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1. Competence & Ethics a. Practicing Law Professionally i. The Rules Governing Competence 1. ABA Model Rule 1.1 a. Requires lawyers to be competent ii. By power of Article 4 of OH Constitution, Supreme Court has power to regulate law practice b. Types of Ethics i. Compliance-Based ii. Integrity-Based iii. Role-Based 2. Ethics a. Personal ethics vs. professional ethics or role b. Professional role (duty to client) vs. professional role (duty to court) c. Rule 3.3 (p. 243) 3. Regulation of Lawyers a. Affirmative Inherent Powers b. Negative Inherent Powers 4. Grievances & OH Disciplinary Procedure a. Can be filed by anyone; usually filed by disgruntled clients, judges, other lawyers, etc. b. See flow chart 5. Introduction to Secrecy a. An Outline on Secrecy i. Duty of Confidentiality (Ethical Obligation of Confidentiality) 1. ABA Model Rule 1.6 – ADD TEXT OF RULE a. OH’s 1.6 altered slightly 2. Generally cannot voluntarily tell other people anything about client (information relating to the representation), regardless of source, without client’s express or implied informed consent, or some other exception 3. Does not protect client when statutes, court rules, or court orders require attorney to disclose information a. I.e. when called as witness at trial or deposition 4. Requires attorney to claim attorney-client privilege whenever it arguably applies 5. Limitations a. Attorney cannot refuse to testify or provide interrogatory answers unless testimony is expressly protected by attorney-client privilege) b. Attorney cannot refuse to produce documents or disclose opinions unless information is protected by attorney-client privilege or by work-product doctrine 6. As defense, also consider ABA Model Rule 3.3 – ADD TEXT OF RULE a. Trumps 1.6 i. Even if there is a 1.6 duty, 3.3 will still prevail 7. ABA Model Rule 4.1 8. OH Rule 1.9(c)[1] a. Removes “unless protected by 1.6” from ABA Rule 4.1 b. Comment [8] ii. The Attorney-Client Privilege (Evidence) 1. Generally cannot be compelled to reveal (oral or written) communication with client a. Court has no power to order counsel to disclose; privilege is almost absolute COMPELLED  2. Applies only when “5 C’s” are present A-C PRIVILEGE ISSUE

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Client Communicates Confidentially with Counsel (i.e. lawyer acting as lawyer) i. Or agent of counsel (secretaries, paralegals, etc.) e. To obtain Counsel (i.e. to obtain legal advice) 3. Privilege protects only communications, not facts a. Client cannot hide facts by telling them to attorney 4. Client cannot turn existing, non-privileged documents into privileged communications simply by handing them to lawyer a. Document must have been created as confidential communication between client and counsel 5. Ordinarily, client identity and client whereabouts are not protected by attorney-client privilege a. But identity and whereabouts may be privileged in rare circumstances (i.e. if client’s communication of his own name meets 5 conditions necessary to trigger privilege) 6. When lawyer represents corporation, his communications to or from all corporate officers, directors, or employees – regardless of rank – are protected by privilege in federal and most state courts 7. Situations in Which Attorney-Client Privilege No Longer Applies a. Waiver – If client waives privilege as to given subject, then privilege no longer exists for information on that subject i. When privileged information is intentionally revealed ii. Privilege cannot be selectively waived 1. If any amount of information is disclosed on a subject, privilege is waived as to that subject iii. Can be accidental rather than deliberate iv. When client is a corporation, change in management team will result in change of persons who can waive privilege on behalf of entity b. Crime-Fraud Exception – If client uses lawyer’s services to commit crime or fraud, then client’s communications with lawyer are not privileged, even if lawyer did not know client was engaging in crime or fraud at time communications were made i. Depends on client’s intent to commit crime or fraud, not on attorney’s knowledge of that intent c. Joint Clients Exception – If 2 clients hire same lawyer, and they later get into dispute with each other, then they do not have an attorneyclient privilege vis-à-vis each other i. But as long as 2 clients don’t blame each other, they can continue to claim attorney-client privilege against their adversaries, and against anyone else in world who tries to breach privilege d. “Advice of Counsel” Defense – Client waives attorney-client privilege if he defends lawsuit by claiming that he acted based on “advice of counsel” e. Lawyer’s Self-Defense Exception – Lawyer has right to disclose confidential information in self-defense i. Corollary is that client waives attorney-client privilege by attacking lawyer iii. Work-Product Protection (Procedure)

a. b. c. d.

paralegals. Generally cannot be compelled to reveal written material created in anticipation of litigation or for trial a. subpoenas & discovery requests) i. conclusions.Downloaded From OutlineDepot. Duties to turn over physical evidence come from 4 different sources – statutes. once attorney-client relationship ends. or legal theories of attorney or other representative of party concerning litigation 5. Termination of attorney-client relationship does not extinguish duty of confidentiality a. subpoenas. level of protection provided by FRCP depends on whether expert is a “trial expert” or merely a “consulting expert” 1. Evidence given to attorney by 3rd party iii. opinions. Ordinary Work Product – Information recorded by attorney (or attorney’s client. or by attorney’s agents) in anticipation of litigation or in preparation for trial a. Rules depend first and foremost on whether case is civil or criminal a. Work by party or by attorney’s investigators.4(a)) & discovery requests 6. Civil Cases – Lawyer/party has no general obligation to turn over evidence to anyone unless evidence falls into narrow automatic disclosure provisions of FRCP 26(a)(1) or unless party/government agency has made formal request (civil investigative demands. Trial Expert 6. Experts – When experts generate reports. and consulting experts in anticipation of litigation or for trial is considered work-product and has same protection as if it were prepared by attorney personally 4. and conclusions as a lawyer 3. Courts give especially strong protection to lawyer’s mental impressions. Tangible Things Vs. Oral Communications 7. Who is a “Client”? 1. Physical Evidence: Documents and Things 1. Criminal Cases – Work-product protection also extends to lawyers in criminal cases iv. Categories of Physical Evidence i. Formal requests do not obligate attorney to turn over documents protected by attorney-client privilege or workproduct ii. ethics (Rule 3. The Attorney-Client Privilege and Physical Evidence a. or other work product materials. Main Test – Whether person reasonably believes she is your client 2. Attorneys always obligated to assert attorney-client privilege or work product protection whenever either would arguably protect against disclosure b. opinions. Death of client does not extinguish duty of confidentiality 3. Opinion Work Product – Consists of mental impressions. opinions. Witness Statements 8. Evidence found by attorney on his own . However. attorney may reveal information that has become generally known v. Criminal Cases – Substantive state or federal law may require lawyers to turn over physical evidence i. Evidence given to attorney by client ii. Documents and tangible things 2.

When defense counsel removes or alters evidence.Downloaded From OutlineDepot. “Adverse inference” jury instructions also possible a. Litigation Sanctions for Destroying Evidence 1. c. Pending or probable litigation involving P. ordering destroying party to pay monetary sanctions to opposing party. precluding D from introducing any evidence about the condition of the destroyed evidence. Destruction of evidence. attorney-client privilege does not bar revealing the original condition or location of the evidence ii. Duty to preserve potentially relevant evidence is affirmative obligation that party may not shirk a. c. Negligent Spoliation of Evidence a. Disruption of P’s case. Damages ii. or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation 3. 105 iv. Legal or contractual duty to preserve evidence which is relevant to potential civil action. Existence of potential civil action. Handling Physical Evidence i. Intentional Spoliation of Evidence a. d. The Consequences of Destroying Evidence i. Damages proximately caused by acts of D 4. and e. d. Evidence attorney only hears about but does not see or touch b. Causal relationship between evidence destruction and inability to prove lawsuit. it cannot be a defense to spoliation claim that party inadvertently failed to place “litigation . communications remain protected 3. or entering default judgment against party which destroyed documents 3. Significant impairment to ability to prove lawsuit. Meredith (Tag Rule) Case – If defense lawyer actually takes possession of physical evidence (even if it is directly from his client). dismissing the answer. if original condition or location is not altered. Intentional “acts of spoliation” on part of D designed to disrupt P’s iv. The Tort of Spoliation 1. Destroying evidence may subject client to civil liability 2. c. Must also reveal original condition or location of evidence (if changed or removed) 2. courts may impose sanctions on destroying party 2. Top of p. Defense lawyers in criminal cases are prohibited from hiding physical evidence in their offices iii. Even where courts do not recognize independent tort for destroying relevant evidence. Knowledge by D of existence or likelihood of litigation. e. Evidence that attorney only sees but does not touch v. Jury advised that it could assume that destroyed evidence would have been damaging to Ds who destroyed them 4. b. Conversely. Spoliation – Destruction or significant alteration of evidence. he must turn it over to prosecution 1. b.e. When duty to preserve is triggered. and f. I.

Lawyer must explain to client exactly what lawyer intends to disclose and how disclosure is likely to affect client ii. Narrow exception f. and even if harm has already occurred g. To prevent client from committing crime or fraud that is reasonably certain to result in substantial injury to financial interests or property of another and in furtherance of which client has used or is using lawyer’s services – ABA Rule 1. Standards for Criminal Justice i. Can be act by anyone.Downloaded From OutlineDepot.6(a) i. Informed Consent definition from Rule 1 c. To secure legal advice about lawyer’s compliance with these Rules – ABA Rule 1. Lawyer’s claim or self-defense – Rule 1. FRCP governs ESI and electronic discovery since 2006 d. Can be any type of act e. Applies even if client has already committed crime or fraud.6(b)(2) i. To prevent reasonably certain death or substantial bodily harm – ABA Rule 1.6 7. Present in settlements and negotiations 1. To respond to allegations in any proceeding concerning lawyer’s representation of client . Lawyer never has implied authority to disclose information harmful to client 1. When lawyers need to consult other lawyers to determine whether their own conduct complies with applicable standards h. Disclosure will help client. But cannot lie in negtotiations d. To establish defense to criminal charge or civil claim against lawyer based upon conduct in which client was involved 3. or ii. mitigate or rectify substantial injury to financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which client has used lawyer’s services – ABA Rule 1. Permits lawyer to reveal information relating to representation of client to extent lawyer reasonably believes necessary… 1. If disclosing certain documents would be harmful to client. not just client ii.6(a) i. To prevent. Client gives informed consent under ABA Rule 1.6(b)(5) i. lawyer should consult with client before producing them vi.6(b)(4) i. Informed consent or express authority from another exception is needed to disclose information harmful to client 2. When disclosures are required by rules of procedure. To establish claim or defense on behalf of lawyer in controversy between lawyer and client 2. Most common example is that lawyer generally is impliedly authorized to reveal facts that will help client in negotiations v. Implied authority – ABA Rule 1. Exceptions to the Ethical Duty of Confidentiality a. ABA’s Standards… 4-4.6(b)(1) i. Lawyer never has implied authority to override express instructions not to disclose iv. not hurt client iii. Disclosures must be no broader than necessary to satisfy justification for each exception hold” or “off switch” on its document retention policy to stop destruction of evidence 5. Lawyer also generally has implied authority to turn over documents responsive to legitimate request for production of documents in pending litigation 1.6(b)(3) i.

Waiver by Failure to Object – Applies when lawyer fails to object to question that calls for privileged information i. Unintentional disclosure may or may not waive. Catalogue of Waivers and Exceptions to Attorney-Client Privilege i. is engaging. court rule. . Court order – ABA Rule 1.Downloaded From OutlineDepot.6(b)(6) i. ii. if necessary. ii. When lawyer perceives that statute.13 i. Waiver by Disclosure – Applies when client turns over privileged documents to another party in litigation. Lawyer must take reasonable remedial measures. implications of disclosure. including.9(c) l. or has engaged in criminal or fraudulent conduct relating to proceeding. but does not require. Other i. When lawyer knows that corporate officer or employee is engaged in illegal conduct that reasonably might be imputed to organization and is likely to result in substantial injury to organization. depending on various factors such as time pressures client was under and precautions client took to prevent inadvertent disclosure v. iii. False evidence offered to a tribunal – ABA Rule 3. lawyer must confer with client about legal requirement of disclosure. if necessary. Intentional disclosure almost always waives privilege 2. not recognized by many courts iv. or some other source of law outside rules of professional conduct requires disclosure of information covered by ABA Rule 1. a clear violation of law may be revealed to prevent substantial injury to organization – ABA Rule 1. disclosure to tribunal ii. Information that become generally known after a representation ended – ABA Rule 1. court may compel lawyer who drafted will to testify to information shedding light on testator’s intent ii. When client is organization. and how to make disclosure in compliance with law j. New. Testamentary Exception – When competing claimants are asserting claims under will of decedent. disclosure to tribunal n. by mistakenly e-mailing or faxing privileged documents to another person or by revealing privileged communications to another person 1.6.3(b) i. Exceptions to the Attorney-Client Privilege Disclose only as much as necessary to achieve objective law – ABA Rule 1. Criminal or fraudulent conduct related to proceedings before a tribunal – ABA Rule 3. Permits. If lawyer representing client in proceeding who knows that any person intends to engage. Deceased Client Exception – Applies when client has died and society’s need for privileged information outweighs likely harm to deceased client 1. including. Lawyer may not offer evidence he knows to be false & must report evidence or testimony that he learns to be false after the fact m. shall take reasonable remedial measures.3(a)(3) i. lawyer to reveal confidential information to comply with court order k.6(b)(6) Permits lawyer to reveal confidential information to comply with other law Does not necessarily override ethical duty of confidentiality Clarity of asserted law’s intent affects whether lawyer has duty to consult with client about disclosure 1. Crime-Fraud Exception – Applies when client has used lawyer’s services to commit crime or fraud iii. lawyer must take steps to put stop to wrongful conduct 8.

02 – Privileged Communications and Acts i. client is deceased) b. Procedures on Receipt of Report i.02(A) provides the exclusive means by which privileged communications directly between and attorney and a client can be waived. Jackson v. 651 1. Based on premise that revealing privileged information after client’s death might harm reputation of client or client’s surviving loved ones ii. OH statute authorizes surviving spouse of that client to waive attorney-client privilege protecting communications between deceased spouse and attorney who had represented that deceased spouse ii. 574. rule 2. 68 F. Attorney for deceased client may not assert attorney-client privilege to justify refusal to answer questions of grand jury. Attorneys as Voluntary Witnesses i. § 2151. Is the Attorney-Client Privilege Subject to a Balancing Test? i. even after the client's death. 3d 488. § 2317. even when disclosure will not harm client (i. attorney-client privilege survives death 1. A Balancing Test for Disclosing Privileged Communications? i. Exception to General Rule (a)(2) . people would be likely to withhold information for fear of their friends' or family's reputation.R. General Rule ii. § 2317.2d 985. Application of Attorney-Client Privilege to Dissolved Corporation or Association c.Paragraph one of the syllabus: "R.D. Rhay (E.D. where surviving spouse of client has waived privilege in conformity with statutory requirements and where attorney has been ordered to testify by court d. O.Issue will likely be addressed again in near future (creating a common law waiver not in statute) e. Under FRE. -.E. O.C.R. such as set forth in Hearn v.C.Ohio Materials Regarding 7-9 a. not text-based.C. Purpose of the attorney-client privilege is to promote public observance of the law by encouraging complete and truthful communication between attorneys and their clients iii. Greger (2006) 110 Ohio St.R. Waiver by Putting Advice of Counsel in Issue – Applies if client defends against criminal charges by claiming that she relied on advice of her counsel that conduct in question was legal 9. 3d. Balancing test exception does not apply in determining whether information asserted to be privileged may be disclosed 10.C.Wash. Confidentiality.R. 2006-Ohio-4968 i.)" Court declines to add a broader common law waiver rule based on hostile action of the former client. civil liability. information no longer protected vi. (a) b. McDermott (1995). No public interest exception. Absent a posthumous application of the attorney-client privilege. State v. 72 Ohio St.Downloaded From OutlineDepot. Waiver by Attacking Lawyer’s Work – Client who sues lawyer (or former lawyer) for malpractice waives right to claim attorney-client privilege for communications relevant to malpractice claim vii. and general well-being c.e. In event of death of client.021 – “Client” Defined.421 – Persons Required to Report Injury or Neglect. 1975). is essential for such honesty in both criminal and civil contexts iv. Dead Man Talking: The Attorney-Client Privilege After a Client Dies a. Policy-based. followed. Doe (2004) i. Once testimony has been given in answer to question. 2317. O. (State v.

However. Disclosure of a Corporation’s Confidential Information i. she simultaneously disavows or disaffirms previous legal work for client) 1. & Confidentiality a. her communications to corporate counsel are within corporation’s privilege if they concern employee’s own conduct within scope of his employment and are made to assist lawyer in assessing or responding to legal consequences of that conduct for the corporation c. Make a “noisy withdrawal” (when lawyer withdraws. iii. ABA Model Rule 1. “Quiet withdrawal” iii. not make business decisions a. lawyer does not ordinarily represent individuals who run corporation unless he has expressly agreed to do so 3. The Attorney-Client Privilege in State Courts 1. However. Exception to Exception f. If lawyer remains convinced that client was engaged in illegal conduct. Objecting Within the Organizational Client (“Reporting Up”) 1. 3d 161 (2010) 11. Purpose is to explain lawyer’s view of apparent misconduct to higher-ups in chain of command 2. directors. A lawyer employed or retained by an organization represents organization acting through its duly authorized constituents 2. The Attorney-Client Privilege in Federal Courts 1. Pre-2003 Amendments a. not officers.13 states additional exception to rule of confidentiality ii. Squires--. When representing corporation.127 Ohio St.e.Corporations. lawyer’s job is to give legal advice. or employees of corporation iii. lawyers who are concerned about misconduct within organization must keep pursuing issue by “climbing ladder” of corporation’s hierarchy i. If not convinced action was illegal. lawyer can drop issue altogether ii. options were limited i. General confidentiality ABA Model Rule 1.6(a) and exceptions stated in 1. Who is Your Client? 1.6(b) apply to corporations and other organizations just as they do to individuals 1.Downloaded From OutlineDepot. Privilege does extend to corporations. Often means quitting job for in-house counsel 2. Corruption. Arizona – Functional Approach – Where employee is not seeking legal advice in confidence. If remonstrating with client (i. trying vigorously to talk client into complying with law) did not produce change thought necessary. Lawyer represents only corporate entity itself. Upjohn – Attorney-client privilege in corporate context extends to employees not within “control group” of corporation a. The Attorney-Client Privilege for Corporations in the Courts i. The Attorney-Client Privilege for Organizations i. In re Original Grand Jury Investigation (2000) g. Privilege covers lower-ranking employees as well as executives ii. lawyer could withdraw from representation 1. but may not protect corporations as fully as it protects individuals b. Whistleblowing by dramatic conduct .

13(c) may permit disclosure ii.13(c) has created new exception to Rule 1.Principles of the Adversary System a. Rule 1. Lawyer explicitly disaffirms work product prepared by lawyer in course of representation. Mandatory duty to disclose outside organization? iv. Adds option to those from above b. Lawyer must determine whether questionable action or refusing to act of person associated with organization is clear violation of law ii. then most lawyer can do is engage in “noisy withdrawal” 2. Lawyer’s ability to disclose under 1.13 expressly trumps Rule 1.1 trump 1. and wrongful conduct is “reasonably certain” to result in substantial injury to organization (not just “likely”). Situation in which disclosure is allowed is more likely to arise in transactional practice than in litigation setting v. Lawyer then determines whether persons heading organization are correcting illegal action or refusal to act iii. which may alert others that there was some problem with information supporting that work product 12. 1.6 b. If lawyer has gone all the way up the ladder to top authority within organization and is still not satisfied that issue has been correctly resolved.13(c) which grants permission to report out. If correction has not occurred in reasonable time. Circumstances allowing “reporting up” are very demanding a. If jurisdiction has not adopted 2003 version of 1. When is a Lawyer Permitted to Disclose Outside the Entity (“Reporting Out”)? 1. “Noisy Withdrawal” 1. to those outside organization 2. even if Rule 1. Thus.6 permits disclosure. or refusal to act that is clearly a violation of law i. he is allowed to disclose otherwise confidential information relating to representation.6(b) and (c) a. 3.3 and 4. Allowed only if organization’s highest authority either insists upon or fails to address in timely and appropriate manner an action. lawyer may reveal information related to representation. 2003 Amendments a.6’s duty of confidentiality i. Lawyer can engage in civil disobedience and go public (i. whether or not Rule 1. whether or not ABA Model Rule 1. Extent of permitted disclosure is limited to disclosures lawyer reasonably believes necessary to prevent substantial injury to organization 3. Defending the Guilty b.Downloaded From OutlineDepot. If “reporting up” does not cure wrongdoing. OH – p. 75 – Reporting out governed by 1.e. Lawyer may (but does not have to) tell someone outside organization i. then lawyer may at last disclose iv.6 permits disclosure c. find way to leak important document) 3. The Lawyer’s Professional Role .6 duty of confidentiality iv.6 would prohibit disclosure. Types of Legal Practice 1.

com i. lawyers must use every legitimate weapon at their disposal on behalf of every client. lawyer must abide by client’s decision as to: a.Introduction to Conflicts of Interest a. ABA Model Rule 1.Downloaded From OutlineDepot. except “personal interest” conflicts that don’t pose a “significant risk” to conflicting client e.7 or 1.4.18. 3. Lawyer should try to maximize results for client – to get as much of what client wants as it is possible to get – using legal means 3. he must do it ii. Allocating Power Between Attorney and Client i.7 governs conflicts with current clients c. conflict with a nonclient.2(a) – 2 Specific Categories of Decisions that are Reserved to Client 1. ABA Model Rule 1. or because of loyalty to or personal interest in someone who is not a client.2(a) divides representation into 2 categories – objectives and means 1. Is the Adversary System a Battle Between Equals? 13. Arise whenever lawyer is unable (or might later become unable) to give 100% loyalty to current client because of competing loyalty to another current client. conflict with lawyer’s own interests 2. Whether to enter plea. The Lawyer’s Conscience d. As always. Whether to waive jury trial. Lawyer (after consulting with client) controls means ii. 2. In civil matter. The Lawyer’s Informal Control 14. Outline on Conflicts of Interest i.1-4. I.7. Client controls objectives 2. 1. b. If lawyer can think of legitimate way to achieve client’s objectives. Serve the Client 1.9(a) & (b) govern conflicts with former clients i. Concurrent vs.9 are imputed to all other lawyers in the firm. ABA Model Rule 1. Successive or former client conflicts are conflicts between current client and former client . Trust is bedrock of attorney-client relationship i. Should We Reform the Adversary System? e. 1.2.The Client’s Role in the Adversary System a. Successive Conflicts 1. ABA Model Rule 1.4. Trust based on secrecy and loyalty ii. or social interests i. b. conflict with another current client. Whether to testify c. Concurrent or simultaneous conflicts are conflicts between current client on some other person or interest a. financial. Duty of loyalty diminished ii.1-5. ABA Model Rule 1.7-1. Lawyer should zealously represent interests of his client 2. and c. 5. But duty of secrecy/confidentiality is still there d. Morgan – Lawyers are business consultants c. 4. Set up a screen or Chinese Wall to prevent new associates from creating conflicts by talking to lawyers about old clients from their past firm f. Loyalty Rules – 1. and 2.10(a) says that conflicts under either 1. lawyer must abide by client’s decision whether to accept (or reject) an offer of settlement. In criminal case. even the guilty b. 3.16.e. or to lawyer’s own personal. political.

Representation must not be prohibited by law. Lawyer may never ethically oppose a current client without that client’s consent b. Potential conflicts are those that might arise in future. When are 2 Matters Substantially Related? a. iii. If lawyer would have learned confidential information in earlier representation that could be turned against the former client in a pending representation. Immaterial Conflicts – So minor. iv. I. Nonconsentable/Nonwaivable Conflicts – So serious or inherently dangerous that they cannot be cured or avoided even if client consents in writing after full and complete disclosure a. 1. then he may not accept or continue representation unless he complies with all 4 criteria… a. When lawyer would normally have been expected to learn confidential information about his client in course of that former representation that could be used against former client on behalf of new (current) client i. Lawyer need not disclose them to client. Each client gives written. Potential Conflicts 1. c. Vicarious/Imputed Conflicts – Restrictions on lawyer who is personally disqualified are imputed or attributed to another lawyer (usually in same firm) who is not personally disqualified . 3. then 2 matters are considered substantially related. or because lawyer’s own interests are at odds with client’s interests 2. See below 2. or unlikely arise that rules do not regulate then a. and d. lawyer must reasonably believe that he will be able to provide competent and diligent representation to each client involved in conflict. representing both husband and wife in divorce proceeding Personal vs. depending on some contingent event 3 Levels of Conflicts 1.7(b) – If lawyer has either type of conflict. but mild enough so that they can be cured or avoided if client consents in writing after full disclosure of situation 3. and lawyer cannot oppose his former client without former client’s consent Direct Adversity Conflicts vs. Actual conflicts already exist. Lawyer may not handle both sides of same litigation. General Rules on Concurrent & Successive Conflicts a. Consentable/Waivable Conflicts – Serious enough to be regulated. Materially Limiting Conflicts 1. Personal Conflicts – Disqualify or restrict lawyer because of something lawyer has done personally (such as representing a client with adverse interests). if nothing else happens 3.Downloaded From OutlineDepot.e. even 2. Lawyer may ethically oppose former client without former client’s consent unless matter lawyer is now working on is substantially related to matter he previously worked on when he represented former client 4. trivial. Despite conflict. v. informed consent Actual ii. Vicarious Conflicts 1. or obtain client’s consent to them 2. b.

Harm to disqualified lawyer or firm 2. Obstacles to Appealing Rulings on Motions to Disqualify 15. 8 Events That Can Trigger Conflicts 1. law firm may avoid disqualification by building screen or wall between disqualified lawyer and rest of firm b. If test is not met. Obtaining Consent to a Conflict 1. Screens – In some states. Harm to disqualified lawyer’s client 3. or 2.9(a) provides only that lawyer may not materially oppose former client in substantially related matter unless former client gives informed.7(b)(2) – Representation prohibited by law is nonconsentable c. Non-Clients i. Typically. Negative Consequences of Conflicts 1. . I. Individual who walks into lawyer’s office and hires you to perform legal services. New issues 5. Need for lawyer’s testimony – Testifying lawyer cannot be trial counsel vii.7(b)(3) – Conflict nonconsentable when consent would allow lawyer to handle both sides of litigation 2.7(b)(1) – Test for Determining Whether Conflict is Consentable i. How Courts Decide Motions to Disqualify xi.Conflicts – Who is a “Client”? a.e. Personal conflicts are not imputed from Lawyer A to other lawyers in A’s firm if A’s disqualification is based on personal interest and does not present risk of materially limiting representation of client by remaining lawyers in firm i. lawyer must tell client all information client would find important in deciding whether or not to retain him (or continue to retain him) rather than getting another lawyer x. 1. New relationships 7. New witnesses 8. Clients vs. Trade association members. Lawyer reasonably believes that lawyer will be able to provide competent and diligent representation to each affected client 1. A’s pre-existing sexual relationship with client vi. then lawyer may accept representation provided client gives informed consent and consent is confirmed in writing ix. conflict is nonconsentable b.” with sources such as… 1. 1. To obtain valid informed consent. 1. Corporation or other entity that acts through its agents to hire lawyer to perform legal services a.7(b) identifies 3 categories of conflict that are always nonconsentable a. When are Conflicts of Interest Consentable? 1. 2.Downloaded From OutlineDepot. New attorneys 6. 1. Harm to justice system viii. client is either… 1. If test is met. Virtually all conflicts with former clients are consentable a. New clients 2. If conflict is consentable. conflict is consentable 2. written consent 3. Co-parties. 1. New matters 3. But there are “phantom clients. New parties 4.

Another current client ii. Affiliates.Conflicts of Interest with Current Clients a. limited partners) in partnerships. not a current or former client iv. some 3 rd party). then lawyer cannot begin or continue representing client unless client gives informed consent c. 4. former client. or social interests d. Lawyer withdraws. or both the corporation and its individual employee 16. Current Clients – Everyone who has reasonable belief that lawyer is their lawyer 1. ABA Model Rule 1. Who is a “Client”? i. Prospective clients are current clients until lawyer rejects matter 2. Lawyer completes services he promised to 3. Lawyer’s own personal. Officers. and 6. Client fires lawyer iii. parents. Former client iii. and other companies in the same “corporate family” as companies for whom lawyer has done legal work iii. Basic Rule – Person is current client if he reasonably believes he is a current client ii. Ambiguity in Entity Representation i. Former Clients – Anyone and everyone who was ever client in past.7 b. Direct Adversity Conflicts – Whenever lawyer directly opposes a current client 2. divisions. financial. If concurrent conflict bars any lawyer in firm from accepting case. Basics of Concurrent Conflicts i. or by lawyer’s own personal interests a. including both individuals and entities. General partners (and. or c. Potential/prospective clients who had consultation interviews with a firm. Person is current client until… a. Lawyers should make clear to entity clients who it represents – just the corporation. but who did not retain firm (or are still deciding whether to do so). Some other 3rd person. Whenever lawyer may be tempted to give up any viable option that may advance client’s interest in order to serve or advance competing interest b.Downloaded From OutlineDepot. Whether or not person is a client hinges upon client’s belief 1. 5. in some jurisdictions. political. Materially Limiting Conflicts – Whenever lawyer’s loyalty to current client is or may be materially compromised by competing loyalty to any other person (current client. subsidiaries. whether they were served at lawyer’s current or previous job . and not the individual corporate employee. Deciding factor is what prospective client thought when he made disclosure. then rule of vicarious/imputed disqualification will disqualify every lawyer in firm from representation unless conflict is personal interest conflict that does not pose significant risk or materially limiting representation of client b non-conflicted lawyers of firm c. Arise in 2 situations 1. or shareholders in small corporations. Kinds of Competing Interests i. or b. Lawyers cannot oppose a current client without client’s consent b. employees. If other interests are competing for lawyer’s loyalty. not what lawyer thought iv.

Representing Opposing Sides in Same Litigation 1. Representing child does not mean lawyer automatically represents parents 3.Downloaded From OutlineDepot. Aggregate Settlements a. Representing Opposing Sides in a Transaction 1. Conflict. Conflicts Between 2 Current Clients i. divisions e. Representing 2 or more people who have common goal in transaction ethically permitted as long as clients won’t suffer too much if proposed transaction falls apart 5. but does not have to vi. Clients give informed consent in writing ii. even if parties are allies 2. Lawyer representing 2 or more Ps in same matter receives aggregate settlement offer b. Lawyer discloses existence and nature of all claims involved and participation of each person in settlement 6. Multiple Representation of Allied Parties 1. Lawyer usually may not represent both sides 2. Indirect Conflicts – When lawyer represents different clients in different matters and one matter may adversely affect other matter 1. but consentable v. Conflict does exist if there is significant risk that lawyer’s action on behalf of 1 client will create precedent likely to seriously weaken position taken on behalf of other client . Risky. Always conflict to represent more than 1 party in same matter. Although clients are not directly attacking or opposing one another. Co-parties iv. Representing organization does not necessarily mean that lawyer represents organization’s employees 2. Never-Clients – Everyone who is not now and never was client or prospective client 1. Opposing Current Client in Unrelated Litigation 1. Opposing Current Client in Unrelated Transaction 1. Lawyer or law firm can never handle both sides of same suit ii. No per se rule from ABA. Explain to parties implications of common representation and advantages and risks involved 4. lawyer should decline to represent more than one coD. but some state decisions have adopted per se rule against iii. parents. May or may not be conflict to represent different parties in completely different matters if their legal positions are incompatible 2. but consentable 3. In criminal cases. Always requires consent from clients on both sides iv. Trade association members 2. 3rd parties paying client’s fees are not clients v. one client either wants something that would (or could) harm other client. Affiliates. Phantom/Surprise Clients – Usually have same status under conflict rules as ordinary clients 1. Issue/Positional Conflicts 1. subsidiaries. or opposes something that would (or could) help other client vii. Settlement may only be accepted if… i.

Always keep confidentiality and loyalty to client in mind when dealing with conflicts b. fully disclosed 2.Conflicts of Interest with Former Clients (Successive Conflicts) a. lawyer may never oppose current client without client’s consent b. Terms are fair and reasonable. Lawyer does not need former client’s consent unless matter lawyer is handling for current client is substantially related to matter lawyer handled for former client ii. No veto from former client unless matter is substantially related c. Lawyers generally prohibited from accepting representation that actually or potentially conflicts with lawyer’s own interests ii. Business Transactions with Clients – Prohibited.9(a). Grounds for Personal Disqualification Under Rule 1. burden not on former client to object f.9(a) – Lawyer disqualified from opposing any former client that he personally represented in same or substantially related matter while working at any previous law firm ii.9(b) – Lawyer disqualified if his previous firm represented client that current firm is now opposing in substantially related matter and lawyer obtained confidential information about opposing client (lawyer’s previous firm’s client) while lawyer was working at previous firm iii. Concurrent and Successive Conflicts Compared i. Conflicts Between a Client and 3rd Person i. 1. lawyer is not barred from opposing former client unless matter is substantially related to earlier work (or firm’s earlier work) for former client i. or other 3 rd person important to lawyer may be adversely affected if lawyer handles matter successfully g. Informed consent is key c. Informed.9 i. relative. Always send letter of termination d. or other person or entity important to lawyer’s personal or professional life ii. unless… 1. informed consent to terms and lawyer’s role in transaction 17. spouse. Under 1. much more lenient than 1.7 in 2 ways… 1. Directly Opposing 3rd Party – Conflict almost always arises when lawyer is asked to oppose close friend. Under 1. 1. Written Consent – Former client is always free to consent to conflict whether it arises under 1. The “Substantially Related” Test . Client gives written. Substantial Relationship Test a.9 (a) or (b) 1. Conflicts with Lawyer’s Own Interests i. then absent informed consent of affected clients. Client advised and given opportunity to get outside legal counsel 3. relative. Adversely Affecting 3rd Party – Lawyer may be reluctant to accept matter knowing that friend. Lawyer can seek former client’s consent even if reasonable lawyer would advise former client not to consent e.Downloaded From OutlineDepot. If there is significant risk of material limitation. lawyer must always obtain consent to oppose (be directly adverse) to current client. Burden on lawyer or law firm to spot former client conflict and obtain former client’s informed consent. lawyer must refuse 1 of representations or withdraw from 1 or both matters f. Former client’s perception dictates whether or not he is a current or former client i.7(a). ABA Model Rule 1. powerful 3.9 covers conflicts with former clients.

prohibitions from 1.6 or 1.9 i. New firm will run former conflict check before hiring lawyer to see if lawyer 1. If old firm clients consent. Matters substantially related when… a. Every time lawyer takes new job. courts generally presume that lawyer acquired relevant confidential information (rebuttable) 1. then new firm needs to confirm consent in writing vi. Lawyer can rebut presumption by showing that he did not have access to former client’s confidences. Make nonfrivolous argument that no conflict exists because matters are not related & hire lawyer.Downloaded From OutlineDepot. or b.9(c) will prohibit lawyer from disclosing nature of matters worked on if they are still ongoing 2. Both lawyer and new firm must avoid discussing either content of confidential information or details of matters that new firm is handling against former client . If lawyer’s former firm represented former client in substantially related i.9. Conversely. question of fact which depends on all circumstances v. They involve same transaction or legal dispute. 1. New firm shows lawyer list of firm’s current adversaries 1. lawyer’s confidentiality obligations under 1.9(a currently or formerly represent(ed) adversaries of new firm ) 1. Comment 3 1.9(b 1.9(c) no longer operate iv. none of them shall knowingly represent client when any one of them practicing alone would be prohibited from doing so by 1. new firm will contact old firm (with lawyer’s permission) to tell them they have made lawyer conditional offer and needs consent from specific clients so that new firm can continue to ethically represent new firm’s clients who are adverse to old firm’s clients in same or substantially related matters v. would materially advance client’s position in subsequent matter iii. Most common test comes from Rule 1. or only some viii. No universal agreement on test ii. fighting any motion to disqualify that former clients file 3. If lawyer personally represented client in substantially related matter. There otherwise is substantial risk that confidential factual information. If any of lawyer’s previous matters are substantially related to matters new firm is working on. Lawyer must inform new firm whether he had access to all files at old firm.9 ii.9 iii. No Revelations by Former Client – Court compares former matter to present matter and reaches conclusion based on logic as to whether 2 matters are substantially related g. once litigation has been filed or transaction or business deal has been carried out (or at least disclosed).10(a) will impute to new firm all of lawyer’s conflicts under 1. Imputed Disqualification and Conflict Checking Under Rule 1. then new firm has 3 choices… 1. In some situations. Not hire lawyer vii.6 or 1.10(a) – While lawyers are associated in firm. 1. If clients of old firm refuse to consent. courts presume that lawyer obtained confidential information relevant and material to current matter (irrebuttable) iv. Lawyer must try to remember whether he has obtained any confidences ) about any clients informally while working at old firm 2. Hire lawyer and withdraws from any conflicting matters 2. as would normally have been obtained in prior representation.

Giving financial assistance to client (except advancing litigation a. Cannot be cured by consent 10. Accepting gifts or testamentary bequests from clients* certain a. called prospective clients ii. client turns down firm’s representation. ABA Model Rule 1.Downloaded From OutlineDepot. Matter is same or substantially related to that in which formerly associated lawyer represented client.8(a)-(i). Essentially. ABA Model Rule 1. The ABA’s Current Approach to Imputed Disqualification i. Phantom former clients can result from preliminary interviews. Issue arises when law firm turns down client’s case. Only prohibition that does not apply to all lawyers in firm c. unless… 1.Imputed Conflicts and Firewalls a. Disqualifying conflict is based on disqualified lawyer’s personal interests (as opposed to interests of another current client.8(a)-(j) – Prohibited Conflicts with Current Clients * = Can be 1. imputed conflict goes away when personally disqualified lawyer goes away. Acquiring proprietary interest in client’s COA* a.18 deals with issue 18. or 3 rd party). Using confidential information to client’s disadvantage done. 1. Imputed disqualification refers to disqualification of all lawyers in form based on personal disqualification of another lawyer (or lawyers) at firm b. ABA Model Rule 1. Cannot be cured by consent 6. Exception for Personal Interest Conflicts – No imputation if… 1.9 (former clients) prohibits any lawyer in form from representing certain client. Perils of Preliminary Interviews i. 1.6 and 1. Selling literary or media rights to client’s story s in rule are a. if 3. Cannot be cured by consent requirement 4. provided no other lawyer in form has confidential information that could be used against former client .10(b) – When lawyer has terminated association with firm.10(a) generally prohibits every lawyer in firm from representing that client ii. then 1. Limiting future legal malpractice liability or settling actual or potential malpractice claims 9.9(c) that is material to matter 3. firm is not prohibited from thereafter representing person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm.8(k) – If any lawyer in firm has conflict under 1. Cannot be cured by consent metexpenses) 5.10 – Imputation of Conflicts of Interest: General Rule i. and 2. Negotiating aggregate settlements for multiple clients 8.7 (current clients) or 1. Disqualified lawyer’s personal interest conflict does not pose significant risk that remaining lawyers in firm will be materially limited if they undertake or continue representation in question iii. Business transactions with clients* h. then every lawyer in firm suffers same conflict i. former client. If 1. Accepting legal fees from 3rd party* 7. and 2. or prospective client never calls back to follow up iii. Any lawyer remaining in firm has information protected by Rules 1. Engaging in sexual relations with clients (unless relationship existed prior to representation) a.

or Other 3 rd-Party Neutral . Government has legal privilege not to disclose information. Denial of access by screened lawyer to firm files or other materials relating to matter iv. investigation.Downloaded From OutlineDepot. may not represent private client whose interests are adverse to that person in matter in which information could be used to material disadvantage of that person a. 1. Lawyer having information that lawyer knows is confidential government information about person acquired when lawyer was public officer or employee. and 2. written consent.12 – Former Judge. claim. Information is not otherwise available to public 2. 1. Screened lawyer gets no fee from matter f. application.7 (4 requirements  lawyer reasonably believes… informed. written consent to representation 2. Lawyer who has formerly served as public officer or employee of government… a. Not rulemaking/drafting laws or compiling statistics ii.10(c) – Disqualification prescribed by rule may be waived by affected client under conditions stated in 1. conflict is not consentable) v. Screens i. Screen. Is subject to 1. Confidential Government Information i. Any judicial or other proceeding. Screened lawyer cannot have contact with other firm personnel and any contact with firm files or other materials relating to matter ii. or 2. ABA Model Rule 1. iv. and b. At time rule is applied. unless government gives informed. either… 1. Arbitrator. if all 4 are not met. and ii. (b) – Conflict is imputed unless… 1.9(c). Written notice given to government so that it can make sure rule is complied with iii. and iii. Government is prohibited by law from disclosing to public. (c) – Conflict arising from former government lawyer’s possession of confidential government information 1. accusation. request for ruling or other determination. arrest.10(d) – Rule does not apply to conflicts that arise when lawyers move from private sector to government or vice-versa d. Shall not otherwise represent client in connection with matter in which lawyer participated personally and substantially as public officer or employee. charge. Periodic reminder of screen to all firm personnel v. Notice and instructions to all other firm personnel forbidding any communication with screened lawyer relating to matter iii. or other particular matter involving specific party or parties b. Obtained under governmental authority. Screening allowed e. Sets out circumstances under which former government officer or employee is personally disqualified from working on matter at private firm 1. Mediator. Matter a. controversy.11 – Special Conflicts for Former and Current Government Officers and Employees i. ABA Model Rule 1.

1. 1.9. 1. Lawyer subject to above shall not represent client with interests materially adverse to those of prospective client in same or substantially related matter if lawyer receives information from prospective client that could be significantly harmful to that person in matter.11. Zealous Representation i. avoiding offensive tactics. unless screen is implemented iv. Always keep lawyer’s $ separate from client’s $ . Lawyer shall not represent anyone in connection with matter in which lawyer participated personally and substantially as judge or other adjudicative officer. firm should implement screen and give notice to parties and any appropriate tribunal to make sure rule is complied with iii. etc.6 e.12 ii. Terms of Representation/Scope. ABA Model Rule 1.2 – Scope of Representation and Allocation of Authority Between Client & Lawyer 1. etc. 1. Timely and effective screen ii.18 – Duties to Prospective Client i. Former prospective client may waive a 1. Thus. Overview a. (a) is very important – professionalism.4 – Communication 1. informed consent of representation (not in ABA Model Rules) iii.7.3 – Diligence in representation c.Downloaded From OutlineDepot. 1. or law clerk to such person or as arbitrator. unless there is a screen iii.18 – Prospective Clients (Duties to…) 1. 1.3 – All nonlawyers must understand what is ethically necessary in dealing with client iii.0 defines terms of art in Rules (OH) b.ABA Model Rule 1. Kala Case i. In Ohio. Conflict not imputed if screen is implemented 1. 20. 1. lawyer who has had discussions with prospective client shall not use or reveal information learned in consultation. to represent client. 1. Business transactions.1 – Duty of confidence.8. (d) – Arbitrator selected as partisan or party in multimember arbitration panel is not prohibited from subsequently representing that party 1. if malpractice insurance is less than $100K. ii.9 would permit with respect to information of former client ii. written consent ii.18(d) permits imputed conflicts to be cured by screening h. 1. Presumptions regarding confidential information 19.15 – Safekeeping Funds and Property 1. Intake Process/Start of Representation i. i. 1. 1. Conflict Issues Prior to Representation a. 5. thoroughness of preparation. mediator or other 3 rd-party neutral. Imputation exists. Partisan arbitrator not supposed to be neutral in first place g. but if former prospective client does not waive conflict.10. 1. except as 1. unless all parties to proceeding give informed. 1. 1. Confidentiality/Privileges i.16 – Declining or Terminating Representation d.18 conflict. 1. 1. must inform client and get written. Even when no lawyer-client relationship ensues.8 – Personal Conflicts with Current Clients a. continuing CLE obligation i.5 – Fees and Expenses iv. 1. etc.

2 – Can’t talk directly to someone represented by counsel 4. Refund client for whatever portion was not earned b.5 – Temporary Permission to Practice in Unlicensed State i.) 1.7 – Lawyer as Witness 3.4 – In Ohio. take $ out of IOLTA and put into lawyer’s account 4.1 – Managerial authority in governmental agency. no shareholders who are nonlawyers 5. l.8 – Special obligations of prosecutors 4. Retainer a. When work is performed. k. o. i. w. Refund unearned retainer ii. 1. Can request reasonable extensions 3. x. u. 1. j. t. Bring meritorious claims and contentions ii..13 – Problems in Representing Organization as Client Ohio – 1.16. you are in charge of having ethical systems in place to ensure that ethics will be observed 5. Permanent Permission (representing 1 client in that state) 5. v. Engagement Letter – Terms of relationship (fees. q. m.6.4 – Can’t share and split fees with non-lawyers. Can bring about changes in law iii. 4.6 – When lawyer can talk about case 3. financial.16 – Declining or Terminating Representation (Withdrawal) i. h. Make regular accountings to clients regarding what $ lawyer is holding 3.4 – Arbitrators and 3rd Party Neutrals 3. Quiet/Noisy Withdrawals. 2. r.3 – Evaluation for Use by 3rd Persons i.1 – Advisor – Can render legal. n.1 – Role as Advocate i. s.14 (Client with Diminished Capacity) 2. Goes into client trust account (IOLTA) i.5 – Don’t bribe judges. p.1 f. advice 2. don’t lend $ to judge 3. g.1 4. Quantum meruit claim for work done by lawyer 1. okay to read it as long as you notify other side you got it by mistake & return it 5. etc.3 – Candor Toward the Tribunal 3. Contingent Fee v.13. Reporting out from 1. etc.6 – No covenants not to compete .Downloaded From OutlineDepot. Earned on Receipt Fee 5. as well as moral. etc. Reporting Up.

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