenses to be incurred (i.e., how many depositions to take)
O Major decisions aIIecting merits oI case
4 4 areas oI absolute client autonomy client only can make these decisions
MR 1.2(a)
O 1. Settlement oI a civil case
O 2. Please in a criminal case
O 3. Criminal: whether to waive a jury trial
O 4. Criminal: whether the client will testiIy
Hypo about Clarence Client and Larry Lawyer
O Larry Lawyer agrees to represent Clarence Client in a personal injury claim.
ecause Larry believes that the client will be able to get more money Irom a jury
than in settlement, Larry includes in his Iee agreement the Iollowing: 'this suit
cannot be settled beIore the trial without Lawyer`s consent. Larry is not subject
to discipline. True or alse?
4 Limiting the scope oI representation is limiting to a particular claim or
particular area not limiting the client`s rights to settle a claim
4 To determine whether or not to settle is the absolute right oI the client.
lawyer doesn`t have the right and can`t assume the right.
4 Settlement
Merely representing a C does not give express, implied or apparent authority to settle
matter |Restatement sec. 27, comment d|
Luetke v. $ur ( knew that L had not obtained client consent although assured it would
not be a problem not binding)
Hoever iI L expressly represents he has authority when he does not the L then bears
the burden oI damages caused by the misrepresentation. (p. 96)
Entering Plea absolute autonomy oI client
4 Bloom (p. 98): asked the jury Ior the death penalty which jury sentenced
Cal. S. Ct. upheld
4 Query: should society`s interest in the proper outcome outweigh the C`s interest in having the
absolute right to plea?
Clients unable to make decisions or who make bad decisions: what`s a lawyer`s responsibility?
4 isabled client: unable to exercise Rule 1.2 authority:
L does not assume the decision-making role Ior the client
L`s obligation is to Iollow Rule 1.14 regarding disabled client
4 Client making decisions Lawyer disagrees with
bide by decisions
Seek to withdraw Irom representation (see R. 1.16(b)(4)(may withdraw when 'client
insists upon taking action that the L considers repugnant or with which the L has a
Iundamental disagreement.)
|See J&C, Sec. 8:7|
!roblem 5 Billing for Legal Services
Issues
4 Standard Ior reasonableness
4 Procedural requirements (writing; content)
4 illing Ior expenses
4 onreIundable retainers
4 Subsequent changes to Iee arrangement
17

4 Trial court supervision oI Iee agreements
4 Rules Ior contingent Iees
4 Rules Ior hourly Iees
ee greement
4 The overarching requirement oI reasonableness
Rule 1.5(a) |Supp., 18|: ' lawyer shall not make an agreement Ior, charge, or collect an
unreasonable Iee or an unreasonable amount oI expenses.
4 Contingency Iee agreement
Contingency 'o Iee unless I recover Ior you (percentage oI recovery or 'reverse
contingency based on the amount oI money the lawyer saves the client)
Rule 1.5(c)
4 Method oI charging expenses matters
Why how expenses deducted is important:
O Hypo: $100K recovery; 40; $20K expenses
4 Gross method
$100,000 recovery
($40,000) 40 Iee
$60,000
($20,000) expenses
$40,000 to client
4 et method
$100,000 recovery
($20,000) expenses
$80,000
($32,000) 40 Iee
$48,000 to client
4 Contingency ee Writing Requirement: what iI OT in writing?
Contract unenIorceable
Possibly 6uantum meruit recovery. $tarkey, elly, Blayne & Wite v. Estate of
Ni.olaysen
When quantum meruit recovery allowed:
O 1. Legal services perIormed in good Iaith
O 2. Client accepted services
O 3. With expectation oI payment Ior services
O 4. Value oI services can be ascertained
O (p. 101)
4 on-Contingency ee greement
Writing requirement Ior non-contingent Iees (ex. Hourly parte or per transaction)
O Rule 1.5(b)
4 Scope oI representation & basis/rate oI Iee and expenses
4 Communicated preferably in writing
4 Within reasonable time oI commencement oI action
4 Include handling oI expenses
4 illing Ior expenses
Expense allocation part oI Iee agreement under R. 1.5(a) (must be reasonable)
Proper expenses?
O OIIice overhead (see, Brooks, p. 102, n.2(c))
O Copy charges ('silent partner)
O Surcharging Ior contract attorneys | ormal Op. 00-420|
18

4 onreIundable Retainer
ee charged up Iront which is not reIundable regardless oI the time the litigation takes
or iI the client Iires the lawyer
Context in which disputes arise |Raymark: sophisticated client making business decision|
Cooperman (n. 3a, p. 102) burdening client`s right to terminate
O Opportunity costs in retention |Cooperman. stating that 'given the signiIicant
impact on my practice, I would not have accepted this engagement had this Iee
not been Iully earned and non-reIundable.|
O ccounting Ior non-reIundable retainers
4 Trust account or earned Iee, Itn 4, p. 103
Can you increase a Iee during litigation?
4 eal with issue prospectively
4 eed Ior notice when hourly Iees are raised
4 Problem oI changing arrangements once Iiduciary relationship is Iormed
Rule 1.5 requires that a Iee be 'reasonable (or not 'unreasonable) what does that mean?
4 n re Fordam
Criteria Ior Reasonable Rule 1.5(a)
4 Problem: n &nreasonable ee see handout
4 Some unreasonable Iee cases
Matter of Hanna 40 oI no Iault beneIits (no true contingency)
Golomb lawyers who try to exceed statutory Iee limits (illegal contract invalid and no
quantum meruit, p. 104)
Wite v. M.Bride continuing eIIorts to collect unreasonable Iee prompts denial oI
quantu meruit, p. 104
Green lawyer charging hourly rate Ior Iaxing and calling clerk`s oIIice (p. 105)
Possible solution to ensure lawyers only charge 'reasonable Iee: publish advisory schedule oI Iees Ior
certain legal services?
4 Goldfarb v. Jirginia $tate Bar
ee schedules violate anti-trust law
Is reasonableness in the eyes oI the client?
4 (a) charging clients diIIerently based on ability to pay; and
'Price iscrimination MR 1.5, Comment |5|
O It is okay to engage in price discrimination providing the same service to rich
person and poor person and charging rich person more than poor person
4 (b) when do you determine reasonableness?
General Rule: consider reasonableness at the time the agreement was entered into
Restatement, Sec. 34: post-contract events relevant based on events reasonably seen as
possible at time oI contracting
uthority oI a Judge to determine reasonableness oI Iee
4 Trial court supervision oI Iees
o dispute regarding Iee no inherent authority to Iind unreasonable on their own, see,
Gagnon v. $ablom, p. 108
O II a complaint is Iiled, then sure, but not on their own
Contingent ee greements
4 'Poor person`s Iee
4 Must non-contingent Iees be oIIered?
See old R. 1.5, cmt. |5| and Miss. |J&C, p. -20|
ew 2002 deletion |M&R, p. 109|
4 Content requirements (see, above)
19

Judge Grady`s critique oI contingent Iees |M&R, pp. 109-10|
4 Contingency Iees typically not 'reasonable
ee dependent on claim severity and number oI clients (not eIIort oI lawyer)
eed to look at particular case (potential Ior liability, how likely is case to settle/go to
trial, and amount oI potential recovery)
4 Should determine these Iacts early on and then determine a reasonable Iee
4 Early on provisions
Where Contingency ees Improper
4 Contexts in which contingent Iees are improper
omestic relations cases
O Rule 1.5(d)(1) and Comment |6|
Criminal cases
O Rule 1.5(d)(2)
O In criminal cases, the stakes are too high to allow conIlicts so absolute rules that
we can`t enter into contingent Iee agreements with criminal clients
O Winkler v. eane, p. 113, contingent bonus in criminal case grounds Ior discipline
not reversal no prejudice
4 eIense contingencies
Reverse contingent Iees
O Value billing
4 I get paid based upon how much I save you
O Wuns.el La Firm v. Clabaug such Iee contracts void as a matter oI public
policy as based on pure speculation
O ormal Op. 93-373 (1993) is amount saves 'reasonably ascertainable; the
total Iee reasonable and client Iully inIormed?
4 Some leeway in allowing value billing, but also says in order to determine
how much money you can get, it has to be a reasonable amount
4 Hourly Iees
'illing time
Incentives Ior over-billing
O Compare incentives in contingent Iees
Reuse oI work product
ouble billing Ior travel, ormal Op. 93-379
O Say you have to Ily to do a deposition and so you`re billing Client Ior the travel
time. ut, while you`re Ilying, you are working on a brieI Ior Client , so you
want to charge Client Ior that time. ouble billing. ut this opinion says you
can`t do it and that it is unethical.
Hourly requirements and consequences Ior proIession (and Ior personal liIe)
Review Questions
4 What types oI Iee agreements must be in writing and what must the writing contain? What must
the Iee agreement say regarding the handling oI expenses?
4 What are the standards Ior reasonableness oI a Iee? When is reasonableness evaluated?
4 Is an attorney obligated to oIIer a client something other than a contingent Iee where another Iee
would be in the client`s interest?
4 In what matters are contingent Iee agreements unproIessional? Why?
4 When may a court inquire into the reasonableness oI a Iee agreement?
4 When is quantum meruit recovery available?
5
!roblem 7 The Duty of onfidentiality
20

octrines implicating conIidentiality
4 ttorney-client privilege
4 Work product immunity
4 iduciary obligations
4 Rule 1.6
The ttorney Client Privilege
4 Restatement (3), Sec. 68
(1) a communication
(2) Made between privileged persons (client, prospective client, client`s lawyer, agents);
(3) In conIidence
(4) or the purpose oI obtaining or providing legal assistance to the client
4 Hypo about Clarence Client and you
Clarence Client comes to you and tells you that he lied in the 'Seller`s isclosure Iorm
he completed when he was selling his home. He stated that the property did not Ilood
when he was on notice that it did. The attorney Ior the uyer seeks to require you to
testiIy about the communication. Is it protected by the C privilege?
O Yes, it is protected by C privilege
O This is a rule oI evidence protecting Irom disclosure in the context oI a tribunal
(court, etc.) the disclosure oI the inIormation protected by the C privilege
Why do we have the attorney client privilege?
4 We want clients to Ieel comIortable telling us everything
What communications does C privilege protect?
4 'Communication includes inIormation passed Irom the client to the attorney and Irom the
attorney to the client. It also covers inIormation Irom agents oI the lawyer/client. Mroek (p.
135, n.2(a))
4 Client identity: ordinarily not a protected communication
But see. Gilberg (p. 135, n.2(b)); also when revealing name is the 'last link in the chain
to establish liability privileged (Baird, p. 432)
4 Lobbyist not lawyer not protected
n re Grand Jury $ubpoena
4 War on Terror
Al Oda discusses the C privilege in the context oI detainees on the war on terror
4 Hypo about The LeItorium, Inc.
The LeItorium, Inc. hires Lionel Hutz to represent it in a dispute oI deIective leIt handed
kitchen mitts. Hutz hires tailoring expert Skinner to assist with the case. Skinner has
extensive conversations with landers the CEO oI the LeItorium about the Iacts oI the
case. re the communications between landers and Skinner protected by the ttorney
Client privilege?
O Yes, the communications between landers and Skinner are protected
O Skinner was hired an agent to assist in determining the liability and is
communicating with the CEO. These communications are between privileged
persons (the client or a constituent oI the client and an agent oI the lawyer), they
are protected.
Communication must be told in conIidence
4 The communication must have been made in such a way that it would not be disclosed to third-
parties. The communicating person must reasonably believe that no outsider will hear the
comment. |ex. Lawyer talking with client in crowded room|
ut, presence oI Iamily members (or similar) or agent will not destroy the ac privilege
21

n agent oI the attorney or an agent oI the client or a Iamily member (someone there Ior
the client`s psychological support) does not waive the privilege
However, iI the attorney and client are in a crowded hallway oI the courtroom discussing
strategy, those communications aren`t protected iI overheard
InIormation Protected by Work Product octrine
4 pplies to documents that a lawyer prepares or collects while working on pending litigation on a
matter in which the lawyer knows that lawsuit is about to be Iiled
4 Protects notes and other material that a lawyer prepares 'in anticipation oI litigation Irom
disclosure in pretrial civil proceedings
4 OTE: Protect inIormation that would not be covered by C privilege (ex. Statements lawyer
obtains Irom witnesses)
4 Hypo about Linda Lawyer and ig ox, Inc.
Linda Lawyer, in-house counsel Ior ig ox, Inc. keeps records oI the reasons Ior
hiring/Iiring employees routinely as part oI her job. Sally is Iired and sues ig ox Ior
wrongIul discharge. re the records protected by work product doctrine?
O o because the records are not kept in anticipation oI litigation. The word
routinely` is key. II it was a situation when the records are kept only when the
employee makes grumblings oI Iiling a suit, then they would be protected.
Work Product
4 Recognized in Hi.kman v. Taylor
4 Memorialized in RCP 26(b)(3)
4 The protection is not absolute: a 'party seeking discovery |may show it| has substantial need oI
the materials in preparation oI the party`s case and that the party is unable without undue
hardship to obtain the substantial equivalent oI the material by other means.
4 Work product is a qualiIied privilege
4 Prepared in preparation oI litigation
gents working on behalI oI attorney |n re Cendant (r. Phil coaching protected)(p.
138, n.1(c))|
'anticipation oI reasonably anticipated litigation covered lack oI speciIic case does
not deIeat |n re $ealed Case]
4 Adlman (p. 139, n.1(e)) (lawyer hires accountant to prepare report predicting how IRS would
view proposed transaction report protected).
'Ordinary v. 'Opinion work product
4 'ordinary work product: iscoverable upon showing oI substantial need
4 'opinion work product: Mental impressions and nothing short oI 'extraordinary circumstances
will allow access
The uty oI ConIidentiality: The Lawyer`s ProIessional Obligation oI ConIidentiality; Rule 1.6
4 Hypo about you and Sal & Mookies
You (a lawyer) are talking to a Iriend at Sal and Mookies. The Iriend asks you Ior some
inIormation gained in conIidence in the course oI representing a client. True or Ialse:
you cannot reveal the inIormation because it is protected by the a-c relationship.
O The C privilege applies in the context oI a tribunal a court. It doesn`t apply at
the cocktail hour at Sal & Mookies, so the C Privilege would not prevent you
Irom revealing this inIormation in this circumstance.
O ut, something would have to prevent you Irom telling these conIidences. Rule
1.6 as a matter oI ethics.
istinction between C Priv and uty oI ConIidentiality
4 C Priv
Exclusionary rule oI evidence law
22

Prevents a tribunal Irom Iorcing a lawyer to reveal client conIidences
4 uty oI ConIidentiality
Prohibits a lawyer Irom voluntarily revealing inIormation relating to the representation oI
a client
4 Comment 3 to Rule 1.6(a) |Supp., p. 23|
pplies not only to matters communicated in conIidence by the client, but also to all
inIormation relating to the representation, whatever its source
Rule 1.6 (a) & Comment |3|
4 'relating to representation
ll representation extraordinarily broad any inIormation I obtain 'relating to
representation is covered by the uty oI ConIidentiality
4 Hypo about Clara Client
You represent Clara Client in a divorce action. While doing your investigation beIore a
hearing, you learn Irom a close Iriend oI Clara that she occasionally does drugs. True or
Ialse: This inIormation is protected by the ac privilege.
O This inIormation is not protected by C because the Iriend is not a privileged
party.
O However, the duty oI conIidentiality covers it because the inIormation does relate
to my representation so I can`t just blab it out to someone.
O It also could be covered by the work product doctrine because it was discovered
during my investigation, so I am protected Irom disclosing it during discovery or
to the tribunal.
4 Hypo about inner with ave
You just started your Iirst job as a lawyer. You spent the day working on a civil suit
against the police department on behalI oI a client whose wrist was broken by a police
oIIicer. t the end oI your Iirst day, you meet a Iriend (ave) who is not a lawyer at a
restaurant Ior dinner. He asks you, 'What are you working on? What can you tell him?
O You can`t give inIormation that could connect the dots. It is okay as long as the
listener can`t reasonably ascertain the identity oI the client or the situation
involved.
O Comment 4 to Rule 1.6 |Supp., p. 24|
Lawyer`s obligation to protect client`s conIidences
4 R. 1.6, Comment |13| |Supp., p. 26|
'nonIrivolous claims
Consult regarding appeal
More distinctions between the C Privilege and MR 1.6
4 Client revelation oI privileged inIormation loses the privilege, but
4 Even iI the privilege is lost the lawyer`s 1.6(a) obligation remains
How do you keep conIidential inIormation conIidential?
4 Restatement Sec. 60(1)(b) |Supp. 298|: steps 'reasonable in the circumstances to protect
&nencrypted emails does not violate MR 1.6 unless client makes speciIic demand
| ormal Opinion 99-413 (risk oI interception not greater than land line phones)|/
Metadata 'reasonable care standard with reasonableness determined by the
circumstances |Y ar Op. 782|(p. 142, n.2(c)).
O Recent Opinion says that the obligation is on the sender to make sure that
whatever he sends out oI his oIIice is scrubbed and that the metadata is no longer
visible and the Iailure to do that is a violation oI Rule 1.6
O Some states` opinions say that the obligation is on the receiving party not to look
at the metadata.
23

ConIidential InIormation: Inadvertent isclosure
4 Restatement Sec. 79, Comment : not waived iI 'took precautions reasonable in the
circumstances
ote: on`t count on it
4 MR 4.4(b) and Comment |2| |Supp. 98|
$ee Amgen v. Hoe.st Marion (p. 143, n.3(c)): three ways courts have approached the
privilege oI disclosed inIormation:
O ever waived
O Strict accountability (always waived)
4 The Iact that it was disclosed means it is waived
O Intermediate ground (reasonableness oI precautions, time to discover error, scope
oI production, extent oI disclosure, and interests oI Iairness)
C Privilege and WP Immunity: Selective waiver?
4 Can I selectively waive?
4 Selective/limited waiver
Amgen
O &pholds the idea oI selective waiver
ut more likely n re Columbia/HCA Healt.are
O oes not uphold selective waiver once it is waived, it`s waived
4 The 'Mculty Memo:
Waive attorney client privilege in exchange Ior leniency
ugust 28, 2009 change oI policy
O Moved away Irom idea oI lessening penalty iI C privilege is waived
4 Bittaker v. Woodford (p. 145, n. 4(e)): The scope oI waiver in habeas proceedings alleging
ineIIective assistance oI counsel
There will have to be a waiver oI attorney/client privilege when the deIendant says that
his attorney was ineIIective and that he said so and so. The disclosure oI this inIormation
protected by the C privilege does not waive the privilege at a new trial.
Seeking Help: ConIidentiality and Consultation with a lawyer in a diIIerent Iirm
4 OTE: ot in the same Iirm
ormal Op. 98-411 (1998): may consult but: (1) do so in hypothetical terms; (2)
get permission iI client is at risk; (3) do not consult lawyer who many represent the
adverse party; and (4) obtain assurance oI conIidentiality
oes the uty oI ConIidentiality expire?
4 o
4 Matter of Jon Doe Grand Jury nvestigation (p. 146, n.6(b))(the privilege survives death and
no amount oI interest in knowing the truth would justiIy revealing conIidences.)
4 $idler & Berlin v. U$ (conversations between Vince oster and Lawyer maintained privilege)
Review
4 o the Model Rules create attorney`s liens?
4 What are retaining and charging liens?
4 May a lawyer collateralize a Iee?
4 What are the elements oI the a-c privilege?
4 How does the obligation oI discretion under Rule 1.6 diIIer Irom the obligation to keep
privileged nIormation secret?
4 What material is protected by the work product doctrine?
4 What is oridinary and opinion work product?
4 What empirical assertions and value judgments supports the attorney client privilege?
4 When is client identity privileged?
24

4 When may a lawyer disclose inIormation protected under Rule 1.6?
!roblem Obligation when the client may be engaged in fraud
Issues
4 Scope oI protection Ior inIormation received Irom client constituent
4 Options or obligations under rules to make disclosure
4 Options or obligations under securities laws to make disclosure
4 To whom disclosure might be made
4 Consequences Ior L disclosure and non-disclosure
Problem acts
4 Public Corp. Client about to sell new issue oI securities
4 Co. new product has great potential
4 L draIted opinion letter to obtain loan/encourage investment which states no knowledge
inconsistent with positive prospects
4 L then learns (at lunch with director oI product research) Iinancial prospects oI product not
great not suIIiciently tested
4 Rule 1. 13(a)
s a lawyer, you do not represent the director. You represent the corporation. ut, he is
a constituent and does have knowledge that could beneIit or harm your client. When you
Iind out about this inIormation, what is your obligation?
What is the legal status oI the inIormation learned at lunch?
4 /C privilege applicable?
In conIidence?
O Could argue both ways
4 Could say it was over a private lunch
4 ut could say that it was not private because in a restaurant
or purpose oI seeking legal advice?
O ot clear, but it doesn`t seem that he is seeking advice on your client`s behalI
O ut could be
Involve the client`s possible crime/Iraud? |would take outside the C privilege|
Is inIormation protected by Rule 1.6?
4 R 1.6(a): oes this 'relate to representation which is inIormation that is protected?
It does relate to representation so you can`t voluntarily disclose
4 oes 1.6(b) allow L to disclose inIormation he has learned?
Gives you six situations where lawyer can reveal conIidential inIormation even though it
is protected by uty oI ConIidentiality
4 oes 1.13(b) allow L to take the inIormation up the corporate ladder?
Ordinarily, unless L believes that it is not necessarily in the best interest oI the
organization to do so, L should tell the next person up the corporate ladder about the
situation.
1.13(c)(2) amendment thanks to World Com
O L may reveal inIo even though it would violate 1.6 opportunity to go outside the
corporation iI 1.13(c) is satisIied
What possible L responses?
4 1.13(c): possibility oI going public iI procedures in 1.13 Iollowed
4 1.13(e): L reasonably believes she was Iired (or iI she withdraws) Ior actions authorized under R
113(b) & (c), L shall proceed as she believes reasonably necessary to assure client`s highest
authority is inIormed oI L`s discharge
Other options
4 R 1.2, comment |10|: L cannot continue to represent a client who is engaged in Iraud
25

'In some cases, withdrawal alone might be insuIIicient. It may be necessary Ior the
lawyer to give notice oI the Iact oI withdrawal and to disaIIirm any opinion, document,
aIIirmation or the like.
4 R 4.1 (TruthIulness in statements to others), comment |3|
Special Obligations oI Securities Lawyers
4 General: Sommer in securities issues attorneys are 'Iield marshals and should Iunction more
as an auditor than as an advocate
How much can a securities lawyer rely on what client tells him/her?
4 V ormal Op. 335: 'make reasonable inquiry to obtain such oI those Iacts as are not within
his personal knowledge; may need to go beyond relying on client when answers 'incomplete;
'suspect; 'inconsistent
4 II do not receive satisIactory answers do not issue opinion
L can`t claim ignorance when should inquire
4 II Iurther inquiry is required, obligation to do so
4 ormal Op. 346: accepting Iacts given when 'should know that a Iurther inquiry would
disclose that these Iacts are untrue ... L gives a Ialse opinion
4 $EC v. Frank. L can`t make Ialse statements regarding securities just because client told him
'accountant`s certiIicate and lawyer`s opinion can be instruments Ior inIlicting pecuniary loss
more potent than the chisel or the crowbar. (367)
Question oI L regulation in the securities context
4 Ordinarily regulation oI lawyers is by the state`s highest court. ispute between and
SEC whether appropriate Ior SEC to discipline
4 Should the SEC be able to regulate lawyers who practice beIore it as well? $EC v. Universal
Mafor ndustries: yes. Violation oI SEC regulations lead to injunction Irom 'doing business
while in violation oI SEC rules.
4 But see $EC v. Natl $tudent Marketing (no injunction L should take appropriate steps in the
Iuture)
Sarbanes Oxley
4 pplies to attorneys 'appearing and practicing beIore the SEC
Should standards Ior lawyers in security arena be diIIerent Irom ordinary ethical
obligations?
OTE: covers Securities Ls who transact with SEC, communicates with it, represent
issuer beIore SEC, advise on document that will be Iiled, or advised that document need
not be Iiled.
SO Supp. pp. 601-610
4 Triggering action under SO: L 'becomes aware oI credible evidence that client is 'materially
violating Iederal/state securities law, or learns that client constituent has breached a Iiduciary
duty under Iederal/state law or has committed 'similar material violation
'Material violation deIinition Sec. 205.2(i) |Supp., p. 604|
SO: ctions required aIter 'becom|ing| aware
4 Must report to ChieI Legal OIIicer (CLO) or supervising attorney
4 CLO must investigate (or turn over to legal compliance committee)
4 II CLO concludes
o violation has occurred, must report Iinding to reporting securities lawyer` with basis
Ior determination
4 Violation has occurred or will occur CLO must take reasonable steps to get client to take
appropriate response.` Must stop or remedy violation; make sure it does not recur; report same
to securities L.
4 II securities L believes CLO did not achieve appropriate response Irom client, securities L must
report evidence to:
26

Whole board oI directors
udit committee oI board
Committee oI outside directors |205.3(b)(3)(i)-(iii)|
SO v. MR
4 SO reporting obligation mandatory ('shall report) |205.3(b)|
4 MR 'may reveal conIidential inIormation |R 1.6|
4 MR 1.13(b) & SO requirements
4 Rule 1.13(b)
pplies to all lawyers who represent organizations
Matter in question must be 'related to the representation
What to report may report
When to report know` someone is engaged in wrongdoing beIore reporting
4 SEC
Covers a limited group oI lawyers that are covered by the SEC regs.
II a L is 'appearing and practicing required to Iollow SO procedures even iI not what
she considers within scope oI representation
What to report requires reporting oI any material violation` oI the Iederal or state
securities law, . . .` or 'oI Iiduciary duty arising under Iederal or state law; or similar
material violation oI state/Iederal law itout regard to te potential infury to te
organiation
When to report becomes aware` oI evidence` oI a material violation oI the law
SO & subordinate Ls
4 Purpose oI SO is to ensure that no Ls Iall through the cracks L knows can`t just say 'I told
someone else
With subordinate Ls still under a SO duty. However, reporting to supervising L is
suIIicient to discharge duty |205.5|
Reporting obligation then shiIts to the supervising L
&nder SO what conIidences can securities L reveal?
4 Without client consent may reveal to SEC any conIidential inIormation reasonably necessary:
To stop commission oI violation that will cause substantial injury to client or investors;
To rectiIy such Iinancial injury iI the L`s services were used to Iurther the violation
To prevent client Irom committing/suborning perjury in SEC matter or lying in any
matter within jurisdiction oI any Iederal government branch
Sanctions Ior Violating SO
4 Securities L who violates SO can be disciplined by the SEC possible civil
penalties/censure/barred Irom practicing beIore SEC |205.6|
4 Securities L who meets SO obligations cannot
e held civilly liable Ior doing so
e disciplined under any inconsistent state rule
Securities L is Iired Ior meeting SO obligations
4 Securities L may report Iiring to client`s board oI directors |205.3(b)(10)|
Review
4 &nder the Model Rules, under what circumstances may a lawyer betray client conIidences in
order to prevent, mitigate or rectiIy Iinancial injury oI a non-client?
4 When making disclosures under Rule 1.13, whom is the lawyer trying to protect?
4 When making disclosures under Rule 1.6(b)(2) & (3) whom is the lawyer trying to protect?
4 Who is a securities lawyer under the Sarbanes-Oxley regulations?
4 What triggers disclosure or reporting obligations oI a securities lawyer under the Sarbanes-Oxley
regulations?
27

4 &nder Sarbanes-Oxley, what are the obligations oI a CLO who receives a report oI client
deviance Irom a subordinate lawyer?
7
!roblem onfidentiality and the Organization as a lient
Problem with Corporate Clients
4 Corporation not a 'person protected by the 5
th
mendment privilege against selI incrimination
ut , a corporation is entitled to attorney client privilege
4 Problem is determining the scope oI the privilege
Upfon acts
4 &pjohn manuIactures pharmaceuticals
4 Employee reveals that bribes given to Ioreign government oIIicials to get business
4 Violates &S law
4 ttorney/corp decides to conduct audit
4 Questionnaire sent to all middle management employees
4 Iter investigation sends report to IRS
4 IRS starts its own investigation, and subpoenas:
'written questionnaires sent to managers oI &pjohn Company`s Ioreign aIIiliates, and
memorandums or notes oI the interviews conducted . with oIIicers and employees oI
the &pjohn Company .
4 Should the government be entitled to this inIormation?
Lower Court in Upfon
4 Who is the 'client (who personiIies the corporation) Ior purposes oI the attorney client
privilege?
4 6
th
Cir: The corporation is the senior management the 'control group oI the company who
makes decisions.
Turn over inIormation (questionnaires/interview notes must be disclosed)
Supreme Court Upfon
4 The 'corporation is broader than just the management team. 'Control group test discourages
employees Irom giving inIormation. The attorney-client privilege protects both (a) those who
can act on advice oI attorney; and (b) those giving inIo to attorney so he can give sound advice.
4 dopts a Subject Matter Test: This approach looks beyond who is giving inIormation to what
inIormation providing (suIIicient to allow lawyer to give advice).
4 oes not have to turn over questionnaires/interview notes (because inIo gathered to provide the
company advice and at the instruction oI management)
Is the Government out oI luck?
4 How can the government get the inIo Irom &pjohn?
They can go through the ordinary litigation process oI getting this inIormation. They just
can`t get it by subpoena Irom the lawyer.
Some caveats to &pjohn
4 $amaritan Foundation v. Goodfarb
Medical malpractice claim. Paralegal in oIIice oI attorney representing hospital
interviewed the individuals at the time the event occurred. The individuals (nurses/scrub
technician) cannot remember what happened and P`s attorney seeks notes Irom
interviews. Protected by /C privilege?
Remember Upfon the questionnaires Irom all management were protected (regardless
oI whether actually engaged in Iraud)
Here court held that statements oI those employees whose conduct was not at issue
(only Iact witnesses) not protected by /C privilege
O Only those whose conduct was at issue (and could result in liability to the
corporation) were protected
28

Government: What is the relationship between a high ranking government oIIicial and government
lawyers (or who is a government`s lawyer`s client)
4 n re Grand Jury $ubpoena Du.es Te.um
Hillary Clinton meeting with gov`t attorneys
Special prosecutor (Whitewater) subpoenas notes relating to meeting
/C privilege prevent disclosure?
O Who is the client oI the government lawyer?
oes /C priv bar disclosure?
O o.
4 istinction between those working Ior corp. and those working Ior gov`t
(liability can`t be imputed to gov`t)
4 'We believe the strong public interest in honest gov`t and in exposing
wrongdoing by public oIIicials would be ill-served by recognition oI a
governmental a/c privilege applicable in criminal proceedings inquiring
into the actions oI public oIIicials. (Grand Jury, 921)
4 'We also believe that to allow any part oI the Iederal gov`t to use its in-
house attorneys as a shield against the production oI inIormation relevant
to a Iederal criminal investigation would represent a misuse oI government
assets. (id)
4 ut see n re Grand Jury nvestigation
Rejecting other circuits and holding that conversations between gov`t oIIicial and
attorney is privileged. Important that oIIicials be able to 'receive and act upon the best
possible legal advice.
L: Lawyer is the government`s and not oIIicial`s. Government oIIicial saIest bet is to
retain private counsel to consult.
Who holds the privilege? (Or who may assert the a/c priv on behalI oI corporate client?)
4 Ordinarily, the holder (and thereIore the one that can waive the privilege) is whoever is in charge
oI the organization at the time the question arises.
Ex.: In the Problem there is a new board oI directors/management who now hold the
privilege and can learn oI discussions between Iormer management with corporate
counsel.
Privilege when corp. Iiles bankruptcy
4 Remember we created a Iictional 'person Ior privilege purposes who holds privilege aIter
bankruptcy
4 Commodity Futures Trading Commn v. Weintraub |p. 157, n. 6(b)|: ankruptcy Trustee takes
over and old board oI directors are 'ousted; thereIore, the trustee is the holder oI the
corporation`s privilege.
Common Interest Privilege
4 This is a common issue in litigation.
See Restatement (3
rd
) Law Governing Lawyers Sec. 76 |Supp., p. 302|
4 It`s all Iun and games until .
When the common deIense group Ialls apart
O May waive the privilege only with regard to communications between lawyer and
client with regard to disputes with third party.
O Important: InIormation learned in joint deIense can be used in subsequent
'adverse proceedings between holders.
O R(3d) Sec. 76, cmt. ('isclosing privileged communications to members oI a
common-interest arrangement waives the privilege as against other members in
29

subsequent adverse proceedings between them, unless they have agreed
otherwise.)
One Lawyer Representing Multiple eIendants
4 InIormation acquired Irom both clients is privileged in subsequent litigation involving the clients
against the outside world.
4 However, iI there is a Ialling out between the clients then the a/c privilege does not apply in that
suit (inIormation can be revealed)
ttorney Client Privilege Crime or raud
4 Restatement (Third), Law Governing Lawyers, Section 82: |M&R, p. 161 and Supp., p. 303|
4 C priv does not apply (this means that the inIormation received is not privileged) when
communication in Iurtherance oI intended, unlawIul end
4 To make a prima Iacie case that comm.. was in Iurtherance oI Iraud:
Legal advice obtained in Iurtherance oI Iraud and was closely related to Iraud;
O SpeciIic showing required that given communication was in Iurtherance;
O Showing must be made Ior each communication/document. n re BankAmeri.a
Corp. $e.urities Litigation
Hypo about Client in oIIice
4 Client walks into your oIIice and says: 'Where can I buy an unregistered gun, I`m going to kill
my wiIe. Comment protected by -C privilege?
He`s not seeking legal advice so it wouldn`t be covered by C priv
Hypo about Clarence Client
4 Clarence Client walks into Lawyer`s oIIice and says 'I`ve brought a substantial quantity oI
prescription medication Irom a Iriend at a low price. I`m going to sell the meds. He doesn`t
realize it is a crime to resell prescription meds. The L advises him not to do it, but the client
does it anyway. Is this conversation protected by C privilege?
He comes in without knowledge that it is criminal activity, gets the lawyer`s advice, and
then goes out and does it. It is protected by the C priv, but Ialls within the exception Ior
crime or Iraud.
More questions
4 II client asks Ior advice and learns planned conduct is criminal but doesn`t commit crime
privileged?
Yes, clients should be able to get sound legal advice
4 Client consults lawyer about plan she knows involves a crime/Iraud but conceals Iacts Irom L
that would reveal the illegality is conversation protected by C priv?
o. The L`s knowledge/intentions are irrelevant. Only the client`s intentions are
relevant. ot protected because client`s planned transaction violates the law.
Pur.ell, 676 .E.2d 436 (Mass. 1997)
4 Client comes into oIIice and says: 'I need help. I`ve just been Iired Irom my job in an
apartment complex. I also lived in the complex and was evicted. Can you help me with the
eviction issue? . I think I`m just going to burn down the complex.
4 In Mass, a lawyer must report any inIormation iI the lawyer reasonably believes the client will
commit a crime.
4 The prosecutor wanted the L to testiIy as to what the client said that day in the oIIice. Was this
communication protected by C Priv or does it Iall within the exception oI crime Iraud?
4 II the services oI the lawyer were sought
isclosure oI the Client`s ConIidential InIormation (or moving Irom C Priv to Ethical Obligations)
4 isclosure under Old and ew 1.6(b)
Old 1.6(b)(1)
30

O isclose 'to prevent the client Irom committing a criminal act that the lawyer
believes is likely to result in imminent death or substantial bodily harm.
ew 1.6(b)(1) |See cmt. 6|
O irst obligation: 1.6, cmt. 14
O What is the change in Iocus oI the new v. old rule?
4 Rule 1.6 disclosure discipline iI Iail to disclose?
See 1.6, cmt. 15
R(3d) Sec. 66(3): ' lawyer who takes action or decides not to take action . is not,
solely by reason oI such action or inaction, subject to proIessional discipline, liable Ior
damages to the lawyer`s client or any third person .
Review Questions
4 In the attorney-corporate client context, who speaks Ior the client Ior the purposes oI the
attorney-client privilege under Upfon?
4 Who is the 'holder oI the attorney-client privilege, and what is the signiIicance oI that legal
conclusion?
4 Who holds the attorney client privilege in the corporate client context?
4 &nder what circumstances does the crime-Iraud exception apply?
4 What is the control group test?
4 When may a lawyer make disclosure oI client conIidences under Rule 1.6?
4 What liability might a lawyer Iace Ior not disclosing a client`s intent to commit a serious crime?
o the rules and Restatement provide the lawyer (or the victim) any protection here?

hapter V Advising lients
!roblem 7 The Lawyer for an Individual lient
Issues
4 dvising clients what it means
4 dvising clients with diminished capacity
4 Clients who want to harm selI or others
4 Emergency legal assistance
Client utonomy v. Lawyer`s Social Responsibility
4 R 1.2 Honoring a C`s wishes
4 R 2.1 L as adviser v. advocate
dvocate past conduct and takes client as Iinds them
dvisor assist with Iuture course oI conduct
Ordinarily, iI you violate 2.1, you violate one oI the speciIic rules on conduct
Gives you the opportunity to consider things like morality and costs and economic
reasons in your advising
Trust your client (but not too much)
4 The concept oI 'inconsistent stories (p. 290-91)
C tells inconsistent stories on diIIerent days
W tells story inconsistent Irom C
Inconsistencies between what C wants and what L thinks she needs
Why would the C not tell the whole truth?
How do you know that your client is telling you the truth? How do you Iind out the
'truth?
ever assume your client is telling the whole truth
Styles oI Client Counseling
4 Client Centered: helping client understand what client wants and how to achieve it
4 irective pproach: leading client to just results (consider more than just client objective)
31

4 Moral isclosure: treating client as a good Iriend; supportive but urging moral considerations
(ex. Telling client whom not to disinherit)
What OT to tell a client
4 Rule 1.2(d) 'shall not counsel a client to engage, or assist a client, in conduct the lawyer knows
is criminal or Iraudulent.
May discuss legal consequences oI proposed actions
May determine scope and application oI existing law; telling client where the line is
'Knows actual knowledge or the Iacts are so strong you can`t plausibly not know
4 R 1.2 cmts |9 & 10|
istinction between counseling on past conduct and Iuture courses oI conduct
dvising when conduct on-going requires delicate balance
Conduct that began as legal
O II the conduct began as legal and then became illegal and the attorney knows, the
attorney must withdraw Irom the representation oI the client. In some cases,
withdrawal alone is insuIIicient and the attorney must give notice oI the Iact oI
withdrawal and disaIIirm any opinion, document, aIIirmation or the like.
dvising clients in hard cases
4 People v. Cappell (p. 293): advising client 'as an attorney to stay but as a mother to run in
violation oI court order. isbarred. |Violated 1.2(d) and 3.3(b)|
dvising Client: Elder dvice
4 Protecting assets nothing wrong with planning that is not Iraud
There is a very Iine line between advising how to dispose oI assets/avoid assets and
deIrauding Medicaid/government
4 dvice re how to dispose oI assets to qualiIy Ior beneIits
4 HIPP crime to dispose oI assets to qualiIy Ior Medicaid. Crime to collect Iee to assist in
manipulation
iIIicult issue shouldn`t this be part oI 'competent representation under MR 1.1 or
violation oI R 1.2(d)?
How can a lawyer know whether s/he is assisting a client Iraud?
4 Rule uses 'knows |remember deIinition 1.0(I)| denotes actual knowledge oI the Iact in
question
You have to know the client is engaged in Iraud
II the evidence is so strong that you should have known it, you can`t plausibly deny it
What should L do when L learns oI crime/Iraud?
4 Hypo 1
Larry Lawyer has just learned that his client (Clarence) intends to burn down a newly
built McMansion that belongs to his Iormer boss. (Clarence is angry because he believes
his boss Iired him unIairly).
Can the Lawyer reveal this inIormation under R. 1.6(b)(2)?
O o, not under R 1.6(b)(2) because Clarence is not using the lawyer`s services to
commit the crime.
4 Hypo 2
Linda Lawyer was hired by Cynthia to pursue a workers` compensation claim on her
behalI. Linda prepares the documents to make the claim and later learns that the client
invented the injury. May the lawyer reveal the Iraudulent inIormation under Rule
1.6(b)(2)?
O Yes, this time Cynthia is using Lawyer`s services.
32

4 ote: 1.6(b)(2) just says 'oI another so it doesn`t have to be someone associated in the
proceeding or someone suIIering. There does not have to be any type oI relationship between
the harm caused and the actual proceeding.
dvising Clients with iminished Capacity
4 R 1.14
(a) maintain normal a/c relationship
(b) risk oI 'substantial physical, Iinancial, or other harm . L may take reasonably
necessary protective action
O ar extreme as you can go with acting on the behalI oI your client. You can even
seek a guardian Ior them iI you think their capacity is diminished enough to
warrant the need!
Comment 6 determination oI 'diminished capacity
(c) tries to keep intact the duty oI conIidentiality, but still gives the lawyer rights that
should maybe not be given
4 (b): Seeking ppointment oI Guardian
Client Interest: not want diminished capacity disclosed; dignity interest; embarrassment
uty to advocate 'least restrictive action on behalI oI client. R 1.14, cmt |7|.
Guardianship only iI other less drastic solution not available
: limited guardianship? L not someone else (read: Iamily member) must think
appropriate; reveal any expectation oI Iuture employment in recommending guardian
4 Hypo: Thomas Criddon
rrested Ior threatening people on street
Police take to a mental hospital want to keep him in Iacility Ior 6 months
You Iind an error in the admission papers (Iailed to properly notarize)
You go visit Criddon. He gets upset and is vulgar and threatens you, etc. ut, he wants
you to get him out oI there.
Can you then seek to have him retained there?
O His interest he wants you to get him out.
O So iI you are convinced that 1.2 is trumped by 1.14, what steps can you take?
What can you do?
4 1.14(b) reasonably necessary protective action talk to his doctors, seek
advice, etc.
4 However, you are not Iollowing his wishes. You are now stepping in.
4 Think about it:
rom the standpoint oI an abused child who wants to go back to mom. You`re his lawyer
and are advocating Ior the child`s best interests and you don`t think it is in the child`s
best interests to go back to mom.
Hmm
Emergency legal assistance
4 R 1.14, cmt |9 & 10|
Threat oI imminent and irreparable harm
&nable to establish client-lawyer relationship
Keep conIidences
Goal: maintain status quo
Even in emergency act only iI has no lawyer/agent/representative
o not seek Iee
dvising Clients:
4 ad news |MR 2.1, Comment 1|
33

Say it in the best way that you can, but don`t lie to your client even though it won`t make
them very happy
4 Impact on third persons |MR 2.1, Comment |2||
Review Questions
4 What are a lawyer`s proIessional options and obligations, where an impaired client articulates a
desire to pursue a course oI action that the lawyer believes is unwise Ior the client?
4 oes the Iact oI client impairment give the lawyer the right to ignore client wishes?
4 &nder what circumstances may a lawyer seek to have a guardian appointed Ior an impaired
client?
4 When may a lawyer render emergency legal assistance?
4 May a lawyer recommend that counsel be appointed Ior her client`s adversary?
!roblem Advising the Business lient
Issues
4 eIining the client in entity representation context
4 ual role oI counselor and director
4 Reporting client misconduct within the organization
4 Going public; Tarasoff liability Ior non-disclosure oI a risk
4 uties oI in-house v. outside counsel
eIining the client in the corporate context
4 R 1.13(a)
L employed or retained by an organization represents the organization acting through its
duly authorized constituents.
4 Restatement pproach
R(3): 96(1)(a): 'When a lawyer is employed or retained to represent an organization, the
lawyer represents the interests oI the organization as deIined by its responsible agents
acting pursuant to the organization`s decision making procedures.
See problem?
4 Represent organization (not shareholders, members, directors)
4 ut organization can only act through human agents
Lawyer acting as director
4 ot per se improper. ormal Opinion 98-410
Obvious problems: conIlict oI interest, preservation oI a/c privilege
Issues: (1) acting as counsel re decision opposed as director; (2) giving opinion on issue
on which L acted as director; (3) voting on corporate actions aIIecting L`s Iirm; (4)
conIlict oI interest in representing the corp. in litigation
lso: /C priv. Giving legal advice? usiness judgment advice?
lso: personal interest conIlict?
4 R 1.13, Comment |3| on p. 58
Issue oI how to run the company is in the province oI the board oI directors and just
because the board runs the company into the ground doesn`t mean that I have to step in as
the lawyer and protect the corporation (usiness Judgment Rule). I`m concerned with
the legal aspects oI the corporation.
IdentiIying who your client is: Parent/Subsidiary and Regulated entities:
4 Is a subsidiary a 'client oI the lawyer?
Most likely to be considered client:
O 1. L received conIidential inIormation Irom or provided advice to the subsidiary
O 2. Entity was controlled and supervised by the parent organization
O 3. Original client could be materially harmed by the suit against the subsidiary
Less likely to be a client iI:
34

O 1. Lawyer no longer representing the corporate client
O 2. The two entities became linked (ex. y a merger) aIter the lawyer began
representation oI the client
4 This matters because oI the possibility oI conIlict iI the two organizations go against one another
Regulated entities
4 Lin.oln $avings & Loan $e.urities Litigation: subsidiary as regulated entityL also has
obligation to treat regulator as de fa.to client. ailure to do so could result in liability oI L
Can a L who represents an organization provide legal services to an individual employee oI the
organization?
4 Yes
' lawyer may not represent both an organization and a |constituent| associated with the
organization iI there`s a substantial risk that the lawyer`s representation oI either would
be materially and adversely aIIected by the lawyer`s duties to the other. Restatement
3
rd
, Sec. 131
4 Hypo: eed Ior Speed see Handout
4 Hypo
II an employee oI the corporation discloses inIormation to the corporation`s lawyer in
conIidence, does the lawyer have an obligation to the employee to protect the
conIidences?
O II only represents the organization and not the employees, ordinarily no
O ut, iI employee approaches L and L perceives potential conIlict between
organization and the employee L should inIorm the employee oI the nature oI
the L`s representation and explain that L may have a duty to reveal the
conIidences
4 Hypo: L has a corporate client Mon$y, Inc. L learns that one oI the employees is embezzling
Iunds Irom the corp and is living a lavish liIestyle with his ill gotten Iunds. What can L do?
1.13(b)
O Is inIormation 'related to representation?
O Substantial injury to corporation?
O L knows
O Constituent intends/reIuse to act in matter related to the representation that is
4 Violation oI legal obligation to organization OR
4 Violation oI law that reasonably might be imputed to organization
4 That is likely to result in substantial injury to organization
O L may reveal inIormation whether or not 1.6 permits disclosure but only to the
extent necessary to prevent injury
4 Lawyer has 'knowledge now what?
'&p the Ladder reporting
O Shall proceed as reasonably necessary in best interest oI client (cmt., 4)
O Shall reIer matter to higher/highest authority &LESS L reasonably believes it is
not necessary in light oI client`s best interest
O Report up and the possibility oI reporting out
O Consider:
4 Seriousness oI violation
4 Responsibility and apparent motivation oI involved constituents
4 Policies oI client
Going up Corporate Ladder .
O Ordinarily reIerral to higher authority is necessary but
4 sk Ior Reconsideration (seek outside opinion)
35

4 II L`s advice ignored, move up
4 &rgent situation may require immediate reporting
4 Try to minimize risk oI revealing conIidential inIormation externally
ew Option: Going Public (or going out)
O R 1.13(c)
O Where highest authority does not respond 'timely and appropriate manner
O L reasonably believes violation is reasonably certain to result in substantial injury
to the organization
O L may reveal inIormation in spite oI 1.6 but only to the extent necessary to
prevent substantial injury to org
O Rule 1.13(d) does not apply when hired to deIend/investigate conduct
4 Hypo
Linda Lawyer`s client is ig Chicken, Inc. ig Chicken produces a large amount oI
waste that is supposed to be stored in tanks but sometimes a manager oI ig Chicken
directs workers to dispose oI the waste in a creek outside the plant. Linda reports the
dumping to the president including the legal consequences oI the dumping. Linda is
ignored. She reports it to the highest authority in the company and is ignored. What
steps can Linda take now? What standard must she satisIy?
O She reported it to the highest authority and they ignored her.
O 1.13(c)
Rule 1.13(c) supplements and does not supplant Rule 1.6(b)
4 R. 1.13, cmt 6 on p. 59
When L is Iired Ior advice
4 R 1.13(e)
Can take it to the highest authority and tell them why you were Iired and you wouldn`t
violate your 1.6 uty oI ConIidentiality
Savings and Loan issues
4 FDC v. Mmaat judgment against L/director (and members oI Iirm) Ior loans in violation oI
law
4 FDC v. Clark bank oIIicers involved in 'heist money scheme created non existent
accounts/Iorged checks. Told Ls it was all a misunderstanding (dispute between bank and
customers) and not to worry about it.
Ls: We were deIrauded too (shouldn`t be able to recover Irom us Ior client`s Iraud)
Ct: Liable (malpractice Iailure to do what a reasonable attorney would do under the
circumstances)
4 Waggoner. SH executed guarantees in exchange Ior voting control. greement ineIIective. o
claim against corporate lawyer no duty to SH
Shame with a partnership (only rep partnership): Hopper v. Frank
Liability to Third Parties
4 Tarasoff Liability
eals with a psychotherapist
Told by client that he intended to kill
Told the police Iailed to warn the victim
Liable (should take steps 'reasonably necessary under the circumstances) on part oI the
psychotherapist
Should this also be the standard Ior lawyers? Remember 1.6, cmt 15
O This comment seems to say that lawyers don`t have to reveal, but this case seems
to say that under a torts standpoint, it can extend liability
36

O PuII oI smoke no one has extended this Tarasoff liability to lawyers. It has been
limited to psychotherapists (and therapists).
Review Questions
4 Who is the client when a lawyer represents an entity?
4 What kinds oI constituent deviance triggers a lawyer`s obligation to inIorm the entity client oI
such deviance?
4 When a lawyer discovers that a constituent oI her entity client is engaging in misconduct
potentially injurious to the client, what are the lawyer`s obligations and prerogative?
4 When may a lawyer publicly disclose the conIidences oI an entity client?
4 &nder the Model Rules and Restatement, what liability will a lawyer have Ior not making a
disclosure under Rule 1.13(c)?
4 How do the disclosure allowances oI Rule 1.16(b) and 1.13(c) diIIer?
4
!roblem The Lawyer as Evaluator
R 2.3
4 Where a L is asked by a client to evaluate the aIIairs oI the client and to supply the evaluation to
a third party.
Ex. ig ox, Inc. wants to borrow money Irom a bank and asks its lawyer to evaluate ig
ox`s legal and business aIIairs and provide the report to the bank.
4 ot covered by Rule 2.3: Client asks L to evaluate a third-party and report back to the client
4 Evaluation compatible with other aspects oI L-client relationship (R 1.2 implied authorization
v. need Ior inIormed consent)
4 Client gives inIormed consent when L knows or reasonably should know evaluation likely to
aIIect client`s interests materially and adversely
4 Except Ior inIo in evaluation R 1.6`s protection preserved
4 Ex. OI evals: cmt |1|: preparing a title opinion Ior buyer (Cseller). Evaluation oI legality under
securities law Ior regulators (Cbusiness but prepared Ior gov`t)
4 OTE: Legal duties as a result oI eval. that may arise to 3
rd
party read potential malpractice
beyond scope oI rules (look to jurisdiction) and disclose these responsibilities to Client. Cmt. |3|
4 OTE: Lawyer should have latitude necessary to perIorm investigation to ensure that evaluation
is reliable. Cmt. |4|
4 Mississippi SpeciIic: Lawyer as Intermediary
J&C, pp. -66
O See also MRPC R 2.2
L hired by two clients simultaneously to resolve dispute between them in a
nonadversarial manner. |J&C, Sec. 17:6|
O Most common: helping clients resolve corporate disputes
O Cannot be used to get around conIlicts oI interests
Problem: What happens iI the intermediation Iails?
O May have to withdraw Irom representing both.
h IV The Requirement of Loyalty to the lient
!roblem 9 Representing Multiple !arties Dealing with Each Other
ConIlict oI Interest Rules
4 Rules
1.7 simultaneous conIlicts
1.8 business relations with clients
1.9 Iormer client conIlicts
1.10 imputed conIlicts
1.11 conIlicts oI government lawyers
37

1.12 Iormer judges, neutrals, law clerks
eIining a conIlict
4 Rule 1.7: simultaneous/concurrent representation
1.7(a)(1) directly adverse clients
1.7(a)(2) materially limiting conIlicts
4 General Rule: bsent inIormed consent, lawyer may not represent client iI concurrent conIlict
exists.
Example oI 1.7(a)(2)
4 Ex. urns asks Linda Lawyer to deIend her in a murder case in which urns is accused oI
killing the victim in a Iit oI rage over $20. &nbeknownst to urns, Linda Lawyer was a college
roommate with the victim, and they were best Iriends until the victim`s death.
Purpose oI ConIlict Rules
4 Comment |6| and |8|
Loyalty
Preservation oI conIidence
Independent judgment
eal
4 Classic Multiple-Client Scenario
ivorce Context
O oth spouses want the same attorney ('we are still Iriends)
O Save money
O void conIlict
Looking at the ivorce Context
O Concurrent conIlict
O irectly adverse; materially limiting?
O How might they disagree? (How might lawyer create disagreement?)
O What is the advantage to separate counsel (diIIerent advice?)
Having Partner represent husband
O Imputed to the Iirm?
4 Rule 1.10(a)
&T: Waiver oI conIlict by clients
O Rule 1.7(b): Even if concurrent conIlict can still represent iI
4 (1) lawyer reasonably believes can provide competent and diligent
representation to both
4 (2) not prohibited by law
4 (3) does not involve claim by one client against another client represented
by the lawyer in the same litigation; and
4 (4) each aIIected client give inIormed consent, conIirmed in writing
What the heck is 'inIormed consent
O Rule 1.0(e)
O Rule 1.7, cmt 18 and Rule 1.0, cmt. 6
4 What inIormation must lawyer provide to clients?
acts/circumstances giving rise to situation
Material advantage/disadvantages oI proposed course oI conduct
Client`s options and alternatives
dvisability oI seeking disinterested advice
Consider the statute oI client (legal experience, independent rep)
OTE: ttorney assumes risk iI not adequately inIormed
O InIormed Consent in ivorce Case
38

4 dvantages to having single lawyer
4 isadvantages
4 Handling ConIidences
O 'ConIirmed in Writing
4 Rule 1.7(b)(4), cmt. 20
Client consent in writing
Oral client consent conIirmed in writing by counsel
Contemporaneous conIirmation or within a reasonable time
Practice Tip: Should cover in engagement letter and have client
sign
Can client revoke consent to the conIlict?
4 Ex. 2 clients want to do a business deal. To save money the client`s approach Lawyer to
represent both in the transaction. oth clients give inIormed consent to the representation. In
the middle oI negotiations the clients have a Ialling out and now it appears that one client may
Iile suit against the other can they revoke the conIlict waiver?
Can one client prevent L Irom representing either client?
4 Withdrawal oI waiver oI conIlict by client
Start with: R. 1.7, cmt. 21
O Can lawyer still represent the other client?
4 It depends: Why did conIlict arise? Material change oI circumstances
between client? What are the reasonable expectations oI other client?
Restatement pproach (Sec. 122, cmt.. I):
O Ex. 1: & in business and believes that L is Iavoring `s interests.
withdraws consent to joint representation. JustiIied L cannot represent either
or in matters adverse to each other and substantially related to Iormer
representation.
O Ex. 2: & consent to joint representation - withdraws consent on eve oI
trial Ior no good reason cannot prevent L Irom representing at trial (not
disqualiIying)
The &nwaivable ConIlicts
4 (1) Prohibited by law |Rule 1.7(b)(1)|
4 (2) One client asserts claim against other in same litigation |Rule 1.7(b)(2)|
4 (3) ot reasonably likely that lawyer can provide adequate representation to both clients. |Rule
1.7(b)(3)|
4 Matter of Mi.elman
Think about this:
O Representing adoptive parents and biological mother what`s the problem with
this?
O Clients cannot waive conIlict
4 Fianda.a v. Cunningam
on-consentable conIlict:
O Concurrent clients with diIIerent interests in proposed remedy:
4 Prisoner clients wanting improved Iacilities and mentally disabled clients
who would be displaced.
4 Rejecting settlement Ior one client to beneIit another unwaivable
conIlict.
4 Baldasarre v. Butler
Representation oI both buyer and seller in a commercial real estate transaction. Risk oI
conIlict too great unconsentable conIlict.
39

O He tried to do the right thing.
O But see ss`n oI the ar oI City oI .Y. Committee on ProI. and Judicial Ethics,
ormal Opinion 2001-2 (prile 2001) (recognizes reality oI business
representation test is whether 'disinterested lawyer would conclude lawyer
cannot adequately represent each client)
Representing H & W in &ncontested ivorce
4 epends on the state
4 See MS Ethics Opinion 80
Representing Multiple Clients in usiness Transaction
4 Rule 1.7, cmt. 28
4 Rule 1.7, cmt. 29
isqualiIication potential
Estate Planning
4 o not have to assume marital discord
II each were advised separately possibly not the same advice
ut iI conIlict 'reasonably apparent or Ioreseeable must have inIormed consent
ConIidential InIormation in the Multiple Client Representation Context
4 'I want to change my will but I don`t want my husband to know
General Rule: 1.4 and 1.6: how to handle conIlict?
Restatement (3d) Sec. 60:
O Sharing oI inIormation regarding matter oI representation expected and lawyer
has obligation to share inIo to extent necessary to allow client to make inIormed
decision
O II one client wants to keep inIo Irom other client conIlict still have duty to
both clients
O Can make noisy withdrawal (warn something has come up that other client will
not allow to tell)
4 Practice Pointer: ClariIy to both clients the eIIect oI joint representation (in Iee agreement how
to handle secrets)
Remedies when conIlicts arise
4 isqualiIication (by Iar most common)
4 iscipline (rare)
4 Malpractice
4 enial oI Iees
4 Could be criminal (Gellene)(representing debtor in b/r Iailed to disclose that represented senior
creditor crime to Iile Ialse declaration in b/r proceeding 15 months in prison sentence
enhanced because oI abuse oI position oI trust)
Review
4 What interests support the conIlict oI interests rules?
4 What are concurrent conIlict oI interests?
4 Which concurrent conIlict oI interests may be waived? Which such conIlicts may not be
waived?
4 What kind oI written memorial is required in order to procure a waiver oI conIlict oI interest?
4 What must the client be told in order to procure inIormed consent oI conIlict oI interest?
4 May a lawyer who jointly represented two clients with the consent oI each continue to represent
one oI those clients aIter the other client withdraws consent and Iires the lawyer?
7
hapter 4 The Requirement of Loyalty to the lient
!roblem The Duty of Loyalty
40

Remember: Pr. 9 dealt with representing concurrent clients with diIIering interests in the same matter
ow: Pro. 10: Representing Client 1 against Client 2 in diIIerent matters
Issues
4 Suing current clients on unrelated matters
4 etermining who is still a current client
4 IdentiIying your current client (parent/subsidiary)
4 iring one oI two clients to cure conIlict ('hot potato rule)
4 Positional conIlicts
Grievan.e Committee v. Rottner
4 Twimble owns a service station and the Iirm has represented him in a couple oI collection
matters (have made $25 in Iees)
4 One collection matter pending making him a current client
4 O`rien comes into Iirm wants to Iile assault claim against Twimble
4 Takes case (seeks $20,000 in damages)
4 Twimble calls and wants to know what the heck is going on
4 So there is absolutely no relationship between the two matters collection and assault
4 irm eIense: The collection matters have nothing to do with the assault case (nothing we
learned in collection will be used against Twimble in case)
4 Ct: It is not the presence oI conIidential inIormation that creates the conIlict it is the duty oI
loyalty:
'When a client engages the services oI a lawyer in a given piece oI business he is entitled
to Ieel that, until that business is Iinally disposed oI in some manner, he has the undivided
loyalty oI the one upon whom he looks as his advocate and his champion. II, as in this
case, he is sued . by his own attorney . ll Ieeling oI loyalty is necessarily destroyed
.
Current clients
4 Suing one current client on behalI oI another
4 Rule 1.7
4 Prohibited Irom suing current client
4 Even on unrelated matter
Hypothetical
4 u.k v. Alabama
Case 1: State (Prosecutor) v. eIendant (Client)
Case 2: Prosecutor (Client) v. Smith
Yes
O Representing two clients concurrently in unrelated matters (without consent) is a
violation oI right to eIIective assistance oI counsel
O Counsel would be less likely to provide a zealous deIense iI concerned about
oIIending prosecutor and potentially losing him as a client
SpeciIic Contexts: Representing a lawyer
4 Law Iirm represents lawyer in a legal malpractice claim, &T:
irm has cases against this lawyer`s clients
O Two clients
O Concurrent representation
Result: ormal Opinion 97-406: utilize 1.7(a)(2) ('materially limiting) look at several
Iactors (p. 183)
SpeciIic Contexts: Lawyer acting as Expert
4 L is expert in a case. Can the L/expert sue the person/entity he is testiIying on behalI oI?
41

ormal Opinion 97-407: o, iI acting as a consulting expert (consulting with
lawyers to develop legal strategy. Yes, iI only role is to testiIy on behalI oI party at trial.
voiding ConIlicts by Limiting Scope oI Representation
4 Y ar association: may bring in a second law Iirm to bring action against client the Iirm
cannot sue.
4 Obvious concern here sham transactions by the conIlicted Iirm
Can loyalty to current client go too Iar?
4 Flatt v. $uperior Court
Prospective client told that she has a good legal malpractice claim
L realizes a conIlict the lawyer that the prospective client wants to sue is a current
client in an unrelated matter
id not inIorm oI statute oI limitations
Malpractice claim against Iirm
Result: uty oI loyalty to current client to protect that client`s interests prevented Irom
disclosing the SOL on claim.
4 uty oI loyalty to current client can actually trump duty to prospective client
Rule 1.7 talks oI 'concurrent client: How do you identiIy a current client?
4 Rules give no guidance
4 Scope |17|: 'urthermore, Ior purposes oI determining the lawyer`s authority and responsibility,
principles oI substantive law external to these Rules determine whether a client-lawyer
relationship exists.
4 BM Corp. v. Levin: paid by client as needed (no retainer), but had a number oI these as needed
issues come up beIore and aIter complaint Iiled this was a client and law Iirm could not Iile
suit against client
4 Termination letters?
Current client in subrogation case
4 Claim
Insurance made payment to Marco
Subrogation provision allowed insurance company to go aIter tortIeasor
Insurance co hires lawyer who sues in the name oI Marco, but reports (is paid by)
insurance co
4 Claim
Marco suIIers loss
Question oI whether loss is covered by insurance policy
Insurance brings suit against Marco to determine coverage
L represents insurance co
4 Marco sought to disqualiIy L concurrent clients
4 Court: no disqualiIication. &se a 'Ilexible approach. In the subro case, Marco was merely a
nominal party (no Iinancial interest and no right to control litigation)
Corporations and Subsidiaries: Which are considered your 'client
4 ivisions within organization yes. odak
4 Corporate Iamily context ormal Opinion 95-390 (Jan. 25, 1995)(corporate Iamily
relationships too varied have to look to see iI in eIIect one entity)
Who is client in government entity context?
4 ormal Opinion 97-405: 'Iairly clear that cannot go against government entity that you
also represent
What about another agency? epends does the same lawyer represent both agencies?
o they receive Iunding Irom same source? Cross-examining same employees you
represent?
Lawyer Ior usiness partnership or trade association
42

4 May lawyer limit representation to partnership? Yes
4 ormal Opinion 91-361 (partnerships are entities under 1.13)
4 ormal Opinion 92-365 (trade association lawyer can Iile suit against member unless
adversely aIIect representation oI ass`n itselI)
4 Important because iI represent the partnership then the members not your client and can sue
them in unrelated matter! ut make clear up Iront (could have an implied client).
'Hot potato Rule
4 Two current clients conIlict develops drop` one client to cure conIlict
OTE: SigniIicantly diIIerent analysis in current client context (1.7) v. Iormer client
context (1.9)
General Rule: cannot cure concurrent conIlict by Iiring one current client (dropping it
like a hot potato); likely to have to withdraw Irom both.
4 Law Iirm merger problems: (when merger pits one Iirm`s clients against another must
withdraw Irom both)
4 ut See Pennalt Corp. v. Ploug : where conIlict arises because client merges (inadvertent
conIlict) could continue to represent client Iirm 'kept
4 Gould, n.. v. Mitsui Mining & $melting Co. ('explosion oI mergers no mechanical approach
balance interests have clients been prejudiced. Withdraw Irom rep 1 client and screen
lawyers who worked Ior that client.)
Note pra.ti.ality of tis business could acquire other company to disqualiIy lawyer
Can you get an advance waiver oI Iuture conIlict Irom client?
4 R(3d), sec. 122: ineIIective unless client is sophisticated and the opportunity to receive
independent legal advice about the consent
4 Waiver eIIective
General Cigar Holdings, n..
O Our Iirm has in the past and will continue to represent clients listed on the
attached Exhibit (each an 'Exhibit Client) in matters not substantially
related to this engagement. ccordingly, each client agrees to waive any
objection, based upon this engagement, to any current or Iuture representation by
the Iirm oI any oI the Exhibit Clients, its respective parent, subsidiaries and
aIIiliates in any matter not substantially related to this representation. OI course,
we will not accept any representation that is adverse to you in this matter.
O But see Worodspan (6 year old waiver not eIIective)
Positional ConIlicts
4 Issue: Can a lawyer promote one side oI an issue Ior Client , even though taking this position
is not in the best interests oI Client or is that an improper conIlict oI interest?
Old Rule: Comment |9|: Single court problem:
O It is ordinarily not improper to assert such inconsistent positions in cases pending
in diIIerent trial courts, but it may be improper to do so in cases pending at the
same time in an appellate court.
ew Rule: Rule 1.7, Comment |24|
O More lenient
O 'SigniIicant risk that . will materially limit the lawyer`s eIIectiveness in
representing another client in another case
O List oI Iactors to consider
O Cure through withdrawal
O II your actions will materially limit your ability to represent your other clients,
then
Example
43

4 Linda Lawyer is representing two clients in two diIIerent Iederal trial courts. In one case, where
she represents the plaintiII Linda will oIIer evidence based on controversial medical procedure.
4 In the second case, where Linda represents the deIendant the plaintiII will oIIer similar
evidence and she will object to the evidence being admitted.
4 Must she withdraw? o.
4 Get inIormed consent? o. It`s at the trial court level, so it won`t aIIect the other court.
Review
4 How do the disqualiIication standards diIIer when a lawyer is suing a Iormer client as opposed to
when a lawyer is suing a current client?
4 What do the Model rules provide regarding when the attorney-client relationship terminates?
4 What is the hot potato rule and how is it applied in the context oI conIlicts created by law Iirm or
by client mergers?
4 II a lawyer represents one division oI a corporation, may the lawyer sue another division oI that
same corporation on an unrelated matter? II the client is a trade association, may the lawyer sue
an association member? partnership and a partner?
4 When are advance waivers oI conIlict oI interests enIorceable?
4 What are position conIlicts? When are these tolerable?
!roblem 4 The Lawyer and her 47207 lient
Issues
4 How broad is disqualiIication in Iormer client context? |Compared to current client conIlict|
4 How do you determine when two matters are 'substantially related?
4 ConIidence-based disqualiIications
4 isqualiIication oI law Iirms based on aIIiliations with non-lawyers
4 &se oI disqualiIied counsel`s work product
Would impermissibly limit choice oI counsel iI Iirms could never go against Iormer clients
When might a lawyer have a conIlict between a present and Iormer client?
Rule 1.9
4 1.9(a)
ormerly represented the client
'same matter (ex. L switches sides)
'substantially related matters
'materially adverse
&nless Iormer client gives 'inIormed consent
ConIirmed in writing
nalyzing a Iormer client conIlict
4 What is a 'matter Ior purposes oI R 1.9?
Comment 2
Can be anything that is subject oI representation: litigation, transaction, subject on which
client seeks advice
Chart: nalyzing Successive ConIlicts &nder Rule 1.9 see andout
Examples oI 'matter
4 Berry v. $aline Memorial Hosp., |p. 243, n.2(b)|
4 Tonsend v. Tonsend, |p. 243, n.2(c)|
When are matters the same and when is there a substantial relationship between one matter and another?
4 Same matters
Easy switch sides (in practice switch law Iirms) or iI involves document lawyer was
involved in producing
See R. 1.10(a)
4 'Substantially related matters
Harder issue Iact dependent
44

O L: is there some connection between the earlier matter and the new matter?
R(3d) 132: Substantially related iI:
O Current matter involves work previously perIormed Ior Iormer client
O Substantial risk to conIidence (using prior c`s conIidential inIo)
R 1.9, cmt 3 (examples)
sk: Would the lawyer, in the course oI her work in the Iirst matter, normally have
learned inIormation that could be used adversely to the Iormer client in the second
matter.
O Concern is conIidential inIormation are the Iacts substantially related not legal
claims.
Proving a substantially related` matter
4 ormer client does not have to disclose conIidences to procure disqualiIication to protect
conIidences (no Hobson`s choice)
Look to general Ieatures oI matters court will draw inIerences about the types oI
conIidences that ordinarily would be learned. (Amanson, p. 245, n. 2(b))
O Ex. Litigation assume that L has conIidential inIo about litigated matters
O Transaction assume L would know what L would typically know about
transaction
Example oI substantially related`
4 Damron v. Herog, |p. 244, n.1(c)|
Hard Case 1: What iI the L`s knowledge is how the Iormer client approaches legal disputes?
4 Example
See Cardona, p. 246, n.w(d)
O L represented GM in deIending Lemon Law lawsuits
O L switches sides and begins suing GM diIIerent suits
O GM claims conIlict
O Ct: isqualiIied. lthough diIIerent claimants, it is the conIidential inIo received
Irom GM (litigation philosophy/handling claims) to the substantial disadvantage
oI GM.
Hard Case 2: What iI L learns about general business operations oI Iormer client?
4 Example
Cuga. Ele.tri., p. 246, n.3(a)
O 'Greater Insight
4 Represented company
4 Resigned
4 Sought to sue co. Ior antitrust violations that occurred aIter he quit
4 Since he learned general insight and his position gave him greater insight
into the company
o greater insight
O ortum. WalMart previously in a slip and Iall. ow seeks to sue WalMart in a
slip and Iall.
4 Wal Mart disqualiIy has knowledge oI our policies ('greater insight)
4 Ct.: O. Policies were discoverable/procedures common knowledge no
conIidential inIormation.
O ormal Opinion 99-415
4 'general knowledge oI strategies, policies or personnel oI the Iormer
employer should not be enough
What does it mean Ior a matter to be 'materially adverse to the interests oI the Iormer client?
45

4 materially adverse` iI the use oI the Iormer client`s conIidences might harm the Iormer client`s
interests
ote: iI would not harm interests consent not required
Rule 1.9(b)
Rule 1.9(c)
4 1.6 still applies to Iormer clients
Class ctions
4 Can a lawyer proceed against a Iormer member oI a class action?
Yes, because you ordinarily obtain very little inIormation Irom each individual class
member,s o there is very little conIlict involved
ut see Fu.s, [p. 251, n.3(b)|: unique to Iacts where lawyer actually does learn secret
inIormation Irom class member can be disqualiIied
Law irm StaII
4 ot covered by R. 1.9 because non-lawyers do not have clients
4 R. 1.10, cmt 4
4 Must screen
n re Complex Asbestos Litigation (P Iirm hiring paralegal Irom deIense Iirm)
O But see immerman. rejecting screening ('uncertainty regarding eIIectiveness . . .
monetary incentive . . . accidental disclosure)
Law students
4 Law students do not have Iormer clients
4 o have a duty to keep inIo conIidential (agency principles)
Summer associate; 2 hours writing memo and reading case Iile presumed he had
received conIidential inIo no screen - disqualiIied
4 R. 1.10, cmt 4
4 R(3d), 123, cmt I approach: treat law students diIIerently Irom those who are awaiting
admission Ior imputation purposes
ccess to disqualiIied L`s work product
4 First Wis.onsin Mortgage no per se rule against using disqualiIied L`s work product |query:
why is this even an issue?|
4 n re EPC Holdings |p. 255, n.2(b)|: more speciIic approach:
Presumptively entitled to pleadings, discovery, correspondence
Rebuttable presumption that work product contains conIidences (means that new L will
have to overcome presumption)
Review
4 What criteria control the determination oI whether two matters are substantially related within
the meaning oI Rule 1.9(a)?
4 Why was the lawyer disqualiIied in Cuga.?
4 What is an accommodation client and what is the legal signiIicance oI that label?
4 What principles control disqualiIying a law Iirm based on inIormation held by a non-lawyer Iirm
employee?
4 &nder what circumstances may a disqualiIied lawyer transIer work product to successor counsel?
4 What rules require a written conIirmation? What rules require a signed writing?
7
!roblem 5 Imputed Disqualification or The ontaminated Lawyer !roblem or To what extent are
conflicts caused by work done for former clients imputed to other lawyers in the firm?
Issues
4 R 1.10 the 'one and all rule oI imputation
4 Types oI disqualiIication
4 Scope oI disqualiIication: intra-Iirm and inter-Iirm
46

4 ConIlict rules when a lawyer leaves one Iirm to join another
4 isqualiIication in the related lawyer context
4 Screening to avoid disqualiIication
4 Other imputation rules
Imputation isqualiIication: Competing Interests
4 Client interests
Entitled to have conIidences protected
Entitled to loyalty Irom lawyer (at least while still a client)
ew clients right to counsel oI choice (who would be disqualiIied because oI
imputation)
4 Lawyer interests
Earn a living
Mobility
Imputation Rules
4 Rule 1.10
4 Rule 1.8(k) imputes R 1.8(a)-(i) conIlicts to Iirm:
(a) usiness transactions with clients; (b) use oI client inIormation; (c) giIts Irom clients;
(d) literary rights; (e) client Iinancial assistance; (I) third party payer; (g) aggregate
settlements; (h) agreements limiting L`s liability; (i) acquisition oI adverse proprietary
interests
ote: oes not impute (j) sexual relations conIlicts
The 'one and all rule imputed disqualiIication
4 Rule 1.10(a)
While 'associated in a Iirm
one shall 'knowingly represent a client
When one oI them is prohibited Irom doing so under R. 1.7 and 1.9
&nless disqualiIication is personal and
o signiIicant risk oI materially limiting representation oI client by others in Iirm
Presumption in Rule
4 ssumption underlying Rule is that Ls share conIidences
Exceptions to Imputed isqualiIication: Personal ConIlicts
4 o imputation to Iirm where no loyalty or conIidence interests involved
4 Rule 1.10, cmt. 3
'strong philosophical or political aversion to objective oI client not imputed
O o part in representation
O o supervisory/control over other lawyer in Iirm handling
Ex.: ttorney hired by C. Iter takes on C`s case L and C begin a sexual
relationship. L would be subject to discipline Ior representing C |1.8(j)|. However, L`s
partner can handle C`s case |conIlict not imputed|.
eIining a Iirm under R. 1.10
4 R 1.10, cmt |1|
Private law Iirm
Lawyers who practice closely together:
O Legal aid oIIice
4 &nique not paid by clients (not same economic incentive) ut see
Flores: legal aid oIIice disqualiIied Irom representing H & W in divorce
b/c inadequate method guarantee conIidentiality Ior both)
O Prosecutors` oIIice
O Public deIenders` oIIice
47

4 P`s oIIice in two cities on Iirm due to common control and supervision
at statewide level
ut see U$ v. Reynoso. P not treated as a private Iirm and
allowing one P to cross examine W Iormerly rep by another P
|ote: would have been disqualiIied iI traditional law Iirm|
4 Scope oI Imputation to 'Iirm: How broad is it?
Opinion 94-388: When should 'aIIiliated Iirms be treated as one Ior conIlict
purposes?
O Holding out as one Iirm
O Common name
O 'close and regular, continuing and semi-permanent relationship
O $ee Mustang v. Plug-in (law Iirm 1 lists 'aIIiliated with Law Iirm 2 can work a
disqualiIication under R 1.10)
4 The 'ouble Imputation Problem
Ameri.an Can v. Citrus Feed
O o double imputation
4 R 1.9(b) pproach
R 1.9, cmt |5|
O ote: &nder R, vicariously disqualiIied associate is not disqualiIied at new Iirm,
and does not carry Iormer disqualiIication to new Iirm
Adams v. Aerofet-General Corp: burden is on L to show that s/he had no exposure to
conIidential inIo
When a L moves Irom one Iirm to another, are all oI her Iormer client conIlicts imputed to the lawyers
in the new Iirm?
4 The Toy Chest Problem
When a lawyer has leIt a Iirm, are her conIlicts still imputed to the Iormer Iirm?
4 Ink, Inc.
Interaction between R 1.9(b) and 1.10(b)
4 Rule 1.9(b)
L leaves Iirm and does not take client
L and new Iirm may take materially adverse representation I
L has no conIidential inIo about Iormer Iirm`s client
O Vicarious disqualiIications do not Iollow L
O ctual disqualiIications Iollow L
4 R. 1.10(b)
L leaves Iirm and takes client
Old Iirm may take materially adverse representation I
o L in old Iirm has conIidential inIo about client who leIt with departing L
Vicarious disqualiIication leaves with L and client
ctual disqualiIication remains
4 ote: or discussion oI Rule 1.10 see J&C, ch. 14, Sec. 14:1-14:8
4 side: should courts consider L Irequent mobility in determining disqualiIication?
Cleveland (p. 260): Consider interest in protecting L mobility ('Iuture career and the
eIIective operation oI his Iirm) in evaluation oI disqualiIication
Gas-A-Tron (p. 261): II too stringent, law Iirms 'reluctant to hire a young lawyer |Irom|
. large Iirm iI it were to mean Iull automatic disqualiIication Irom any case involving a
party represented by the young lawyer`s Iormer employer.
O $ould tis be a .onsideration?
Imputation through amily
48

4 II we presume Ls within Iirm share inIo shouldn`t we presume that members oI Iamilies share
inIo too?
4 R 1.7, cmt. 11
Closely related by blood/marriage
SigniIicant risk to conIidences
InterIerence with loyalty and independent judgment
Parent, child, sibling, spouse requires inIormed client consent
isqualiIication not imputed to Iirm
4 What about iI Ls living together (but not married)?
R(3), sec. 123, cmt. g: relationships where 'Iinancial resources are pooled and living
quarters shared treated as spouses
State ar oI riz. 2001-10 (2001): agrees with R same problems exist with cohabitants
as married couples. Must have consent oI clients.
O People v. Ja.kson (p. 263): Iailure to disclose to client that P was dating
prosecutor constituted ineII assistance oI counsel reversal (remember $ullivan
no prejudice required)
The 'Screen
4 Screened
eIined 1.0(k) |Supp., p. 8|
O Comment |8|
4 Holes in the screen?
Ls in Iirm inIormally exchange inIo
Economic incentive to share inIo
o way Ior persons outside oI Iirm to check eIIectiveness oI screen
$.iessle v. $tepens. Iactors to determine iI screen Ieasible
O Size/structure oI law Iirm
O Likelihood oI contact between L and those working on case
O Rules to prevent access to suit/sharing Iees Irom suit
O See Nemours Foundation (p. 268) (Created 'cone oI silence hired to do
entirely diIIerent work)
4 Jurisdictions take on Screeners
P. 169 oI Supp.
II o (eg Miss.) must have consent oI client (Irom old Iirm) beIore moving to new Iirm
iI new Iirm adverse to client
4 R(3) Take on Screens
R(3), sec. 124(2) available only iI:
O o substantial risk that conI. inIo oI Iormer client will be used with material
adverse eIIect on Iormer client because
4 ny conIidence not likely to be signiIicant
4 The personally prohibited L is screened
4 Timely and adequate notice provided to aIIected clients
Review
4 What conIlicts are imputed Irom one lawyer to another?
4 What is a 'Iirm Ior the purposes oI conIlict imputation?
4 What kinds oI conIlicts are generally not imputed to aIIiliated lawyers?
4 What conIlicts does a lawyer bring to a new law Iirm when she leaves her Iormer Iirm?
4 What conIlicts does a lawyer leave at her old Iirm when she joins a new one?
!roblem 4 Leaving One Law Firm and Forming Another
Law Iirm break-ups; rights and obligations oI departing lawyers and lawyers in the old Iirm
49

Purchasing law practices (R 1.17)
The competing obligations oI a divorcing lawyer
4 Section 404 oI R&P duty to 'reIrain Irom competing with the partnership and the other
partners in the conduct oI the partnership business beIore the dissolution oI the partnership.
Critical issue: openness and Iairness on dissolution
4 Perspectives oI eparting Ls
irm`s point oI view:
O Law Iirm trains new associate; teaches; introduces to clients; L takes clients upon
leaving
L`s point oI view:
O Law Iirm pays small wage, treats L poorly, and clients worse; L leaves with
clients whom L can serve better and at less cost
To do list when planning to leave Iirm
4 Dod & Dod
eparting Ls tells client and Iirm on same day; C sends letter the same day saying Iiles
going with departing Ls
Ct: recognizes dilemma between Iiduciary obligations and ability oI C`s to Iollow
departing Ls
O May plan Ior new space
O May OT solicit clients pre-termination
O Competing with Iirm beIore leaving violates Iiduciary duty
Who does the client 'belong to? sset oI Iirm? (this is a trick question)
4 Clients have an absolute right to take their work to other Iirms
4 oeler. L goes on vacation and leaves clients in another`s L`s hands who takes clients when
L returns. o claim Ior interIerence with business contracts clients had an absolute right to
choose L
4 Fred $igel. eparting L took cards Irom Rolodex wrote letters to clients at new Iirm. Claims
against departing L: (a) interIerence with business against new law Iirm; and (b) breach oI
Iiduciary claim.
Result? ismiss business interIerences claim; remand breach oI Iiduciary claim (breach
oI trade secret?)
4 ote: istinguish between business completion and breach oI Iiduciary duties
Meean:
O ecide in July to leave Iirm in ecember
O Worked on getting oIIice space/Iinancing
O Worked on cases without letting others at Iirm become Iamiliar
O Expressly denied desire to leave
O Ct: &sed 'speed and preemptive tactics allowed the breach oI Iiduciary claim
to proceed
Soliciting Clients oI Old irm
4 R 7.3(a)(2) 'prior proIessional relationship
4 Alder Baris (p. 564-65): departing Ls send Iorm to C`s (aIter telling Iirm) allowing them to
select new Iirm. Old law Iirm seeks injunction. S.Ct.: Injunction granted.
4 Competing Interests: (1) attorney: irst mendment (Bates) truthIul (inIo assist C in decision-
making); (2) clients absolute right to select counsel (economic cost oI new associate learning
about case) and law Iirm has no expectation oI Iuture business; (3) Iirm put L in position to
communicate; conIidential inIormation; breach oI duty
4 Potter: L worked in Iirm, leIt (not getting paid enough) and took 2 Iiles
ut not beIore: deleting Iiles Irom computer
50

iscipline Complaint Iiled: taking clients okay but taking Iiles and deleting computer
Iiles dishonest/crime. 90 day suspension.
4 Restatement pproach
R(3), sec. 9(3): absent agreement prior to leaving Iirm, L may solicit clients (i) OLY iI
L worked on matter actively and substantially; (ii) only aIter notice to Iirm
Iter leaving Iirm to the same extent as any other L
Op. 99-414: otice to aIIected clients is required. 'Status oI representation |R
1.4(a)|
O o not disparage Iirm
O Can express willingness to assume rep but should not urge to leave
entu.ky v. Unnamed Atty (p. 567): duty to inIorm clients that L who worked on case
was leaving to ensure that the C`s case was being handled.
How much can L tell new Iirm?
4 Remember, rules designed to protect clients now at new Iirm, how much can you say about old
clients?
4 ame oI clients to check conIlicts (unless conIidential then general inIo) |Y Position p.
568|
Restrictions on Right to Practice
4 R 5.6(a)
Problem: limits client`s right to choose lawyer
Coen v. Lord & Day. greement: partners who leave Iirm entitled to share oI Iees
earned unless going to competitor
O Challenged under equivalent oI 5.6(a)
O Ct: invalid. Cannot contract Ior IorIeiture oI earned Iees acts as a restriction on
the client`s choice oI counsel
94-381: agreement that in-house counsel can never take case against co. iI leaves
invalid suIIicient protection under R. 1.9. greement violates 5.6(a).
The limitation has limits
O Nutter: Ls required to sign personal guarantees oI rent; not in restraint oI trade
Recoupment oI costs by Iirm against departing L
O Fearno (p. 571): IorIeiture oI partnership share ($33K) was not a restraint on
trade but a cost to be able to compete
R 5.6(a): greement 'Concerning eneIits &pon Retirement
4 Neuman v. Akman: partnership agreement retire without Iuture practice get more beneIits than
those who continue to practice aIter retirement. Ct: a 'beneIit upon retirement
4 Hoff: Iirm may withhold retirement Iunds Irom L who does not really retire under R. 5.6
4 Op. 06-444 (p. 572): greements 'concerning beneIits upon retirement plan should
have in place elements that tie to retirement ex. Minimum age and/or years oI service
requirement.
ote: Trying to distinguish between an agreement that restricts practice (invalid) and
upon retirement (valid).
4 Ex.: Linda Lawyer is 70 years old and looking to retire. Linda took in Tony as a partner. The
partnership agreement between Linda and Tony provide that the Iirm would pay Linda a
retirement beneIit oI $2,000 aIter she leaves the Iirm so long as she does not re-enter the practice
oI law.
Purchasing a Law Practice: 'Clients are not merchandise. Lawyers are not trades|wo|men.
4 R 1.17
May purchase a practice, including goodwill iI
O Seller ceases to engage in practice (topical area/geographic area)
51

O Entire practice sold
O Seller gives clients notice
O ew Iees not increased by reason oI sale
4 R 1.17, Comment |3|
L may serve on staII oI public agency or legal service entity providing legal services to
the poor, or as in-house counsel to a business.
4 otice required to clients
R 1.17, cmt. |7| and |8|
O InIorm clients on proposed sale
O OI their right to retain other counsel
O Consent presumed iI not objected to in 90 days
O Court approval oI transIer Ior clients to whom notice could not be given
Review Questions
4 oes the right oI Iair competition allow a partner to solicit clients Ior a new law Iirm while
working with another Iirm?
4 What may a lawyer legitimately do when preparing to leave a law Iirm and to start another one?
What may the lawyer not do?
4 What rule controls a lawyer`s right to contract clients oI the lawyer`s Iormer Iirm?
4 What rules govern proIessionalism issues in the context oI law Iirm breakup and lawyer
mobility?
4 What restraints oI competition violate Rule 5.6?
4 How does the lawyer`s right to restrict her practice areas relate to her obligations under Rule 5.6?
4 What notice must be given to clients when a law practice is purchased?
4 When a lawyer purchases a law practice, may she represent clients who did not receive the notice
required by Rule 1.17?
4 &nder what circumstances may a law practice be purchased? May the seller continue to
practice?
4 What are proIessional obligations oI a supervisory lawyer?
4 When is a supervisory lawyer proIessionally responsible Ior the deviance oI a subordinate
lawyer?
4 When is a subordinate lawyer not responsible Ior her own proIessional deviance?
4 What does Rule 6.1 require? What does it require in MS?
4 May a state supreme court compel lawyers to report their annual pro bono service? What interest
does the state have in this reporting?
4 &nder what circumstances may a lawyer reIuse an appointment in a criminal case?
7
L is working at Iirm 1 and then moves on to Iirm 2. While at Iirm 1, he gets conIidential inIo about
Client. Later, Iirm 2 wants to sue Client. ecause he has conIidential inIormation, his Iirm is
disqualiIied Irom going against Client.
4 In 2009, the adopted Rule 1.10(a)(2) that says that iI certain requirements are met, then
Iirm 2 can go against Client.
Retraction/Correction
4 L is working at Iirm 1 and then moves on to Iirm 2. While at Iirm 1, he gets conIidential inIo
about Client. Later, Iirm 2 wants to sue Client. ecause he has conIidential inIormation, his
Iirm is disqualiIied Irom going against Client.
In 2009, the adopted Rule 1.10(a)(2) that says that iI certain requirements are met,
then Iirm 2 can go against Client.
4 The Toy Chest Problem
Hank works at arr & Thornburgh
52

O Hank learns conIidential inIormation regarding Toy Chest
O Hank moved to Reno & ays
4 R& wants to sue Toy Chest
4 Rule 1.10(b)
4 Rule 1.10(a)(2) screening
!roblem onflicts of Interest in riminal Litigation
Issues
4 Constitutional standards Ior reversal based on conIlict oI interest
4 Const. right to retain counsel oI own choosing
4 pplication oI Model Rules to joint criminal deIense conIlicts
4 Prosecutorial conIlicts
4 Publication rights under Rule 1.8(d) the '. Lee ailey Rule
4 Criminal deIendants
4 How waive conIlict oI interest?
Waiver is 'knowing and voluntary
4 InsuIIicient waiver (ie not knowing/voluntary)
violation oI 6
th
mendment
Holloay Problem
4 3 individuals were arrested Ior robbing a restaurant and raping 2 waitresses
4 ll 3 charged with 1 count armed robbery and 2 counts oI rape
4 Same lawyer appointed to represent all 3 deIendants
4 Made motion Ior individual counsel conIlict oI interest
4 Counsel: ow, since I have been appointed, I had previously Iiled a motion asking the court to
appoint a separate attorney Ior each deIendant because oI a possible conIlict oI interest. This
conIlict will probably be now coming up since each one oI them wants to testiIy.
4 The Court: That`s all right. Let them testiIy. There is no conIlict oI interest. Every time I try
more than one person in this court each one blames it on the other one.
4 Counsel: I have talked to each one oI these deIendants. I have talked to them individually, not
collectively.
4 The Court: Well talk to them collectively.
4 Counsel: I am in a position now where I am more or less muzzled as to any cross-examination.
4 The Court: You have no right to cross-examine your own witness. You have a right to examine
them, but have no right to cross-examine them. The prosecuting attorney does that.
4 Counsel: II one deIendant takes the stand, somebody needs to protect the interest oI the other
two, and I can`t do that since I have talked to each one individually.
4 The Court: They all say they want to testiIy. I think it`s perIectly alright Ior them to testiIy iI
they want to or not. It`s their business. Each deIendant said he wants to testiIy, and there will be
no cross-examination oI these witnesses, just a direct examination by you.
4 Counsel: Your Honor, I can`t even put them on direct examination because iI I ask them certain
questions I could harm the interests oI one oI my other clients.
4 The Court: (Interposing) You can just put them on the stand and tell the Court that you have
advised them oI their rights and they want to testiIy; then you tell the man to go ahead and relate
what he wants to. That`s all you need to do.
4 Where deIense counsel objects to jointly representing two criminal deIendants
Where court requires joint representation over objection reversal automatic without
requirement oI prooI oI 'outcome prejudice (compare ineIIective assistance oI counsel
claim under $tri.kland)
ote: Gov`t argued that deIense counsel will use this as a tactic to delay Court said that
trial court could handle attorneys who try.
ut what iI o Objection
53

4 Cuyler v. $ullivan
May assume no conIlict
However, iI the court knows/should know that a conIlict exists must initiate an inquiry
into the propriety oI multiple representation
However, iI no objection and no reason to know oI conIlict on appeal must show (a)
conIlict and (b) actually aIIected the adequacy oI his lawyer`s perIormance
.R. Crim. P 44(c)
4 Places obligation on trial court as a matter oI course to inquire into the joint representation and
inIorm oI his right oI eIIective counsel including right to separate counsel
4 |M&R, 199|
istinguishing R 44(c) & $ullivan
4 R 44(c): rule oI judicial administration to ensure is properly represented (belt and suspenders)
4 $ullivan: constitutional rule may assume multiple rep not conIlicted
Burger v. emp
4 Two soldiers kidnapped and killed a taxi cab driver in G
4 urger was one oI the s represented by a lawyer whose partner represented the second
4 urger alleged that this representation created a conIlict oI interest and violated Holloway
4 iscussed the trial/strategy. ut `s tried separately. id not aIIect plea negotiations (because
state would not bargain). Even iI conIlict could not show how deIense was aIIected.
Mi.kens v. Taylor
4 Mickens killed Hall and sentenced to death
4 Mickens`s lawyer represented Hall in a criminal matter at time oI murder
4 On appeal Mickens argued that this created a conIlict oI interest that violated Holloay
4 or reversal must show that conIlict had an actual aIIect on representation beIore prejudice
is presumed
Tomas v. $tate
4 Waiver oI conIlict initially
4 Plea bargain either (a) each take responsibility Ior halI or (b) one take responsibility Ior all
4 When plea oIIered interests became adverse unIoreseen and waiver did not cover (did not
knowingly waive this conIlict)
nfante
4 How to tell iI there is an 'actual conIlict oI interest:
oes attorney have conIidential inIormation helpIul to one client but harmIul to another?
How closely is subject matter oI multiple claims related?
How close in time are the representations?
Has prior representation been unambiguously terminated?
ConIlict when ttorney has his/her own problems
4 Virgin Islands v. epp: epp & Willians in house. Police came and arrest Williams. epp`s
attorney comes to house and starts Ilushing toilets.
L: potential criminal liability; potential prosecution witness
L: to avoid testiIying enters into stipulation that did not Ilush toilet
4 Sullivan or Strickland issue?
Sullivan because conIlict oI interest
Cuyler v. $ullivan
4 II shows 'actual conIlict then
4 Reversal iI the conIlict resulted in an adverse eIIect on the lawyer`s perIormance
$tri.kland v. Wasington
4 L`s actions outside wide range oI proIessionally competent assistance (not limited to conIlicts)
4 Then Reversal iI reasonable probability that, but Ior unproIessional errors, results would have
been diIIerent
54

4 $ullivan or $tri.kland issue?
ctual conIlict oI interest (conIlict between one interests and that oI client): potential
witness, potential criminal liability
dversely aIIected deIense: could not vigorously deIend because L was a potential
witness
See also
4 Campbell v Ri.e. L who is also being prosecuted by prosecutor may Ieel compelled not to
antagonize prosecutor
4 U$ v. ulton: Gov`t told by that L was involved in drug sale. Held: unwaivable per se conIlict
iI L involved in same/closely related criminal conduct
Prosecutor`s Request to isqualiIy eIense Lawyer
4 Why would the prosecutor seek to disqualiIy deIense L representing multiple s?
4 tty Gen approach in employee/employer in criminal context (p. 205)
corp: wants everyone on the same page
Remember: represent the corp (not e/e), need to advise e/es that not representing may
need to get ind. Counsel
Is this suIIicient? May be in lower level e/es best interest to testiIy against higher level
management
Questions whether 1L can rep both conIlict Iree
4 &S v. Wheat
wanted same counsel as others charged in drug conspiracy
ttempted to knowingly and voluntarily waive conIlict
. Ct. rejected attempted waiver
S.Ct.: aIIirmed. Courts have independent interest in ensuring that trial is Iair.
O Institutional interest
O bide `s decision but has discretion to reject waiver (conIlict/serious potential
conIlict)
Erroneous isqualiIication
4 Rodriguez v. Chandler
Erroneous disqualiIication: to justiIy reversal oI criminal conviction: 'identiIiable
diIIerence in the quality oI representation such that '`s representation suIIered a
setback.
ote: ot outcome prejudice (compare to Strickland)
ConIlicts oI the Prosecutor eal v. Impartiality: what is the State`s interest in criminal prosecutions?
4 People v. Greer
eal to help employee could aIIect the interest oI the government in ensuring that each
criminal case considered impartially
4 In re Rook
Public reprimand (noting improper motive oI prosecutor)
Privatization oI Prosecutorial unction
4 uty oI neutrality
4 People v. Ebel
isqualiIied private attorney
uty oI neutrality/impartiality powers oI government behind prosecutor. s iI the
prosecutor having personal interest in outcome
People v. Eubanks
4 Victim pays expert Iee to pursue claim that might not otherwise pursue
4 Recusal required improperly inIluencing prosecutorial discretion in prosecution
4 ut see Commonealt v. Ellis: insurance cos. Pay into Iund Ior prosecutor to pursue criminal
ins Iraud no recusal required did not inIluence prosecutorial discretion
55

Publication Rights
4 I`ve hit the jackpot with this one!
4 Rule 1.8(d), Comment |9|
4 What`s the conIlict?
Requires the L to choose between his own Iinancial interests and best interests oI client
(ex. May be better to settle but trial makes a better ending)
OTE: Comment allows procurement oI interest in such rights in transaction concerning
those literary rights iI permitted under R. 1.5 (Iees) and under Rule 1.8(a)(1)
Review
4 How does the analysis Ior ineIIective assistance oI counsel Ior conIlicted counsel diIIer Irom the
typical $tri.kland ineIIective assistance analysis? Stated diIIerently, when may a criminal
deIendant obtain reversal oI conviction based on conIlicted trial counsel? What must the
deIendant prove in each context?
4 What are the sources oI possible conIlict oI interests in concurrent representation oI two criminal
deIendants in related cases?
4 In what contexts may the lawyer`s own interest conIlict with that oI a criminal client`s?
4 What are the sources oI conIlict Ior a prosecutor in a criminal case?
4 Why is the privatization oI the prosecutorial Iunction problematic?
4 What are standards governing the procurement oI literary rights Iorm a client?
!roblem Representing the Insured and the Insurer
What`s going on
4 How things typically work:
C pays L Ior work
4 What we will talk about here:
Third party (insurance co.) pays legal Iees
Ins CO and Insured Context
4 Insured (tortIeasor) has liability insurance
4 Liability insurance policy requires that in the event the insured is sued, insurance company will
provide a lawyer to deIend insured
4 Insured commits tort is sued, and insurer hires lawyer. Insurer is OT a named party in tort
action.
4 Insured`s tort; insurer`s money
eIense and cooperation
4 Raises tort and contract issues
4 In this context who does the L represent?
Insurer?
eIendant (insured)?
oth?
epending on the jurisdiction .
O oth
4 Joint representation under Rule 1.7(a)(2)
4 Insurer and insured are jointly represented
4 Requires consent oI two clients (conIirmed in writing)
O Insured Only
4 Insurer merely third party payer oI legal Iees
4 Rule 1.8(I)
4 Insured is the only client
4 Requires client consent (no writing)
4 IdentiIication oI payer and Iact oI payment
56

OTE: Mississippi deIault rule that lawyer has two clients insured and insurance
company |J&C, |
Requirements oI Rule 1.8(I)
4 InIormed consent
4 o interIerence with L`s independent judgment or attorney-client relationship
4 Protection oI conIidences (R 1.6)
1.8, Comment 11
Great example oI potential client conIlict
4 Insured (WiIe)* v. eIendant (Husband)
4 L hired by ins co to represent H
4 *W is a lawyer and is represented by her law partner
How interests oI Insured (client) and Insurance Co. iIIer: Tort v. Contract
4 Parsons v. Continental at`l merican Group
nother example oI how insurer and insured`s interests can diIIer:
O eighbor v. Smithey (insured): assault
O Is the claim covered by Smithey`s parents` insurance?
O Who is going to deIend Smithey in suit Iiled by eighbor?
O Claims rep: investigation shows that Smithey not in control SETTLE!
O L rep Smithey: to ins co.: my inv he knew what he was doing (intentional)
O t trial (eighbor v. Smithey): L Ior Smithey/insured/client put on no deIense
because he thought the insurance co wouldn`t have to pay
O P`s seek to get ins co to pay judgment ($50,000) denied . . .
O ConIidential inIo about Smithey to Smithey`s advantage to keep conIidential
O In interest oI ins co to know conI inIo (ins co paying $)
O When L acquired conI. inIo should have withdrawn Irom representing ins. co
on coverage issues
Handling Client (read: insured) conIidences
4 Protection required under 1.8(I)(3)
4 Policy coverage inIo: R(3) 134, cmt I: 'may not reveal adverse conIidential client inIo oI the
insured . without explicit inIormed consent oI the insured.
o not assist in insured insurance Iraud: remedy withdraw Irom representing both
O Restatement assumes 2 clients
Reservation oI Rights
4 What it is -
4 What iI no ROR letter?
4 eed Ior two lawyer
4 Mississippi: Moeller v. AGLC
See J&C, 11:8 11:9 |M&R discuss this type oI rep 4.e|
4 Allstate ns Co. v. eller |p. 232, n.4(c)|
4 Tilley |p. 232, n.4(d)|
4 OTE: Ins. Co. waives (estopped Irom asserting) policy deIense 'buys claim
Settlement Issues
4 See conIlict?
Insured: pay policy limits to get me out oI this!
Insurer: pay as little as possible (may be worth going to trial)
4 ad Iaith where insurer unreasonably rejects oIIer within limits (could by the verdict, even iI in
excess oI policy limits). Cris.i |p. 234, C(1)(b)|
4 Must tell insurer oI oIIers to settle. oes not violate breach duty to insured. R(3), Sec. 134.
utonomy in Settlement
57

4 R. 1.2(a)
4 Insurance contract: via contract insured agrees that ins co can settle
4 ProIessional liability contracts diIIerent (allow proIessional to reject settlement)
4 Rogers Rule
Contract we do not have to have your consent to settle
Insured (doctor): do not settle without my permission
L settles
Insured brings suit ('wrongIul settlement)
Ct: Insured and ins co were clients oI L
L owed same duty to insured as insurer
Claim against L should proceed
&I aughter: What are L`s obligations?
4 When parent comes in and says that daughter has been put in jail and given a dui and I want you
to get her out and Iind out what she was doing that night
4 Parents paying Ior legal representation:
Make it known up Iront who the client (and who the a/c priv holder is)
O See 1.8(I)
O See 5.4(c)
ottom Line: Know who your client is and what your obligations are to each
Restricting L`s eIIorts in prosecuting claims
4 Low policy limits does not want to provide 'dream deIense
4 Case management guidelines (o. oI depositions; amount that can be spent on
experts/investigation)
R(3): with disclosure can Iollow instruction oI ins co. iI would not put insured at
'signiIicantly increased risk oI liability assumes w/n policy limits and insurer has
assumed right to control deIense in K
4 Can lawyer show Iiles to 'auditor Ior insurance co? (ex. To ensure compliance with co.
guidelines)
ormal Op. 01-421 |p. 238, n. 2(c)|
&sing In-House lawyers to deIend liability claims
4 Gardner: o. Citing prohibition against corporations practicing law.
4 ut see n re Allstate: in cases where claim w/in policy limits and no question oI coverage
4 ormal Op 04-430
InIorm insured that e/e oI ins co
Exercise independent judgment
May practice as a Iirm` must disclose aIIiliation to insured
II conIlict arises withdraw
Malpractice Claims
4 Insurer generally not liable Ior attorney malpractice
ut, could be liable in bad Iaith (undermine deIense, intrude on L`s ind judgment)
4 L liable to insurance co Ior malpractice? What iI not considered a client under state law? It
depends (p. 240, 4.c)
R(3): Yes. The Iinancial interest gives standing to sue.
Review
4 &nder the Model Rules, does an insurance deIense lawyer represent the insurer and the insured,
or only the insured?
4 &nder Rule 1.7(a)(2), under what circumstances may an insurance deIense lawyer
simulatenously represent an insure and its insured?
4 &nder what circumstances may a lawyer accept representation oI a client at the expense oI a non-
client?
58

4 In MS, what are the legal consequences oI an insurer deIending an insured under a reservation oI
rights?
7
!roblem onflicts between lient Interests and the Lawyer`s !ersonal Interest, R
Issues
4 usiness relations with clients (R 1.8(a))
4 Take stock or client property as a Iee
4 Trading on client inIormation (R 1.8() and R(2) oI gency 388)
4 GiIts Irom clients; written instrument rule (R 1.8(c))
4 Sexual relations with clients. R 1.8(j) and non-attribution provision, R 1.8(k)
The Context oI Rule 1.8
4 Lawyer must put client`s interest ahead oI his/her own
4 This problem deals with situations which are particularly susceptible to pitting the L`s interests
and the C`s interests
4 Traditional view: Lawyers should avoid doing business with clients
Rule 1.8(a)
4 1. Full Dis.losure
4 2. In writing
4 3. dvised oI the beneIit oI seeking outside counsel in writing
4 4. Client must give written consent to the transaction (with the document setting out the terms oI
the agreement and whether the client had independent representation)
4 5. Terms must be fair and reasonable to .lient.
Example oI usiness deal with Client: Taking stock as Iee
4 Recognizing the client may have more stock than money or sense
4 ormal Opinion 00-418: obtaining stock in addition/lieu oI Iee analyzed under R 1.8(a)
4 Must also be reasonable R 1.5
See also R 1.7(a)(2) stock may create personal conIlict
How can L take advantage oI C in these situations?
4 Beery v. $tate Bar, p. 213 (2)(a)
4 Cotton v. ronenberg, p. 214 (2)(c)
L takes land in lieu oI a Iee and tells L that transaction will cost between $10-15,000 and
then immediately turns around and sells the land Ior $40,000; problem with both 1.8 and
1.5
4 Timpone, p. 214, (2)(e)
L as victim? (or the risk oI not satisIying 1.8)
4 Passante, p. 215, (3)(a)
How Iar does this 'business transaction Rule go?
4 Can a lawyer buy a car Irom a client without having to comply with Rule 1.8?
4 Rule 1.8, comment 1
istinction between transactions between L & C that would be entered into by general
public as well
Compare: transactions that are 'law related services.
&tilizing client conIidential inIo to L`s advantage: R 1.8(b)
4 1.6 prohibits Irom voluntarily disclosing client conIidences
4 1.8(b) prohibits me Irom using client conIidences to the disadvantage oI the client
n Investment Project; $ee Handout
4 Though you are using client inIo to buy it, it is not being used to the disadvantage oI the client.
4 II the client hadn`t yet decided to purchase it, then you would be competing with the client and
you are using the inIo it to the disadvantage oI your client.
What to do?
59

4 R 1.8(b)
4 Comment 5
4 See MCPR, R 4-101()(3) |Supp. p. 211-12|
Old code said that you couldn`t use it to your advantage; new code says that you can use
it to your advantage as long as it is not to the disadvantage oI the client
GiIts Irom Clients
4 R 1.8(c)
Solicitation oI 'substantial giIt Irom a client
O &ndue inIluence problems; Iraud; duress
ut see R(3) Law Governing Lawyers L may not accept a substantial giIt even iI no
instrument required See R 1.8, comment 6
O o solicitation, but can accept oIIered giIts
O Substantial giIts are the giIts that cause problems
Includes the 'written instrument rule
O Preparation oI instrument giving lawyer (or lawyer relation) substantial giIt
prohibited
n re Colman, 885 .E.2d 1238 (Ind. 2008) (naming himselI the beneIiciary; son
contingent beneIiciary; had another lawyer prepare will)
Related onor exception
4 L related to donor
Related persons spouse, children, grandchild, parent, grandparent, or other relative or
individual with whom the lawyer or the client maintains a close, Iamilial relationship
Cf. aming selI as executor
4 R 1.8, cmt |8| allows with limitations
Subject to general conIlict oI interest provision in Rule 1.7 when there is a signiIicant risk
that the lawyer`s interest in obtaining the appointment will materially limit the lawyer`s
independent proIessional judgment in advising the client
Sexual Relations between L and C
4 Rule 1.8(j)
What`s the purpose?
O ormal Op. 92-364 |p. 221, n. 1(a)|
O Clients vulnerable
O Inherent loss oI proIessional interest
O What communications are protected by C priv?
L can`t have sexual relations with a C unless the relationship existed when the lawyer-
client relationship commenced
Rule expanded to make prohibition in some jurisdictions no discipline unless quid pro
quo (sex Ior legal services)
Exception: Pre-existing relationships
ot imputed to L`s Iirm (Rule 1.8(k)
Artime: L had sex with C`s spouse; Court recognizes that Rules do not prohibit
Review
4 What are the substantive and procedural requirements oI Rule 1.8(a)?
4 What are the rules regarding soliciting and accepting giIts Irom clients?
4 &nder what circumstances may a lawyer be disciplined Ior proIiting Irom use oI conIidential
client inIormation? What other legal rules govern such use oI inIormation?
4 What are the rules governing intimate relations with clients?
4 What contexts lead lawyers to violate proIessional boundaries?
!roblem Handling lient !roperty and Withdrawing From Representation
60

Issues
4 Trust accounts; commingling; handling client Iunds and property
4 Withdrawal; diIIicult clients
4 ee collection; client conIidences
4 ttorney`s liens; taking an interest in property that is subject to the litigation
Lawyer is in a Iiduciary relationship with client. Places burden on Lawyer to properly handle client
property.
4 Must know the rules on handling client property
Client property issues are the most easily recognizable and traceable and provable attorney problems
Client unds
4 Hypo: L, representing P, settles case with . sends settlement Iunds to L. What should L do?
Can L sign Client`s name on check?
O $ampson, p. 118 (n.2(a))
What should L do with the Iunds?
Trust ccount
4 ank account where Lawyer keeps Iunds belonging to clients
4 o not comingle Iunds Irom Trust ccount with Expense ccount
4 Trust account holds Iunds Irom clients or belonging to clients Ior work not yet used, settlement
proceeds, etc.
4 Expense account holds Iunds Ior work done and used Ior overhead, salary, and oIIice expenses.
Rule 1.15(a) and (d)
4 eposit in trust account
4 otiIy client oI receipt
4 Remit Iunds
4 &pon request, account
4 ever Co-Mingle!!!
Mississippi Bar v. Coleman
O L is given money Ior expert witnesses. He puts the money in the trust account.
Later, he transIers Iirms. He takes this $14,000 expert witness money and puts it
in his personal account. He writes several checks oII this account. His old Iirm
reports him to the ar saying he comingled these Iunds. The Supreme Court said
that this was a cardinal sin, but then checks to see how much damage was done to
the client. one. L wrote checks oII the money, but immediately put the money
into his new Iirm`s trust account. So, he comingled but then transIerred it back.
L received a three year suspension.
Hypo
4 Larry Lawyer represents Clarence Client in a car injury case. Lawyer settles the case on March
13, 2008 (as he was heading out the door on a month vacation). The settlement check comes into
the oIIice while L was on vacation and he instructs his assistant to deposit the Iunds into his trust
account until his returns. &pon his return he inIorms the client that the Iunds have come in and
the client comes in and picks up a check. Is L subject to discipline?
Yes, because he should have instructed the assistant to promptly notiIy client that the
check had arrived.
Handling unds when a ispute arises with Client
4 Rule 1.15(e) and comment |3|
4 Keep the property separate until the dispute is settled
4 Must distribute the undisputed amounts immediately and then keep the remaining separate until
you can settle it.
4 ote: R 1.15(e) reIerences 'which two or more persons . . . claim an interest this could be a
third party creditor
61

aiser Foundation Healt Plan, n.. v. Aguilu (p. 120, n.4(d))
L should consider this a disputed Iunds issue and keep the money in the trust account
until the dispute is settled
Taking Client Property other than Money
4 Restatement, Sec. 44, cmt e (p. 120, n.5(a))
4 'reasonable measures Ior saIekeeping
4 ased on circumstances
4 Perhaps saIe deposit box
See Grosso (p. 120, n. 5(b))
When the Lawyer`s staII mishandles property
4 Responsibility Ior theIt/misconduct by staII
Ball (p. 121, n. 6(a))
4 Responsibility Ior associated counsel
Duggins (Miss. 1993)(p. 121, n. 6(b))
II maintaining accountability is so critical, what about 'random account testing?
4 uditing trust accounts
Traditionally: no audit unless there is reason to suspect wrong-doing
has draIted model guidelines Ior random audits, but O states have adopted it.
Lawyer Withdrawal Irom Representation
4 Mandatory Withdrawal
Rule 1.16(a)
4 Permissive Withdrawal
Rule 1.16(b)
O (1) 'accomplished without material adverse eIIect on the interests oI the client
4 Gilles, p. 123, n.2(c)
4 Cf.: Client`s absolute right to discharge
O (6) 'the representation will result in an unreasonable Iinancial burden on the
lawyer or has been rendered unreasonably diIIicult by the client
4 $mit v. R.J. Reynolds (p. 124, n.4)
Court involvement in withdrawal
4 Rule 1.16(c)
pprove withdrawal
Regardless oI the Iact that there is a clear right Ior withdrawal, iI the court says to
continue, you must continue to represent the client
Limitations on L`s EIIorts to Collect a ee
4 Suits not prohibited, but
4 EWRE: counterclaim Ior malpractice
4 ConIidentiality and the collection oI Iees: Rule 1.6(b)(5)
COT threaten to reveal more inIormation than necessary to collect Iee
4 OTE: a number oI states require (or allow) arbitration oI Iee disputes (p. 127, n.4)
4 OTE: arbitration provisions (re Iee) not per se unethical
Other collection issues
4 Last minute lawyer discharge: 6uantum meruit (absent agreement otherwise)
Contingency Iee agreement: value oI services rendered
4 Charging interest and accepting credit cards not unethical | ormal Op. 338|
ttorney`s Liens and other Security Interests
4 Rule 1.16(d); cmt |9|
Substantive law that would allow a lawyer to retain client papers or Iunds that are
obtained on behalI oI the client to satisIy a Iee
Retaining Lien
62

4 Gives L a possessory interest in client`s papers in the attorney`s possession. Purpose: to put
pressure on client to pay Iees
Exceptions:
O &rgent need exception
O ot applicable to client property given to lawyer Ior saIekeeping and not given as
part oI representation (p. 129, It.nt. 8)
Charging Lien
4 Gives L right to apply recovery to payment oI Iees
4 &pon notice person distributing Iunds could become liable Ior lawyer`s Iee iI distributes to
client (p. 131, n.2(d))
4 &njustiIied withdrawal (Bell, p. 131, n.2(d)(leading to IorIeiture oI lien)).
Taking a Security Interest in Subject oI the Litigation
4 Rule 1.8(i)
4 Goal: prohibit L Irom becoming a 'co-PlaintiII in the litigation
Subordinate client in case
4 ut ote: iI securing Iees with non-litigation property
Subject to requirements oI Rule 1.8(a)
Review
4 What are a lawyer`s obligations when she receives Iunds or property belonging to a client or a
third party?
4 What obligations Irom the Iact that a lawyer is a Iiduciary?
4 II a lawyer is on notice that a third party claims client Iunds, what should the lawyer do?
4 &nder what circumstances must a lawyer withdraw Irom client representation?
4 &nder what circumstances may a lawyer withdraw Irom client representation?
4 In collecting a Iee, may a lawyer disclose conIidential client inIormation? What limits are
imposed on that disclosure?
h (pp 4-5) Advancing Litigation Funds
Rule 1.8(e)*
4 Rationale R(3), Sec. 36(2): advancing Iunds to client, 'gives the lawyer the conIlicting role oI
a creditor and could induce the lawyer to conduct the litigation so as to protect the L`s interests
rather than the client`s.
4 See Rule 1.8, cmt |10|
4 Can`t pay Ior client`s treatments, can`t pay living expenses, etc. unethical idea oI buying`
clients
dvancing Costs: Posting ond
4 04-432 (603-04): ordinarily creates personal conIlict under R 1.7 and may not post bond
unless:
mount negligible
L is Iriend oI Iamily and can expect reimbursement
Civil rights cases where no one else will post bond
dvancing Costs: Living Expenses
4 General Rule: o. See Rule 1.8(e), cmt |10|
$molen: Lent workers` comp client $1200 aIter house burned concerned Iuture clients
would pick L based on 'improper inducements suspended Ior six months
Nusburn: iscipline Ior loaning money to client/Iriend
$ade: eIense counsel sought disqualiIication Ior advancing living expenses. Ct.:
discipline and not disqualiIication proper remedy.
4 Mississippi Rule (1.8(e)): II client in 'dire and necessitous circumstances and more than 60
days aIter signing employment agreement:
63

Reasonable and necessary medical expenses Ior treatment Ior injury giving rise to
litigation
Reasonable and necessary living expenses incurred. ut only minimal expenses to
prevent Ioreclosure or repossession.
Limited to $1,500 (eithout approval Irom the ar)
4 See J&C, Sec. 12:6 (discussing Mississippi rule and justiIication)
Paying expert on contingency
4 Rule 3.4(b), cmt |3| (noting common law rule)
' lawyer shall not: (b) IalsiIy evidence, counsel or assist a witness to testiIy Ialsely, or
oIIer an inducement to a witness that is prohibited by law.
75
!r The Decision to File a ivil Suit
Issues:
Rules governing the propriety oI litigation Iilings (including RCP 11)
rivolous Iilings in criminal cases & appeals
Legitimacy oI delaying proceedings to protect client
Obstructing opponent`s access to witnesses
Ethical obligation to recommend R
Obligations oI 3
rd
party neutrals
Other sanctions Ior litigation deviance
Rule 3.1: The ethical decision to Iile a suit
Claims/deIenses need a basis in law/Iact that is not Irivolous
May argue Ior extension, modiIication, or reversal oI existing law
Criminal deIense counsel may put the state to its prooI
isciplinary enIorcement is rare (but see, Matter of Capo..ia where a L was disciplined Ior continually
Iiling rejected canned deIenses in 70 cases)
'The action is Irivolous iI the L is unable either to make a good Iaith argument on the merits oI the
action taken or to support the action taken by a good Iaith argument Ior an extension, modiIication, or
reversal oI existing law
nother way to sanction Iilings: RCP 11: (Supp. 513)
Motion under R 11 served but not Iiled Ior 21 days
Respondent`s saIe harbor; may withdraw/correct oIIending matter
Pre-saIe harbor istrict court had no discretion (ex: In Cooter & Gell, sanctions where a complaint
was withdrawn)
Court may award motion expenses to prevailing party
Law Iirm jointly responsible 'absent exceptional circumstances
Sua sponte can enter order describing conduct that violates the rule & direct to show cause why it has
not violated subdivision
eegan L`s had no inIormation oI co`s Iailure to disclose purported link between gall bladder
problems & weight loss system.
4 C sanctioned $100k Ior looking at what L knew at time oI Iiling (Irivolous)
4 pp Ct must consider aIter acquired inIo to determine iI Irivolous/sanctionable
11(b)(1) paper 'presented Ior an improper purpose is sanctionable
Witeead where writ oI execution obtained to execute on Kmart to college judgment w/ marshals &
media seize $ in vault oI store R 11 sanctions upheld b/c oI improper purpose (to embarrass Kmart)
rivolousness in criminal appeal context:
R 3.1, cmt 3
nders v. Cal. Important case oI criminal indigent s aIter reviewing record, iI court Iinds no basis
Ior appeal, the appeal would be Irivolous & the can ask to w/draw. Obligation to Iile brieI (known as
an nders brieI) to identiIy anything in the record that might arguably support an appeal. Provide a
64

copy to (has right to object to request to w/draw & provide add`l bases Ior appeal Court then reviews
record. II appeal would be Irivolous, it allows w/drawal. II not, allow counsel on appeal.
4 Rare time where appellate judge looks through record to see iI they made a constitutional
violation.
Smith v. Robbins (p.387) Cal. procedures Ior determining viability oI non-Irivolousness oI criminal
appeal were less stringent than nders. Supreme Court held that the purpose oI nders was to ensure
that a criminal `s case has a Iair evaluation not establish the procedures that must be Iollowed.
urden Ialls on the court to determine iI a constitutional violation was made.
4 nders sets the base, but Smith limits it
State sanctions cases:
Jandrt o sanctions Ior prematurely Iiling suits (impending law limiting such suits) but sanctions are
appropriate Ior Iailing to w/draw case sooner, mending Ior 9 months (pursuing a Irivolous claim)
L`s ethical duty to expedite litigation:
R 3.2, cmt 1: Purpose oI expediting: 'The glacial pace oI much litigation breeds Irustration w/ the
Iederal courts & ultimately, disrespect Ior the law (Roadway Express v. Piper)
How can R 3.2 be enIorced?
SelI-enIorcement by Ls (iI so unethical Ls gain an advantage)
Courts? (II so, no standard procedure to determine unethical delay Irom allowable delay)
Merely aspirational rule?
Litigation tactics: Hiding witnesses:
dvising witnesses not to talk to the other side
R 3.4(a) & (I)
ook ex: investigating additive in client`s wine. Important witness is chemist, but preIers not to
testiIy & testimony would damage client. Can you advise to go into the hospital Ior tests/surgery?
People v. Kenelly: Client settled case w/ X & agreed to avoid subpoena in X`s criminal trial & was
suspended.
Chevron Chemical Co L represented to court that W would be unavailable Ior 6 weeks due to surgery,
but would actually be available in 2 days. Jury verdict was overturned & remanded Ior damages due to
unproIessional misconduct oI counsel. (Possibly inappropriate might should have reported to
disciplinary authorities, instead oI punishing client)
lternative dispute resolutions:
R 2.1, Cmt 5 When a matter is likely to involve litigation, it may be necessary under R 1.4 to inIorm
the client oI Iorms oI dispute resolution that might constitute reasonable alternatives to litigation.
Mediators/rbitrators
4 2002 amendment
4 R 2.4, deals w/ L 3
rd
party neutrals; obligations to disclosure under R 2.4(b)
rbitrators, mediators, 3
rd
party neutrals in Iuture litigation 1.12(a) & (c)
Review:
MR 3.1 & RCP 11
Inherent power oI court (Chambers v. SCO) award oI attorneys Iees upheld even where conduct
not covered by R 11
Criminal sanctions &S v. Eisen
Tort damages amos v. Stroud (Liable Ior malicious prosecution where case pressed even where
claims as developed turned out to be totally & completely w/out merit)
!r4 Litigation Tactics
Issues:
Ethics oI tricks
&se oI peremptory challenges
Cross-examining the truthIul witness
eception as a vehicle Ior procuring the truth
65

&ses oI opponent`s inadvertently disclosed inIo; whistleblower cases
Civility codes
Creative lawyering:
ressing poorly to gain sympathy w/ the jury
4 Marketplace idea
4 Jury seeing through it
Cerryomes court has inherent power to regulate dress beIore the court not speech
Berner prohibiting advocacy buttons in courtroom retaining impartiality in courtroom
&se oI peremptory challenges:
R 8.4, cmt 3
Georgia v. M.Cullom - Strikes based solely on race are prohibited
JEB v. Alabama strikes solely based on gender are prohibited
Edmonson - Same limitations in criminal & civil
$tate v. Davis Strikes based on religion are allowed b/c too hard to prove based solely on religion &
religious discrimination is not prevalent
Cross-examining truthIul witnesses:
n Re aada:
4 Criminal case Ior 1
st
degree murder
4 eIense oI insanity (Iound by 6 psychiatric experts
4 sserted that deIense counsel pd his experts to Iabricate a diagnosis
4 o basis in Iact Ior the statement (also made statements to discredit all psychiatrists)
4 Justice or winning?
&sing deception in an attempt to discover the truth:
U$ v. Toreen substituted look-alike ; represented to the court that it was the ; eyewitnesses
identiIied the imposter; held unethical
n Re. Gatti L contacted company who reviews claims Ior insurance co to est. claim Ior client, posed
as chiropractor, obtained Iavorable inIo (p.405)
NY County Layers Asso. L may use non-lawyer investigators that use dissemblance (misstatements
to gather inIo) when:
4 Investigation includes civil rights violations or IP rights or authorized by law
4 Evidence must not be readily available by other means
4 Conduct may not violate other ethical standards
4 May not unethically or unlawIully violate rights oI 3
rd
persons (via humiliation, etc.)
n Re. Paulter Prosecutor posed as deIense counsel to Iind out whereabouts oI serial killer; suspended
Ior 3 mo`s b/c oI R 4.3, duty when dealing w/ unrep. Persons & R 8.4 Iraud
Ethics oI dealing w/ inadvertently disclosed inIo:
R 4.4(b), Cmt 2
Intentional isclosure: rom a Whistleblower
94-382: Rejects absolute rule that you can never use.
dvises:
4 ReIrain Irom reviewing material which is probably privileged/conIidential any Iurther than
necessary
4 otiIy the other side
4 ollow instructions Irom the other side
4 In case oI dispute, reIrain Irom use until court makes determination
Inadvertent disclosure through metadata
4 O 06-422 o limitations on use oI metadata. To prevent use, enter into agreement will
not be used, send doc in hard copy or P
4 urden on sending attorney
Civility:
66

4 Court actions:
Lee v. m. Eagle irlines numerous inappropriate actions at trial, so court cut
attorney`s Iees
l ar v. Martocci harassing opposing L, insulting opposing party, & threatening 3
rd

party led to a public reprimand, probation Ior 2 years, & anger management
4 Incivility outside oI court (where it`s most likely to happen)
Paramount Communications at deposition, L stated that opposing counsel could gag a
maggot oII a meat wagon; raises serious issue oI proIessionalism
In Re: Estiverne L suggests stepping outside oI deposition & settling dispute man to
man. Threatened L returns w/ gun & threatens to kill other L. Suspended gun toter Ior 1
year & 1 day.
4 Questions about regulating civility:
Standards are vague
Can be used as a method to limit zealous advocacy oI client (chill L Irom taking actions
Ior Iear oI sanctions)
ut, w/out civility public loses Iaith
Court should have power to regulate conduct oI those practicing beIore them.
Review:
What MRs are implicated by a L`s attempt to discredit a witness she knows is telling the truth?
What MRs are implicated when a L uses covert operations or deception in order to investigate a civil
claim?
What are a L`s obligations when she receives an opponent`s privileged inIo due to inadvertent
transmission?
What MRs provision covers the propriety oI using peremptory strikes in a way that would violate Iederal
constitutional law
7
!roblem 5 Disclosure of Law or Facts Favorable to the Other Side
Issues
4 uty to disclose adverse legal precedent
4 uty to disclose adverse Iacts
4 uty to correct Ialse deposition testimony
4 uty to inIorm court oI adverse Iacts relating to client`s criminal background
4 Special candor rules in ex parte proceedings
Obligation to isclose dverse Law
4 Prohibition
R 3.3(a)(1)
4 Mandate
R 3.3(a)(2)
Rationale
4 Has an obligation to 'recognize the existence oI pertinent legal authorities . The underlying
concept is that legal argument is a discussion seeking to determine the legal premises properly
applicable to the case. MR 3.3, Comment 4
4 R(3) Sec. 111: ailure to disclose may have the same eIIect as a misstatement oI law
4 Require disclosure oI adverse legal authority: assists courts which rely on counsel to supply
correct legal authorities to avoid erroneous legal decisions
oes not harm a/c relationships in same way as revealing adverse Iacts
4 $mit v. $.ripto-Tokai Corp.
Has teeth
4 atris v. N$ (416): Iailure to disclose adverse legal authority costs taxed against L personally
What do you have to disclose?
67

4 Op. 84-1505: uty to disclose adverse case on issue oI Iirst impression Irom which court
would beneIit (decided by another court in the state).
4 Tornert: Legal argument Ioreclosed by prior case. ever cited/distinguished case
admonished.
4 Pre.ision $pe.ialty Metals: Iailure to properly cite quote taking out oI context italicized
without noting 'emphasis added: Reprimanded.
Obligation to isclose dverse Facts
4 Prohibition
R 3.3(a)(1)
4 Mandate
R 3.3(a)(1)
4 Can`t aIIirmatively make a Ialse statement and also you must correct Ialse statements
isclosure oI Iacts in Iederal court
4 RCP 26(a)(1) disclosures:
Witnesses names, etc. oI persons with discoverable inIormation that party might use to
support claims/deIesnses
ocument (copy/description) to be used to support claims/deIenses
amage calculations, including supporting documents bearing on nature/extent oI injury
Liability insurance agreements
Continuing duty to supplement/correct disclosures |26(e)|
ailure to dvise oI acts
4 Toledo Bar Assn. non-disclosure oI client`s death. IndeIinite suspension.
$ee also Jeffers (422): IIirmative misstatements at settlement conIerence about Client`s
death and stated could no communicate with client because the client`s brain was not
Iunctioning. Ct: 2 year probation.
4 David (421): lying in court about holding in administrative proceeding. . Ct: reverse court
decision based on misstatement and consider sanctions.
Candor in Ex Parte Communications
4 R 3.3(d) and Cmt 14
Obligation when assisting pro se litigant
4 ormal Op. 07-446 (May 6, 2007): o disclosure obligation
ot misrepresentation Ior an attorney to ghost write` a pleading and then have the party
appear pro se on the pleading
Candor in iscovery
4 re statements in discovery 'to a tribunal?
4 R 3.4(d)
4 Jones v. Clinton: retraction by attorney Ior misstatements in course oI deposition disclaiming
any statements made regarding the untruths by client (Pres. Clinton).
4 iscovery is includable in your obligation to be truthIul to a tribunal.
Sanctions Ior ailure to Comply with iscovery Requests
4 Pentouse (425): dismissal oI case Ior Iailing to turn over discovery inIo
4 Pumprey: only turned over tapes where guns did not go oII verdict in Iavor oI Gun Co.
overturned.
4 "ual.omm n..: 8.5 million sanction Ior Iailure to disclose documents
4 ote: Sanctioning the L instead oI the client (pp. 426-7) |denial oI Iees; suspension; imposing
other side`s attorneys Iees|
Twist on Candor question
4 isclosing client`s criminal record
Ex. Court clerk mistakenly inIorms judge that client had no previous record what is the
duty oI deIense counsel to correct the misconception?
68

4 ormal Op. 287 (428)
Court asks the L must decline to answer (or withdraw)
II circumstances indicate that court is relying on L to corroborate statement oI clerk
must decline to answer or withdraw).
II clear court is not relying on him to corroborate no duty to disclose.
Review oI Truth-Telling Rules see Handout
Obligation to isclose Settlement uthority to Court
4 ormal Op. 93-370 (430): don`t disclose to judge; judge should not ask
Review
4 What are a lawyer`s obligations to disclose to a tribunal adverse law not disclosed by an
opponent?
4 What are a lawyer`s obligations to disclose adverse Iacts not disclosed by an opponent? How
does that disclosure obligation diIIer in ex parte proceedings?
4 What ex parte proceedings are covered under Rule 3.3(d)?
4 &nder what circumstances is a lawyer required to correct the court`s misstatement oI the client`s
criminal record?
4 &nder what circumstances may a lawyer reIuse to disclose to the court the lawyer`s settlement
authority during settlement conIerence?
4 What disclosures are required in Iederal civil litigation as part oI mandatory disclosures?
!roblem lient Identity and Handling !hysical Evidence
Issues
4 Propriety oI disclosing client identity
4 Obligations when in possession oI physical evidence
4 iIIerence between viewing and possessing physical evidence
4 Loyalty, client trust, and humanity
4 dvice to clients on retention, alteration, destruction oI physical evidence
Identity oI Client
4 InIo generally not privileged: client identity, amount oI Iee, identiIication oI payment by case
Iile, general purpose oI work not generally privileged. See R 1.6
Exceptions
4 Baird (433): L sends client`s overdue taxes without disclosing names oI delinquent taxpayers
no investigation started by IRS subpoena to determine names protected.
4 R(3) sec. 69, cmt g: Rejects categorical approach (ie never privileged) must look to see iI
revelation 'directly or by reasonable inIerence reveal the content oI a privileged
communication.
'Last link octrine (433)
4 Would consultation itselI be enough to link client to crime? (p. 433)
4 Baltes v. Doe : C (driver in a hit and run accident) consults L beIore he is discovered and L
begins to negotiate plea court holds that C`s identity is privileged.
4 Na.kson: C jumped bail and consulted L about warrant Ior his arrest and sought to negotiate
plea agreement in advance. Court: prosecutor should use other alternatives to discover
whereabouts and court should balance interest oI conIidentiality v. need to know. (ut see n re
Doe (p. 433) (duty to disclose a/c priv does not overcome continuing crime oI Iugitive))
In re Grand Jury Subpoena (4
th
): Once client authorizes L to disclose purpose oI procuring counsel
motives/purposes no longer conIidential and I is no longer conIidential (must be disclosed)
4 ote: rejects last link doctrine
II Court orders disclosure: should you go to jail rather than dislclosure?
4 R 1.6(b)(6) and cmt. 13
4 ut see or (Cal: 435): should have gone to jail rather than reveal c identity. Extreme minority
view.
69

Taking Possession oI Physical Evidence
4 n re Ryder: L removes C`s gun and stolen money Irom saIe deposit box and puts in own box
where discovered
L has no right to keep instrumentalities oI crime
Possession not within any privilege
Consulted other Ls Ior advice but didn`t Iollow
Suspended Ior 18 months
4 $oers v. Olell (438): L reIused to honor coroner`s subpoena Ior kniIe allegedly used by client
in a murder. Ct: L not a depository Ior criminal evidence. Keep Ior a 'reasonable period oI
time.
4 R 3.4, cmt. 2*
4 dded with 2002 amendments
4 ** recognizes competing interests oI a/c priv and the interest oI not obstructing justice
What about stolen money delivered to L by client?
4 o. $ee n re January (p. 438-39): physical evidence has not historically been the subject oI the
a/c priv
4 ote: iI L does not have money then has nothing to turn over to the police. Cannot be accused
oI obstructing access to it. II thinks C will spend money, advise him he may not do so.
4 Morrell: riend oI Iinds kidnapping plan developed by . L assists in turning over to police.
Client argues ineIIective assistance by turning over plan
Ct. no ineIIective assistance. Physical evidence taken by L not protected Irom disclosure
ote: statements made to L would be protected even though physical evidence is not
The Iine line
4 Meredit: C`s disclosure oI location oI wallet privileged. Removing wallet destroys privilege.
4 R(3) adopts this approach:
May take possession Ior time Ior non-destructive testing
Must notiIy authorities
est not to take property
iIIerence between knowledge oI proepty and possession oI property
4 'uried bodies cases Iailure oI L to disclose location oI bodies oI those murdered by C. L
cleared oI wrongdoing by grand jury.
4 Belge: Learned oI 2 past crimes. uty bound not to disclose location oI bodies. Okay Ior L to
destroy photographs he took and conversations he had with C.
4 Clut.ette v. Rushen: attorney who retrieves receipts must turn them over same; but merely
knowing about receipts does not trigger obligation.
uty oI conIidentiality v. duty oI humanity
4 Hypo: Client claims to have killed several women and buried their bodies in a secluded place
you check it out, and discover that one oI the victims is not yet dead. May you tell the police her
location?
R 1.6(b)(1) prevent reasonably certain death
McClure v. Thomson: C killed mother and two children. C stated that Jesus had 'saved children
and provided whereabouts oI children to L. &nsure iI children were dead. irst tried to negotiate plea
with state when Iailed had secretary call and tell whereabouts oI children.
4 Ct.: isclosure was appropriate under (then) MR 1.6(b)(1)
estroying or ailing to Retain Physical Evidence
4 ook example: Iingerprints on gun can you advise to wipe oII?
O o. Obstructing justice.
R 3.4(a) and (b)
Criminal sanction: conspiracy to obstruct justice (p. 444)
Client with tape recorded conversations can you advise client to destroy?
70

4 R 1.2(d) may not counsel/assist the client in Iraud/criminality
4 Even iI not unethical (or obstruction oI justice) how will it look in hindsight iI client destroys
tapes may need to demonstrate what is OT on them |Role as advisor R 2.1|
4 II via 'wink advise to destroy c will have incentive to shiIt responsibility to L
4 ormal document destruction procedures okay but see R 3.4(a), cmt 2 ('impairing its
availability in a pending proceeding or one whose commencement can be Ioreseen.)
Enron`s uditors (Rehnquist)
4 Email advising employees to Iollow document destruction policy.
4 oes not in and oI itselI demonstrate that company acted 'corruptly
4 Statute does not contemplate 'someone who persuades others to shred documents under
document retention policy when he does not have in contemplation any particular oIIicial
proceeding .
Review
4 What are a lawyer`s obligations when the lawyer procures Irom her client instrumentalities oI her
client`s crime?
4 What are a lawyer`s obligations when the lawyer is inIormed but does not take possession oI
a client`s instrumentalities oI a crime?
4 re clients required to retain materials that may be relevant in a subsequent civil or criminal
proceeding?
4 What is spoliation? What are the legal consequences oI spoliation?
7
!roblem 7 The client who intends to commit perjury
Issues
4 uties when dealing with potentiality Ialse evidence
4 ReIusing to oIIer such evidence
4 Knowledge oI Ialsity
4 Client`s right to use evidence
4 Client`s right to lie in own deIense
4 EIIective assistance and evidence reIusals
4 Remediation obligation
4 The tension between loyalty to client and search Ior truth
When does a lawyer 'know something?
4 'Knowledge deIined. R 1.0(I)
ctual knowledge oI Iact in question
Knowledge may be inIerred Irom the circumstances
O o plausible deniability
4 Patsys Brand: L allowed client to Iile a Ialse aIIidavit that it knew was Ialse court issued a
'show cause order oI why sanctions would not be appropriate
4 $ee R 3.3(a)(3) and cmt |8|
Preparing a Client/Witness v. Improper Coaching
4 Resolution Trust v. Brigt: attempt to persuade witness to change aIIidavit; witness reIused.
.Ct.: improperly attempting to inIluence witness. isregarded w statement that L`s were just
'doing their job because saw change as a result oI 'obvious job pressure. isbarred Irom
Court

t
Cir.: Reversed. Ls actions were the goal oI eliciting an accurate and Iavorable
aIIidavit
4 $tate ex re Abner v. Elliot (Ohio). ocument prepared by law Iirm Ior asbestos plaintiIIs setting
out how to prepare Ior a deposition and what to say/not to say improper coaching (ordered
disclosure oI document)
71

4 G- Holdings, n.. v. Baron & Budd (S...Y.): held seminars and 20 page memo entitled
'Preparing Ior Your eposition went beyond 'general tips on how a witness should conduct
himselI or herselI during a deposition and provides speciIic Iacts` that all clients should testiIy
to, speciIic responses clients should give . Regardless oI what the truth might be in a particular
case.
4 n re Foley (Mass.): encouraging 'client (I agent) to use a Iabricated story by L to ensure
success at trial 3 year suspension.
Witness Who May TestiIy alsely
4 R 3.3(a)(3): L 'shall not knowingly oIIer evidence that the L knows to be Ialse.
Suborning or aiding perjury
4 Harris v. NY: criminal `s privilege to testiIy in his own behalI does not include the right to
commit perjury
4 Tierry (L). L attempted to have witness testiIy Ialsely on behalI oI his client. Indicted and
disbarred. ('So basic to the criminal justice system oI this country is the sanctity oI the oath ... ')
4 Lamplug. L turned over docs Irom C without investigating authenticity. .Ct. sanctioned L.
3
rd
Cir. Reversed and said not reward C`s misconduct by sanctioning the L or Iinding ineIIective
assistance oI counsel.
How L should proceed when L OWS a Witness will lie
4 R 3.3(a)(3) may not oIIer Ialse evidence
Why: suborniation oI perjury
4 R 3.3(b) iI L has knowledge that a person intends to engage in Iraud or criminality related to
proceeding, must take remedial measures
4 R 3.3, cmt 6
4 Great example in the criminal context: Tibbs (p. 453): L learns that wiIe`s alibi testimony in
Iirst trial was Ialse hung jury. oes not call in second trial.
Has L provided ineIIective assistance oI counsel?
O o. s a 'matter oI law not calling a witness who will lie cannot be ineIIective
assistance.
Summary
4 L knows that W will lie
3.3(a)(1): may not make Ialse statement oI Iact
3.3(a)(3): may not oIIer Ialse evidence
O OTE: old 3.3 had the 'material|ity| requirement now any Ialse
statement/evidence
4 L learns later that W lied:
3.3(a)(1): must correct Ialse statements oI material Iact
3.3(a)(3): must take reasonable remedial measures when L learns she has oIIered Ialse
material evidence
Material v. non-material evidence
4 U$ v. $affer E6uip. (4
th
): misrepresented qualiIications/credentials oI expert. Material? Ct.:
Yes. Impeachment evidence (attack wtiness who put credentials oI W who put together much oI
data relied on by party
4 Florida Bar v. Cox. Prosecutor provided only a pseudonym Ior inIormation who posed as minor
during sting prohibited deIense Irom discrediting witness. Ct.: 1 year suspension
What iI the Ialse statement (lie) is Irom the Government: ny diIIerent obligations? (or to catch a
criminal)
4 n re Friedman (Ill.): L oIIered perjured testimony to catch L who was bribing witness. o
sanction law was unsettled. ut did say, in the Iuture, it would be sanctioned.
72

4 Operation Greylord`. iling Iake suits to catch corrupt judges. o discipline against L/agents
who Iiled suits. |Murpy (government lawyers acted 'honorably evidence obtained in sting is
not suppressed.)|
May the L call a Client who L may suspect may commit perjury?
4 In criminal context: right to testiIy has Rule and Constitutional dimensions
R 1.2(a) L shall abide by client`s decision oI 'whether the client will testiIy
4 Ro.k v. Arkansas: right to testiIy has limits but limitations cannot be arbitrary or
disproportionate |Here absolute ban on hypnotically reIreshed testimony violated right to
testiIy|
The diIIiculty oI the ineIIective assistance oI counsel claim regarding client testiIying
4 Easy case to Iind ineIIective assistance: Ni.ols (11
th
): L threatened to withdraw iI C testiIied
not because oI Ialse testimony but because criminal past could harm his case did not inIorm C
oI his right to testiIy.
4 Harder/close cases (p. 456): The issue oI whether the Iailure to tell oI the right to testiIy is
'harmless error no prejudice reviewing case could not satisIy $tri.kland
ut what iI Criminal wants to testiIy Ialsely? Is there still a constitutional right?
4 Nix v. Witeside
oes have right to lie on the stand under the 6
th
mendment?
eIore trial tells L that he saw that victim had a gun ('II I don`t say I saw a gun I`m
dead.)
IneIIective assistance oI counsel Ior L to advise Client that he should not testiIy to seeing
a gun?
Constitutional right to testiIy does not include the right to testiIy Ialsely.
'We hold as a matter oI law, counsel`s conduct complained oI here (threatening to
withdraw or inIorm court oI perjury) cannot establish the prejudice required Ior relieI
under the . $tri.kland inquiry.
4 Criminal context: take remedial measures (Rule 3.3, comment 10)
issuade client Irom oIIering Ialse evidence
Seek to withdraw
isclose to court
4 Post ix opinions
U$ v. Teague. L advised C not to testiIy and C took L`s advice. IneIIective assistance?
o this is part oI the L`s role not a violation oI it.
U$ v. Scott: L sought to withdraw iI testiIied. Court told that he would have to
proceed pro se iI he testiIied. IneIIective assistance.
&se oI arrative Testimony When Client insists on TestiIying (and the court will not allow L to
withdraw)
4 R 3.3(b) oI .C. R: II withdraw nor permitted: 'the lawyer may put the client on the stand to
testiIy in a narrative Iashion, but the lawyer shall not examine the celint in such manner as to
elicit testimony which the lawyer knows to be Ialse, and shall not argue probative value.
4 ot adopted by Model Rules
4 M.Doell: beIore utilizing narrative approach must know that the client intends to testiIy
Ialsely: 'bsent the most extraordinary circumstances, such knowledge must be based on the
client`s expressed admission oI intent to testiIy untruthIully.
What to do aIter perjury has occurred (the diIIerence between knowing the client will commit and has
committed)
4 87-353: 'it is now mandatory . Ior a lawyer, who knows the client has committed perjury, to
disclose this knowledge to the tribunal iI the lawyer cannot persuade the client to rectiIy the
perjury.
4 L must take remedial measures (R 3.3, cmt 10)
73

L should talk to C and seek C`s cooperation with regard to withdrawal or correcting Ialse
statement
II C will not correct ask permission to withdraw (although unlikely to be granted and
will not be suIIicient to 'undo Ialse evidence)
Correct the record make 'such disclosure to the tribunal as is necessary to remedy the
situation even iI that means violating R 1.6
ote: you can`t control what others do (court mistrial, disclose to jury, or nothing) but
you have done all you can do.
See DePollo (465) example oI how should be handled
uration oI the Obligation to Remedy alse Evidence
4 R 3.3(c) 'continues to the conclusion oI the proceeding
4 Cmt |13|: 'the proceeding is concluded within the meaning oI this Rule when a Iinal judgment
has been aIIirmed on appeal or the time Ior review has passed.
4 eed Ior Iinality (Ior the lawyer and the system)
ut unjust?
O cquittal no obligation to reveal what you learn aIter acquittal. Would raise
double jeopardy issues. |ote: Pros. May seek perjury charges against C but L
does not have obligation to disclose|
O Conviction on appeal have obligation to take remedial measures
!roblem 9 ontact with Represented and Unrepresented !ersons
Restrictions on Contacts with Represented Persons
4 R 4.2
In representing a client
L shall not communicate about the subject matter oI the representation
With a person L knows is represented by another L in the matter
&nless (1) L has consent oI other L; (2) is authorized by law; (3) court order
4 Op. 95-396
an applies to:
O oth criminal and civil
O Represented persons (not just parties)
O Even though represented party initiates contact |4.2, comment 3|
O pplies to L`s investigators as well as L
O OTE: R(3), sec. 99: would allow contact by pro se attorney (party) who
represents no other person in matter
4 Talking with represented persons
L may speak to a represented person who is seeking a second opinion or who is exploring
changing lawyers |R(3) Sec. 99, comment c|
II L starts conversation with person erroneously believing not represented upon
learning represented must end conversation |4.2, cmt 3|
Only restricted Irom communicating with represented person about 'the matter may
discuss other issues
4 Protecting the Client-Lawyer Relationship
92-362: may not copy opposing client on settlement letter
Communicating with Insurance djuster (or is an insurance adjuster a 'represented party?)
4 When can you contact insurance adjuster?
&tah State ar 98-07: P`s L may have direct adjuster contact beIore insurer reIers matter
to counsel, but not thereaIter. Iterward must contact counsel hired by adjuster.
4 OTE: o such prohibition on contacting general counsel Ior cooperation even iI there is
outside Iirm representing the corp. ormal Op. 06-443 (ug. 2006).
74

May the L have a paralegal or investigator contact the represented party?
4 o. Rule 8.4(a): lawyer may not attempt to violate any rule 'through the acts oI another.
Client to Client Contact: May the lawyer suggest that her client call the represented person directly?
4 ot prohibited by the Rules
dvantage: could terminate disputes short oI trial
o acting out lawyer-prepared 'script. $ee Y Ethics Opinion 2002-3 and R 4.2, cmt 4
(isn`t that what L is hired to do?)
ine line? Holdren v. GM (L had client talk to coworkers Ior Iavorable aIIidavits
Lawyer as Party: Can they contact the other side?
4 C ar Ethics Opinion 258: Overreaching is still a problem prohibits L/party Irom contacting
other side iI represented (even though non-lawyer could contact)
4 ut See R(3) approach L can contact represented opponent iI other side is not a client and as
long as L has no other client in the matter
Contact with Employees oI a Corporation Represented by Counsel and Iormer Employees (important)
4 Opposing 'person is a corporation what living being within the corporation are you prohibited
Irom communicating with?
4 /C Priv: II a party that is in litigation with a corp wants to compel the corp to produce docs
prepared by the corps lawyer as part oI an internal investigation: Restrictions imposed: corp may
deny access to the docs reIlecting communications between the corp`s lawyers and employees iI
the communications are within the scope oI the atty-client priv
4 Rule 4.2, Comment 7: Interview employees oI the corp. to learn Iacts relevant to the . . .
What about contacting former employees?
4 R 4.2, cmt |7|
4 You can contact Iormer employees without permission oI counsel.
Some limitations
4 Ordinarily Okay
R(3) 100: 'contact with a Iormer employee or agent is ordinarily permitted even iI the
person had Iormerly been within a category oI those with whom contact is prohibited.
&LESS L knows Iormer e/e is still consulting company`s lawyer.
&T: protection extends to persons with trade sectres, or conIidential client inIormation.
See Camden (L prohibited Irom speaking to Iormer case manager on C`s claim) G-
Holdings (e/es exposed to privileged inIormation presence oI corp counsel or special
master)
Contacting Government Employees When Suing Government:
4 ormal Op 97-408: M.R. 4.2 does apply, but exception applies: can contact those with
authority to have them take/recommend action in the matter; sole reason to address policy issue;
must give govt counsel notice.
Interviewing &nrepresented Persons |ote: this includes employees oI your corporate client|
4 R 4.3
o not imply disinterest
May recommend person get counsel
Interviewing Employees oI your Own Client
4 R 1.13(I)
L shall explain the identity oI the client when . . .
4 R 1.13(g)
Talao (whistleblower and corporate lawyer)
4 HelpIul Hints
dvise employee at the beginning oI the interview that L represents the organization and
not the employee
75

Explain that the lawyer may share inIormation provided by the employee with oIIicers oI
the corp. or with law enIorcement personnel or other third persons iI in the interest oI
the organization.
ssess whether there is a possibility oI criminal liability Ior the employee and iI so
whether she should advise the employee oI the option oI hiring her own L or having her
lawyer present during the interview
dvising Corporate e/es not to speak to Ps counsel?
O See, R. 3.4(I) governing to whom such advice might be given and when such
advice is inappropriate
4 o the police have to have corporate counsel present to conduct interviews oI corporate
employees?
Rules apply to criminal cases R 4.2, cmt 5
&S v. Thomas: Violation oI 4.2 to talk to represented person who waived Miranda; not
constitutional violation (no reversal); restriction on use (discharge Iuture conduct)
4 Rules and Constitutional Violations
Rules
O Grounds Ior discipline/sanctions
O Possible grounds Ior exclusion
O ot ground Ior reversal
O Governed by 4.2
Constitutional violation (oI right to counsel)
O Grounds Ior exclusion, reversal, and to quash indictment
O Governed by 5
th
and 6
th
amendment right to counsel
Can ederal gents be excluded Irom non-contact rule?
4 Reno Memo
ept oI Justice has long maintained and continues to maintain, that it has authority to
exempt its attorneys Irom the application oI Model Rule 4.2
O ut see Matter of Hoes (&S permitted C police to talk to represented
criminal deIendants without counsel. Public censure Reno memo
unconstitutional.
77
Problem 29: The Crusading Prosecutor
Special Rules Ior Prosecutors: Prosecutors as 'ministers oI justice
4 escription oI Prosecutor`s &nique Role
4 Rule 3.8 on Responsibilities oI Prosecutors
(a) limits on charging behavior Probable Cause
(b) obligation to Mirandize deIendants and give an opportunity to procure counsel
(c) reIrain Irom seeking waiver oI important pretrial rights Irom unrepresented s
(d) disclosure oI exculpatory inIormation: (but remember Brady v. Md.)
(e) procedural hurdles Ior issuing subpoenas
(I) limits on extrajudicial statements
4 Publicity
R 3.6(a) general rule all lawyers
R 3..8(I) speciIic to prosecutor
4 Presumptively Prejudicial isclosures
$ee R 3.6, cmt |5|
SaIe harbor: R 3.6(b)
Which oI the Iollowing statement is proper Ior a prosecutor to say under Rule 3.6?
76

O (a) 'We have indicted Kyle Jones, who calls himselI 'Kyle the Killer and he is
armed and dangerous.
4 Rule 3.6
O (b) 'The accused was last seen heading south and is armed and dangerous.
4 3.6(b)(6) and (7)
O (c) 'II anyone has inIormation about Ms. Jane oe, who has just been indicted,
please call our hotline.
4 3.6(b)(5)
O (d) 'We are investigating this scandal, and the next step will be Ior us to seek an
indictment.
4 3.6(b)(3) and (4)
O (e) 'The indictment states, The deIendant never visited his old aunt except to
nag her to change her will and then he poisoned her Iood when she did that.
4 3.6(b)(2)
Prosecutor press conIerence dos and don`ts
O May
4 Recite public record
4 ote belieI in public integrity
4 State is armed and dangerous
4 sk Ior inIo to apprehend
4 State scandal investigation is ongoing
4 Recite indictment
O May ot
4 llude to possible indictments iI will have a substantial . . .
4 What is a 'public record?
Gansler (pp. 483): prosecutor in press conIerence releases evidentiary details, prior
criminal records, alleged conIessions, and plea oIIers
O Public records includes public sources (media) and may disclose anything that a
private citizen could discover Ior himselI
4 Constitutional Standard (irst mendment concerns)
Gentile v. Nev. Bar (1991)(p. 482)
n re Morrissey: using media to try case. Released taped conversation oI grand jury
witness recanting to send message to other witnesses. Criminal contempt Iound under
'reasonable likelihood oI material prejudice standard no irst mendment issue.
O Te vagueness 6uestion: what conduct creates a 'reasonable likelihood oI
material prejudice? Can a L know what conduct will subject her to discipline?
How Iar does rule go?
O Visser (Iowa): civil case Iaxed a misleading statement about pending case to
reporter. (a) only one article; (b) published two years beIore the trial. Ct: . . .
Tit Ior Tat
4 R 3.6(c)
Right to protect client Irom substantial undue prejudicial eIIect oI recent publicity not
initiated by L or client
4 Problems
Scope oI permitted response ('reasonable lawyer would believe is required)
The Rules v. The Tort System: Can Ls be subject to tort liability Ior statements even iI statements
protected under the Rules?
4 $eidl v. Greentree: Immunity Ior what is included in complaint but not Ior what is put in a
press release.
77

4 Bo.etto v. Gibson: step closer sends copy oI malpractice complaint to reporter. Outside the
regular course oI proceedings and not relevant to the proceedings. eIamation complaint could
go Iorward.
Obligation oI State`s Lawyer (when cops lie)
4 R 3.3(a) (shall not knowingly oIIer evidence/make Ialse statement to court)
4 People v. Berrios (Y): Prosecutor joined deIense in questioning consistent story oI police that
drugs were abandoned. Then J. urger burden should not be shiIted because no reason to view
police testimony with suspicion.
4 Warri.k: Prosecutor who oIIered deal to W to testiIy. On stand W denied having a plea
arrangement. Prosecutor did not correct misstatement. . . .
4 Issues with Granting Immunity
Prosecutors oIIer deals all the time to cooperating witnesses
O $ingleton (10
th
): OIIering immunity is not the equivalent oI a bribe Ior testimony.
Immunity approved.
O But see Bonet (Wash.): Secret deal to drop charges iI reIuses to testiIy Ior
another . Immunity without court approval is nothing more than . . .
Prosecutors Investigating eIense Lawyers
4 R 3.8(e)
May not subpoena L unless reasonably believes:
O InIo not within privilege
O Evidence sought is essential
O o other Ieasible alternative
O See also, Mass Model Rule (p. 492): requires judicial approval
4 Responding to a subpoena
940385: resist subpoena by any legitimately available grounds
Grand Jury (9
th
): investigating potential tax Iraud by C. Subpoena wanted: what Iees
paid by client, observation oI client`s spending habits, trust account balances. o iIth
mendment right (could not show link between testimony and prosecution oI L); no a/c
priv what seeking not conI. inIo. or purposes . . .
4 ee orIeiture
Criminal eIense Rule: get your money up Iront and in cash
II Iees can be IorIeited iI convicted create a contingent Iee?
O Monsanto: Supremes resolve conIlict all property oI subject to IorIeiture
including attorneys` Iees (statute doesn`t say 'crime does not pay, except Ior
attorney`s Iees)
O &S v. Matta-Timmins
Potential Iee IorIeiture conIlicts/issues:
O Contingency Iee (retain Iee only iI Iound not guilty)
O L may have to sue his client to get 'clean money
O L may have to withdraw because oI the Iinancial burden . . .
!roblem The Ethics of egotiation (or the game of negotiations)
. . .
4 Lawyer is agent oI client
4 R(3), sec. 21: 'authority to take lawIul measure within scope oI representation that is reasonably
calculated to advance client objectives . . . ' |principal/agent|
4 . . .
4 uty to communicate with client
R 1.4(a)(2) duty to communicate regarding 'means by which the client`s objectives are
to be accomplished
78

. . .
Plea argains
4 Prosecutors should be willing to plea bargain
4 counsel obligation; recommend plea only aIter appropriate investigation and certainty that it is
a good bargain
. . .
4 MR 1.4, cmt |2|
Candor in egotiations
4 Hypo
Phyllis alldown sued her employer Hamp`s Lampshades.
Is deIenseman guilty oI an ethical violation Ior this conduct?
What point do we move Irom the ability to engage in negotiation to lying?
In attempt to represent his C and achieve a settlement, he lied. He`d be subject to
discipline because it was a material Iact.
4 Rule 4.1
4 Mere puII; Misdirection
R 4.1, cmt |2|
O Estimates oI price or value; intentions as to acceptable settlement
O ecause oI conventions oI negotiating, there are some things that you can 'lie
about and it not be considered unethical.
O Look at this comment.
R 4.1(a) omission oI material Iacts can be the same as making a Ialse statement
Ex. 'My client
Why Okay? ecause everyone`s doing it? . . .
Ex. Ms. PalsgraI was on her way to her weekly meeting at the pool hall to hang out with
her Iriends who are selI-described 'hooligans. s she was driving she was hit Irom
behind by rank. In negotiations, P`s lawyer decides to say that P was going to church
when she was hit and not to the pool hall.
O Is this a material Iact? It doesn`t aIIect liability.
ormal Op. 06-439:
O Statements which are less than entirely Iorthcoming acceptable iI:
4 Statements are oI a kind upon which parties to a negotiation ordinarily
would not rely
4 . . .
4 alse Statement oI Material act
Fire ns. Ex.ange v. Bell
4 &nderstanding egotiation Strategy
oes negotiation have to be a zero sum game? winner and a loser.
Practical note: reputation Ior dishonesty in settlement negotiations will Iollow L.
uty to Volunteer InIormation: Client`s death
4 Jiri (yes.)
4 Matter of Forrest
4 ormal Op. 95-397 (p. 338)
4 R 4.1(b) and cmt |1|
Davin v. Daam
O ailure to disclose is same as lying about status oI Ioreclosure
. . .
4 ealing with the IRS, ormal Op. 214 (IRS entitled to same honesty a lawyer owes to an third
party in the course oI a representation, but no more.)
79

4 Hypo: Linda Lawyer has Iiled suit on behalI oI Harry Whodini.
II you have a client whose SOL has run and you don`t reveal it to other side, is it Iailure
to disclose a material misrepresentation?
O ope.
Statute oI Limitations, Op. 94-387: Can Iile (iI okay in jurisdiction)
uty oI isclosure: Criminal context
4 Brady v. Maryland disclosures
Contours oI Bradys disclosure requirements.
O Constitutional law issue
O isclosure oI evidence Iavorable to as to guilt or punishment
O Upon request of D
O ote See R 3.8(d). |Brady constitutional requirement; 3.8 ethical obligation
(has jurisdiction adopted?)|
Brady Example
O People v. Jones
Brady and Rule Compared
O Brady
4 Constitutional requirement
4 uty to disclose exculpatory inIo
4 . . .
Limitations on what settlement agreements (results) can be reached
4 Threatening criminal charges in civil settlement negotiations: 92-363
Criminal allegations well Iounded
o suggestion oI improper inIluence
. . .
4 argaining away ethics charges: 940383.
o. 'There will Irequently be . . .
egotiate: Part oI greement not to represent Iuture clients
4 Can`t do this
4 R 5.6(b)
Opinion 93-371
O Prohibits Iuture access to L
O Results in settlements that do not reIlect merits oI P`s claim but to 'buy oII
counsel
O Creates conIlict between present and Iuture clients
Florida Bar v. $t. Louis (include retainer in settlement disbarred).
But see Feldman (upheld agreement even though it violated equivalent oI 5.6(b)
market will supply another lawyer iI claim legitimate)
ggregate Settlements
4 R 1.8(g)
uly 9,
Ch. VII: The elivery oI Legal Services
Problem 31: Legal dvertising
ote: Seeing less oI lawyers makes public think more oI them?
dvertising/Marketing &niverse
4 Mass Media
usiness cards
irm brochures
illboards
80

ewspaper
Internet ads/websites
O Social networking sites
Radio
Television
Email
Mail
O Mass mailing
O Targeted direct mail
4 Personal
IIiliations
Internet chat rooms
In person telephone contacts
Contract through agents (runners)
Personal solicitation
4 Canon 27, Canons oI ProIessional Ethics (1908): 'It is unproIessional to solicit
proIessional . . .
4 Bates v. Ariona
Making . . .
Opened a legal clinic and advertised 'very reasonable Iees
'State interest in regulating maintaining proIessionalism within the bar; maintain
attorneys` reputation with the public
oes not outweigh L`s Iirst amendment right
ut: 'In holding that advertising by attorneys may not be subjected to blanket
suppression . . . we, oI course, do not hold that advertising by attorneys may not be
regulated in any way. We mention some oI the clearly permissible limitations on
advertising not Ioreclosed by our holding.
4 reas where state may continue to regulate advertising under Bates
alse, deceptive, misleading ads
Quality claims
In-person solicitation
Coercive conduct; duress
orced speech
Time, place, and manner
4 and MS Response to ates
M.R. ProI. Conduct 7.1
Miss. R. ProI. Conduct 7.1 (-109)
4 Impact oI Bates
Initially reduced costs Ior routine legal services
Reduced barriers to market entry served to promote competition through exposure oI
new Ls
Today, very Iew (iI any) ads promote price competition
arriers to market entry now in high costs oI ads (changing with the internet)
Solicitation: In Person
4 Oralik v. Oio $tate Bar Assn
True ambulance chaser. Learned about accident and went to see victim in traction to
'sign her up.
L: This is just like Bates
Ct.: o it`s not (see p. 520)
81

O Pressure; no opportunity Ior reIlection; uninIormed; no chance Ior counter-
education; Ls trained in persuasion; client vulnerability
O o actual harm required it is presumed
4 Rule 7.3
4 Hypo
L calls all clients over 50 and says 'Everyone is worried about how they are going to pay
Ior their retirement and provide Ior their loved ones aIter they`re gone. Ls can help with
some oI those issues. Why don`t you stop by soon and have a routine legal checkup. I
will only charge you Ior a one-hour consultation, and it will help to put your mind at
ease.
O ppropriate under 7.3?
O One oI the exceptions is prior proIessional relationship and these are prior clients.
This is okay.
4 Comment 2
uto dialing
Solicitation: irect Mail
4 'Targeted irect mail mail directed personally to someone who has a speciIic need Ior legal
services
. . .
4 Supreme Court settles matter once and Ior all
$apero v. entu.ky Bar Assn
O Kentucky rule prohibited letters 'precipitated by a speciIic event or occurrence
involving or related to the addressee rather than (public generally)
O Shapero sought to send letters to those who Ioreclosure suits Iiled against
O S.Ct.: Could have published ad in the paper, sent bulk mail advertisement. ot
same risk oI overreaching ('printed advertisement . . .
4 Rule 7.1 and 7.2: Response to Bates
4 Rule 7.3: Response to $apero and Oralik
4 la. Rule oI ProIessional Conduct 7.4:
(1) lawyer shall not send . . . a written communication directly or indirectly to a
prospective client Ior the purpose oI obtaining proIessional employment iI . . . the written
communication concerns an action Ior personal injury or wrongIul death or otherwise
relates to an accident or disaster involving the person to whom the communication is
addressed or a relative oI that person, unless the accident or disaster occurred more than
30 days prior to the mailing oI the communication . . . The Iirst page oI such written
communications shall be plainly marked advertisement` in red ink, and the lower leIt
corner oI the envelope containing a written communication likewise shall carry a
prominent red mark.
. . .
4 ut see
licker (4
th
): 30-day ban on direct mail to criminal deIendants Irom date oI charge
invalid criminal s need rep within this time, do not object to hearing . . .
Chat Rooms
4 Where does this type oI solicitation Iall on the continuum?
Like ad in newspaper (ates): iI you go looking Ior it you`ll Iind it?
Closer to Ohralik? Speaking directly to prospective client.
R 7.3 deIines as 'solicitation
Ethics 2000 Commission considered prohibiting chat room solicitation reasoning that it
is the same as a telephone conversation
82

4 Cal State ar Opinion (2004) |p.524| (ot in person solicitation but was 'intrusion, coercion,
duress, compulsion, intimidation)
4 .C. ar (p. 524): &pheld a virtual law Iirm provides services exclusively over the internet.
ut must comply . . .
. . .
4 auderer: ewspaper ad oIIering represent women injured by use oI alkon Shield. Included a
drawing . . .
State said that it would stir up justiIication. Court said that this ad was protected by the
1
st
mendment.
'orced speech: Requiring isclaimers
4 Can`t bar advertising, but can the state actually say you have to say things?
auderer: 'There are material diIIerences between disclosure requirements and outright
prohibition oI speech.
Ex.: Can require L to say in ad that in contingency Iee context client may have to pay
expenses iI the C loses.
4 Milavetz v. G(something) and Milavetz v. &S march 2010
SCOT&S handed down last term. Question was whether or not Congress could require
Ls to say 'I am a debt relieI agency. Ls said that was deceptive. Court said that
Congress had a suIIicient justiIication in protecting bankruptcy system that they could
require Ls to say this when they advertise bankruptcy clients.
4 t what point will requiring speech become unconstitutional Iorced speech?
Tillman v. Miller (11
th
): Ga. Required Ls to place large statement in ad that 'willIully
making a Ialse . representation to obtain . beneIits oI a claim
Mason v. Fla. Bar (11
th
): L placed in ad that he was 'V rated, the Highest Rating
Martindale-Hubbell ational Law irectory. State: Must put disclaimer Iully
explaining the nature oI the rating and that based on opinions.
O Ct.: Too much. State could not prove that the public would be misled.
. . .
4 Matter of ang (riz.): advertises as 'personal injury law Iirm with capability to discover Iacts
'essential to victory in the courtroom.
Ct.: Statements were 'Ilattering beyond the point oI deception.
4 Wamsley
'est possible settlement . . . Least mount oI Time
'My reputation, experience, and integrity result in most oI our cases being settled without
Iiling a complaint or lengthy trial.
Ct.: implied something excessive about the quality oI L`s services created unrealistic
expectations about results.
4 In re Keller (Ind.)
TV ad: Insurance adjusters planning on denying claim until learn L working on case
then 'Let`s settle this one.
O Ct.: Ialsely implied L obtained a Iavorable outcome.
&se oI Trade names / Web sites and Testimonials
4 Trade names: MR 7.5, cmt |1|
ppropriate trade name would be iI the Iirm`s Iounding partners were Wood, Powell, and
erguson and the Iirm is still going by Wood, Powell & erguson. ot misleading.
4 Testimonials: $ane Iormer clients 'They really Iought Ior me. ***I never expected the large
settlement they won Ior me. and 'They Iought Ior me and got me a very good judgment.***
Take my word Ior it they are the best.
Ct.: unjustiIied expectations oI Iuture results
83

: says that testimonials can be used as long as they`re not misleading or deceptive.
MS: says testimonials are prohibited.
More in Person Issues
4 EdenIield (1993): la. Enacted regulations to limit in-person solicitation by CPs oI business
clients.
Ct.: usiness clients able to protect themselves against overreaching. &nlike Oralik
accountants not trained in persuasion and deal with sophisticated business people.
4 Other in person solicitation
&se oI investigators to identiIy potential c`s then visited by L Falanga (11
th
): in person
uninvited solicitation . . .
. . .
4 Think about this case
Ravi., et.. (p. 532): law Iirm set up an RV the day aIter gas line explosion at an
apartment complex. Gave out supplies and residents were interviewed by Ls.
O Ct.: reprimanded Ls. Vs not in a state oI mind to make reasoned judgment.
O &T: Ct. recognized the insurance adjusters were not similarly banned and Ls
should have mere advised individuals not to sign away rights (not solicit
business).
O easible? Should it be this way?
4 Overreaching? ut Iair?
Problem 32: ReIerral to a Specialist; ReIerral ees & ee Splitting
Competence
4 R 1.1, cmts |1|, |2|
Can be disciplined Ior not being competent in a particular case
How do we know whether or not we`re competent? See cmt |1|
O ut start with general understanding that you`re competent unless you Iind you
aren`t competent or do not have time to make yourselI competent cmt |2|
Holding yourselI out as a 'Specialist
4 State Regulations oI 'Specialization
Prior to 1990: States restricted right to hold out as 'specialist or 'certiIied. |J&C, Sec.
30:11|
O Peel (1990): L certiIied by private group ational oard oI Trial dvocacy
(private organization). isciplined by state Ior including 'certiIied when not
certiIied by state agency.
O Ct: More than just state agencies can 'certiIy . . .
R 7.4
O . . .
4 State eIIort to deIine/certiIy specialization: CaliIornia
To call yourselI a 'certiIied specialist
O . . .
4 Claim oI specialty/certiIication can lead to higher standard oI care expected oI L. Wright v.
Williams: holding standard . . .
4 Quality Issue: II a L is certiIied/specialist, can the L say that he will perIorm better than another
L?
R 7.1, cmt |3|
4 Y State ar Op: 'experienced means Irequent and not occasional practice
4 Hughes & Coleman (Ky): reIerence to 'injury lawyers is not an indication oI . . .
Sharing Iees, ReIerral ees, and Kickbacks
4 II two lawyers Irom diIIerent Iirms work on a case, can they split the Iee?
84

Limitations on Sharing ees with a L in a diIIerent Iirm; R 1.5(e)
O Ls in the same Iirm
4 inders bring in work but do nothing
4 Share in Iee even without working on matter
4 inder`s claim to Iee is joint responsibility Ior liability
4 ee must be reasonable
O Ls in diIIerent Iirms
4 inder brings in work but does none oI it
4 inder may share based on percentage oI work perIormed or joint
responsibility basis
4 C`s agreement to reIerral and amount each L received conIirmed in
writing
4 Total Iee must be reasonable
4 R 1.5(e): 'joint responsibility Ior the representation
See Comment |7|
4 R1.5(e)(2): 'share each L will receive
Old Model R and current MS rule does not require client to be told about percentage each
L will receive
ew R adopts R(3) approach and requires disclosure oI share oI each L
The ShaIted L: What eIIect should rule requirements have? Remember: purpose oI rules is lawyer
discipline
4 Kaplan (7
th
) (p.544): R states the state`s public policy. L who orally . . .
lternatives to ReIerral ees to achieve similar outcomes
4 ssociation R 1.5(e)(1)
4 Reciprocal reIerrals with Ls and non-Ls R 7.2(b)(4)
4 OTE: 2002 Revision. llows 'iI you send clients to me, I`ll send clients to you agreements
iI:
ot otherwise prohibited
on-exclusive
Client inIormed oI existence and nature oI agreement
4 OTE: MS does not allow |See MR ProI Conduct 7.2(i) and J&C, Sec. 30:20|
4 Payments to non-lawyers Ior reIerrals
o
7.2(b)
4 Case examples oI cases oI payment to non-lawyers
la. ar v. arrett
In re Cohn
Share Iees with non-lawyers?
4 R 5.4(a)
4 o
August ,
!roblem Roles and Responsibilities in a Modern Law Firm
Obligations oI a Supervising Lawyer
4 Rule 5.1
(a) partner/management ensure measures in eIIect to assure Ls in Iirm conIorm to Rules
O See Comments 2 and 3
O Wallman (550): IIirmative duty. Two partner Iirm. One partner converts client
Iunds. Other partner is disciplined 'should have been aware oI how Iirm
escrow account was being handled.
85

(b) supervising L 'reasonable eIIorts to ensure that subordinate Ls obey Rules
O Comments 6 and 7
(c) supervising L responsible Ior subordinate action iI: (1) L knows/orders conduct; (2)
learns oI conduct when eIIects can be remedies and does nothing.
O Fi.ker: Handled 750-850 cases a year. o case management system. Would
send associates with no preparation. Ct: IndeIinite suspension.
O Wilkinson: Wilkinson asked Stewart (law clerk) to evaluate estate claim (give no
legal advice); handled negligently; leIt Iirm. Supervising attorney: 60 day
suspension.
4 What about the good soldier deIense?
R 5.2(a)
O 'reasonable resolution oI an arguable question oI proIessional duty.
O mposes essentially a 'reasonable person` standard to subordinate a.tions.
O ormal Opinion 93-379: billing Ior recycled work as iI done anew is
unethical
4 L rights when Iired Ior acting ethically
Herbster. L reIused to destroy docs that court had ordered disclosed and was Iiled. iled
wrongIul termination suit. Case dismissed. Ls are diIIerent Irom ordinary employees.
client has a right to Iire an L at any time, even when he reIuses to violate the law.
Ausman. llowing in house to sue Ior retaliatory discharge would 'chill
communication between client and L.
ote: In recent cases, courts have allowed the Ls wrongIul discharge claim to continue.
L discharge actions against law Iirm (jurisdictional split among those who have dealt
with):
O Wieder & Li.tman (p. 555): Cause oI action Ior breach oI contract because
implied term in employment contract that Iirm will not impair right oI associate to
obey ethical obligations.
O But see Ja.obson & Boat.. o cause oI action. Reporting to disciplinary
authority is suIIicient protection Ior the public.
4 ederal Law: Hiring and Promotion ecisions
Lu.ido. associate may sue Ior discrimination based on religion.
Hison. Title VII discrimination based on sex, race, religion, or national origin in
partnership decisions states a cause oI action.
The Right oI the Client to iscriminate
O Plessinger: C wanted younger Ls working on its cases and ordered to Iire L. L
alleged age discrimination. C: claimed absolute right to counsel oI its coice. Ct:
age discrimination claim allowed to proceed (Iirm and client). Client/irm not
Iree to make selection criteria and discriminate against protected class.
4 NOTE: C as free to take ork someere else but .ould not improperly
de.ide o te firm ill assign ork to.
!roblem
Moral Obligation
4 LS: 'The legal proIession has . a clear moral obligation to see to it that those already
handicapped do not suIIer the cumulative disadvantage oI being without proper legal
representation, Ior it is obvious that adjudication can neither be eIIective nor Iair where only one
side is represented by counsel.
4 In return Ior receiving a law license Irom the state, you agree with the state to provide pro bono
services to the poor or those who can`t aIIord it. Quid pro quo.
4 Marks:
86

The nature oI the legal and licensing system controls acces makes law proIession a
public utility by deIinition a public interest.
Legal obligation to do pro bono
4 R 6.1
See Miss.R.ProI. Conduct 6.1
O MS says you have an obligation to do 20 hours oI pro bono work during a year.
When you Iill out your CLE material/Iorm to pay ar dues, you have to put on the
back oI the Iorm how many hours you`ve perIormed and iI you`ve done so and
you have to turn in the Iorm. You can`t be disciplined Ior not doing the 20 hours.
ut you can be disciplined Ior Iailing to report.
4 MR 6.1
spire to 50 hours without expectation oI Iee
Person oI limited means
Charitable, religious orgs, etc.
Charge little or no Iee civil rights, civil liberties or public rights
Contribute Iinancial support to organizations providing legal services
4 Challenges to pro bono requirements
$.ar. la. Requires members to report the number oI pro bono hours worked. . . .
4 Report (p. 583): rejects questions oI incompetence in certain areas. Can still make
contributions.
4 Realities: Iirm approval? Competence? Time to devote?
4 llocation oI duty
II such an obligation exists by Iact oI being a L shouldn`t all lawyers have obligation?
Gov`t lawyers, judges
Penalizes Ls with experience
Representation through ppointments
4 R 6.2
L should not avoid tribunal appointments except Ior good cause such as:
O Representation would result in violation oI rules
O &nreasonable Iinancial burden
O Repugnance oI client would impair lawyer-client relationship
4 Payment oI L`s expenses
See p. 585, e.: recognizing right oI appointed L to recover expenses
Grounds Ior withdrawaul Irom appointed representation
4 Caleff v. $uperior Court: llowing counsel to withdraw where client`s conduct put lawyer in
an 'untenable ethical position client seeking to sabotage deIense to receive death penalty.
4 Wendy: Lawyer held in contempt Ior reIusing to accept a criminal tax case claiming
incompetence (never tried a case). Ct: contempt. Ct: can`t compel L to do what he cannot
do.
4 arabia: County imposed rotational appointment regardless oI competence (hand 'mentors).
Court overturned someone with no experience cannot become reasonably competent to
represent a deIendant charged with a serious crime.
ppointment in Civil Case: whole diIIerent ballgame
4 Ex parte Dibble. inherent power oI court (no constitutional right) to appoint counsel even in
civil cases. Case remanded to determine the necessity oI appointed counsel.
4 The idea oI lawyer as a business proIessional just like everyone else. Rose ird dissent (p. 587)
would we require other proIessionals to work Ior Iree?
4 Mallard: Section 1915(e)(1): ederal court can request but OT compel counsel in civil cases.
87

4 Botell: Recognizing right to appoint counsel but Iinding not appropriate in this case reason
plaintiII could not Iind counsel was not because he was indigent but because the case was
expensive and unlikely to succeed.
ederal unding Ior Legal Services
4 Legal Services Corporation
Congressionally sponsored Legal Services. Placed limits on advocacy oI Ls:
O Class actions
O Lobbying
O id to certain aliens
O Prisoner advocacy
O WelIare reIorm
Legal $ervi.es Corp. v. Jela6ue