INTRODUCTION

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6 Themes of Professional Responsibility Conflicts of Interest a. Lawyers should have undivided loyalty to their clients. b. 1.7, 1.8, 1.9 (former clients) c. lawyer vs. client 2. Truthfulness a. Honesty: Rule 8.4 prohibits dishonesty, fraud, deceit and misrepresentation (Misconduct 8.1Applicant) b. 3.3 Candor toward tribunal: You’re an officer of the court! 3. Lawyer’s duty to client vs. duty to system (spectrum of “client-centered” vs. “public-centered”most lawyers are somewhere in the middle): Attention to the “public interest” (it’s not okay to just forward the interests of your client, you musts consider the public interest). a. Rule 1.4: Scope of representation 4. Lawyer’s personal/professional interests vs. fiduciary obligations: Attorneys have a unique position of TRUST 5. Self-interests (we are self-regulated- see comment number 12 in the preamble) a. We are self regulated, but how do we embrace our professional norms? b. Compare comment 12 in the preamble with Rule 1.5 (discretionary power over fees) which is ambiguous about attorney’s fees, notifying clients about billing. Ex: Fen-Phen case 6. Institutional Pressures on professional judgments (rookie attorneys poor judgment will not be excused because they are inexperienced. Supervising attorneys can be held responsible as well for poor judgment on behalf of new attorneys) a. 8.3: Reporting misconduct 1. “Often, but not always, the right thing to do in a particular situation will also comply with the ethical rules.” Three questions to assess your conduct (when the right thing conflicts with the ethical thing to do): 1. Does the conduct in question violate the ethical rules? 2. Does it violate some other law (criminal, regulative?) (Along with the ethical rules, you have to worry about all other laws like the Constitution, statues, etc.). 3. What is the right thing to do? This isn’t always going to be determinative of your conduct though.

CHAPTER 1: The Regulation of Lawyers
INSTITUTIONS THAT REGULATE LAWYERS: 1

1. The highest state courts: a. State and local bars: b.We have an Integrated bar: Admission to the bar in Kentucky: KY SCR 2.000 et seq: Bar application i. To be admitted, you must pass the MPRE (2.015), must have good moral character, must have approved bar application, etc. c.Inherent powers doctrine: Courts have the exclusive authority to regulate the bar. Chambers v. Stengell talks about balancing the police power and the exclusive authority of the courts to regulate the bar. d. How state courts regulate lawyers: i. adopts ethics codes and court procedural rules to govern lawyers ii. sets and implements standards for licensing of lawyers, including educational and moral character requirement iii. supervises agencies that investigate and prosecute complaints of unethical conduct by lawyers iv. supervises administrative judicial bodies that impose sanctions on lawyers who violate ethics codes 2. State and local bar associations: 3. Lawyer disciplinary agencies: 4. ABA: a private nonprofit membership organization founded in 1878. State bar associations are independent, not subordinate to the ABA. a. Model rules: 5. American Law Institute: 6. Federal and state trial courts: 7. Legislatures: 8. Administrative Agencies: 9. Prosecutors: 10. Malpractice insurers: 11. Law firms and other employers: 12. Clients: Elements of a lawyer-client relationship: 1. Competence (1.1) 2. Confidentiality (1.6) 3. Agency (lawyer as agent of the client) 4. Fiduciary: “unique position of trust and confidence” 5. Undivided loyalty and diligence 6. Duty to inform (Rule 1.4) communication Fen-Phen Attorneys illustrate a systemic and personal dilemma • Preamble: • 1, 9, 12, 1.4 (failure to communicate), 1.5, 3.3 Candor toward tribunal, 8.3 reporting, 8.4 misconduct CASES-BAR APPLICATIONS: 2

• In re Prager: Int’l drug smuggling, fled, extradited, probated, but graduated summa cum laude and clerked for state supreme court judge: Denied. Good acts insufficient to out balance 16 years of pot smoking and smuggling • Vaughn v. Bd of B. Examiners: Sexual relations with students (applicant used to be a public schoolteacher): Denied, court said his ethical value system was “deplorable” • Fla. Bd. of B. Examiners re S.M.D.: Declaration of bankruptcy after charging wedding, credit cards, etc. Admitted: record did not sufficiently demonstrate financial irresponsibility • Application of Gahan: Declaration of bankruptcy after law firm he worked for could not pay him-discharged his 14,000 student loan: Court did not find moral turpitude or fraud, but denied admission because his hardship was no “compelling” and failure to repay loans showed lack of good moral character. • In re Tobiga: Shoplifting of meat- many positive character witnesses: applicant found to have proven moral character. • Friedman v. conn. B. Examiners: Student accused of cheating on law school exam. Denied. The student who claimed the cheating was more credible than the other student, and there was other evidence to suggest applicant lacked good character • Radtke v. Bd. of B. Examiners: Plagiarism from a university teaching position was concealed, application denied. Allowed to re-apply after one year. The underlying misconduct was unconnected to any legal work. • In re Converse: Pattern of hostile and disruptive conduct: nude caricatures, display of nude female’s backside in his study carrel, launched personal attacks. Denied. PROBLEM 1-1, POT: PAGE 57 • • During law school, you’ve smoked pot a few times. You need to disclose this. Taken from Iowa (most people are admitted). • Rule 8.1: applicant shall not knowingly make a false statement of material fact. • Cases illustrate how subjective the judgment is. It also illustrates how intrusive the bar admission is. In re Converse
Bar admission denied for law student engaging in provocative acts (pattern of hostile conduct)

In re Tobiga
Shoplifting for stealing meat and lied about unpaid loans; admitted

SMD
financial responsibility case, admitted

Mental health of applicants: • The mere fact of treatment for mental health problems or addictions is not, in itself, a basis on which an applicant is ordinarily denied admission in most jurisdictions. Many states, until the 80s and 90s, asked very intrusive questions. Now most states have narrowed their questions to ask about mental illnesses that require hospitalization or that involved psychotic disorders. Rose Gower • She spent two weeks in the hospital for depression during high school. She disclosed on her bar application, and then the bar committee delayed her admittance for more than a year with 3

) • How was he able to practice in California after being denied admission in DC? • If something happens in law school. She probably needs to correct the resume and disclose it to the bar. which are the lightest form of discipline. Problem 1-2: The doctored resume: • Third-year law student from another country lied on her resume. Complaint filed by a client or lawyer 2. bar counsel investigates complaint 1. determine some other punishment. Admission to bar denied because he failed to establish fitness. (Discuss balance between safeguarding against inappropriate character/fitness and candor) In re Mustafa: • Highest court in DC: Mustafa was a co-chief justice of the law school’s moot court program and he took money out of the organization’s bank account. appear at hearings.but she’ll likely be denied admission to the state bar. • She can’t be penalized under the bar yet since she’s only a student.• • continuous questions requiring more information about her medical history. You’re on the Honor Council: Should you expel her. are imposed almost twice as often as other sanctions. CHAPTER 2: LAWYER LIABILITY: • Notion of self-reporting: Reporting is the key notion of self-regulation. violation of the honor code. protection of the public. warning (consensus: warning not stringent enough). as opposed to earlier in one’s life. Professional Discipline: 4 . but it can lead to underenforcement. changed transcripts. It was during his third-year in law school. or feel bad for her and let her stay. used business funds for personal use. Process: 1. He claimed he took money out to pay his sister’s bail and he did pay it back. but was fired and sued for wrongful termination (clients claim he did not return phone calls. The other co-chief justice turned him in and he also turned himself in that same day. You can be disciplined for conduct OUTSIDE of practicing law! a.private sanctions. and possibly a note in her law school file. etc. • Mustafa later was admitted to practice in California. it’s regarded as more seriously as indicative of bad moral character • “clear and convincing evidence that you possess good moral character” • How can we prevent future misconduct? • Improvements that could be made: • Clients don’t know anything about the disciplinary system • the sanctions imposed are often light and innocent.The history and process or lawyer discipline i. • Options: Expel. • Naivity cannot be an excuse for lying. They fail to address primary goal of lawyer discipline. etc.

or lack of fitness to practice v. makes factual findings. domestic violence 2. He wasn’t publicly reprimanded for five years. Other conduct examples: 1. He was publicly reprimanded: case was made public and probably a notice was published in the bar journal announcing the decision. If a lawyer is disbarred or suspended in one state.. In re Peters: Dean of William Mitchell College of Law was reprimanded for engaging in unwelcome physical contact and verbal communication of a sexual nature against four women employees. hearing committee decision reviewed by judicial agency and/or by highest state court. failure to pay child support 3. Common categories of questionable conduct by law professors: 1. Reviewing body makes final decision on sanction. Lawyers can be disciplined for violation of the ethics code whether or not the violation occurs in the course of law practice (any conduct that is dishonest or prejudicial to the administration of justice or that reflects lack of fitness to practice). OR b. untrustworthiness.they are still attorneys. manipulation of grades 5. they have to report it to all the states they are licensed to practice in. A lawyer can be disciplined for actions which are illegal but do not result in criminal conviction 2. recommends sanctions ii. A lawyer can be disciplined for something she does outside the state in which she is licensed to practice viii. ← ← 5 . sexual harassment 2. A lawyer can be disciplined based on the actions of an employee. even for putting slugs in parking meters! 5. 3. drunk driving 4. aggressive or discriminatory behavior 6. Was this enough? No. dishonest behavior iv. filed closed. hearing committee conducts hearing. vi. b. vii.. neglect of teaching responsibilities 4. Charges filed if warranted by investigation i. iii. and they are licensed in more than one state. any crime that reflects dishonesty. If complaint does not warrant charge. A lawyer can be disciplined for violating a rule in a state in which she is not licensed to practice. Deans and professors can be punished the same way lawyers are. Tens of thousands complaints received annually are not addressed because there are so many.a. ii. Peters was eventually forced to resign from the law school but serves as president of an organization and was honored for his work with a charities organization a few years ago. 1. Grounds for discipline i. plagiarism 3.

you can wait until proceeding has concluded to protect a client’s interests.state had to make it unethical to threaten to snitch during pending civil litigation about opposing counsel’s alleged misconduct b/c too many lawyers were using skeletons to gain negotiation leverage.3: a lawyer who knows that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty. and never reported the first atty’s misconduct (the client asked him not to report it).. public official. a partner. another lawyer in their firm) must report it to the bar disciplinary agency i. a. 6 . If you learn of misconduct during proceeding. Facts: James Himmel helped client recover monies pocketed by first attorney. The duty to report misconduct 1. This includes the duty to blow the whistle on your boss if she does something unethical. Exceptions: only those raising a “substantial question” of the lawyer’s honesty. h.. This includes reporting misconduct by judges c. j. Best Snitches: Land of Lincoln Leads the Nation in Attorneys Turning in Their Peers: (breaks down “Conspiracy of silence”) Illinois has staggering numbers of reporting (in 1995. Standard for assessing knowledge is objective. A lawyer may be subject to discipline if she fails to report serious misconduct by another lawyer.6 (confidentiality rules) or info gained while participating in an approved lawyers assistance program d. Do not have to report confidential client information under Rule 1. a boss. the possibility of discipline for not reporting has motivated many lawyers to come forward with reports of unethical behavior. The duty to report is triggered by knowledge of another lawyer’s misconduct. i. Question is whether a “reasonable lawyer in the circumstances would have a firm opinion that the conduct in question more likely than not occurred” f. “know”: see rule 1. shall inform the appropriate professional authority.← c. Daryl van Duch. ii. k. The knowledge must be more than a mere suspicion that misconduct has occurred.Rule 8. does NOT require disclosure of information otherwise protected by Rule 1. trustworthiness or fitness” must be reported.Reporting misconduct by other lawyers i. Why? In 1988 the Ill highest court suspended an atty’s license for failing to report another lawyer’s misconduct.6 i.0: “actual knowledge” b. nearly 600 complaints filed). He had a duty to report the attorney’s wrongdoing and was therefore disciplined. e. Although there are few public reports of this happening. The “Himmel Rule” also had negative repercussions. You could disclose if it wouldn’t hurt the client and they give informed consent g. A lawyer who “knows” of a violation by any other lawyer (an adversary. trustworthiness or fitness as a lawyer in other respects.

providing continuing education in legal ethics).here. Lawyers’ responsibility for ethical misconduct by colleagues and superiors: (the ethics codes impose a limited amount of collective responsibility on other lawyers in the firm organization for the conduct of other lawyer and of non-lawyer employees) 1. the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices. “law firm” includes legal services org’s or legal dept’s of corps. ratifies the conduct involved. lawyer managers must set up systems to prevent ethical problems (includes procedures to check for conflicts of interest and to manage client funds. and a lawyer to individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Prof Conduct i.1: explains responsibility of a partner or supervising atty for ensuring compliance with the ethical rules by subordinate lawyers.l.1(a): A partner. Rule 5.2: explains when a subordinate lawyer is responsible for her own conduct. etc. and explains when a senior lawyer may be subject to discipline for the conduct of a subordinate lawyer a. Page 337 of Rules Supplement c.1.SEE COMMENT 5 for Rule 5. You cannot say. or ii. and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take remedial action 2. or has direct supervisory authority over the other lawyer.1(b) if they don’t make reasonable efforts to prevent the violation ii. the lawyer orders or. that’s why I did it!”.2(a): A lawyer is bound by the Rules of Prof. ii. Rule 5. the situation had been so public that the atty-client privilege was waived. m. Some states like NY have adopted a “law firm rule” to hold entire firms accountable for misconduct.1(c): A lawyer shall be responsible for another lawyer’s violation if: i.Rule 5.1(b): A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional conduct i. Conduct notwithstanding that the lawyer acted at the direction of another person b. in these situations you would not have to tell. but the violation could be a breach of their supervisor’s duty under 5.Rule 5.Rule 5. b. and when she can follow orders without fear or discipline a. Normally. gvt agencies. a supervising atty is not responsible for ethical violation of subordinate atty if they do not know about it. “I was ordered to do it. 7 .Rule 5. with knowledge of the specific conduct.

adequate preparation 4. In most states. But in NY and NJ. trustworthiness or fitness inform disciplinary authorities is an implicit part of his employment contract with the law firm. and turns out to be wrong. 8. Someone has to make a judgment so when the supervisor does it. 1. To know if the supervisor’s instruction is a “reasonable resolution of an arguable question of professional duty”. there can be discipline on law firms for certain misconduct such as failure to supervise attorneys e.Wieder case (NY 1992): law firms cannot dismiss attorneys for reporting misconduct. See Rule 1. Rule 5. 8 . Rule 1. she should either quit or report.2(b): A subordinate lawyer does not violate the Rules of Prof Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.Rule 5.3 Integrity of the Profession: v. ii. Comment 5: Thoroughness and preparation factors: 1. the law provided no such protection and associates could be fired for any reason other than one expressly prohibited by law (like race). training and experience in the field in question 4. a lawyer of established competence in the field in question ii. use of methods and procedures meeting the standards of competent practitioners 3. that firm can be sued for breach of contract. Page 109. Until this case.1 is also relevant: Competence. what is at stake iii.1. SEE COMMENT 2 ON PAGE 341 OF RULES SUPPLEMENT 1. Powell says there is a duty to report iv.Problem 2-1: The Little Hearing: New associate thrown into a hearing for immigration law with no experience and little time to prepare.3: (language almost identical to 5. associate or consult with.” 3. i. The requirement that lawyers with evidence casting substantial doubt on another lawyer’s honesty. preparation and study the lawyer is able to give the matter and whether it is feasible to refer to matter to. complexity/specialized nature of the matter 2. the subordinate is safe from discipline d. Rule 5. Comment 1: factors for knowledge and skill: 1. they should 1) do some research and 2) seek advice from someone more experienced. Statute: When a firm discharges a lawyer for making such a report. Comment 1 and 5 (page 27 of Rules Supplement). Rule 5. inquiry into and analysis of the factual and legal elements or the problem 2. lawyer’s general experience 3. only individuals can be disciplined for violations.1b also applicable.1) explains responsibilities of lawyers who supervise non-lawyer employees for ensuring they comply with rules of professional conduct.3 Diligence: “A lawyer shall act with reasonable diligence and promptness in representing a client.c.2b applies b/c her supervisor might be the one that gets in trouble. i. 4.

She sued for breach of fiduciary duty. This decision is really scrutinized. The junior partner’s work was cut.Rule 8.000). What do you do? i. There is no statute on retaliatory discharge. Wieder didn’t applya.The Photographer Problem 2. they can fire you.” Sometimes it’s economically advantageous to keep quiet. and breach of contract (constructive ousting from the firm). Rule 8. Scott Wolas was misreporting his hours so he tried to tell other partners about it. and the firm’s partnership agreement doesn’t have any explicit language on whistleblowing. In Texas. Wolas ended up disappearing and it turns out he was running a money scheme from his office and stole 30-40 million from clients.Jacobson case (Illinois): Contrary case to Weider: Illinois Court ruled “there was no need to allow associates who were fired for insisting on compliance with ethical rules to be sue law firms for wrongful discharge. Texas supreme court: The firm did not owe the partner a duty not to expel her for reporting their overbilling. deceit or misrepresentation 9 . The associates want to report it. you run the risk of being fired. Hunton and Williams: TX: Kelly was a new associate at Hunton and Williams. fraud. the bar council starts to investigate but the bar complaint is closed b/c client refuses to participate. they’re let go. States differ. He noticed that one of the partners.Scott McKay Wolas: Kelly v. but the partners don’t think it should be reported. and finds no fraud. Rule 1. This was a real case in texas: the junior partner reported. He tells another senior partner. He received bad reviews after he started reporting it. junior partner got compensatory and punitive damages for 4 mill for breach of fid duty (reduced later to 237. See Rule 8. page 126: Junior partner finds out that senior partner is overbilling big clients. civil or criminal.3: A lawyer acting in good faith when he incorrectly reports misconduct is immune from charges. and she was told to look for work elsewhere. If you report.5. In NY they can’t i. The Kentucky 8. Anytime someone says anything. He seemed to do well and he had good reviews from partners. Kelly is encouraged to resign and does so. who recommends the junior partner report the overbilling. In the civil case still going on. and the middle partner who she reported to.2. 2. She also files a complaint with the bar association.3: Reporting misconduct: iii. The firm conducts a sham investigation. trying to keep relations smooth between all partners (so this goes against whistleblowing) ii. 1.4(c): It is professional misconduct for a lawyer to engage in conduct involving dishonesty. Firm eventually went out of business.5 Reasonable Fees: 8. One of the partners told one of the associates to correct the misreported hours of Wolas. this is later overturned. The firm tried to argue that because Kelly was not an admitted attorney yet. 6. iv. Court turned to the Wieder case for ruling. passed it along to the senior misconduct partner.1 Applicants 7. It seemed like the TX court was giving deference to the harmony of partnership.

intentional infliction of emotional distress v. violation of regulatory statutes vi. disqualification for conflicts of interest i. c. breach of K. the harm would not have occurred (he would have prevailed in the matter in which the lawyer represented him) 5. Tort claim of legal malpractice: The client must assert: 1. fines. Remember. Intra-firm disputes.2. Lawyers are not required to carry malpractice insurance but a prudent lawyer should do so. 10 . lawyer failed to exercise competence and diligence normally exercised by lawyers in a similar circumstance 3. most common mistakes that lead to malpractice liability: • ignores conflicts of interest • sue former client for unpaid fee • accept any client and any matter that comes along • “do business” with your client • practice outside your area of expertise b. Civil liability of lawyers: a. breach of fiduciary duty claims. lying iv.other civil liabilities of lawyers i. They all fall within the umbrella of legal malpractice. i. intentional acts including fraud. advising or assisting unlawful client conduct ii. lawyers are bound by law as are ordinary citizens d. court do no simply interpret the ethics code (these standards articulate rules for discipline. etc. lawyer owed a duty 2. Many courts follow their own common law standards which may not be the same as the ethics code. The client must show that “but for” the lawyer’s conduct. title agent. or penalties 3. malpractice insurance i. like liability to former partners or former employees. ii. stealing iii. breach of contract vii. fiduciary 5. or other dishonest conduct like billing fraud 2. trustee. not disqualification). conduct of lawyers in other roles like a notary public. the breach of duty caused harm to plaintiff 4. In many states. In deciding motions to disqualify lawyers b/c of alleged conflicts. iii. orders to pay punitive damages (some policies allow separate purchase for this) 4. What kinds of acts are unlikely to be covered by a malpractice insurance policy? 1. orders of restitution of legal fees. lawyers are required to disclose whether they have malpractice insurance either to the bar or to clients directly. This information would then be available to the public.legal malpractice: We use the general term “legal malpractice” but it encompasses tort claims.

Under the 6 11 . the lawyer should not make disclosure adverse to client’s interest that is greater than reasonably believed to be necessary to accomplish the purpose. it should be made in a manner that limits access to the info.6: lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. and always keep relativism in mind. or the disclosure is impliedly authorized. b. Criminal liability of lawyers a. defines proper conduct for purposes of professional discipline. I the disclosure is make in connection with judicial proceeding. malpractice insurance will not cover costs and clients do not get their money. Summing up: What governs lawyers? Moral Certainty: “I’m doing the right thing”. 5. You want to guard against absolutism. (Comment 14 of Scope) • “may”: permissive and the lawyer has discretion to exercise professional judgment • If disclosing under one of the 6 exceptions. Morality is what WE believe as right/wrong as people.3. or rectify injury to one’s financial interests • to sure legal advice about compliance with the rules • to prove claim or defense on behalf of lawyer in a controversy b/w lawyer and client • to comply with a law or court order • “shall not”: mandatory. Client protection funds a. mitigate. the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. The lawyer may disclose for these 6 exceptions: • prevent reasonably certain death or substantial harm • to prevent client from committing a crime or fraud • to prevent. The basic principle of Confidentiality • Rule 1. Client protection funds are state-sponsored programs designed to reimburse clients whose lawyers have stolen their money. They exist in every state c. Do not assume certainty in resolving problems. Most programs are now called “Lawyers’ Fund for Client Protection”. Lawyers are not protected from criminal prosecution for white-collar crime 4. Ethics is what the system says is wrong: Chapter 3: The Duty to Protect Client Confidences 1. states do this because in cases of intentional misconduct.

• It doesn’t stop you from speaking broadly about work though. documents.6 • Social interaction that reveals confidential client info is not allowed • The Restatement draws line between disclosures that could harm a client and those that could not. a lawyer is permitted. client’s first name. except information that “generally known” • personal information relating to the client that the client would not want disclosed • information learned from the client. plan of investigation. The use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. photographs. and information learned from interviews. with no identifying or personal information. would regard use or disclosure in the circumstances as creating an unreasonable risk of adverse effect either to those objectives or other interests of the client.Protection of “information relating to the representation of a client”: • Information that is protected as confidential: • all info relating to the matter on which the lawyer is representing the client. 12 . or other sources • info acquired before the representation begins (like during preliminary consultation) and after the representation terminates • Notes or memoranda that the lawyer creates relating to the matter Punishments for failing to protect confidentiality: • • professional discipline • tort liability or contract for breach of duty • disqualified from representation of one or more clients. discovery/litigation.1: Can you tell your friend about the case you’re currently working on? • You disclosed basic facts of the case. opinions about the case. a. Is this too much to disclose? • Yes. name of the police officer. name of the bar where incident took place. but could reasonably lead to the discovery of such information by a third person.6: The rule prohibits a lawyer from revealing information • relating to the representation of a client.” • Dinner with Anna Problem 3. she could reasonably go and find out confidential info now (cmt 4) • It’s not good enough to swear her to secrecy: think about the people sitting around you. or • enjoined by a court from further revelation • General discussion of work is fine. observation. unless the client does not want anyone to know • ***Protection of client confidentiality also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonable lead to the discovery of such information by a third person. • The fact that you are representing a certain client is not confidential. but not required to disclose information relating to a client’s representation to accomplish the purpose of the exception. Comment 4 to Rule 1. This also applies to disclosures by a lawyer that do not in themselves reveal protected information. See cmt 4 for Rule 1.exceptions. R says whether there is a reasonable prospect of harm to a client depends on “whether a lawyer of reasonable caution. considering only the client’s objectives.

6 barrier because she gave a lot of detailed answers.6 which prohibits disclosure of any such information except as permitted by the rules. Look to see whether one of the exceptions to 1. Quote from Hazard and Hodes: the line of permissible and impermissible disclosure should be drawn at “anonymity. ii. so it’s hard to establish a black-letter law. Unlike the Model Rules. Reasonably certain: it will be suffered imminently or there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action to eliminate the threat.if it’s in the past.the community however can benefit. Ex: a lawyer knows that a client has accidentally discharged toxic waste into town’s water supply may reveal this info to authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims. name of client. the lawyer can’t benefit from disclosing. 2. you do not disclose unless disclosure is reasonably necessary to prevent reasonably certain death or substantial bodily harm. Other exceptions: 1. • The permissive standard of the Restatement bars revelation of client information if there is a “reasonable prospect” of harm to the client. • You probably went too far. the Restatement (Third) of the Law Governing Lawyers prohibits revelation of confidential information only if “there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information. The lawyer should protect as confidential most information about past criminal activity by clients.Revelation of past criminal conduct i. ii.” This allows more room for disclosure than ABA Model Rule 1.6(b): 13 .6 applies.” The lawyer should exercise self-restraint and resolve marginal cases in favor of non-disclosure. Also. The exercise of discretion and how you communicate is going to vary from lawyer to lawyer. 2. b. client gives informed consent 2. c. The bottom line i. some of what you say may be violations if you answer specifically. pg 160 says that a lawyer may talk if they are virtually certain that the listeners could not ascertain the identity of the client or if the lawyer could show that there is no “reasonable prospect” that the discussion would adversely affect the client. This is closer to the norm than the statutory language. Exceptions to the duty to protect confidences: a. if the crime is over. In this case.• Dinner with Anna Scene 2: Problem 3-2: • What if friend asks detailed questions and you answer them? • Well. the disclosure is impliedly authorized 3.name of bar. 1.Protection of information if there is a reasonable prospect of harm to a client’s interests i. lawyer may have crossed the 1. or disclosure is permitted by 1.

to prevent reasonably certain death of substantial harm c. to the extent the lawyer reasonably believes necessary b. 14 . Do a site investigation d.6 Comment 18: You are held to confidentiality standards even after the lawyer client relationship terminates • Real case: atty did not tell anyone and did not want prosecutor to know because it would add on charges.if you don’t go. and 1. to limit its scope.6b1. but the court emphasized that “an attorney must protect his client’s interests. You’re not sure if he’s telling the truth. to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services d. to prevent. • 1. plus.In the real case.closer to trial. take photos of body. so you still don’t have to disclose • to prevent future harm/injury: again. they’re already dead.a. or to limit the dissemination of the information. prosecutor tried to sue for obstruction of justice but court ruled for attorney.what do you do? a. the rule does NOT compel disclosure. mitigate.6b6: look at comment 15. to comply with other law or court order. If a lawyer needs to reveal confidential information to protect her own interests. it’s permissive. but also must observe basic human standards of decency. to establish a claim or defense against a client on behalf of lawyer in controversy against client. to secure legal advice about complying with MRules f. Do nothing about the missing girls • Probably best to do nothing. • What about under the exceptions: • complying with law (must report discovering of body): It’s permissive. or rectify substantial injury to the financial interests or property of another that is reasonable certain to result or has resulted from client’s commission of crime or fraud in furtherance of which the client has used lawyer’s services e. 4. the attorney did check out the bodies but did not reveal the information: but you shouldn’t do anything. iii. you don’t know. What if one of the deceased’s parents comes to visit you? Do you tell them you know about their daughter’s death and know where her body is? • Rule 1.The Missing Persons Problem 3. • the attorneys did not get in trouble for not reporting. Robert Garrow (murderer) b.” • Problem 3-4: Missing Persons Scene 2: • You actually go to the site. Alert police c. to establish a defense to criminal charge or civil claim against lawyer based on their conduct in which the lawyer was involved g. she must take steps to avoid the need for revelation. these bodies are not in danger.3: Your defendant reveals during hypnosis that he killed other people in the past.

to convince the defendant into disclosing. there was an ambiguity of what confidentiality was.. and later the aneurysm was discovered. but you would try to find a way to say little.6a says normally there is a duty but there is an exception under 1. • Based on the modern rule 1. but maybe not say anything.The risk of future injury or death • Spaulding (P) v.. Zimmerman’s doctor examined Spalding and found an aneurysm.. attorney did tell.6a: can’t reveal info relating to representation of client (you’re lobbying for the food company) unless the give consent (which they won’t).. you could disclose • Under the old ABA Canons of Professional Ethics.6b.tell her little.• People v. In an instance like this.6a particularly: maybe do NOT disclose • Ramifications of choice: You have make a decision about the way you will handle these situations and still have the impact you desire. Disclosure in this case would be permissible. but they didn’t tell plaintiffs this (and plaintiff’s doctor did not discover it during the initial examination). which may be why the rule is drafted that way. • It’s not reasonably certain death or substantial bodily harm. 15 . or talk to dr.can you tell your pregnant friend who drinks Diet Kola? • Rule 1. • may you tell? yes. • You should have never let the parents in the office. and he might have been stalking your children. tell her. they wrecked and Spalding sued Zimmerman for injuries. b.. you should use your discretion. • What if your job is on the line? Conflict b/w practical reality of being fired and ethical duty to disclose.6 appears to require that you do NOT disclose. • 1.6b • Real life. • Problem 3-5: if he escapes. along with upholding your PR. Rule 1.. • Canon said it was duty of a lawyer to protect client’s confidences • The settlement is vacated by the State supreme court. They settled for not much money. if you think the risk to others is great.3: You have a duty to exercise candor toward the tribunal • Dinner with Anna Scene 3: Problem 3-6: You’ve been doing research on Diet Kolathere’s slight statistical evidence to show it causes miscarriages and higher rates of limb deformities in their offspring.gun fight ensued and police killed suspect. • RULE 3. Belge: real case suing the lawyer after he failed to reveal location of bodies. • Maybe this is an excuse in the rules. Your firm is working in the interest of the food company. Do you tell? You must use your discretion. tell her you can’t say anything else.6. • Comment 6: Disclosure adverse to client: • COMPARE this with the brutality case: at some level you’re at risk of violating the rule and NOT violating the rule. and he once told you where he used to hide out.talk to the doctor about telling the plaintiff.. Zimmerman (D) • 1962: no 1.6 rule yet • Zimmerman was driving and Spalding was passenger. • This doesn’t fall into any of the 6 exceptions of 1. • Look at 1..You could try to find a way to disclose.

If lawyer discovers client conduct after they take the case. • Comment 1: misrepresentation can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.6-b-2 and 3. • the drafters did not intend to include in this definition “merely negligent misrepresentation or negligent failure to apprise another of relevant information. • Lawyers who practice before the SEC or who advise companies regulated by the SEC must report any information about securities fraud to the highest officials of the corporation • Relationship b/w Rule 1. • What conduct constitutes “assisting a fraud”: • Failure to disclose the fact that a lawyer has offered false testimony (court interpretation of Rule 3. who practice before the Commission and become aware of clients’ frauds. Drafters of the new exceptions allowing revelation of financial crimes and frauds tried to balance three policies: • encourage frank comm b/w clients and lawyers • to prevent harm to the public • protect the “integrity of the profession” by allowing lawyers to be whistleblowers if their own work is being used to commit crimes or fraud. ethics: system’s rules) ← • • c. Rule 1. Rule 4. Rule 1.• Moral v. For purposes of this rule it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.6b3: Confidentiality after conduct has occurred. Client frauds and crimes that cause financial harm: lawyers should not facilitate in their clients commission of fraud Rule 1. document..1(b): bars a lawyer from knowingly failing to disclose a nonconfidential material fact when disclosure is necessary to avoid assisting a client’s fraudulent act. • Congress passed the act to prevent further episodes of massive corporate fraud. affirmation or the like. Enron and Sarbanes-Oxley Act: • 1. including lawyers. It authorized the SEC to promulgate tough new disclosure rules for professionals.3: candor to tribunals).2(d): a lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent. ethical (morals: your own system. they must withdraw.6b2: Confidentiality can be broken to prevent before conduct Rule 1.16(a): Sometimes withdrawal alone is insufficient: it may be necessary for lawyer to give notice of the fact of withdrawal AND to disaffirm any opinion.” Rule 1. • Comment 10: The lawyer is required to avoid assisting the client (either by engaging in acts or suggesting how the wrongdoing might be concealed). nor to lawyers that practice before the SEC) • • • • • • 16 .0(d): Fraud: conduct that is fraudulent under the substantive or procedural law or • the applicable jurisdiction and has a purpose to deceive.6b2-3 came about because of Enron. and the Sarbanes-Oxley Act: MR apply more broadly (not restricted to the disclosure of frauds by publicly held companies..

What do you do? • 1.1 is a subset of 1.2.6 (b/c federal law preempts state law!) • • Reese’s Leases: Problem 3-7: client is forging documents. copying signatures. but 4.2. • How do we balance 1. • 4.later.16-b: permits withdrawal from representing a client who persists in criminal fraudulent conduct Other ethics rules besides 1. the old firm was sued and had to pay damages. 1. No matter what. so no discretion • 1. you have to stop representing the client. and 4. • 1..6 is a subset of 4.1 comment 3: Mandatory.1 actually serves a limit on the permissive disclosures of 1.• The Sarbanes-Oxley Act could trump state PR. the consultant who gave advice (a dean) did not get in trouble.1 mandates disclosure. The exception to 4. • 3. Other relevant rules in revelation of criminal or fraudulent conduct: • • 8.4 general dishonesty.1? • Rule 1.1 (truthfulness to others) makes revealing a requirement. • 4.4: prohibits lawyers from hiding or destroying evidence or advising a witness to testify falsely.6. Key here is that revelation is discretionary.16-a: requires withdrawal from representation if continued representation would result in violation of the rule • 1.6b3: Reveal the fraud? • Is revealing the fraud enough? Do we need to do something more? • Not revealing and continue to represent: Probably could NOT do that • What you should do: You should definitely reveal: presume continuing fraud in a case like this and think that 4.3 candor toward the tribunal • 1. but then you talk to them and the client promises to stop doing it.6.13: duties of a lawyer representing an organization to call attention to crimes and frauds (when someone associated with the business is acting or intends to violate the law) • 3. and the new firm was not alerted of any ongoing fraud.6 was not triggered for them b/c the fraud was in the past.6. and may REQUIRE disclosure in some cases where revelation would not be permitted under MR 1. • Not reveal and stop representing them?: • 1.1 Problem 3-8: the investment project • Is it ok to buy the last piece of property when you know your client is not going to buy it? 17 • • • • .6 • 4. 1. this is a drafting problem.1 is the 1. and 4..6 exceptions: 1.1 that allow or require revelation of criminal or Lawyers are NOT protected from civil or criminal liability if they elect not to reveal.16 • The real case: consulted an expert • had no duty to withdraw opinion letters they sent to the bank b/c at that time they were unaware • eventually this firm was replaced by another firm.6 is permissible.

and you could be assisting the criminal act if you don’t say anything. Harry’s lawyer was able to make a plea bargain. the prosecutor seized client’s records and found out the info.6. • Solution: You could give him a deadline by when to remove the rat poison units.8-b applies when the information is used to benefit either the lawyer or a third person. except as permitted by rules • Comment 5: rule 1. • In real case. you could definitely disclose: there is a risk of substantial harm to other children! • 4. • Under 1. it’s a continuing danger: reckless endangerment. Harry did not destroy the information and he handed over the records. • For example. you learn a gvt agency’s interpretation of trade legislation during the representation of one client and you can properly use that info to benefit other clients.1: On some level. Here you dont’ need it. such as another client or business associate of the lawyer-rule does not prohibit uses that do not disadvantage the client.• • maybe they would change their mind so you should be cautious • Cmt 5 to 1. you will disclose/report it. • if they know they’r enot goint to buy it. What do you do? There is both a permissive and mandatory disclosure here. and if not.. • if they were still considering it. The rule does NOT apply to uses which do not disadvantage your client. you would need informed consent. but you should be safe and get it.8(b): lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent. • It’s not a good idea to go into business with a client for several reasons: Problem 3-9: Rat Poison: • Your client is being charged with manslaughter for putting rat poison in home where child ate it and died. A gvt agency went into the homes and removed all the units. it violates your loyalty.8: when you use info to client’s disadvantage. 18 . • Rule 1. you can go ahead and purchase it. he keeps slacking on going to the other homes where he used the same poison to remove the pest killers.

• Scope Information relating to the representation of a client (obtained from any source) Method of Enforcement Professional discipline ← 19 . results in motion practice/objection • Think of this is a narrow subset as confidentiality • the privilege is between the lawyer and the client when the client is seeking legal advice or other legal services. • violation. but not privilege. not the underlying facts • Only LEGAL information is protected: • CHART ON 219 Ethical Duty to Protect Confidences Source Ethical duty.6 Attorney-Client Privilege Common law evidence rule Narrower scope: confidential communication between a lawyer and a client for the purpose of obtaining legal advice Quash subpoena or otherwise exclude the revelation from evidence. rule 1.CHAPTER 4: ATTORNEY-CLIENT PRIVILEGE • CONFIDENTIALITY: • think about the ethical rules • violation. subject to discipline • broader than attorney-client privilege PRIVILEGE: • think about rule of evidence. • So some things are protected by confidentiality. • Only the conversation is privileged. • Conversations can be separated into non-privileged and privileged information.

• Can you assert privilege and exclude the other inmate’s testimony? yes. However. • Communication in confidence: The client must reasonably believe that the communication is confidential • Communication for the purpose of seeking legal assistance: Communication is privileged only if the purpose was obtaining legal advice (if they ask for business advice. that part is not covered under privilege • Privilege protects communication from client to lawyer.• • • • • ELEMENTS OF ATTORNEY-CLIENT PRIVILEGE: • Communication: privilege covers face-to-face conversations. • Waiver requires a voluntary act by the client or an authorized agent of the client.the privilege belongs to the client and can only be waived by him the client can’t be forced to testify • • the client may waive the privilege. Interpreters are covered too. identity of a client is not privileged.secretaries. and the client answers. law is unsettled on whether identification is protected if disclosure would incriminate the client in the very criminal activity for which the client sought advice in the first place. phone calls. there has not been waiver. faxes. ti’s still privileged. Problem 4-1: Murder for Hire • Your client allegedly hired someone to kill his father. like investment tips. • Waiver by inaction: if client is asked a question regarding privileged info in a deposition and the attorney fails to object. IMs. • This was the only place they could meet so you could argue there was a reasonable expectation of privacy. • Privileged Persons (communications with lawyer agents are also privileged. paralegals. They want to bring in inmate who overhead admission. • Arguments that the attorney-client privilege applies: • purpose was to deliver legal services 20 . investigators). He agrees to admit guilt at first and then later changes his mind. etc. it’s not covered) • If a lawyer doesn’t bill a client for the legal advice. emails. NOT the underlying information is protected • CLIENT IDENTITY • In general. even if the lawyer objects • Paper and electronic records of the privileged communication are also protected • only the communication. memos.so if lawyer on accident reveals privileged info. as well as lawyer to client. it cannot be undone.privilege was waived • privilege can be waived if the client or lawyer reveals the info to a non privileged person. WAIVER • The attorney-client privilege can be waived expressly or by the lawyer is the waiver has been authorized by the client. you don’t need an exchange of money • If part of a conversation is not about legal advice. When communication is privileged: • The lawyer can’t be forced to testify • can’t testify over the client’s objective. when you’re talking to him in jail you start to believe he actually killed his father.

If purpose was to make money. Problem 4-2: The fatal bus crash: • • you represent estate of man who was injured in bus crash. example of how important privilege claims can be: the tobacco litigation cases from the 90s. The purpose was to deliver legal services. As long as the client has the intention to perform an act that is criminal. • Real case: court looked at the documents. his insurance won’t pay now because they say the cause of death was not the crash. • You want to interview the insurance executives about the conversation they had with lawyers: • The insurance’s attorney will likely argue that Insurance. • Procedure for challenging a claim for privilege: • opposing lawyer must request documents based on guesses about what might exist or what it might contain • the lawyer could argue for in camera inspection of the correspondence in which the judge reviews the documents privately to decide if they are privileged. fraud exception does apply. something that needed to be looked at. Any letters concerned legal strategy with respect to the claim.attorney client privilege applies. they are business records not privileged info. the communication is not privileged. Diamond v. You can also argue that they are deliberately lying because they knew about medical records therefore. • The Crime Fraud Exception: • There is no privilege if a client seeks assistance with a crime or fraud. And crime-fraud exception does not apply. it’s not privileged • If a client asks about whether a certain act is permitted under the law. There is no evidence that it has been shared with non-privileged persons. So the court thought this was def.as opposed to a request for advice to help commit a crime or avoid apprehension. This was correspondence between them. heard both sides. even if the • No privilege for conversation if the client later uses the advice he received from the lawyer during the conversation to commit a crime or fraud • criminal acts/fraud in the past are privileged • if a client consults a lawyer about a planned crime but doesn’t know that the conduct is criminal. argue for additional exception of wrong-doing so an intentional tort can be within the crime-fraud exception (new legal strategy). and concluded that the purpose of the crime-fraud exception would be effectuated by applying the exception to torts. YOU SHOULD ARGUE THAT privilege has a narrower scope than confidentiality. therefore no attorney-client privilege. Stratton 1982 21 .• • client has reasonable expectation of privacy if this is the only place that jail provides to talk which makes sense b/c • 6th amendment right to assistance to counsel • any communication was about legal strategy • Arguments that the attorney-client privilege does NOT apply: • there was no expectation of privacy the att-client privilege existed here. Finally. even if they don’t know it’s criminal. HOWEVER. it’s probably privileged. urging that the inspection might show intention to commit fraud.

reputation. This information was supposed to remain confidential. United States: KNOW THIS FOR EXAM • Attorney-Client Privilege for Corporations (FOR EXAM) • Control Group test. However. and he confesses to a murder that would let an innocent man go. the problem is determining who’s in the control group. • Corporation conducted internal confidential investigation 22 . The reasoning behind this test is that we want to give people who have responsibility for company the privilege.This is the test endorsed by the Supreme Court in the Upjohn case. won’t give or reveal any information. STILL. • Actual case: attorneys sought informal opinion from state ethics committee and the committee told them it was permissible to disclose • • ← • • The scope of privilege for corporations: Upjohn Co. • some people have suggested that we have exceptions (like for criminal prosecutions under federal law • what are the concerns? civil liability. Problem 4-3: the dead murderer: Real case is Swidler: Your client is dying from • cancer in prison. v. Upjohn claimed that the questionnaires were privileged but the Sixth circuit applied the control group test. United States (The Dead Murderer Problem 4-3) • Duty of confidentiality survives the death of your client. Then the IRS issued a summons for the internal questionnaires promulgated to members of the company by the general counsel. Your client doesn’t disclose.limits the privilege to communications from persons in the organization who have authority to mold organizational policy or to take action in accordance with the lawyer’s advice. harm to family and friends. • How long does the privilege last? no one really knows. He then said that the privilege protects communications not underlying facts or certain groups of people. As stated above. In Upjohn. The Supreme Court said that this test frustrates the privilege because low level employees are not protected and therefore.. won’t give or reveal any information. Renquist said we want a functional.4 misconduct: professional misconduct to engage in conduct that is prejudicial to the administration of justice. The Supreme Court rejected that test.The Death of the client Swidler & Berlin v. and the other def goes on trial in a week and could get the death penalty.6: you could claim it fits under one of the exceptions b/c the other guy is in danger of substantial harm • What about under the rules of justice? You might want to find out more information before you disclose (look at what kind of case the prosecution has against the “innocent” defendant) • 8. We know that death does not end the privilege unless he gives consent to disclose after his death. practical test. the Supreme Court said that this test frustrates the privilege because low level employees are not protected and therefore. a company was bribing countries to do business and the general counsel for the company decided to conduct an internal interview.should you save the innocent def? • 1. the company decided to voluntarily disclose some info to the SEC. then dies.. However. this test is used by several states because the subject matter test only articulates federal common law and states make their own evidentiary rule • Subject Matter Test.

reason: we want to give people with authority privilege • Problem is trying to figure out who fits into this group “Upjohn Test”: The new “subject matter test” endorsed by Supreme court for cases based on • federal law: • “extends the privilege to communications with any management or lower-echelon employee or agent so long as the communication relates tot he subject matter of the representation. Prosecutors should first request purely factual information. it’s communication (so you can ask the client about facts. they wanted a rule that reflected the way modern corporations function • This case expanded the corporate attorney-client privilege in federal proceedings to communications between lawyers and low level employees who talk with a corporation’s lawyers to long as the lawyers are gathering information to help guide the company’s legal affairs. • Category I: factual information • Category II: legal advice • Whether or not to give over requests to waive atty-client privilege with corporations: page 257: • likelihood and degree to which the privileged information will benefit the government’s investigation • whether the information sought can be obtained in a timely and complete fashion by using alternative means that do not require waiver • the completeness of the voluntary disclosure already provided. • Three things you can do: 23 . relating to the underlying misconduct. and should follow a step-by-step approach to requesting information. and • the collateral consequences to a corporation of a waiver • McNulty only applies to the Dept of Justice. Fill in cases from chapter 4! Problem 4-4: Worldwide Bribery: Read this problem!!! • It’s category II info. but not about what legal discussions they had with their attorney)...” The McNulty memorandum: page 256**** • If a legitimate need exists. so so you shouldn’t just hand it over. • companies don’t have to abide by this. The supreme court did not like this and adopted the Upjohn Test: a broader test that. • Under the McNulty Memorandum. • If they can determine it independently.it’s just guidelines for the government for when gvt should request waiver or atty-lient priv or work product doctrtine. which may or may not be privileged. . prosecutors should seek the least intrusive waiver necessary to conduct a complete and thorough investigation. • Client cannot be asked “what did you say or write to your attorney?” • The old approach was the “Control Group Test” and is still used in some states: • “limits the privilege to communications from persons in the organization who have authority to mold organizational policy or to take action in accordance with the lawyer’s advice”.• • • • The sixth circuit limited notion of the privilege for the corporate counsel. If not. it’s considered facts.

Try to get something formal from the government first. But it doesn’t protect underlying facts. it probably won’t be privileged b/c it’s not in preparation for litigation. “Ordinary” work product is that which is compiled by the lawyer. Just turn over cover and facts but not release any liability information or legal stuff.• waive privilege and turn over records • not waive the privilege (probably best answer: you shouldn’t give over conf info everytime you have the slightest threat of prosecution. ← WORK PRODUCT DOCTRINE: Must be in anticipation of litigation. If it’s a routine practice of the business/client to do something. not all (this is the worst choice) • i. However. strategies. you may instruct the president to waive the privilege and turn over records. That way you are in a better bargaining position • ii. or mental impressions than it does to other forms of work product. you may instruct him that he can give a little and hold some back. • CHAPTER 5: RELATIONSHIPS BETWEEN LAWYERS AND CLIENTS: • Relationships between Lawyers and Clients 24 . You can also choose a middle ground. A lot of the information you can obtain from other places. • Showing of substantial need or undue hardship can overcome a claim of work product immunity when the allegedly protected material is a witness statement or other “ordinary” work product. but does not contain the lawyer’s “mental impressions” (this is why it’s not absolute) • The doctrine gives stronger protection to work product that reveals the lawyer’s thoughts. So. The pro is that if you turn it over you may be able to negotiate with the prosecutor. and then litigation arises.) • middle ground: give some information. The con is that if you turn them over. • It’s not absolute. there is no limit to what the government can investigate or prosecute. Then turn them over. • iii.

Miller & Keefe: • Togstad had an aneurism and a doctor surgically implanted a clamp in his neck to allow gradual closure of the artery where the aneurism was. 1. • Attorney. 25 . and never did. did not qualify it. • A lawyer must also respond if they tell a person they will get back to them • If a person is waiting and does not get other counsel or if they miss a deadline because they are waiting. So long as it is not excessive. Still. • Example • A client hired a lawyer to represent her in a custody case. a lawyer can be liable • What if a lawyer doesn’t want to take a case? • A lawyer is under no obligation to take any case but. He did not conduct the minimal amount of research. gave legal advice. He said he would get back to her. • How is the relationship formed? • No formal agreement is necessary. He billed her for more than $25. Vesely.• Choosing Clients: • Can a lawyer accept work in an area of law where they have no expertise? • Well.1 says competence requires the legal knowledge. Miller. plaintiff would’ve won case 3.2 says that a court may assign a case and you can only reject it for good cause • A lawyer cannot discriminate when they are choosing clients Legal Malpractice • • Elements • An attorney client relationship existed • That defendant acted negligently or in breach of contract • That such acts were the proximate cause of the plaintiff’s damages • That but for defendant’s conduct. • However. • Bar suspended him indefinitely for overbilling and not being competent. • The test for atty-client legal relationship: • client sought and received legal advice • a reasonable person would have relied on it • Rule: Four elements must be shown in this type of legal malpractice case: • Atty-client relationship existed.000 and pursued a bad theory of the case.HOW RELATIONSHIP IS ESTABLISHED (SEE TOGSTAD) • Togstad v. rule 1.1 does not prohibit the representation • Can a lawyer bill a client for getting up to speed? • Yes. and never told her he was not familiar in this area of law. if a lawyer can get up to speed. he took the case. He gave legal advice and she relied on it. he said she did not have a case. Otto. • This means that you must be careful about giving casual advice.. Never suggested she should talk to another attorney. the SOL had run.1 encourages lawyers to do 50 pro bono hours a year • Rule 6. • Rule 6. thoroughness and preparation reasonably necessary for the representation. skill. By the time she went to another attorney. He had 48 years of practicing security law but no experience doing custody.

even if they are not paid for it. You should explain the scope of representation to make sure you’re covered (1.• • • • • Def acted negligently or in breach of contract • such acts were Proximate cause of plaintiff’s damages • But/for = successful (case within a case” see page 129) Apply it: • • Don’t make statements about the law without adequate representation. but you see your client doing something that gives you apparent authority.LAWYERS’ DUTIES OF COMPETENCE. EXPRESS : when the client says they want you to do something b. • a lawyer may not discriminate on the basis of race. 5.2) Rule 6. RULE 1. • lawyers are encouraged to “aspire” to provide at least 50 hours/year or pro bono representation. sex. or the client/cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.LAWYERS’ RESPONSIBILITIES AS AGENTS: AGENCY LAW (3 AUTHORITIES) a. thoroughness and preparation reasonably necessary for representation. 4. COMMUNICATION AND DILIGENCE A. COMPETENCE. This requires the legal knowledge. ***The MacCrate Report • Identified ten things and four values that attorneys should have • See pge 280-281 • Ten Fundamental Lawyering Skills: • problem solving • legal analysis and reasoning • legal research • factual investigation • oral and written communication • counseling • negotiation • litigation and alternative dispute resolution procedures 26 .) c. disability. or another protected category in decisions about who to represent. skill. IMPLIED : an incident of doing the representation for the client (client’s not going to tell you to draft documents and file them. HONESTY. nationality. if it’s likely to result in unreasonable financial burden on the lawyer. APPARENT: only the acts or statements of client or another principle can justify reliance by a third party. age.1: Limitations on freedom to choose clients: • lawyers have duty to provide legal assistance to people who are not able to pay for it.2: Accepting Appointments: • you should not accept a client if it’s likely to result in violation of rules. religion.1 1.1: lawyer SHALL provide competent representation to a client. • lawyers may be assigned to represent indigent criminal defendants. etc. if you don’t have express authority. Rule 6.

• • • organization and management of legal work • recognizing and resolving ethical dilemmas • Four Fundamental Lawyering Values: • commitment to values of attaining a level of competence in one’s own field of practice and representing clients competently • commitment to values of promoting justice. The state appointed Tunkey. fairness and morality in one’s own daily practice • participating in activities designed to improve the profession. • Question::: Whether representing this client competently requires further factual and legal research.1: Competence • knowledge • skill • thoroughness • preparation COMPETENCE IN CRIMINAL CASES: • 6th Amend requires that a criminal def be provided with a lawyer whose work meets at least the minimum standard of being “effective” • Strickland v. We get through this quickly. Washington: • Washington committed several crimes.. The temptation and inclination is to accept the store’s proposal. you should still do everything you can • 1. trying to get rid of race biases in profession • seeking out opportunities to increase their knowledge and improve skills Problem 5-1: The Washing Machine: • Hallmart.read the contract. • Options: • Do nothing • Payment plan to settle • Get rid of this case • Do more research. you wouldn’t be subject to discipline.. assisting in training new lawyers. You’re not being paid anyways.. • Client doesn’t have money and offers a payment plan. Washington confessed to 27 . an experienced criminal atty to represent him in a capital case. which is where some of its complexity comes from. a retail appliance store • This problem is deceptively simple. and the client is happy (unless the contract says otherwise) • 1. • look at the company’s history for these claims and also see if they can discharged under state law • This does create a problem though b/c client may not be able to pay • You need to collect more information before negotiating • What should our objective be? • If you settled it. including 3 murders.2: Look at the scope of representation: you could limit it by agreement • No matter how much the case is worth. under what terms did the client sign the contract? were there any oral communications/agreements made to him? are there warranties? this could lead you to counterclaim.

You have to prove that better representation would have made a difference. you must prove two things: • counsel’s performance was deficient. • It’s not enough that the def show the errors had some conceivable effect on the outcome of the proceeding (b/c almost every act would meet this) APPLICATION: The conduct of the counsel here is not unreasonable.the murder and pled guilty against atty’s advice. This requires showing that the atty’s errors were so serious as to deprive the def of a fair trial. Washington had a sentencing hearing where “mitigating” evidence could be introduced but Tunkey did not offer character witnesses. 2 months after court’s decision. one’s liberty is at stake and perhaps you should do more anyways!s • defendant was executed in 1984. Judge focused on aggravating circumstances. it’s “to tell them almost nothing”. Washington • suffered insufficient prejudice to warrant setting aside his death sentence. that we have no faith that it was a fair trial. • There’s still a case within a case: Look back at Togstad case. • after this case. so he did this as a strategy. these are virtually impossible because you have such a high standard of what must be proven • RULES: • To prove that counsel’s assistance was so defective as to require reversal of conviction. Washington submitted 14 affidavits from people who said they would have testified if asked to do. There was a compelling dissent that said lawyer should have brought up everything. pages 273 and 129. It’s unreasonable for counsel to fail to investigate. • Is this reasonable? Was the attorney reasonable? Powell thinks not.4 • Is it ever okay to lie? • Questions to ask • is the subject trivial or private? • is anyone harmed by the lie? • is the purpose of lying to protect someone? 28 . • DISSENT strongly argues that counsel is afforded too wide of a latitude and that the requirement of acting like a “reasonably competent attorney” is too vague. • an error by counsel does not warrant setting aside judgment if the errors has no effect on judgment. only 4 percent of criminal def’s won on incompetency charges against their lawyers. So serious. This requires showing that atty made errors so serious that he was not functioning as the counsel guaranteed to def by the 6th amendment. Tuneky knew that the judge liked individuals taking responsibility for their actions. (this is really difficult to show! they have to be totally ineffective) • show that the deficient performance prejudiced the defense. a trial whose result is reliable. Here. unlike in the Washing Machine problem. B. CANDOR 3. Tunkey’s actions were strategic decisions.3 AND COMMUNICATION 1. The judicial scrutiny of atty’s performance must be highly deferential to the attorney • • counsel has duty to make reasonable investigations or to make reasonable decisions that make particular investigations unnecessary. etc. for a long time.

people do.1: Honesty toward tribunal CMT 7 to Rule 1. lawyers should be honest with clients and others.4: Consulting/communication • lawyer must INFORM CLIENT promptly of any decision or circumstances if informed consent is required for anything • reasonably consult with the client about the means by which the client’s objectives are to be achieved • keep client reasonably informed about status of their matter • promptly comply with reasonable requests for information • consult with client about relevant limitation on lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules • Explain matters to the extent reasonably necessary to permit the client to make informed decisions Civil liability for dishonesty to clients: • can sue the lawyer in tort for fraud or for breach of lawyer’s fiduciary duty RULE 2. CMT 1 to rule 1. a lawyer may refer not only to law but to other considerations such as moral. the comment does not address whether the atty can lie if directly asked by client about it.4 also requires “reasonable communication b/w lawyer and client as necessary for the client to effectively participate in representation. In rendering advice. economic. Generally. If a lie is not fraud it still may be deceit or misrepresentation. that may be relevant to the client’s situation. 29 . fraud. social and political factors.• • • • • • • • • • • • • • • • does the person lied to have a right to know? • is there a reason to tell the lie. BUT.(although The rule does not explicitly require lawyers to be honest with their clients) Rule 8. You can lie in negotiations definitions of fraud vary from state to state.” they can’t do this if they’re lying! Lawyers must inform clients of important developments in their case Rule 1.13: an organization as a client: org’s don’t lie.1: CANDOR: • lawyer shall exercise independent professional judgment and render candid advice. RULE 1..4: lawyers may withhold a psychiatric diagnosis of a client when the psychiatrist indicates that disclosure would harm the client.4(c) prohibits attorneys from conduct involving dishonesty. deceit or misrepresentation YOu have to have knowledge that you’re lying in order for it to be forbidden. can the problem be solved without lying • if you lie. will it require follow-up lies to cover it up? Problem 5-2: Lying to Clients: • lowballing • i never reviewed this document • who did the work? • covering up mistakes • blaming others for mistakes Rule 4.1: Truthfulness with persons other than clients Rule 3.

3: A lawyer shall act with reasonable diligence and promptness in representing a client. that may be relevant to the client’s situation. DILIGENCE Rule 1. but still be candid and warn against pitfalls. we must give bad news when necessary. social and political factors. Instead. to make torture permissible. Sawyer • You’re probably violating 3.• • • • • • CMT 1: A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. • Options: 30 . He will not consent to psychiatric exam though and does not want you to argue this.2b: may be a reasonable resolution of an arguable question • The lawyers should edit the memo to reveal doubts about the medicare standard and Youngstown Sheet & Tube Co. he wants you only to pursue the procedural arguments (that the search and seizure was illegal). • PROBLEM 5-3. • Comment 1: lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. no one has ever been disciplined under 2.1 to be grounds for violation charge.2: Scope of representation and allocation of authority b/w lawyer and client • Jones v. • You can give them the narrow. v.3 if you don’t talk about youngstown Steel case C. a lawyer may refer not only to law but to other considerations such as moral. Torture: • Context where all parties considered clients want a forward looking approach.1 • 5. Common violations: failing to return calls or not filing papers with court on time. • 2. Barnes: • We preserve the lawyer’s autonomy • There is no 6th amendment right for a client to demand which issues to raise on appeal • the rule is based on underlying theme of collaborative decisions b/w lawyer and client. forward looking memo they want. On appeal. makes it a defense that the counsel told them they could do it. CMT 1: lawyer should pursue matter for client despite personal opposition or inconvenience and take “whatever measures are required” to vindicate client’s cause CMT 3: perhaps no professional shortcoming is more widely resented than procrastination Canons used to say you were required to act with “zealous advocacy” but this was problematic because it did not mean you should act hostile towards opposing counsel D.1: Advisor: lawyer shall exercise independent professional judgment and render candid advice. In rendering advice. • It’s very rare for a 2. you think your best argument to save him from the death penalty is to claim he has paranoid schizophrenia. WHO CALLS THE SHOTS? • Rule 1. or at the very least. economic. • Problem 5-4: The Unibomber: • You represent a package bomber. • One important consideration is that you want to protect your client from future litigation.

etc.14 Guardianship is only appropriate in extreme cases PROBLEM 5-5: VINYL WINDOWS: • You go to client’s home because she can’t come to the office.6 might be impliedly authorized to reveal info. • talk to neighbors.3 • 8. the client was upset and sued the attorneys asking for post-judgment relief. you may not be able to force him to submit. court said the attorneys were fulfilling their duties. He argued that the evidence undermined his defense. When they started working on the windows..4 • We want to maintain client autonomy and not be overly paternalistic. the attorneys kind of tricked the client and used the evidence.“Maintain a normal client relationship” • 1.the state is going to ask that the client be admitted for mental care. would violate client autonomy. • 1. when.2: scope of representation • 1. aggressive. When they asked for the final 900.4: communication • 1.14 try to have a normal client relationship.. here you can’t so try to get a guardian ad litembut this is probably not necessary. But who should call the shots? You have to balance Client Autonomy and Paternalism. • Real case: facts were a lot harsher. You discover a procedural error in the commitment petition and go to tell him about it.? • balance client autonomy with paternalism • do what you can to get her to decide PROBLEM 5-6: • You are assigned to represent client. CLIENTS WITH DIMINISHED CAPACITY: Rule 1.14: diminished capacity.• • • • • Go with the client’s wishes and try to persuade jury that his bombings were necessary to warn and protect society from a greater disaster. the living room is cluttered. • In the real case. and she went to the bank and withdrew money to give them. • 1. terrible idea. Now they’re suing her and she can’t recall what she paid. She tells you that two salesmen came to her house to work on her windows. but the court rejected the argument. should you still tell him that you have a way to keep him from being committed? 31 • . and talked her into signing papers. When you visit him. he is angry. She is an elderly widow. and very scary. • Relevant Rules: • 1. ask the judge to order a psychiatric evaluation. • We would try to pursuit what she wants. this may be the only real option.1 • 1.it’s too early at this point. • Despite client’s objection. she would go to the bank and withdraw payments. • A possible compromise: trick the client into undergoing examination and then use it. she didn’t want to pay it b/c the windows were leaky. but try to explore everything.

and competent representation to the child as is due an adult client. • Can you respect client autonomy while doing what’s in their best interest? • you DO NOT have to follow Grace’s objectives b/c she may not be able to make an informed decision • you need to determine if she is capable if making decisions under 1. etc. • PROBLEM 5-8: Candid Notes: After you stop representing client. confidentiality.16:Declining or terminating representation: • 1. etc. Do you hand it all over? • the client does not “reasonably need” the information in this internal memorandum so you probably would not give it to them.• Probably try to get the client released. Their file has a lot of candid notes written on it about impressions of the client. follow her wishes. JUVENILES: • children are owed the same duties of undivided loyalty.4 comment 6 TERMINATING LAWYER-CLIENT RELATIONSHIPS: • 1. • being assigned as her guardian would be going too far • maybe just act as reporter to court • the best option is probably family reunification • 1. She’s staying with a foster parent now that has a lot of experience. lawyer should take steps to the extent reasonably practicable to protect a client’s interests. tell the client that you think they want all court documents. his actions don’t dissolve the relationship and you’re not required to withdraw. • MUST WITHDRAW: • you must withdraw if you’re fired. 32 . refunding advance payments or payments not used. • Don’t redact because it would raise suspicion. • GROUNDS FOR TERMINATION: • A client can fire you at any time and for any reason. Grace wants to return to her mother who abused her (child does not really remember the abuse). they request their entire file. • These are internal documents intended for internal review so the client does not need them and lawyer can refuse to hand them over. but not with special needs children. etc. surrendering papers and property to which the client is entitled. • PROBLEM 5-7: • Child does not really know what she wants.16D: Upon termination.14 and if so. • some law reviews also say that children need and often expect that an adult will make important decisions for them. such as giving notice to client. but that you are excluding internal documents that you withhold from all clients..

In the 1940’s.• you must withdraw if you are ill or incapacitated. first you must warn the client) • unreasonable financial burden • client unreasonably difficult to work with (continual failure to appear.7: Conflict of Interests: Current Clients: • SHALL NOT represent a client if it involves a concurrent conflict of interest.16d CHAPTER 6: CONCURRENT CONFLICTS OF INTEREST: GENERAL PRINCIPLES: CHAPTER 6: CONFLICT Things that impact and can undermine the attorney-client relationship. you still may be able to if: • lawyer reasonably believes client is acting criminally or fraudulent (this is different from KNOWINg they are. you can’t just withdraw and leave. • 1. Identify problems and try to resolve: • withdraw • not accept representation • is the conflict consentable? • is screening allowed? • RULE 1. • Even if the lawyer has good cause to withdraw. • DUTIES UPON TERMINATION: • Fee refund of any fees paid but not yet earned • Client’s papers and property • Client continued to have an obligation to pay fees already earned by the lawyer 1.16b3 • client’s views are repugnant or imprudent (their views are very terrible) • client fails to meet obligations (like paying.7(a) A concurrent conflict of interest exists if: • the representation will be directly adverse to another client • there is significant risk that representation will be materially limited by lawyer’s responsibilities to another client. or a third person or by a personal interest of the lawyer • 1. and 60s. 50s. the court may order the lawyer to continue in which case they must. a former client. it was not uncommon for attorneys to represent opposing clients.7(b) In spite of a concurrent conflict of interest. a lawyer can represent a client if • lawyer reasonably believes he can provide adequate representation to each affected client • • • 33 . (physical or mental health) • or you know your representation would be materially impaired • if continued representation would violate ethics rules or the law PERMISSIVE WITHDRAW: • • no harm to the client • Even if material harm will occur. missing appointments repeatedly) • if you have appeared as the attorney in the case. in which case withdraw is required) • past use of service for crime or fraud (even if it’s not currently be used for these purposes) rule 1.

in writing. the women do not know eachother. who now you know is the husband of Doris (bus accident client). Firm sued for fees for work already performed. you would know about Fred’s assets and values • PROBLEM 6-2: I THOUGHT YOU WERE MY LAWYER: • One of your firm’s clients was hit by a bus and she’s suing the bus company. CONFLICTS B/W CURRENT CLIENTS IN CIVIL LITIGATION: • You represent Fred in his divorce. CROSS-EXAMINING A CURRENT CLIENT: 34 . What happens when we get a settlement that’s different for the two clients? You can share confidences. so then we go to material limitation (like insurance policy caps). • You should memorialize their agreement to your representation. one just has whiplash. • if you don’t get the informed consent. and • each affected client gives informed consent. the firm was fired from the personal injury matter when they found out firm was representing spouse. PROBLEM 6-1: INJURED PASSENGERS: TAXI: 373-374: • two women in a taxi when it crashes. • The firm should at least withdraw from representing the husband • Analyzing under RULE 1. and where its offices are. • In the real case.• • • • • • • HOW DO YOU KNOW IF YOU CAN PROVIDE ADEQUATE REPRESENTATION? See checklist of questions on page 364. you would charge based on contingency fees. What to disclose: • explain loyalty. Court held firm should have received informed consent. the representation is not prohibited by law • • the representation does not involve the assertion of a claim by one client against client represented by the lawyer in the same litigation or other proceeding before a tribunal. You need a contingency plan in case conflict arises. • If you were to represent Mona. more severe injuries. we treat the entity as ONE lawyer. A new client.you didn’t realize relationship b/c their last names are different. • Firm also agreed to represent a man in a divorce. • Is this a non-consentable case? no. Mona.7: • Try to get informed consent (see what to disclose above) • If you can’t get informed consent. Becomes much more complicated when settlement arises. comes to you about suing Fred for car accident. you can’t represent/continue to represent No matter how big the firm is. but the firm WAS entitled to some fees. This is DIRECTLY ADVERSE. it’s okay. confidentiality and attorney -client privilege • advantage/risks of proceeding together • how confidential info will be handled/shared among clients • come up with an alternate plan incase you can no longer represent both (like one will leave and seek other counsel). you will need to get rid of one or both clients (if both have provided confidential information adverse to the other). If you were to represent both. and the other has fractures. As long as everything is open and clients agree. • we don’t have any DIRECT adversity.

• Is there material limitation? • There’s a significant risk that services to one are limited by services to other. PROBLEM 6-4: PRISONER’S DILEMMA: • There’s two class actions. one for women’s prison.7 QUESTIONS to always ask: • What are the client’s objectives? • How can we achieve them? • we know there is a “material limitation”. PROBLEM 6-3: INURED PASSENGER 2: • You represent 1 and 2. • O’Connr case: Mentally disabled facility is overcrowded.eventually. court ruled that there should have been disqualification. said the state made good faith effort to negotiate. • How can your representation of one client be “materially limited” by representing the other? • 1. • Look at 1.. and another person (2) who is charged in unrelated crime. etc. and move women into the mental facility which had better resources. if you’ll accept only 50. but only after years of appeal. 2 is gong to testify against 1 which means you will have to cross-examine 2. libraries. and one issue that came up : did the state make the offer in order to make a conflict to disqualify the legal services firm? Court said no. you • would need to Consult with your clients and get their consent. the lawyers for both sides are part of same legal assistance program.• • • • • You represent a criminal defendant (1).10 • Real case: the court looked at the limited representation. Ultimately.000 for the less injured. injured passengers (you have already gone through all the procedures in 1. The Restatement however takes position that this type of conflict may be waivable by the client after full disclosure.7b to make sure you can represent both). • What to do? You need to properly • What if you find out one of the clients were drunk. etc. Because of the “material limitation”. The economics would say this was consentable.000 to settle more injured case. COMMENT 6 to 1. • state offers to continue reducing numbers of mental facility. • you can try to talk to everyone. REPRESENTATION OF CO-PLAINTIFFS OR CO-DEFENDANTS IN CIVIL LITIGATION: Several states have held that a driver and passenger have sufficiently divergent interests that they may not be represented by a single atty. there was clearly material limitation to the representation. does not ordinarily constitute a conflict of interest. • It’s a more serious conflict and if it’s a cross-claim. One’s injuries are worse than the other-The insurance company in settlement negotiations hints that he might offer 350. it’s not consentable. Is this situation consentable? • This situation would NOT be consentable if both clients wanted the maximum payoff. and one for facilities for mental retardation. 35 . same entity) • There are two different interests: • Pelligrino: Women’s prison is not adequate. build security there.7: simultaneous representation for clients who are only economically adverse. different offices (doesn’t matter. which contributed to the accident? you would need to consult with them b/c they’re adverse now. no exercise areas. the women’s prison was built.

even though you are arguing contradicting arguments which could create precedent affecting your other client. • Actual cause: • Weil. you can’t reveal info learned during that consultation. you have to determine whether or not it’s okay. except for exceptions under 1.) • Factors to consider whether there’s a positional conflict that creates a serious problem: • whether issue is before trial or app. court • whether issue is substantive or procedural • the temporal relationship between the matters • the practical significance of the issue to the immediate and lon-run interests of the clients involved • clients’ reasonable expectations in retaining the lawyer. • We can’t look at obtaining consent since they are already upset • You do NOT have to withdraw• Argue there is no real risk/real conflict: • This is trial court. The noble position is not to withdraw: there’s no real material limitation and the city really needs this representation. • the gun manufacturer that called global may be playing on his own fears of liability. a pharmaceutical company. not about present tense litigation • there is no real proximity between these issues. • PROBLEM 6-5 TOP GUN: • Large law firm was representing city in lawsuit against gun manufacturers b/c of high gun crime rate. RULE 1. Gothsal. believes that your representation against gun companies could create dangerous precedent for their liability of abused drugs. 1.you may want to thoroughly explain the low risk • adverse publicity could result if you withdraw from city. and you might demoralize some of your attorneys. (Sometimes. positional conflict is okay. Manges: they withdrew from the gun case • • CONFLICTS INVOLVING PROSPECTIVE CLIENTS: There are obligations even to someone who isn’t really a client. and it’s 6 months before trial so the city is relying on you and you’ve already invested much time and money. not appellate court so there is limited precedent value • Global’s concerns are hypothetical. • Other client.TAKING INCONSISTENT LEGAL POSITIONS IN LITIGATION: • “POSITIONAL CONFLICT”: inconsistent arguments on a legal issue in different courts at different times. • Maybe it’s a good business decision to withdraw.9.18: • In consultation.18c: See Comment 3!!! • • 36 . no matter how long it is. you’ve already been working for 2 years. • Look at the factors on page 384 to see if you have a positional conflict that rises to unacceptable level. they threaten to no longer use your firm if you continue in gun case.

that would hurt her. that • the client be ‘advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel. • The information cannot be used. The disclaimer of confidentiality was “unclear. It allows lawyer to tell prospective client that the attorney will not be barred from representing another client in the matter so the information disclosed may be used.it’s an objective assessment • When the attorney receives the disqualifying information. • that the transaction be in writing and in terms that can be understood by the client and • the client gives informed consent in writing • • • • • • • • 37 . Second. Maria is a prospective client under 1.” • that the transaction be objectively reasonable.18 from using/revealing info in the consultation? • REAL CASE: Court said the website really prevented the formation of a explicit contract with Maria.18a • what about 1. conflict of interest exists when a lawyer’s representation will be materially limited by the lawyer’s personal interests • Waiver: Waiver of general conflict is possible when the lawyer reasonably believes that she will be able to provide competent and diligent representation to the client and the client gives informed consent. the disclaimer was sufficient to prevent formation of implied contract. • refer back to TOGSTAD case • • PROBLEM 6-6: THE SECRET AFFAIR: • You have info from prospective client. what has to occur for the waiver to be effective? Conflicts: • Material limitation: as a general rule. confirmed in writing.The amount of time spent with the prospective client does not matter. can the affected lawyer be effectively screened or isolated? Is the conflict of a type that allows client waiver? If so. Maria. your firm already represents her husband in divorce.” and the court said the firm “may have to stop representing” Nicholas and there was a duty of confidentiality. they may still be able to represent client according to exceptions under 1.18d2? • the website form she submitted the info on had a small disclaimer • Is the firm prohibited under 1. Business transactions: 1.8a • It’s required that the client’s consent be in writing. Chapter 6 Recap: Ask yourself: what is the source of the conflict? does it meet the particular rule’s threshold requirements? is the conflict one that imputes to the entire law organization? if so.18d.18. • Comment 5 could also be a way around (exception) to 1.

see rule 1. unless the donee is related to the donor. • Rule 1. and it’s fair and reasonable to the client. including testamentary gifts • prior to conclusion of representation of a client. except as permitted by rules • lawyer shall not solicit any substantial gift from client. lawyers shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal/account based on representation • lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation: there are two exceptions.. security.. or other pecuniary interest adverse to a client unless: • full disclosure of transaction and terms in writing.8(e)(1-2) • can’t accept compensation for representing a client from one other than the client unless • client gives informed consent • there is no interference with lawyer’s independence of prof. possessory.8: • Conflict of interest with current client: Lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership. judgment or the C-L relationship • you cannot make aggregate settlement of claims when you rep more than one client unless you have informed consent • see rest of rule. 38 . • client is advised in writing of the seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction.Lawyers are prohibited from negotiating for literary rights or media rights based on the subject of representation until the conclusion of representation • A lawyer is prohibited from drafting documents that make substantial gifts to the lawyer or the lawyer’s close relatives. AND • the client gives informed consent in writing (signed by client) to the essential terms or the transaction and the lawyer’s role in the transaction (including whether the attorney is representing the client in the transaction) • lawyer shall now use the info relating to representation of client to the disadvantage of the client unless the client gives informed consent.7) RULE 1.7: Lawyer shall not represent a client if the representation involves a concurrent conflict if interest. • ← • CHAPTER 7: CONCURRENT CONFLICTS IN PARTICULAR PRACTICE SETTINGS (RULE 1.

that is grounds for automatic reversal! PROBLEM 7-2: POLICE BRUTALITY: • Alston was the victim of police brutality. Unsure of their guiltThe PBA has asked you to represent these two.• • • • • • • • • • REPRESENTING ORGANIZATIONS: RULE 1. even after you make the objection timely. • ISSUES: • 3rd party is paying legal fees: can you maintain your independence and provide your best representation or are they going to want to limit fees? In this situation it’s NON-consentable • • 1. • There is another officer who is also charged. and has broad ranging interests. remember that! A conflict can cause a 6th amendment violation. but you can’t revel the info without revealing important info.he has separate counsel. Chip Stone and Bob Morton. Attorney relied on theory that Officer Babbage acted along. • Tom Babbage is a police officer and pled guilty to charges • Two other officers.7-a-2: PROBLEM 7-3: POLICE BRUTALITY SCENE 2: • what if everyone consents. are co-defendants. if a trial improperly requires co=representation of criminal defendant. You now find out that the bus company is owned by another client company.13: Organization as a client PROBLEM 7-1: My client’s subsidiary: • back to facts of representing Doris who was hit by a bus and is suing the bus company. Real Case: testimony of the other officers was NOT introduced. He pled guilty. • Go through factors listed on page 400! • first look to see if they’re your client (here they probably are b/c material harm that could result and level of control) • next look for direct adversity or material limitation on rep (which we have here) Factors affecting whether a related entity is a client: Joint representation in CRIMINAL CASES is STRONGLY DISCOURAGED. • they give informed consent • there’s a common interest • then can you take it? PROBLEM 7-4: SCENE 3 • what if one of the clients refuses to waive any conflicts? • can you fire him to keep the more lucrative client? • Most courts really disapprove of selling your client out like this (See “hot potato doctrine”) • What if you find out that one of the officers was in the bathroom at the time and pushed the victim into the bathroom. and is a board member of the PBA. This is an institutional entity that is paying.assaulted by multiple officers. • Consent? You would need to get consent. Then Stone was convicted and appealed claiming 39 . • PBA: provides legal fees and lawyers to represent police officers.

except that the lawyer may not assist client fraid. and after you write it. if there is a conflict. • Problem 7-5: The MCarthys: You represent H and W. the lawyer should act in the best interests of the insured. Later. (so he waived. and that despite his consent to your representation.“ineffective assistance of counsel” b/c of your conflicting interests of PBA and its board member Gutman. but was it consentable??). The insurance defense lawyer’s dilemma is fundamentally about money b/c the lawyer is being paid by the insurer. the lawyer should try to act in the best interests of both clients. she misspells their last name. the atty’s self-interest was too strong RERESENTING FAMILY MEMBERS: Representing both spouses in a divorce: • Florida Bar Opinion 95-4 (1997): What if you’re representing both husband and wife in preparing will. • There is a direct conflict of interest here. Most jurisdictions have held that if the insurer contests coverage.10 Imputation • 1. • If there is a conflict b/w insurer and insured. you are bound to protect H’s confidentiality and at the same time.9 • the lawyer’s duty of confidence is greater than the duty to communicate to a client info that is relevant to representation • The best plan is to withdraw from all three parties. When clerk files their info away. the insurer has to pay for a lawyer selected by the insured unles there is a prior agreement otherwise. the H tells you he’s changed his will and wants to leave property to mistress. REPRESENTING INSURANCE COMPANIES AND INSURED PERSONS • The lawyer is being paid by one client (the insurer) to represent both itself and another client (the insured). the insurer will pay the cost of hiring a separate lawyer for the insured. • Problem 7-6 Two Masters: • 40 . another woman hires firm to represent her in a paternity issue. Hugh (Paternity/child support) • 1. remain loyal to W. • you must withdraw. the judge should have disqualified you to prevent the violation of his 6th amendment right to effective counsel. Court found conflict was non-waivable. If not possible. If they insured is also the lawyer’s client. Firm doesn’t realize they represent H b/c of the typo/misspelled last name. they must withdraw from both.7: Conflict of Interests: Current Clients • Consent is NOT possible here. • K&D Represent Hugh (Husband) and Joline (will/estate) • K&D (Maureen Carr/Gus Kenney) V. • Can you just drop one client and continue to represent them? You have analyze former clients under Rue 1.the biggest conflict was atty’s interest in keeping 10 million$ agreement with PBA.she is saying the H is the father of her child. You have a continuing duty to advise Wife in estate planning.

• The attorney did not settle and he caught a bunch of hell for it. • The insured probably did not want to settle w/o her approval because even though insurance co would pay for it. • The firm was upset because the insurer. The overarching theme is that we try to get “broad societal public relief” (many of these ppl do not have access to representation). “I’ll deal with her... and there’s going to be some internal conflict. REPRESENTING PLAINTIFFS IN CLASS ACTIONS There can be internal conflicts in a class action Class actions are OUTSIDE the traditional rules of conflicts. On some level. her premiums would change.8 tries to address this.. the insurance company... 41 .. conflict is a natural part of class actions.. was the one paying bills! • The third party can’t decide the settlement. We tolerate a level of conflict in these cases b/c we have hundreds.you settle the case”. When he called the adjuster. • You may not practically be able to meet requirements when working wit hundreds of clients. REPRESENTING PARTIES TO AGGREGATE SETTLEMENTS OF INDIVIDUAL CASES • Difficulty is getting agreement among people in the aggregate settlement • Cmt 13 to 1. if not thousands of clients. your client has that right. they said they attorney did not need to call the insured to settle.• • • • • Insurance attorney was told by insured not to settle a claim w/o her permission.

Problem 8-1: Keeping in touch: • You performed work for Almond 5 years ago and now a computer service company wants to hire firm to sue Almond • Ask if this is a continuing relationship? Is the newsletter seen as giving advice?? Probably not a present client! • firm has tried to contact Almond over the years to see if he needed more services. Keep 1.. Try to make a factual determination of whether or not it would hurt the former client.9 • This was a tax opinion issue for Almond before. then see rule 1.9: a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are marginally adverse to the interests of the former client unless the former client gives informed consent... the former client always declined) • We must apply Rule 1.CHAPTER 8: CONFLICTS INVOLVING FORMER CLIENTS • • • THE NATURE OF CONFLICTS BETWEEN PRESENT AND FORMER CLIENTS See chart on page 437-438 The main concept is page 436 Rule 1. are they still a client? Yes if you have not formally concluded representation. and even when the former client was solicited to renew the relationship.9. confirmed in writing • ***Comment 3: “substantially related” matters: if they involved the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s interest in the subsequent matter. etc. but he has no contact with firm • Almond is definitely a former client (It was Brief. do not undo work you’ve done for a former client... and the current representation Rules don’t really provide guidance about how long duty to client lasts: See comment 7 to rule 1. rules prevent you from switching sides (which is why we ask if it’s the same matter or substantially same) So you have to look at two things: the past representation. BUT the factual information you might discover would be relevant to the bill collection by the new client in suing Almond (see 42 • • • • • • • • .7 in mind .6 Have you really terminated the relationship? Even if you have had a long term client yet have not done work for them in the past year. Discreet..

9 is PREDICTIVE because you want to protect the client from a conflict.Comment 3 to Rule 1. the atty had to withdraw. • one issue • long time ago • the newsletter wasn’t advise • In trying to determine if you have a former client. so you could look to this. the client’s reasonable understanding of the scope of representation controls..9). represented Maritrans. a partner at Pepper firm. • Real case: pros was disqualified • Rule 1. Look at: • scope of rep • length of years • what the client expected • See chart on page 444: Fact specific determinations of the lawyer’s representation: IS the client serious enough that the lawyer cannot go on representing without obtaining consent? See the explanation on page 445.9 Maritrans v.. and represented a child a long time ago in an auto accident. Problem 8-2: The District Attorney • You are D. You could have used med info to discredit his case. 1. • Under the Restatement. • Should you withdraw? YES. a business. for a long time. a transaction. Hamilton & Scheetz • Cmt 6 to 1. he had information from his prior representation of the kid that could have included relevant medical information. • • • • • EVALUATING SUCCESSIVE CONFLICTS: Are the conflicts serious enough that the lawyer may not go forward w/o client’s consent? See chart on Page 444 and explanation through chart on page 445 SAME MATTER: anything that is the subject of representation: litigation. the pros wants you to withdraw b/c you previously represented him when he was 5 yrs old in the auto accident. a subject on which a client requests advice (or a dispute over document that lawyer drafted) SUBSTANTIAL RELATIONSHIP: Focus is on exploring the facts of a problem and on what a lawyer might have learned during the first matter that could be used adversely to the former client in the second.. • factors: • brief. • Is this the same/substantially related? Material adverse? if yes.7*** • Atty Messina. Pepper. only way to proceed is with consent of the client. • Hot-Potato • Lawyer cannot fire a client to get rid of a client and retain the more lucrative client. 43 • .. now 17 yrs old is charged with murder. Same boy. in real case. But there are exceptions: page 455: Material adverse is more narrow: you look at the likelihood of risk and the seriousness • of its consequences.A.

(WHERE THE PERSON OR SUBSTANTIALLY RELATED MATTER WAS REPRESENTED BY THEIR FORMER FIRM) 44 . as well as info about their competitors • Pepper then began representing several of Maritrans’ competitors • Maritrans found out and objected.9A: ASK WHETHER THE ATTORNEY COULD HAVE ACQUIRED CONFIDENTIAL INFO IN THE FIRST REPRESENTATION THAT MIGHT BE USED ADVERSELY TOT HE FORMER CLIENT’S INTERESTS • 1. especially Maritrans’ largest competitor. • Comment 6 to 1. there was more than a mere economic conflict. but instead would represent the other four companies. • Then Messina parked the largest competitor with another atty at another firm. • fiduciary duty: • conflict: can you really consent to these situations? • What do “substantially related” and “material adverse” mean? • Rule 1. • Here. • If “fiduciary duty” has any meaning. This is the case here. then ask how it affects the client. we can’t allow these types of situations. • Pepper and Maritrans negotiated a deal that Pepper would not take on representation of any other competitors.• • During their relationship of over ten years.9 doesn’t give us specifics but if you look at the comments. Maritrans shared a lot of confidential information about their business practices.9B: ASK WHETHER THE LAWYER ACTUALLY ACQUIRED MATERIAL CONFIDENTIAL INFORMATION. This is conflict that should have been enjoined. of Maritrans agreed to let Pepper continue being their attorney and would not represent any more than the four companies pepper was already representing. • Chinese wall: attorneys on one side of the wall do not discuss their respective representations with the attorneys on the other side. The superior court reversed.9B: • 1. This court reverses the superior court. 1. 3. In addition. 2. • the firm thought perhaps this was just an economic conflict. and there was a contract under agreed terms of representation. • The trial court granted a preliminary injunction. there’s guidance on how to look at these terms. which were not breached! • First ask if it’s substantially related. • Court says there are times when the danger of revelation of the confidences of a former client is so great that injunctive relief is warranted. • There is a civil liability to support an injunction here. and if it’s material adverse DIFFERENCE BETWEEN 1. not a materially adverse conflict. • DISSENT: consent was given here. and then 2 different attorneys would represent Maritrans.7 • three main points: • injunctive relief: stopping something by preserving the status quo.9A AND 1. the Pepper atty with the most knowledge about Maritrans would not counsel Maritrans. and was working on bringing that atty over for partnership to Pepper firm. but Pepper said this was a “business conflict” not a “legal conflict”.

Joseph owns HER fashions • Atty resigns.” • substantive overlap in work performed for these clients you have too much info. There is no framework for preserving confidentiality (the secretary is shared). and HER Fashion. Inc. Comment 6 after Rule 1. one must analyze the specific facts relating to the lawyer’s access to or information about the relevant matter. Problem 8-4: page 480-1 • Blurry lines between actually being part of the same firm with atty representing codefendant.shared information is a possibility though. so you must withdraw. continues to represent HER fashions • HER inc is still using the logo. they have fiduciary duties to both clients and can’t attack eachother. • There is a dispute and the ownership is divided. Henry’s new atty wants you to withdraw. just not in • this action. he can still rep the corp generally. • 4: There would be material adversity there: each would be pointing fingers at eachother.9 directs analysts to use certain assumptions • Comment 8: • if you have not acquired material confidences. • If the lawyers become partners. the lawyer may not be able to handle the second matter unless the former client consents.9C: bars revelation of confidences received from former clients and prohibits the adverse use of such confidences. • This is not the same firm.• • • To know if a lawyer has acquired material confidences. you can’t make an appearance • Collinwood would violate rule 1. 45 . particularly in appeal. • 1. you don’t need consent.once they become partners. • In any situation in which there is a substantial risk that the lawyer would normally have obtained confidences in a former matter that could be used adversely to the former client in a subsequent matter. • Henry own HER inc. Problem 8-3: Dysfunctional family: • Henry and Joseph co-own HER. • Do you have to withdraw? • ANALYSIS: • Same? Substantially related? • “Materially adverse”? • Consent (Which in this case is not an option) The general counsel would have substantial involvement with the client • • Real case: atty was disqualified: • “the obligation of atty to not misuse info obtained in rep is to protect the client. • Joseph wants you to continue representing him for HER fashions. Inc. • Representing current client after dropping one could lead to the use of confidential information to the detriment of the former client.9a • Wht if they became partners and wanted to rep clients in separate trials? • NO..

signed by client • Cmt 7: division of fees: client must agree to the division Brobeck. excessive fees • Timothy hired Fordham to represent him for OUI. and the atty charged 1 million dollars • the written memo specified that no fee would be paid if petition was NOT filed and there was no settlement.5a: • Lawyer shall not make an “unreasonable” fee. etc. Phleger & Harrison v. other party withdrew. reputation. • Fee was not unconscionable. The memorandum was very ambiguous: • • didn’t disclose scope of representation • didn’t break down fees In the Matter of Fordham: • Public censure.5: FEES: is a soft rule: allows for much discretion No contingent fees in criminal cases 1.CHAPTER 9: CONFLICTS BETWEEN LAWYERS AND CLIENTS • • • LEGAL FEES: 1. • clients should not have to pay for the education of their attorneys • Why is this excessive and how do we compare it with Brobeck? • Brobeck: • sophisticated client • Fordham: • young client • Should the sophistication of the client be a factor in determining a reasonable rate? • the results are related to what type of case it is 46 • • . Telex: • attorney filed petition for cert. driving w/ suspended license... and fee was not unethically high. “reasonable” is determined by a number of factors: These factors are not exhaustive. speeding. and ability of lawyer/s performing the services • whether fee is fixed or contingent • Cmt 1: each factor won’t be relevant in every case. • Court says it’s not unconscionable: • the client was a multimillion dollar company and they wanted to hire a highly reputable firm. but allow us to make a determination: • Time and labor required • likelihood that acceptance of the case will preclude other employment by attorney • fee customarily charged in locality for similar services • the amount involved and results obtained • time limitations imposed by client or the circumstances • nature and length of the professional relationship with the client • experience. • Contingent fees SHALL be in writing..

• maybe this could have been alleviated with communication: the attorney needed to talk about scope of representation 1. most advantageous to clients. • tenant hires attorney at 250/hour.the client says go and get the result. tenant sues LL to get payment.5: its proper to define the extent of services in light of client’s ability to pay.000 • they never really discussed how much time should be spend on case (1. he ends up working so much that the bill is 60.2: scope of representation). but not for you.5d: any change in basis or rate of fee must be communicated to client. • Comment 7: referral fees are allowed if you take ethical/financial responsibility for the action • A referring lawyer can be disciplined or sued if they don’t keep up with it Regulation of hourly billing and billing for expenses: • A lawyer billing by the hour may not bill for more hours than she actually worked • 47 . But this raises fairness issues! so it could be problematic. and keep the current rate for clients that object.000 dollars damage from flood. they would all pass under 1. he worked really hard and did tons of work! • can you justify the 60. the fee must still meet “reasonableness” requirement • problem gives 4 options for actions to pursue in a rate increase. 1. should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures Rising Prices: Problem 9-2: Modification of fees • Can’t just raise fees • See 1. you may not be able to pay for your bills) • Maybe you could take a mix of all three. there is ambiguity.4 • cmt 5 to 1.• • • • we dont want attorneys learning on the job and then billing their clients for it.5: Division of fees between lawyers not in the same firm: You can divide fees if: • it’s proportional (to the work done) • client consents in writing • and the fee must be reasonable. communication. Brobeck and Fordham come out completely different! Problem 9-1: • apartment suffered 70.2. • the first two seem like the best solutions • you should look at your contracts NCBEX.5d • include notice in your next month’s bills • send letter to all clients notifying them of the reasons and when the prospective increase will take effect • send letter but also ask clients to assent by returning and signing letter • maintain present rate for current client and charge new rate for new clients (most conservative. the atty goes and does the work and spends an inordinate amount of time on it.ORG: Online Practice Exam 1.000 bill? this is a close case.

etc. • Thwarting the auditors: transferring hours on heavy days to hours for lighter days • Billing envy: • • • • • • 1. • clearly notify client of any expenses for which the client will be liable whether or not the client is the prevailing party • after the matter.) • in writing • signed by client • state the method by which the fee is determined • including the percentage/s that shall accrue to the lawyer in event of trial. etc. etc. • “Hit for . charge 3 clients for the hour • Billing off secretaries: • “Fifteen hours of paralegal time”: if the paralegal did more than the 15 hour max allowed for paralegals. Lerman.5 hours. Scenes from a law firm: • article that anonymously describes billing practices at one law firm: • Churning: turning out hundreds of Fords instead of a couple Mercedes • Padding: Bill more.Lawyers may round up to a MINIMUM billing increment Don’t invent hours that were not really worked No profit on costs: a lawyer may not bill for “overhead” or markup costs No double-billing: a lawyer may not bill two clients for one period of time No billing a second client for recycled work No churning or running the meter: a lawyer may not do unnecessary extra work in order to justify billing more hours • No billing clients or the firm for personal expenses or marking up expense receipts • Lisa G.5 (c): Contingent Fees: • Are the lawyer and client’s interests truly aligned with a continent fee? • There is no maximum percentage for contingency fees: they just have to be “reasonable” • Contingent fees must be in writing (to explain details to the client.8(e): you cn’t give financial assistance to client in connection with pending or contemplated litigation except: • you can advance court costs and costs of litigation 48 • . atty should provide written statement with the outcome of the matter and showing how the fees were determined Financial assistance to client: RULE 1. so they understand how it will operate-will the fee come before/after expenses are subtracted.put more hours down to add meat to the billing rate • Invent work • “Magic number”: calculating how many hours a day you need to bill to reach the annual target to get bonuses and vacations. appeal. the remaining hours would be turned into attorney hours.5”: if you wake up in your sleep and think of a case. • Cranking out forms: • Easy billing: read what comes and bill for it • Triple billing: if you can spend one hour doing three things. hit .

• if the lawyer purchases a claim from a client and ceases to represent them in collection of that claim. • 1. 49 .. no savings. 1.• for an indigent client. and people you oversee. • secure a loan against settlement for the claim.8(i): a lawyer may not acquire a proprietary interest in the subject matter of litigation the lawyer is conducting for a client except permitted liens and contingent fees. the transaction no longer violates Rule 1. no matter what! YOU MUST be INDEPENDENTLY represented. set him up in a shelter home. you can pay their court costs and litigation costs • RULE 1. but not of your partners.8(i) Problem 9-3: Impoverished Client: • • Your client is suing employer for firing him-age based discrimination • Employer says he was just unable to perform duties • you think he could win and might recover 50. LLP: General form of firms now: Limited Liability Partnership takes away general vicarious liability of partners: you’re still liable for your actions. Advance payment of fees and nonrefundble retainer fees: 1. but not while the case is ongoing.8(d): Publication rights: • After the case is over.16: you must return any unnused fees page 535: It’s controversial to require a nonrefundable advance payment from an individual client with whom the lawyer has no prior relationship • “classic retainer” or “general retainer” • • • Fee Disputes: • Rule 1.8(h): You can ask each client in advance not to sue the lawyer for malpractice. • you can pay litigation costs if they’re to be paid back by settlement • 1.000 in damages • he has financial problems: pending eviction. you can have publishing interests.8e • comment 10 • YOu can’t do this: • we don’t want clients living off litigation • we don’t want the atty to have a proprietary interest Real case: • • a lawyer may pay client’s living expenses to avoid the client ahving to settle unfair claims (only in DC) you can help in other ways: help client settle with landlord.. and give them time to do so..8(h)(2): Cannot settle claim or potential claim for such liability with an unrepresented client or former client unless they are advised in writing that they should seek independent legal counsel.

In order for Lopez to give consent. • Rule 1.8(a): three requirements: • see page 553. If any conflict should ultimately arise. I represent the corporation. you have to disclose your interest. he might back otu of the deal • are there any special disclosures that are needed? • who represents who? Through the transaction. you CAN obtain lien if there is also a conract for it. not the 3rd party business transactions between lawyer and client: • RULE 1. Prompt delivery of funds or property: • When you receive a settlement check or other unds that should be paid to client. after the transaction. and your status as representative of the corporation • 1. b/c it then constitutes a business transaction. Ct held atty breached his fiduciary duty to corporation. you have to remember client confidences • Lawyer canNOT obtain liens on client property. Ct • • • • • 50 .15(e) and (c): if there is a dispute about the amount of the fee. not really a shareholder.8(i): you don’t have lawyers to have proprietary interests in client. HOWEVER. lawyer should distribute undisputed portions and keep the siputed part in the client trust account Creditors: page 549 • Unless the creditor has a legitimate claim to the particular funds in the lawyer’s possession.15 • You must keep complete records of the funds or other property for a period specified in state rules. You need to disclose that you represent your own interests for the purpose of THIS transaction. the lawyer’s duty is to the client. he represents the corporation. you have to notofiy the client and make prompt payment of all funds due to client What if there is a dispute about money or property in lawyer’s possession? • 1.8a • What to do: • tell him he should probably get other representation in writing and give him opportunity to do so • explain that you will represent the company not him Real case: Rhode island (atty was former Lt. • TEST: questions to ask on page 554: Problem 9-4: • if you go overboard with disclosure.and the Pres of corp could have sued (which he did not do). he represents himself. back to 1. Gvr) Atty did not make disclosure so the friend • just thought the atty was a lender. page 541 • Lawyer as custodian of client property and documents Client trust accounts • NO CO-MINGLING!!!! • You have to keep the client’s property separate.Fee arbitration: • when you continue to bill but your client is not paying.

No disciplinary action was taken. Chapter 10: Conflicts Issues for Government Lawyers and Judges: RULE 1. there HAS to be notion that atty represents the corporation. etc) • can’t prepare instruments for clients giving gifts to the lawyer of his relatives (but you can preprare one for your close relative) • Rule 1.11 is the only rule that allows screening Canon of Judicial Conduct: Comment 4 highlights the goal of the rule (balance interests) We want ppl to move back and forth.9(c) • Atty is disqualified if they were involved personally and substantially. not the individual. but we don’t want attorneys to use info to help or hurt clients.• • • concluded it was too late for Pres of corp to undo transaction but he allowed Pres to buy out the attorney for his 20% at the date action was filed. If they don’t have consent.10)*** • personal conflicts cannot be imputed to members of the firm. GIFTS FROM CLIENTS: • no substantial gifts allowed unless person is related to the attorney (family members. • In disclosure. • If relationship starts. • Relate to 1. they do not present significant risks of materially limiting the representation of the client by the remaining lawyers in the firm.8(c) SEXUAL RELATIONSHIPS WITH CLIENT: • Not allowed unless the sexual relationship exited before the lawyer-client relationship began. the firm can still proceed with representation if the conflicted lawyer is screened and does not earn specific fees from the work. • • • 51 . unless they have consent.11 Rule 1. must get independent counsel (COMMENT 17) DIFFERENCE b/w PERSONAL CONFLICT AND IMPUTED CONFLICT (1.

a fed dist. in the end he received semi public admonishment which he appealed. AND • the info must not be in the public domain 1. What’s the difference between 1. the lawyer had to get a special license to rep libya (because of an embargo he put in place). he appealed but it was affirmed.• • • • • • • • • • 1.11 comment 10: for purposes of paragraph e of rule. We discussed consent Basis for disqualification of former government lawyers:***bottom of page 570 • Subsequent work could involve use of “confidential gvtal info” about a person known to the lawyer in a way that would materially disadvantage that person ( this canNOT be cured by consent) (rule 1.11a (screening.d??? 1. or form a basis for a reasonable appearance of such significance to the matter. and then the general counsel to the US Dept of State (he developed the legal justification for economic sanctions against libya) and for the US air raid on Tripoli that experts believe the Libyans sought to avenge with the Pan Am massacre. or involvement on an administrative or peripheral issue “Confidential gvt information”: Comment 8 • “Confidential government information”: • The information that triggers the rule must have been obtained through governmental power (such as threat of subpoena) • the gvt must be barred from disclosing it or entitled to assert a privilege against disclosure. 1. consent) and 11. if he never served in gvt there would probably not have been a problem. a matter may continue in another form in determining whether 2 particular matters are the same. confidential info. or form a basis for a reasonable appearance of such significance.11(a) is the gvt lawyer who was personally and substantially involved. his involvement was a matter under 1. perfunctory involvement. It requires more than official responsibility. knowledge.11d: How government lawyers should evaluate conflicts that arise because of work that the lawyer did in a previous private law job (former clients). • this attorney should have conferred with the state dept • Look at comment 10 to 1.11 • real case: he got semi-puplic reprimand. he was not allowed to represent even though he had previously voluntarily withdrwan in response to public response. he went to private practice and agreed to represent an atty from Libya about bombing of Pan Am 103. the atty failed to ask: the larger question: • how will this be perceived? 52 . judge.11 doesn’t really define “personally and substantially” so the rules look to federal regulations for guidance • Personally: directly (includes the participation of a subordinate when actually directed by former Gvt employee in the matter • Substantially: the employee’s involvement must be of significance to the matter. consider: • extent to which the matters involve the same basic facts • the same or related parties • the time elapsed. it was affirmed that he should be censured.11(c)-type 2) **Bottom of page 570 PROBLEM 10-1: Abraham Sofaer was a professor at Columbia Law. After he left govt. possible problem: he definitely participated personally and substantially in the matter of bombing.11.

(sexual orientation has just recently been added as a type of prohibited organizational affiliation) • Page 584: Scalia scenario: He argued that USSC judges are different. there’s an even number (4 to 4) and issues must be decided. and impartiality of the judiciary. He should disqualify himself even if no party files a recusal motion • REAL CASE: two judges recused themselves. the judge in the case used to be client’s student. A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence. Disqualification of Judges Problem 10-2: A trip to Monte Carlo: • You represent Apex.11 in the Model Code of Judicial Conduct states that a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might be reasonably questioned. • You appealed. Apex won. Competence as a judge: A jude shall perform the duties of judicial office impartially. in favor of cheney. If he does withdraw and recuse. This is a violation of the third canon.if a judge recuses himself. The recusal didn’t really help anything. a govt official who is a defendant for sexual harassment. • Now the other company’s lawyer files motion asking the judge to withdraw his vote and recuse himself from participating in any further proceedings. company that lost in law suit against another company. integrity or impartiality of the judiciary • • • • Judges cannot be in discriminative organizations. the vote might be tied. competently. integrity. and shall avoid impropriety and the appearance of impropriety 2. • Rule 2.• how will the perception affect the client? CODE OF JUDICIAL CONDUCT: 4 CANONS: 1. You client used to be a law professor. and diligently 3. you should probably oppose the motion. and it was overturned.even after the re-vote. A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office (including full disclosure) 4. • Problem 10-3: Judge’s Former Professor: • You are an atty for Ahr. Impartiality: A judge shall uphold and promote the independence. • was there a conflict? • • 10-2: this was an actual case • underlying allegation that judge is in the pocket of one of the parties in the suit. • As for the lawyer. • 53 . Ultimately the issue was decided 7-2.one of the judges had taken a vacation with CEO of Apex during pending of the appeal.

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• Should a motion to recuse be filed? You dont wnat to do that unless you really have to. You have to really know wwhat the relationhp b/w judge and client is. • If the motion requesting recusal is filed, should the judge disqualify herself? It’s a maybeSee Canon 3 • See Canon 2B: prohibits judge from allowing “family, social, political, or other relationships to influence the judge’s conduct or judgment” • Canon 3B(7)(b) allows judge to obtain the advice of a disinterested expert on the law that applies to a particular matter if the judge notifies the parties as to who is consulted and of the substance of the communication and allows the parties to respond. • This is the real case of bill clinton. Rule 1.12(b): Page 591: You can’t negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer. A law clerk to a judge or other officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge/officer. Law clerks are permitted to apply for jobs, even with parties/lawyers involved in matters that are pending before their judges, but only after they notify the judge/officer. Rule 1.12(a) “personal and substantial participation” standard is the same as that used for conflicts of gvt lawyers in rule 1.11

Chapter 11: Lawyers’ Duties to Courts:
• • • There are boundaries to loyalty to the client. On one end, you have “hired guns”, on the other, you have “officers of the court” mentality. Rule 3.1: A lawyer may not file frivolous lawsuits- but we don’t know what frivolous is • Comment 2: says facts need not be fully substantiated (this is not a clear black letter rule- it’s factually determinative). the lawyer may use discovery to develop vital evidence On the other hand, the lawyer must do basic investigation FRC 11(b): similar to 3.1 but more detailed: A party’s legal theory must be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal or existing law or the establishment of new law.” Factual assertions must have “evidentiary support or, if specifically so identified, by likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” This standard is subject to widely ranging interpretation Footman v. Cheung (type notes for pages 600Parker v. Vigo County School Corp Jimenez v. Madison Area Technical College 54

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Differences b/w Rule 3.1 and FRCP 11: see page 602 Penalties applied to lawyers who bring unsubstantiated suits: • Rule 11 penalties • Attorney’s fees • Liability for malicious prosecution Problem 11-1: Visit from Paula Jones: • You should investigate and question people at hotel who might have witnessed things • track down bodyguard • maybe reach out the president- just enough to corroborate what your client is telling you • can you file a claim now? once you can find some corroboration, you can file the claim (b/c discovery will allow you to find more later) RULE 3.3: • A: • Shall not knowingly make a false statement of law or fact or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer • fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to client’s position • offer evidence that the lawyer knows to be false. if lawyer, his client, or witness called by lawyer has offered material evidence and atty comes to know of its falsity, atty has to take reasonable remedial measures, including, if necessary, disclosure to tribunal • See chart on page 606. • B: • if you know of your client engaging in criminal or fraudulent conduct related tot he proceeding you shall take reasonable remedial measures (including if necessary, disclosure to the tribunal) • C: • A and B apply ad continue until the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by 1.6 Rule 8.4 (c): Misconduct • This is what really got President Clinton • Misconduct is Broad- It builds on candor toward tribunal, but it applies to ALL conduct. • when we talk about lawyer’s interaction with other people, we’re pointing to • 3.3 candor toward tribunal • 4.1 truthfulness in statements to others • 8.4: misconduct. Nix v. Whiteside: (“There was somthing metallic) • Does revelation of client perjury undermine effective assistance of counsel? • NO. There is no 6th amendment violation • It is elementary that a right does not extend to testifying falsely. How can we ever know whether a client plans to give false testimony? Problem 11-2: Flight from Sudan: • You represent man seeking asylum from Sudan. He says he worked for an underground newspaper, Democracy. You are doing work to corroborate his info, and you actually end up 55

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getting in touch with the former editor in chief of the Democracy. he has never heard of your client. Should you tell your client what you discovered ? Yes: Communication 1.4a3: keep client informed about important info. You shoudl tell your client about the conversation Can you file the affidavit? Yes, it’s reasonable to still believe your client Do you ask to withdraw? Not yet. you really want to talk to the client first and figure out what’s going on. Did youviolate rule 1.6 by contacting Al-Parah? No, there’s an implicit authority to investigate infor for your client. Your client permitted you to investigate and reveal info, so you’re not revealing client confidences. You haven’t made a mistake by doing your job too well. Maybe you’re doing your job too well- if you find out all this info, you may have to act on it. but probably not. YOu don’t have enough to say this is a lie. REAL CASE: This was a law clinic case. the students were on the verge of filing the affidavit when they found out about the information. they confronted him and he insisted the editor was mistaken, and the students were about to withdraw. the client fires the students and gets new attorney- the students didnt’ know what to do - Luckily, the new atty requested only the documents that had been filed in court at that time. Client got political asylum. See COMMENT: Lawyer’s knowledge that something is false can be inferred from the facts.

Problem 11-3: Flight from Sudan, Scene 2: • This is NOT material under 3.3• Real case : Governemtn atty found out after end of case and was livid: judge rejected to rehear the case. Judge says it was NOT material and declined to reopen the case. • Court refused to re-open case because the witness’s tesitmony was not relied upon. • there may be some collateral damage to the legal clinic’s reputation • what about the reputation of the law clinic and the attorney? OJ CASE: • Cochran, OJ’s attorney redecorated OJ’s house before the jury came over to his house. • Was this despicable? • I don’t think so: it’s not like you’re concealing or replacing material evidence. You’re not changing the facts of the alleged crime. Judge’s disclaimer:? Problem 11-4: Drug Test • Your client had to be tested for Meth, and he tested negative, but the test showed traces of marijuana. You only want the Meth results for the judge, and the lab tech says they can resend you the results with only the meth results- when you get it, you realize she just cut off the bottom portion of the paper. • What should you have done when you got the results? Could you just have told your client to go somewhere else and ONLY get tested for meth? • RULE 3.4: can’t alter or destroy document that has evidentiary value 56

If you move to submit the report for court. that’s what I asked them to screen for). that’s different and you must comply • What if you submit the partial report that the tech sent you. He negotiated it down to a civl charge and paid a 100$ fine. Judge ordered new tests. • Answer: You should get a new report separately and turn that in • 8.the defendant was acquitted • HOWEVER< the JUDGE was ticked off! and held atty in contempt: “This is a misrepresentation by the inferences of the totality of conduct”. and got a MISidentification. • “This type of behavior undermines the dignity of the court” • misrepresentation by inference • So it was a close cut question! Problem 11-6: Refreshing Recollection • How you’re supposed to interact with others • Other witnesses /plaintiffs tell you that the Superior told them their rates were lower than other companies • How far can you go with the witness that doesn’t tell you this? • Can you ask whether the rep made any statements to her to the effect that their rates were lower than those of other companies? Yes! b/c you’re not supplying her with info that she doesn’t have • Can you tell her that the company settled other cases favorably b/c other borrowers remembered that the rep said their rates are lower? This goes too far because you’re kind of telling her the client what to say. The atty was so nervous however. the judge was suspicious of the document.that’s close to perjury • “That’s what I have.judge reported atty to the state that brought criminal contempt charges against the atty. he gave the second response (that’s what I have .4b 57 .3: failed to disclose a material fact to the court. you’re implying it’s complete. making it look good would probably require some careful doctoring too. went up tto sup court and on 4-3 vote. • What if the court asks you if this is the entire report? how do you respond? • If you just say “yes your honor” .• • • when evidence is submitted. • atty moved for directed virect. it holds a stamp of authenticity on behalf of the lawyer • Most attorneys would say it’s okay to get a new test.tests came back negative for everything. then asked to clear the courtroom and told the judge.4c and d: administration of justice • Go through the wrong answers on page 628 Problem 11-5: The body double • REAL CASE: Illinois Sup Court: Atty didn’t give any notice. violation under 3. the atty criminal contempt was upheld in state supreme court for deceiving the judge. • It’s ethically okay too • it’s competitive in nature • If they request a full test however. that’s what I asked them to screen for”: • REAL CASE: atty presented the partial documents. • Atty violated 3. that he revealed everything. • Atty put a look-alike person on the stand.

YOu just can’t cross the lines of telling her what to say. You’re providing her with information she doesn’t have. PROBLEM 11-8: Damaging Documents: • Should we turn over these smoking gun documents? • Pay attention to the definitional section • Can you send them 60.. he loanee informed the rector who notified you.4 Comment 2 • evidentiary discovery is very important procedural right. destroy or conceal a document or other material having potential evidentiary value. • Rule 3. • “Unlawful” means the lawyer already has some obligation to disclose it. indicted under the obstruction of justice under the sarbanes-oxley statute. • add cases from page 635-40 • PROBLEM 11-7: CHILD PORNOGRAPHY: • you represented one of the most respected churches in town. etc. supplying information RULE 3. the choir director worked for the church for 30 years.000 documents to overload them but not send them the other 2 bad documents? and draft them a letter saying thatyou’ve complied? • • 58 . • This rule does not prohibit all concealment or destruction of evidence but only “unlawful” concealment. he eventually pled guilrty for not reporting a felony. what matters is winning the case and keeping the client. there’s a problem • you can’t supply them with knowledge they don’t have. Articles on page 645-50: • Austin Sarat: There is usually no consequence at all to an attorney for hiding documents. a lawyer shall not counsel or assist another person to do any such act. you can show her photos like a lineup • Anytime you tell someone/some entity what to say.5 years. this is all okay. The choir director admitted that he owned the stuff and then resigned. • “refreshing recollection” vs. • Can you tell her what others have said? then when she says she remembers.4: Lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter.3 • • What does “counsel or assist” mean? Can you coach as long as it doesn’t induce false evidence • RULE 3. this was really a stretch of sarbanes-oxley • Unclear whether or not he really needed to report it but it may have been required.• Can you remind her of what the rep looked like? No. what do you do with the computer now that you have it? • REAL CASE: Connecticut: He took the laptop and destroyed it.don’t destroy evidence • in some cases you can take temp possession but you might be required to turn over evidence to police. can you tell her to be firm when the testifies? Sure.. he loaned his computer to another church employee who saw child porn on the computer. • the choir director got 5. There has been no publicity and no charges filed.

you could say you’re not disclosing them and opposing counsel set the parameters of disclosure • Real case: They concealed the documents and that was the risk they took. • You don’t have to disclose persuasive/or secondary authority. and then let them ask for more. GENTILE CASE: • those clauses were too vague to determine what the attorney could say. Ifyou conceal a document. RULE 3.6. It was almost like it wasn’t a big deal though. respond. • Don’t have to disclose if it’s from different jurisdictions EX PARTE PROCEEDINGS: • lawyer shall inform tribunal of all material facts known to lawyer to enable the court to make an informed decision. you almost have to ask yourself “where’s the harm?” • Look at the definition. it’s very difficult for it to be uncovered. IMPROPER INFLUENCE ON JURY: • Lawyer’s comments to the press: • Gentile case: 5-4 decision declaring that disciplinary rule was void b/c it was too vague: attys didn’t know what they could or could not say. • d: if one lawyer in a firm can’t make a statement. and the the other memo is not about Somophyllin RULE 3. that’s what requests for documents are. • If you conceal them. • You have to have rational arguments to show why non-disclosure is “substantially justified” • so even though these atys were sanctioned.afterall. The firm was sanctioned.and be overly thorough. The opposing counsel caught wind of it and was going to re open. 1-6: list of publicity that’s ok • b-7: specifically in criminal cases • c: allows lawyers make a statement that a “reasonable lawyer would believe is required to protect a client from substantial undue prej effect of recent publicity. even if adverse to client. maybe you should produce everything-. • start with 11-9: look at comment 5.• • • • • • • legalistic rationales could cause problems.the attorneys who were involved were not fired and at least one of them was promoted to partner. This duty overrides the obligation to protect confidences under Rule 1. 59 . neither can others in that firm • Comment 5: list of likely prejudicial topics • generally though safe to give press copy of docuemtns that have been filed in court. We don’t really have a “dear doctor” letter. if an opponent has not already informed the judge of the adverse authority.6: trial publicity: • b.3-a-2: • Prohibits lawyer from knowingly failing to disclose legal authority in the controlling jurisdiction that the lawyer knows is directly adverse to her client’s position. Problem 11-9: LETTER TO EDITOR: • can you send this letter? Question is whether it would materially prejudice the proceeding. They settled.

• If you were entirely making stuff up. • take out the :abominable” passage and the lie detecotr and innocence parts then submit it • Or you could have a citizen submit it. Subin tried to prove that the sex was consensual. if you know the witness is being truthful? • It would be misrepresentation to the court. you would have to find a good-faith basis to pursue a defense). he represented a defendant accused of rape. it’s okay.4: Fairness to Opposing Party and Counsel • Page 672 Lawyers’ duties in nonadjudicative proceedings: • Chart 676 • • Exam Review: Malpractice. but is different in public opinion.they have greater 1st amen rights • REAL CASE: lawyer submitted it as it was: publicly reprimaded (not high consequence b/c he had a great reputation) Subin Article: • Professor Subin: on some level. Rule 3. In trial. what does that mean? Sort answers: based upon problems. The def. or • disqualification of the lawyer would work substantial hardship on the client A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is • likely to be called as a witness unless precluded from doing so by Rule l. ← ← ← • Statements by Lawyers During Jury Trials: • 3. not a major misrepresentation. it would be a different story. but if you’re simply putting the prosecution to the test.6: Comment 5: Factors 3 and 4 are really important: the evidence of lie detector test and saying your client is innocent could be really prejudicial. it’s proper.4 says that doing so is a basis for discipline. lawyers are truth manipulators • In one case. • Can you cross-examine a witness in a harsh criticizing way. As long as youre not manufacturing informaiton. In a courtroom these would be okay.• • Rule 3. Nothing about judicial conduct. admitted to Subin that he did rape the girl. confessed.9 • Comments by lawyers appealing to racial or other prejudice of lawyers: Comment to rule 8.7 or Rule 1.7: Lawyer as witness: • A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: • testimony relates to an uncontested issue • relates to the nature and value of legal services rendered in the case. • Subin’s recommendation: The defense lawyer is limited only to good faith challenges (so if a def. but it would be a minor misrepresentation. but the rest of chapter 12 is free game • Judicial conduct: main concern of the 4 canons is impartiality 60 .

He had to take CLE classes. and had to be supervised when meeting with unrepresented clients 12-5 page 727: • arguments jsutifying his statements: • maybe he’s just identifying a potential problem • there’ sno criminal law that says you can’t talk about unpopular clients 61 . the atty did identify himself after the supervisor got on the line • why should you misrepresent in this way? • 8.4 Violated b/c he make false statements of fact and gave advice to someone whose interests were adverse • real case: atty suspended for 3 months for violating 4. the conduct dealt with dishonesty.2d: can’t assist in activity you know is criminal • 4. deceit.3(a) shall not lawfully obstruct access to information • 4. But the little girls were probably old enough to testify at that point and maybe the documents wouldn’ have been needed 12-4: p 717: Is there an emergency exception to the rules? • can you pretend to be a public defender and negotiate ? this could save lives • maybe you can talk to him without obtaining any incriminating info (this is improbable) • 3.1 and 8. explained that he knew the ex was probably a molester.3 • Emergency food stamps: can you have a paralegal deceive someone? it’s a lie. On morning of trial to begin.1 the rules make a distinction between what is contextually true: whether or not something • is statement of fact can be deducted from circumstancts 12-2: • atty should not misldea DeBello and should make clear who he represents • Fox may be asked to sign the written statement but could not say dibello needed him to 12-3: • 1. but on some level it’s a good lie.8: atty shouldnt seek from someone w/o representation that they waive their rights.4 • So what is the right thing to do? • destroy copies and never refer to them: if the client is willing to take the chance of being prosecuted.4 • 4. • Real case: atty showed the ex husband’s atty some of the docuemtns the client had obtained. father agreed to give sole custody to mother • Had there not been a settlement. • 4. fraud . maybe the atty should too.4 general misconduct • 4. pay costs of discipline hearing.4: did they receive it anadvertently? • 8.1 violated • 8.it’s not material.• • • • • Chapter 12 • 8. the documents may not have been admitted.4 Suspension was stayed for 12 months (court felt that the atty took advantage of the defenant).

. but we think it’s okay. he is a US citizen • Arguments in favor of disciplining him: • This is a high ranking official with policy making power and he is articulating a view tha tmight have national an dintl’ implications • he should be held to higher standard b/c status as high-rankingg vt official • should he be reprimanded? disbarred? • Powell thinks public reprimand was appropriate • there was public uproar.1 (is it material)? and Rule 8. the atty then explained why his client had an emergency need to get food stamps immediately. the lawyer should interrupt the lying.• • this notion of prejudice to the justice system is unconstitutionally vague (blatantly prejudical to administartion of justice.what does thi smean?) • he should be able to express his own opinion afterall.. make a false statement of material fact or law to a third person.1 62 ..you can accept unpopulat cases. the rules don’t require the lawyer to correct the record.. and the client is not using the lawyer’s services to perpetrate fraud.this is the misconception of legal ethics. take her client aside. • the rules say. or the client refuses to take such advice. • False statements by clients: • If the lawyer knows that her client is lying in her presence to someone other than a court. • Rules: 4.1(a): • In the course of representing a client a lawyer shall not knowingly..ppl thought he was trying to intimidate firms • he was forced to resign: nothing reall yhappened and he became a fellow at the heritage foundation Third party interests that affect a lawyer’s behavior: see article on page 729: • “Other interests impacting how the law is practied” • there are community interests.4c • it’s certainly misrepresentation. doesnt mean you endorse it • but there are third party interests that affect these standards.. the attorney must withdraw from representing a client who is using the lawyer’s services to perpetuate fraud. • Problem 12-1: Emergency Food Stamps: • Attorney had a paralegal call the welfare office pretending to be district manager so the welfare office manager would answer the call. • comment 2 to rule 4. • even if no proceeding has commenced. and advise her to tell the truth. CHAPTER 12 LAWYERS’ DUTIES TO ADVERSARIES AND THIRD PERSONS • COMMUNICATIONS WITH LAWYERS AND THIRD PERSONS • DECEPTION OF THIRD PERSON • Rule 4. if the lawyer does not do so... However.

4 • However.2 • the rule used to have an admission rationale which was dropped when the rules were advised. page 685: • the limited use of deception is not a violation of 8. • comparison of corporate atty-client privilege and rule 4. and some of them had supervisory authority. Rudavsky. in the Gatti case. if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. and Weliky v. • Harvard issue page 699: they were mere witnesses.2: • See comments 1 and 7 • In representing a client.3: • lawyer shall not imply or state that the lawyer is disinterested • when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter. President and Fellows of Harvard College: • Rule 4. directs or reularly consults with the org’s lawyer concerning the matter • has authority to obligate the organization with respect to the matter • is one “whose act or ommission in connection with the matter may be imputed to the organization fo rpurposes of civil or criminal liability • Messing. the attorney was disciplined for violating a duty to maintain personal integrity • is it okay for us to have this exception? • RESTRICTIONS ON CONTACT WITH REPRESENTED PERSONS • Rule 4. The law shall not give an unrep. • chart on 705 63 .2: chart on 698 • focus on comment 7 to rule 4.anyone would fit into the category (anything could be an admission if it falls within scope of your employment) • court rejects admission standard and adopts an imputation view• Here.• Apple case. • why? it was overly broad. • see page 701 for the main holding RESTRICTIONS ON CONTACT WITH UNREPRESENTED PERSONS • • Rule 4. a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter. unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order • you do not want to undermine their atty-client privilege.7: interviewing employees of the corporation. other than to secure counsel. the employees did not fall within the category and could therefore be contacted. the lawyer shall make reasonable efforts to correct the misunderstanding. person legal advice. There are people you cannot interview • an employee who supervises.

or use methods of obtaining evidence that violate the legal rights of such a person • lawyer who receives a document relating to a client on accident should notify the sender. 64 .• • • • • • Comment 1: Sometimes a lawyer will have to identify their client to the unrepresented person. delay. 3. it’s beyond the scope of the rules. what do you do with them? • you didn’t technically assist but it’s not inadvertent b/c you know about it • 8.3 • what do you have to tell her? you have to make sure she knows you do not represent her. in court. just showed the ex-husband’s atty some of the documents.. the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter. the ex’s atty was shocked. atty said she knew the ex was a child molester. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person. or burden a 3d person. her interests. page 705: the major thing is that when you’re talking to an unrepresented person. under 4.4: • shall not use means that have no substantial purpose other than to embarrass.. • Comment 2: lawyer can negotiate terms of a transaction or settle dispute with an unrepresented person. you could go the route of asking the girls to get more information leading to a warrant and uncovering of the evidence. the ex did not contest full custody. 2. and explain that the client has interests opposed to those of the unrepresented person. etc • make sure you don’t create the misunderstanding that you represent anyone other than the defendant • what about signing a medical release form? You cannot tell her she NEEds to sign it. Rule 4. you can’t leave the impression that their interests are somehow being safeguarded. Problem 12-3: The Break-in • your client broke into her ex-husband’s house and took documents as proof that he molested their girls. she photocopied all the documents and brought them to you.4: respect for Rights of third Persons: • Rule 4. • We don’t want unwarranted intrusion into things that should be private • Comments 1. • all the rules require is that you notify the sender • what else you do with it is a matter of law in your particular jurisdiction. the only advice you can give them is to go get independent counsel. Problem 12-2: The Complaining Witness: • Can you go visit her? Yes. even if they had not reached this settlement. prepare documents that require that person’s signature and explain that the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.4 • you could try to ask the girls about them to get more • real case: atty did not destroy.

3 and 8. However. lawyer violated rule 4. • UNRELIABLE EVIDENCE • Unreliable evidence: just b/c something is scientific evidence.8 (it’s really the analog of 3.3: are you misleading this client about your role? (misleading an unrepresented suspect) • Real case: atty went ahead with the plan. as well as addt’l special rules b/c they represent the state • Footnote on page 713: FN 53 • Page 714: Prosecutorial midconduct • UNDERCOVER INVESTIGATIONS • McDade Amendment: page 716 • “an atty for the gvt shall be subject to state laws and rules. REQUIRED INVESTIGATION BY PROSECUTORS BEFORE CHARGES ARE • FILED • CONCEALMENT OF ECULPATORY EVIDENCE • Nifong was disbarred in this case.1: false statements • 8. the public took the viewpoint that the atty was a hero for doing this.4: false statements • 4. He wasn’t fired anything.4 and was suspended for 3 months. he had to be accompanied by his supervisor.• • • the atty never even asked where the documents came from bc he was so shocked at them DUTY OF PROSECUTORS • Prosecutors are atty’s so are held under the general rules. to the same exten and in the same manner as other attys in that state. • ENFORCEMENT CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE • Problem 12-5: 65 . etc. • The enactment of this amendment however. he was required to retake the MPRE. • Rule 3. anytime he spoke to an unrepresented person. (Denver). There was tremendous public support for impersonating.1) Comment 2: the prosecution should not seek from a defendant that has no representation a waiver of legal rights • 4. and local federal court rules. take 20 hours of CLE on ethics. seems to have had little effect on the ability of federal prosecutors to direct indictment communications with a represented suspect • Problem 12-4: Prosecutor’s masquerade: • is there an emergency exception to the rules? • Weigh the emergency exception against: • 5th and 6th amend? • you could try to avoid getting self-incriminating statements. governing atty’s in each state where such atty engages in that atty’s duties. he appealed but it was affirmed. continued to be senior DA. our reliance on this may be unreliable.editorials were published.

3: “Substantial question” should be evaluated by the seriousness of the offense.• • Charles Stinson was on a radio show and he made comments about the attorneys who represented detainees at Guantanamo Bay.if you needed to know more aboutyour client. etc Exam: don’t need to mention numbers for rules and comments when can personal conflicts be imputed under rule 1.everyone else at the ACLU is not forbidden). Model Rules apply to UNadmitted lawyers 1.2: when would something be impliedly authorized to reveal confidential? the atty is the client’s agent. there is some discretion. finish chapter • • • • • • • • • • Judicial canons: • Impartiality is the central theme of all 4 canons. and it is permissive. • you are on an assistant bar counsel for the state’s bar. crime/fraud: OVerall. 1.6 and 1. what should you do? • STOPPE DHERE.6) Foreseeability: Restatement comes into play. “Shall TRY to maintain a normal relationship”.10? • Look at comment 3: you’re not going to impute a personal bias to an entire firm (Ex: personal conflict of inability to represent KKK. • They define the judge’s role • Canon 1: uphold and promote judicial independence/impartiality • Canon 2: shall perform duties impartially. (cmt 4 to 1. Diminished capacity: is it permissive or mandatory? it’s permissive. The lawyer just won’t work on the case. • The problem with the old lady • try to make it a normal relationship 66 .not mandatory. you coudl reveal confidences to findout more about your case. A-C privilege: Look at the content of the information and see how it relates to the AC privilegecertain facts are going to be well known anyways.. 8.6 is really concerned with disclosing confidential info. the rules try to deal with public harm. finish chapter 12 and talk bout judicial conduct ARE LAWYERS REALLY TOO ZEALOUS? start page 699. competently. • what if you own the corp that your firm is going to sue? now that is imputed to the entire firm. and diligently • Canon 3: avoiding risk of conflict with the obligations of the office • Canon 4: inconsistent with judicial independence.do so using a hypothetical..

No such screening for private firms (look to local rules).1. atty being in position of wanting the contract renewed. 7-4: • that problem is baed on the Abner Louiana case in NY: Key text is “Independence” then consier • 7-2: is there a risk that rep would be materially limited? Yes. 67 . can you drop one client ? Hot potato doctrinel courts generally disapprove of that • 7-4: reaches point where it may be non-permittable. look at comment 6 to 1. possibility of terminating relationship 1. maintain a normal relationship with her. • Successive conflicts: when a new lawyer comes into firm • 1. but under the facts of this problem. • 7-3.. this is different if you’re entering transaction with client. the facts were heart wrenching but too bad.that started the ball rolling if lawyer has prohibited conflict b/w two current clients: • • cmts 2 and 4 to 1.14.7: generalyl absent consent you can’t • Screening is required gvt to private and private to gvt. Comment 10. some jurisdictions provide for screening. but that’s not the point of the question.9b1 and b2: You have to overcome a presumption that you have acquired info from former rep that is adverse to your current client.then you MUSt have it in writing.14• if reasonably possible. • 10-3: p 587: Clinton was sancioned for lying under oath in his deposition • Clinton’s atty had to disavow some of the statements the president made. and we would try to direct her (not make her) • 5-6 can you sue the client? Yes. try to have normal relationship.• don’t impose too much • but eventually you may have to make some determinations (may take reasonably necessary actions) • the rule is designed to TRY to maintain th eatty-client relationship.you should look at getting client release. page 334. • there may come a time when you can’t.. • Problems: • 5-5: p 332: Rule 1. • Could this lead to a mandatory obligation? Possibly yes. 7-3. • Problem 7-1 my client’s subsidiary: • lawyer cannot represent the company unless they reasonably believe the client would not be effected. maybe try to get emergency assistance from a program • 10-2 page 586: USSC ultimately said the judge should have recused himself. at some point. you really canNOT provide assistance.16. remember the spectrum of confidentality regarding gvt employment.8 prohibits paying living expenses.all of the things you should take into consideration • 7-2.you’r epursuing justice as an officer of the court. that’s probably not possible • Informed consent: you should try to get it in writing. The attorney should not join in the motion but you should NOT oppose it either. can they previal under stickland standard? Did the atty sell his client out? is he trying to keep the 10 mil contract? • 9-3 page 553: Looked at whether or not there was authority for a non-literal reading of the rule.

this is a high standard so you have to overcome the presumption • you have to maintain confidences even though its former representation • you cannot UNDO work you’ve done for the client • “same or substantially related matter” • “materially adverse” 68 .9: you presume that the atty has information that can be used against the client.• “making a prediction” • see comment 3 to rule 1.

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