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Ethics Outline Denay Knope Pizz Spring 2009

Judicial & Federal Regulation of Lawyers


CLASS Text: Traversing the Ethical Minefield Ethics = Law of Lawyering The Law Governing Lawyers, 2008-2009 Edition (Martyn, Fox, & Wendel) Rules/Standards
Who is the Client Control & Communication o 1.2 - Control o 1.4 - Communication o 1.13 (organizational client), 1.14 (C w/ diminished capacity) Competence Rule 1.1 & 1.3 (diligence) o Malpractice - prima facie case (includes A-C relationship, DBCD) o Negligent misrepresentation o Ineffective Assistance Counsel (If Criminal Case) Strickland test Confidence o A-C Privilege (8-factor Wigmore Test) o A-C Privilege Exceptions Name/payment Waiver Testamentary Crime/Fraud o Ethical Responsibility - 1.6 (confidentiality), 1.8(b) (info used to disadvantage), 1.9(c)(1) (use to disadvantage former client) o 1.6 Exceptions (Lots) Conflicts o (1) L v. Client (1.7, 1.8) o (2) 3P Influence (1.7, 1.8) o (3) Concurrent Clients (1.7) o (4) Past Clients (1.9) o (5) Govt Lawyers (1.11, 1.12) o (6) Vicarious Disqualification 1.10 1.11 1.12 o (Note - Breach of 2 thru 5 = Breach of fiduciary duty) Limits to Advocacy o Tribunal 3.1, 3.2, 3.3, 3.4, 3.9, FRCP 11, 26, 37 Other sanctions o 3rd Party 1.6 4.1 o Within limits of Law (criminal, civil, court order) Withdrawal o 1.6 Fees Advertising o 7.1 - no false or misleading communication o 7.2 - appropriate medium o 7.3 Solicitation

SOURCES OF ETHICS

EXAM Walk Through

o Model Rules of Professional Conduct drafted by experts (Similar to UCC). Unlike UCC passed by state legislature, its the Supreme Court in a state that has responsibility for admitting and disciplining lawyers. Individual states decide if they like the new rules or not. Last year, Ohio adopted 42 Model Rules. State S.C. in jurisdiction is ultimate arbiter. o Code of Professional Responsibility (CPR, Code) - we arent responsible for this, but need to be aware of it. Some cases cite a code section and not a Model Rule. MR sometimes codify codes. This is the Old Code. o Related Statutes - Lots of statutes tell lawyers what they can/cant do Related Areas of Law o Agency Partnership - a lot of ethics rules come from law of agency. Partners are responsible for torts and contracts of partners. Agency stuff comes up a lot. o Civil Procedure - Mostly Rule 11 and Rule 26 and other discovery rules. Work product privilege can also be an issue (also evidence) o Constitutional Law - a few exceptions to SC discipline. The Supreme Court has spoken to a few ethics issues. If state court says they can discipline under advertising law, a challenge can be brought whether the law violates 1st Amd. Also 6th Amd. Violations o Contracts - lawyers ender in to K. (fee K, when lawyer/client relationship begins) o Criminal Law/Procedure - Lawyers can assist in a crime. Procedure - ineffective assistance. o Evidence - main way it comes up is via attorney/client privilege. o Torts - lawyer negligence o Remedies - b/c lawyers are agents and have fiduciary relationship, there are some remedies that arent available. Rights-Based / Deontological - use to be focused on religion, not so much anymore. Early theories were based on moral duties; big in medical ethics. o Focus on Act - you are supposed to focus on the character of the act itself, not so much on the consequences o Maxim: persons as ends, not mreans:respect - wrong to use people as means. People are morally autonomous beings. (ex. person comes to hosp. in coma, violation of this reasoning to use this person for research) o Violates - lawyers violate if they lie to meet clients ends. Maybe you dont like what client is doing or think client is stupid violation by being paternalistic; or violating w/ 3rd party. Agency Theory is intertwined with deontological Consequential, teleological - also referred to a Utilitarian o Focus on Consequences -if lying saves a persons life, then the focus is on the consequences o Maxim: Greatest Good for Greatest Number - what rule would present the greatest good for the greatest number o Problems - you may be working with the consequential theory, but at the same time violating deontological theory Relational, Ethic of Care - recognition that we should have some sense of relationships of an between parties. o Intertwined with agency law

ETHICIAL THEORIES

Instrument of Client - hired gun analogy. Unless its against the law, lawyer must do what they can for the client Parent/Director - where the lawyer things she knows whats best for clients and will take care of x thing. Lawyers have to be trained and know more than most clients. Collaborator - maintain distance from client: dont identify with client, but foster relationships that facilitates discussion. Lawyer should be open and talk to client. This is the goal

Common Lawyering Roles

These are primary fiduciary duties and sometimes duties have to be balanced against responsibility to the court, to 3rd person, or to society as a whole 1) Competence - whose fault is this? Has deontological idea of protecting right of client, but also utilitarian (what kind of system would we have if lawyer didnt do a good job? Rule 1.1 2) Confidentiality - major ethics issue. Client is willing to speak openly to lawyer because discussion is confidential. See Rule 1.6. Recent rule change, Rule 1.6(B)(1) was added - lawyer may reveal to prevent certain death or substantial bodily harm. 3) Communication/Control - There should be open communication between client and attorney. Rule 1.4 4) Conflicts - Have to understand who the client is. Have to be wary of conflicts with attys interests, with firm interests, and with 3rd party (ins. co) interests. Fiduciary Duty and Loyalty. Rules 1.7-1.10 5) Responsibilities - to court, to 3P, to society. Here lawyer is officer of the court

MAJOR ETHICS ISSUES

Ethics Outline Denay Knope Pizz Spring 2009

Judicial & Federal Regulation of Lawyers


ADMISSION Pro Hac Vice for this time
Pro Hac Vice - legal term usually referring to a lawyer who has not been admitted to practice in a Admission - Not going to let someone into bar unless SC believes they are a good certain jurisdiction but has been allowed to participate in a particular case in that jurisdiction. practice risk. o Must file an application to appear Requirements for Bar Membership o Check with local court rules which usually say you have to associate w/ local counsel o Education - Must have graduated from an accredited law school with JD o Courts will grant UNLESS there is a legitimate state interest o Bar Exam (or Waiver) - Must take & pass bar exam. State residency not required o Due Process Rights because of privileges and immunities clause. Might need specialized exams, like SC has held there is no due process right to pro hac vice patent bar. Person has right to counsel, but no right to particular counsel o Oath - Must take an oath (swearing not to take a case for malice and lucre) Once atty has pro hoc vice permission, court cant kick atty out, and due process rights o Federal Court Requirements - Set by the federal court; tend to adopt local rules at are triggered. district court level. Court of Appeals - as long as you are a member of any bar, you o If there are going to be a series of representations, the atty should either waive into the bar, or associate with lawyers in that state. can practice. S.C. bar - usually cant be a member until youve been out of law school for 3 years. GROUNDS FOR DISCIPLINE o Character and Fitness - most strict of the requirements (dont lie & disclose all facts) Burden - burden is on applicant to affirmatively show good character Applicant for admission bears the burden of demonstrating good character Standard - record of conduct that justifies trust of clients, adversaries, courts, & others. Honesty, integrity, and trustworthiness in all professional relationships and legal obligations. Professionalism, civility, etc. Question is whether a reasonable person could find if there were reasonable doubts. ~ Look to lack of candor ~ consider factors of predictability of ability to practice Behavior Considered Problematic - does not have to be criminal activity. Court considers whether a reasonable person could find there were reasonable doubts. Criminal record, academic misconduct, neglect of professional or financial obligations Would the behavior, if committed by lawyer be grounds for discipline Taking advantage of vulnerable people or committing fraud Court doesnt like it if they get a sense that person doesnt like to follow rules or is intemperate Converse Court looks to isolated incidents versus repeated problematic behavior ~ Patterns of behavior are bad
~ Evidence of existing and untreated drug/alcohol problem is one factor considered Applicant is better of demonstrating understanding drug problem and being committed to recovery program

Violating or Attempting to Violate a Model Rule (via Rule 8.4(a)) o Knowingly or Assisting Knowingly - have to know you are doing it. Denotes actual knowledge of the fact in question. A persons knowledge may be inferred from the circumstances Assisting o 8.4(b) Criminal action that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer o 8.4(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation o 8.4(d) engage in conduct that is prejudicial to the administration of justice o In Ohios 8.4 - discrimination is basis for discipline Conduct Unrelated to Practice of Law - Encompassed by Rule 8.4 o Even criminal conduct that is arguably minor or personal may be found to fall within the Rule if a court finds that such conduct tends to exhibit a disregard of legal obligations o Criminal activity o Crimes of stalking, harassing, willfully failing to file tax forms o Crimes including willful/material representation of personal applications for credit, employment, or insurance. CHOICE OF LAW

If licensed to practice in 2 states, sometimes laws are different. - know Rules in each Disciplinary Authority - Per Rule 8.5 -

o Lawyer admitted to practice in this jurisdiction (Ohio) is subject to disciplinary authority of this Application of ADA jurisdiction regardless of where the conduct occurs Questions - Court is allowed to ask any questions with a rational connection to fitness. o Lawyer NOT admitted in this jurisdiction is also subject to disciplinary authority of this Questions may touch upon 1st Amd. Concerns (you may be prohibited from admission jurisdiction if the lawyer offers to provide legal services in this jurisdiction by NOT answering questions; the mere fact of group membership is not troublesome) Choice of Law - Per Rule 8.5 Time Measured - we always evaluate character at the time of admission o Things before tribunal, then rules where tribunal sits control Activities - activities discriminating on the basis of race, etc., is frowned upon and o Things not before a tribunal (like drafting a will) - normally look at the rules of jurisdiction considered a basis for admission denial. where conduct occurred; unless predominant effect elsewhere. Think about how this action Court looks at conduct, and evidence that applicant has lack of respect for others, lack impacts the other state of professionalism, misconduct, etc. As soon as you are disciplined in Ohio, a letter will be sent to other states where you are licensed Questions will be asked whether applicant is associated with any group that advocates and they will question why you shouldnt be disciplined there. violent, malicious means.

Ethics Outline Denay Knope Pizz Spring 2009

Judicial & Federal Regulation of Lawyers


DISCIPLINE DISCIPLINE, cont
Source - The Supreme Court (state or federal). Generally speaking its a state matter, but separate Sanctions bar for federal court. o Private reprimand - keeps it private o The Supreme Court gets to set and enforce the rules. o Public reprimand or censure - where case is actually made public - published in bar journal o When legislature tries to butt in too much, Court raises separation of powers issues. o Suspension - Can be for stated amount of time, or sometimes indefinite until atty can prove Process that shes cleaned up her act. o Complaint - A complaint may be filed by anyone, does not have to be an atty o Disbarment - in some states it means atty is done and may never come back again. Some Person complaining to bar is absolutely immune from suit states treat like indefinite suspension until atty proves that rehabilitation has occurred. Usually an investigatory proceeding and if probably cause to continue a hearing o SC Decides - Ultimately the SC decides what it wants. Usually, once probable cause is found the issue becomes public, but usually not before It can require training, may require atty to retake the bar, restitution, sometimes monitoring and peer review. SC can get creative. Policy - dont want it made public every time someone complains. To Determine Appropriate Sanction Consider: o Hearing - permitted once probable cause is found In Ohio they look at similar cases where standards have not specifically been adopted Usually counsel for the bar or state bar agency will represent the bar o Duty - to whom is duty owed, and how core is this duty Generally tried in a hearing before a committee o Mental State - was action intentional, negligent, or an honest mistake In some situations, there is a non-lawyer on that committee o Injury or Potential Injury - Dont have to have actual harm for discipline Discipline is often more serious than malpractice No one may have been harmed yet, but the danger is so great that court wants to nip this o Standard Procedural Safeguards - disciplinary actions are considered quasi-criminal SO behavior in the bud. (1) 5th amendment does apply If Injury in fact, then definitely a big issue to consider (2) Due Process applies to disciplinary hearings (right to discovery, to cross-examine o Aggravating or Mitigating Factors witnesses). Aggravating Factors (3) Rules of evidence apply Past discipline (4) Standard: Clear and Convincing Evidence Look to see if dishonest or selfish motive (repetitive of mental state) party with the burden of proof must convince the trier of fact that it is substantially Pattern of misconduct or multiple instances more likely than not that the thing is in fact true. Refusal to acknowledge responsibility or obstruction of a disciplinary proceeding Stricter than preponderance of evidence (usually used in civil actions) Vulnerable victim Best defense to a disciplinary complaint is to demonstrate that disciplinary counsel Illegal conduct failed to meet its burden of proof. Substantial experience in law practice (you should know better - note, could also be mitigating (5) Note - double Jeopardy does not apply factor) o Appeals through Courts of state bar - this happens in different ways. States are different, so Mitigating Factors - can turn discipline into reprimand or can prevent total disbarment Lack of selfish motive will be relevant (court looks at reason for action) need to know that appeals are possible and states make ultimate decisions. Personal and emotional problems / physical or mental disability Often commissioner will recommend discipline and court will: agree, say too harsh, or say The absence of prior disciplinary violations it needs to be harsher. Timely efforts to rectify harm Absent 1st amendment violation, the state supreme court is final arbiter.

DUTY TO REPORT BEHAVIOR

RULE 8.3 - Duty to Report Behavior o (1) Duty if lawyer knows AND Knows = determined by objective standard; reasonable lawyer under the circumstances would have formed a firm opinion that the conduct in question had more likely than not occurred o (2) the misconduct raises a substantial question regarding fitness, honesty, trustworthiness If Lawyer KNOWS and misconduct raises SUBSTANTIAL question of Fitness then MUST Disclose RESPONSIBILITY FOR MISCONDUCT o unless Rule 1.6 (information relating to representation) prevents Rule 5.1 - Supervising attorney has to manage and supervise office stuff and work of associates. Supervisors cant just o unless information is gained by lawyer or judge while participating in approved lawyer assistance blame it on their associates; they have a duty to supervise. They may not order, & they may not modify after the fact. program Rule 5.2 - Theres no my supervisor made me do it defense, unless supervisory lawyer made reasonable resolution to o Otherwise client consent to disclose may permit an arguable question of professional duty you are allowed to defer to expertise of partner, but only if its an o (rule 1.6 trumps rule 8.3 disclosure) arguable question of professional duty. Voluntary reporting made in good faith is always permissible, subject to guidance of 8.3 regarding Rule 5.3 - regarding paralegals &secretaries. Atty must make sure they are doing things to follow the rules. Lawyers information protected by rule 1.6. can make them do things that violate the model rules & that counts as a violation by that atty.

Cooperative attitude toward disciplinary board Good character and reputation Other penalties or sanctions imposed for the same conduct Remorse and remoteness of prior offenses If atty seeks and follows advice of ethics committee it is huge mitigating factor Personal problems are viewed as mitigating ONLY if atty is in rehab program and trying to change (otherwise can be aggravating factor)

Ethics Outline Denay Knope Pizz Spring 2009

Deciding Whom to Represent -- Clients


General Duty to Take Client Court Appointments
First thing to know is who the client is: Modern Trend - recognizing inherent judicial power to appoint lawyers in individual cases when o Must know what factors determine when lawyers have created client-lawyer relationships and necessary to ensure the principle of equality before the law. their concomitant fiduciary duties o Bothwell - court has an inherent right, even in a civil case, to compel to assure fair and just o A lawyer who agrees to represent a client also agrees to be bound by the 5 basic fiduciary adjudicative process. duties: Courts clearly exercise this right in criminal setting, but not so much in civil setting. Control Lawyers & courts are engaged in public process of adjudication which creates a special Communication relationship between bench and bar. No other licensed group has the same impact on Competence government. Confidentiality When Will Courts Compel? - (Bothwell Marketability Test) Conflict (of interest resolution) o (1) Is a lawyer necessary General Duty to Take Client o (2) When determining whether counsel should be appointed for an indigent plaintiff, the o No General Duty court should consider marketability analysis to determine whether to appoint counsel Usually there is no market in constitutional/civil rights cases or cases going against govt where relief Rule 6.2, Cmt. 1 - a lawyer has not general duty to take a client. is injunctive or declaratory. Lawyer is not obliged to accept a client whose character or cause the lawyer regards as (A)MARKET OF LAWYERS repugnant. If there is a market, is there adequate access (below) All lawyers have responsibility to assist in providing pro bon public service (Rule 6.1) If there is no market apply factors to determine whether to appoint counsel: Lane Test which is fulfilled by accepting fair share of unpopular matters or indigent or unpopular (1) the factual complexity of the case (4) the plaintiffs ability to present his claims clients. (2)the ability of the plaintiff to investigate the facts (5) the complexity of legal issues Lawyer may also be subject to appointment by court to serve unpopular clients or (3)the existence of non-conflicting testimony (6) the ability of plaintiff to obtain counsel on his own persons unable to afford legal services. (B) ADEQUATE ACCESS TO THE MARKET But See If litigant has adequate access to the market of attys, are the fee arrangements feasible (below) Rule 1.2(b)- a lawyers representation of a client, including representation by If there is a market, BUT the Plaintiff does NOT have adequate access: Lane Test appointment, does not constitute an endorsement of the clients political, economic, social or moral views, or activities. (1) the factual complexity of the case (4) the plaintiffs ability to present his claims (2)the ability of the plaintiff to investigate the facts (5) the complexity of legal issues Rule 1.2, Cmt. 5 - Legal representation should not be denied to people who are unable (3)the existence of non-conflicting testimony (6) the ability of plaintiff to obtain counsel on his own to afford legal services or whose cause is controversial or the subject of popular disapproval. (C) FEE ARRANGEMENTS

Limiting Representation - Rule 1.2(c)


Rule 1.2(c) - A lawyer may limit the scope of representation IF o The limitation is reasonable under the circumstances AND o The client gives informed consent. Reasonable - it must be reasonable, such that the atty must be doing more help than harm. One way to perform more service is to only agree to certain act and help 5 clients instead of 1

Pro Bono - Rule 6.1


All lawyers have a professional responsibility to provide legal services to those unable to pay. o Rule 6.1(a) - Lawyer should aspire to 50 hours of pro bono work each year. A substantial majority of the work should be legal services without fee or expectation of fee to: People of limited means, and organizations designed to address needs of those persons AND o Rule 6.1(b) - to provide additional services with reduced or no fee to organizations, regarding civil rights, persons of limited means, participation in activities improving the law and legal system. Some states have a reporting duty re: pro bono work.

If there is a Market, and the Litigant DOES have adequate access, and are the fee arrangements such that indigent people can get help. Are there contingent fees available or other low-cost financing arrangements. (D) INDIGENCY - court must determine whether the markets rejection of the partys claims was the result of indigency (ie. hes too poor to get a fair shake) or for valid reasons: The merit of the claim Likeability of litigant There is no precedent Impact on practice obligations Potential settlement value Popularity of Claims Its an expensive case to investigate/and theres no cost recovery Accepting Appointments - PER Rule 6.2 in general a lawyer shall not seek to avoid appointment by a tribunal except for good cause such as: o (a)Representation would result in violation of Model Rules or other law Conflicts of Interest Courts dont accept the Im a transactional attorney excuse o (b)Representation would be a financial burden on atty If it imposes a financial sacrifice so great as to be unjust (unreasonably burdensome) Sole practitioner who doesnt have the resources (financial or otherwise) to represent client properly New atty just out of law school and doesnt even have a job yet o (c)the client or cause is so repugnant to the attorney that it is likely to impair relationship and impair lawyers ability to represent

Ethics Outline Denay Knope Pizz Spring 2009

Control & Communication


CONTROL
Agency Law - Ethics rules are consistent with agency law: Lawyers (agents) have a duty to act on the Clients (Principals) behalf and subject to client control of objectives. o Allocation of Authority The Client retains control of authority over objectives and specific decision making The Lawyer retains control of the legal strategies and legal conduct Restatement of Agency 1.01 - Lawyer MAY bind client if they have AUTHORITY o Actual Authority -authority that has been granted by the principal or client Expressed - Where client says, do x for me Implied - an implied authorization - actual authority circumstantially approved. Fact to be proven by deductions or inferences from the manifestations of consent of the client What would a reasonable person, in the position of the lawyer believe that he had the authority to do? o Apparent Authority - Impacts 3rd party relationships with client. A client can be bound by an agents apparent authority - traceable to the principals manifestations that causes a 3rd party to reasonably believe the agent had requisite authority to act on behalf of the principal. Client must hold agent out as possessing sufficient authority, or knowingly permitted the agent to act as having such authority The party dealing with the agent must have, acting in good faith, reasonably believed under all the circumstances, that the agent had the necessary authority to bind the principal to the agents action. Scope of Representation
o

COMMUNICATION
Good rule of thumb: Whenever youre unsure, assume the client should know about it Model Rule 1.4 Re: Communication - A lawyer shall:

o o o

o o

Promptly inform Client of any decision or circumstance requiring informed consent Informed Consent = agreement after lawyer has communicated adequate information and explanation of: material risks AND reasonably available alternatives Reasonably consult with client about the means by which the clients objectives are to be accomplished. Keep the client reasonably informed about matters. Promptly reply to requests for information Consult with client about any limitations on the lawyers conduct when the client asks for assistance that violates professional rules Explain matters to clients well enough to allow them to make informed decisions

FORMATION OF LAWYER-CLIENT RELATIONSHIPS

CLIENTS - Rule - a client is a client when a client reasonably thinks so o Always look at from the clients perspective o Secret intentions of lawyer dont matter; look at L objective manifestation to client. o It is the Lawyers responsibility to communicate & CLARIFY Issue of Accidental Clients o Accidental clients can appear when least expected and can impose some or all of the fiduciary duties that intended clients can. Court appointments Implied client-lawyer relationships -where non-lawyer reasonably relies on legal advice or assistance (including informal consults, speeches, social gatherings, ads, websites) AVOID - by explaining who you are, what your role is. Do not create reliance Prospective clients - when prospective clients discuss the possibility of obtaining legal services with o AUTHORITY RETAINED BY CLIENT Rule 1.2(a) - A lawyer shall abide by a clients decisions lawyer, implied C-L relationships can develop concerning the objectives of representation and, as required by rule 1.4 shall consult with client AVOID - by always sending an engagement or NON-engagement letter as to the means by which they are to be pursued. Per & RLGL 22 - Authority Retained by Joint clients - clients clustered in groups Client: Third-person direction- the parent who pays for the childs representation Whether to settle and terms of the settlement claim - no settling w/o clients permission. Insurance defense cases May be split of opinion about whether this binds client. Organizations How to plead (criminal cases) Clients who morph Whether to waive a jury trial (criminal) Quasi-Clients Imputed Clients - obligations of on lawyer in a firm imputed to all other lawyers in firm Whether to testify (criminal) Prospective Clients - MR 1.18 has specific duties to prospective clients: Whether to appeal (civil or criminal) o A person who discusses the possibility of becoming a client, is a prospective client o AUTHORITY RESERVED TO LAWYER - Per RLGL 23 o A lawyer should not reveal information from the consultation except as permitted per 1.9 (concerning Refusal to engage in unlawful acts or assist the client in doing so (Rule 1.2(d)) former clients) To take actions or make decisions required by law o A lawyer shouldnt represent another client with interests materially adverse to the prospective client if the o ALLOCATING the AUTHORITY TO DECIDE BETWEEN CLIENT AND LAWYER: RLGL 21 lawyer obtained information from that prospective client that could be harmful A client and lawyer may decide one of them will make which decisions subject to other requirements o Although they may not become full-fledged clients, they become clients to the extent that they reasonably of the law rely on a lawyers advice A client may instruct a lawyer during the representation Even under these circumstances, lawyer owes duty of competence in advice, and confidentiality Subject to the above, a L may take any lawful measure designed to advance the clients objectives o PCs may include: when PCs interview several lawyers, Public speeches especially in response to specific Q A Client may ratify an act not previously authorized with specific facts, Advertising, E-lawyering, Consulting with other lawyers for advice, fee splitting, fam & fs

Ethics Outline Denay Knope Pizz Spring 2009

Competence
COMPETANCE COMPETANCE Actions
Criminal Defense Representation- 3 legal remedies KEY MODELRULES Ineffective assistance of counsel o Rule 1.1 - Competence - A lawyer shall provide competent representation to a client. Malpractice Competent Representation requires legal knowledge, skills, thoroughness and Discipline - theoretically available to defendants saddled with incompetent counsel preparation (reasonably necessary for the representation) o Ineffective Assistance of Counsel (only applies to Criminal) Strickland Only remedy is to ask for new trial (under 6th Amd). Cmt. 2 - doesnt require specialized training or prior experience if: Two Prong Test Strickland Test - to assess whether a D has be deprived of effective assistance of Necessary study or association w/ L of established competence in the field (if counsel. outside firm need clients consent) Not Reasonably Effective - Counsels representation fell below an objective standard of R-ness Note - 4.1 may require informing Client of lack of specialized training/experience ~ Prevailing Norms - expert testimony about what L would/would not have done. Have to point to particular thing that was wrong and then have ET say that they would not have done it o Rule 1.3 - Diligence - A lawyer will act with reasonable diligence and promptness in that way. (Rule 1.2 - D has right to decide) representing a client. ~ Presumption Effective - Client must rebut the presumption that the representation was o Rule 5.1 - Responsibilities of Partners, Managers, and Supervisory Lawyers - all rules effective. Strategic choices of counsel (ie. intelligent ones) do not get reevaluated. above apply AND

Malpractice Requirements

Prejudice - If prejudice not assumed, Must show result would have been different ~ Actual Prejudice - R probability that, but for counsels unprofessional errors, the result of the o Attorney-Client Relationship = client is C when C thinks so proceeding would have been different Plaintiff must be foreseeable, ie. the one to whom a duty is owed ~ Presumed Prejudice IF: (and no need to show but-for) o Duty - duty owed to client, Actual Conflict - clear conflict of interest if C can show lawyer represents adverse C Once both the client-professional relationship and the scope of representation are established, courts Judge Ignores requires re: Conflict - (then dont need to show but-for causation) require lawyers to exercise the competence and diligence normally exercised by lawyers in similar circumstances No Representation at Critical Time - eg. Client asked for appeal; lawyer doesnt show up o Breach - (of a professional duty of care) at sentencing or lawyer doesnt file appeal (dont need to show but-for causation) Standard statewide - not local standard b/c licensed with state. If specialized look at other specialized Duties to NON-Clients attys and what they would do. o Lawyer Tort Liability to Non Clients violation of ethics rules - some are per se negligence, some are evidence of Attorney-Client Relationship = client is C when C thinks so Custom - still relevant in malpractice cases - majority = evidence of breach but not negligence per se Duty - RLGL 51 - duty of care to non-clients Experts generally necessary to est. appropriate standard of what a L would do ~ Prospective clients Common knowledge exception - no experts needed because otherwise so clear OR ~ Persons invited to rely on the lawyer with the lawyers acquiescence SOL has run OR ~ When the lawyer knows that the primary purpose of the representation is to benefit a non-C ~ When the lawyers client is a guardian, trustee, fiduciary, etc. Research available law and investigate relevant facts o Misrepresentation o Cause - For exam, focus on Actual Must have Statement of fact: - Mix law/fats also apply- if apply to law then can be actionable Actual - But for the breach, there wouldnt have been any harm. Negligent Proximate Cause - foreseeable plaintiff For SOL - case within a case - but for the negligent running of the statute, the P would have won the Fraud - if intent to deceive // can get punitive damages underlying malpractice case. Misrepresentation: A false statement of fact, EXCEPT Settlements - Client signing not superseding cause UNLESS L tries to talk C out of it and C signs 1/2 truth - cant tell a half-truth anyway. Changed Circumstance - material change must be disclosed o Damage - value of loss has to be shown. Duty to speak - F duties create obligation to disclose material information Emotional distress, if foreseeable, maybe Regarding a material fact Cost of New Lawyer - generally NO but if malpractice then forfeiture of that fee That a reasonable person would find important (objective) o Defenses Induces detrimental Reliance (subjective) Comparative fault - rare but possible. L cant claim comparative fault where the C failure to I bought land because you said understand has been caused by the Ls negligent explanation or the Cs reasonable reliance. Legal Malpractice SOL - if statute has run then too bad. Tolls as long as representation continues only starts to run once o Things like bad legal research, no or bad formulation of legal strategy, didnt file appropriate paperwork, representation terminated didnt communicate with client. ----- EX - Lawyer doesnt consult with expert in medical case. Discovery Rule - the statutory time period doesnt begin until P reasonably should have Breach of Fiduciary Cause of Action - Fiduciary duties include: the 5 Cs. Usually competence. discovered the elements of the cause of action o Almost exclusively a C cause of action, but a few jurisdictions have permitted actions by beneficiaries L Often seek to implead or be granted contribution from other professionals who provided services to against Ls for fiduciary the client. o Possible claim of aiding and abetting breach of fiduciary duty - intentional, knowledge Wrongfully notarized docs not signed in front of L

Ethics Outline Denay Knope Pizz Spring 2009

Confidentiality
CONFIDENTIALITY Outline
When is a Client a Client - (Same rule as before, when C thinks he is) Who is the Client? o 1.13(a) Cmt. 1-2 - a L employed or retained by an organization represents that organization acting through its duly authorized constituents. When an organizational client communicates with the organizations L in that persons organizational capacity, the communication is protected by rule 1.6. Ethical Restrictions Regarding Information Attorney-Client Privilege Exceptions to Attorney-Client Privilege (4) Exceptions to Rule 1.6 - Confidentiality (9)

Attorney-Client Privilege
8-Part Wigmore Common Law Test- Also counts in federal Courts Legal advice sought and from a legal advisor, in capacity as such, the communications relating to that purpose must be made in confidence by the client are at his instance permanently protected from disclosure by himself or by the legal advisor, except the protection be waived. o Legal Advice Sought - intertwined with from legal advisor b/c usually when legal advice is sought, its from someone in capacity of legal advisor. Always verify that the person wants legal advice - is L simply a conduit dropping stolen property off to police or asking how to do something the right way o From Legal Advisor in Capacity as Such o The communications relating to that purpose - Per 69 - conveying info to one another. Things in writing will be privileged if they are created for the purpose of communication. Distinguish from writing not created for the purpose of communication with atty Can also be nodding, pointing, shaking head. Generally speaking, name and who paid you is not viewed as a communication so you have to testify. If Last Link - where everyone knows everything except the clients name, theres recognition that this information should be privileged. o Made In Confidence - Where there is a reasonable expectation of privacy Reasonable expectation of privacy AND look at reasonableness of precautions taken Have to be careful where you speak (could be related to blowing privilege, too) If really serious & sensitive info, dont talk over cell phone because there is a risk, depending on jurisdiction, that its not a reasonable precaution Faxes are generally seen as okay (not if faxed from public place, like Kinkos) Dont email potentially sensitive info, even though theres some case law supporting protection. Check with client in advance as to what messages may be left at home, and what info may be left in those messages. Discuss how you are going to communicate Always error on conservative side o By the Client - Between the lawyer and client - recognized by every jurisdiction. BUT 3 issues come up: (see box on left) o Are at his Instance Permanently Protected - even after death o From Disclosure by Himself or by the Legal Advisor o Except the protection be waived - Waivers are an exception to A-C privilege Client waives consent, or possibly lawyer by 3rd-P waives If a waiver is intentional, present the document Consent of Client - where the client says you can hand it over Future Crime - under 1.6, not a waiver b/c of public policy Inadvertent Waiver - most common - It use to be that any inadvertent waiver blew the privileges; Modern Rule = 5 factor test ~ Reasonableness of the precautions taken to prevent disclosure Were all docs labeled privileged - think the boy who cried wolf ~ The amount of time taken to remedy the error ~ The scope of the discovery ~ The extent of the disclosure ~ The overriding issue of fairness

Ethical Restrictions Regarding Information


Disclosure o Rule 1.6(a) - A lawyer shall not reveal information relating to the representation of a client Absent Exceptions to the Rule This also applies to past or former clients & prospective clients (Rule 1.18) o May not use information to the disadvantage of a CURRENT client - Rule 1.8(b) Lawyer shall not use information relating to the representation of a client to the disadvantage of the client except Informed Consent OR Permitted by Rule o May not use information to the disadvantage of a FORMER Client - Rule 1.9(c)(1) Lawyer who formerly represented a client in a matter shall not use the information relating to the representation to disadvantage except If the Rules permit or require OR Information is generally known o No Prohibition in Rules regarding Use of information to Lawyers Advantage But see RLGL 60(a)(1) - If confidential info used for attys pecuniary gain other than the practice of law, Atty must accout to client of any profits made. But see RLGL 60 Cmt. J - there is such a danger that L is wrong about not disadvantaging client, that L could be sued, even if not disciplined.

Atty-Client Privilege, cont


By the Client o Agents - 70, this includes clients & prospective clients, agents of either who facilitate communications (ie. if a translator is needed, translator will not blow the privilege) Necessary - have to argue that its necessary, and not just helpful (if it is helpful, you can always argue work product). But a translators participation is reasonably necessary, whether the client thinks it will be confidential and whether the client needs that persons presence. Like GAL in room. With young children, no question that the parents are necessary to facilitate representation Agents of Lawyer - if L tells client to give something to paralegal to talk about, that info should be privileged o Joint Clients - with respect to the outside world, if you are representing two clients, its privileged. If H & W have fight and dont want to try case together, then no privilege With multiple clients, have to make sure that their interests are aligned enough so that you can represent both. No Secrets, b/c if one client waives privilege, atty can be called to testify o Corporations - Note Rule 1.13(a) - a lawyer employed or retained by organization represents the ORG, not the constituent officers or individuals. Upjohn - has been adopted by majority of states. EE L in capacity as such is protected. Case said that facts werent protected, but communications were; so opposing counsel could depose all the EEs and do all the work to find out all the facts, but they couldnt get all the written information. In House Counsel - corp. owns privilege. Really important to tell EE you rep corp. Bad Rule - traditional = privilege only between control group. That means atty cant get info from people lower on pyramid re: day to day.

Ethics Outline Denay Knope Pizz Spring 2009

Confidentiality - exceptions
4 EXCEPTIONS TO Attorney-Client Privilege
4 Main Exceptions to Attorney-Client Privilege o (1) Name of client / Name of person $$ lawyer Generally speaking, name and who paid you is not viewed as a communication & not protected by attorney-client privilege, so you have to testify. If Last Link - where everyone knows everything except the clients name, theres recognition that this information should be privileged. o (2)Testamentary - communications may be protected by A-C privilege, but testamentary disclosure
permissible because the privilege could be impliedly waived in order to fulfill Cs testamentary intent.

EXCEPTIONS TO Confidentiality Rule 1.6


Generally- an attorney shall not disclose information relating to representation UNLESS o Express or implied authority [1.6(a)] o Law or Court Order: Physical Evidence o Physical Harm [1.6(b)(1)] o Law or Court Order: Practice Before a Tribunal o Seeking Advice [1.6(b)(4)] o Law or Court Order: Perjury o Self Defense [1.6(b)(5)] o Law or Court Order: Disclosing Violation of Ct. o Financial Harm Order Express or Implied Authority o Express: informed consent through 1.0e, 1.4 - cant be a blanket waiver. Must be informed to extent that material risks and reasonalble alternatives disclosed. o Impliedly Authorized consent through 1.6 Cmt. 5, 1.14(c) - There is an impliedly authorized idea (rationale to keep the wheels going - but dont read too broadly as far as expediting processes), but pay attention to unless client says no and special circumstances. Would a reasonable client want this information disclosed? Also, implied authorization = attys speaking to other L in the firm unless client has specifically requested that atty not share with other lawyers in firm. M.R 1.14 Client with diminished capacity Release of information is impliedly authorized in certain circumstances with certain clients: (Minors) OR If the C has diminished capacity, is at risk for harm & cannot act for on her own behalf. It may be necessary to apply to have a guardian appointed. Physical Harm o MAY disclose if: 1.16(b)(1) - if lawyer reasonably believes its necessary to prevent reasonably certain death or substantial bodily harm - includes illness, injuries, child sexual abuse, client threat of suicide, maybe if someone is on death row (where another person is serving time is not considered substantial bodily harm), property damage not covered. o Generally speaking, no civil liability for failure to warn. This section does not create civil liability, and community is uncomfortable labeling atty as responsible. Atty represents clients wishes, not best interest of public. If danger suspected go to 1.14 and get guardian based on diminished capacity. Tarasoff not necessarily transferred to Ls where Ls arent expected to be experts in mental health o Other Consequences - (Spaulding) dont withhold information in settlement or case may be reopened & may be disciplined in 6 states. Seeking Advice o Per Rule 1.6(b)(4) - Atty can seek legal advice regarding compliance with the rules. Best option is to provide a hypothetical which would prevent disclosure of client So long as no likelihood of being able to discover who the person is. Public Policy - argue no waiver of the privilege where attorney is trying to do the right thing. (Purcell)

o (3) Waiver Historically any disclosure, even accidental was seen as complete waiver New trend, factors to determine whether a document has lost privilege
Reasonableness of the precautions to prevent disclosure The amount of time taken to remedy the error The scope of the discovery The extent of the disclosure The overriding issue of fairness Note - if you get something by privilege, and more than inadvertent, put in envelope and make motion to judge that you believe opposing party has waived privilege. If something is ill gotten, it may prevent anything else that came from it. So if you get something waiving privilege, make a motion.

Inadvertent Waiver/Accidental Receipt of Documents ABA Rule 4.4(b) and Majority: ~ Notify the sender ~ Dont examine ~ Abide by instructions of what should be done ~ Dont tell client Minority: ~ It can be used & client can be consulted Deliberate Disclosure Selective waiver (tactical) should be avoided b/c of fairness - if its strategic, then all subject matter is open. If its inadvertent, its unlikely that it will be a big waiver (all subject matter not open) When you look at whether whole subject-matter is waived, you look at whether tactical or a mistake. Work Product is always a back up argument Cant be released absent necessity AND no way to obtain without undue hardship o (4)Crime Fraud There is NO A-C Privilege where the A/C are conspiring to commit a crime - Rule 1.2(d) Purcell - Crime/fraud exception covers services sought to enable or aid 82 Client Crime or Fraud A-C Privilege does not apply to ~ C Seeking assistance in or in furtherance of a future crime or fraud, OR Theres a difference b/n (future crime) C telling L hes going to torch building (protected) and asking L to explain how to get matches and burn (exception) ~ Regardless of clients purpose at the time of the consultation, uses the lawyers advice or other services to engage in or assist a crime or fraud ~ No duty to report past fraud, unless it used lawyers services Chen -exception focuses on client; atty does not need to have intent to help Burden ~ Lawyer has initial burden to prove attorney-client privilege (protect comm.) ~ Other side has burden to prove crime/fraud exception

Ethics Outline Denay Knope Pizz Spring 2009

Confidentiality
EXCEPTIONS TO Confidentiality Rule 1.6
Self Defense

Note - Regarding SCOPE OF DISCLOSURE

If Exception to 1.6 Confidentiality - what limits the scope of disclosure? o Applies to claims brought by client and 3rd party o Rule 1.6(b)(2) - atty may disclose to prevent client from committing crime or fraud that is MAY use to establish a claim or defense on behalf of L in controversy between L&C reasonably certain to result in substantial injury. MAY use to establish defense to criminal charge or civil claim against L based on conduct in which C is o Per Rule 4.1 Cmt. 2 - Statements of future intent are statements usually not taken as material involved fact under generally accepted conventions of negotiation. Estimates of price or value placed on Meyerhofer - lawyer was using information to show that he was innocent and should not be sued. the subject of a transaction, and a partys intentions as to an acceptable settlement ordinarily That is not wrong under Ethics Code. fall into this category. MAY use to respond to allegations in any proceeding concerning representation So Im not authorized is a statement of fact - lie - violation of the rules o Timing - Atty may defend self before suit is filed. Atty doesnt have to wait to be sued in order to disclose. BUT Client wouldnt possibly settle for less than x is a statement of future intent. Puffing. 54 says anytime anyone is imminently threatened with serious consequences If its clear that its going to be filed or if theres an affirmative duty (like with Sarbanes-Oxley), then o Per Rule 4.1(a) - Cant be willfully blind theres a duty. EX where atty didnt look at documents that he knew were in folder in front of him and o Only Disclose What is Relevant said as far as he knew, policy was only 100K, when there was actual 1.1Mill. He was Atty cant say too much or could be disciplined disciplined. Evaluate whether this is really defense or trying to extort client Can evade questions, but cant out and out lie. May respond to extent reasonably necessary to establish a defense

Financial Harm - Fraud and Substantial financial injury to 3rd party Financial Harm CLIENT FRAUD RULES o Dont Assist or Counsel in Crime or Fraud - Rule 1.2(d) See Client-Fraud Rules Client-Fraud Rules MUST withdraw if L knows of crime or fraud [1.16(a)(1)] o 1.2(d) - Counseling or assisting crime or fraud MAY withdraw if L has reasonable belief [1.16(a)(2)] o 1.13(b) -(c) - up the ladder and disclosure in representing an organization EX - If representing seller in land sale and L mistakenly says its zoned commercial, but actually zoned differently. If unknown at time of misrepresentation, then not intentional, but once true facts are o 1.16(a)(1) - (b)(2) - Withdrawal discovered, MAY Withdraw 1.16(b)(2) - May withdraw if client persists in course of action involving the (1)have to communicate w/ client - tell client that fraud vitiates contracts/transactions so K may lawyers services that the lawyer reasonably believes is criminal or fraudulent not be able to stand and SOL is long on these types of actions). MUST Withdraw 1.16(a)(1) - Must withdraw if representation will result in violation of (2) If client does not want to disclose and wants to take risk then MUST withdraw because rules of professional conduct or other law representation will result in violation of law. o 3.3 - Client fraud on tribunal NOTE - Rule 1.6(b)(2) - permits disclosure to prevent the client from committing a crime or fraud that o 4.1 (b) - disclosure to avoid assisting a client crime or fraud is reasonably certain to result in substantial injury. In Ohio - 4.1(b) - A lawyer shall not knowingly fail to disclose a material fact when Usually withdrawal is enough disclosure is necessary to avoid assisting an illegal or fraudulent act by a client. (magic Small exception when theres reliance on the former work product (like an opinion letter) language is illegal or fraudulent - theres a definition of illegal in Ohio which is criminal or 4.1(b) says you MUST unless prohibited by 1.6 (and 1.6 says you MAY disclose) so no prohibition, therefore 4.1(b) requires it. violation of a statute or administrative regulation. This rule is triggered if client violates a o Dont Make false statements of material fact - Rule 4.1(a) regulation) Cant lie; but can puff; Comment to rule explains that certain statements relating to estimates or future intent is acceptable during negotiations, etc. o Past Fraud Involving Lawyers services Identify whether C is complying with the law, and if its a crime or fraud say, you must stop and put it in writing. If the fraud stops and L is not showing C how to cover it up, then you havent counseled or assisted and no disclosure necessary because L services have not been used to perpetuate past fraud. Rule 4.1(b) - L shall not knowingly fail to disclose material fact when disclosure necessary to avoid assisting in criminal fraudulent act - unless prohibited by 1.6(b) Rule 1.6(b)(3): L MAY disclose (and therefore MUST disclose under 4.1(b)) ~ To prevent, mitigate, or rectify ~ Substantial injury to financial interest or property ~ Reasonably certain to result or has resulted ~ From C crime or fraud; AND ~ In furtherance of which C used Ls services So if past fraud continues - MUST disclose if withdrawal doesnt prevent assistance (4.1, 1.6(b)(3) If merely past fraud, then MAY disclose - but no disclosure necessary.

Ethics Outline Denay Knope Pizz Spring 2009

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Confidentiality
EXCEPTIONS to Confidentiality Rule 1.6 Sarbanes-Oxley
Financial Harm, Cont - Fraud and Substantial financial injury to 3rd party If you get question on exam regarding publicly-traded company, address differences between o Preventing Future Fraud Rule 1.6(b)(2) o Reporting Corporate Misbehavior - 1.13 In situation where no fraud or crime has yet occurred: o Address Sarbanes - Only time you have to talk about Sarbanes is if its a corporation publicly traded on Stock Exchange. MAY reveal: IF: ~ To prevent C from committing crime or fraud that ~ Is reasonably certain to result in substantial injury to financial or property interest Lawyer practices before SEC, AND of another, AND Becomes aware of evidence of material violation (federal, state securities law or ~ C used or is using Ls services breach of fiduciary duty under fed. State law) (NOTE - not saying he knows of violation, See also 1.2(d), 4.1(b) but is AWARE of EVIDENCE of material violation) ~ First, Lawyer should try to discourage Client: 1.2(d) - L may discuss the legal By issuer (of securities, the corp. that actually has securities for sale) or officer, consequences of any proposed course of conduct with client and may counsel or director, employee, or agent of issuer assist client to make a good faith effort to determine the validity, scope, meaning, THEN: or application of the law. (but L may not counsel a client to engage or assist a client L shall report to CLO, or CLO and CEO in conduct that the L knows is criminal or fraudulent) HOWEVER, if L reasonably believes CLO or CEO has NOT responded with ~ Second, if Lawyer MUST disclose if certain to result in substantial injury ~ Appropriate investigation L must disclose a material fact when disclosure is necessary to avoid assisting a ~ Within a reasonable time criminal or fraudulent act by client, unless prohibited by 1.6, and Rule 1.6(b)(2) L shall report violation to: - permits disclosure to prevent the client from committing a crime or fraud ~ Audit committee or board OR that is reasonably certain to result in substantial injury. ~ Committee of outside directors OR o Reporting Corporate Misbehavior Rule 1.13 ~ A qualified legal compliance committee of the board Compare Rule 1.13 to Sarbanes Who is the Client? (So it looks like if L services arent used, obligation is done if youve reported. ) Organizational Client - Rule 1.13(a) Cmt. 1-2 - a L employed or retained by an organization Unless L reported to QLCC, L has obligation to assess whether appropriate response represents that organization acting through its duly authorized constituents. When an ~ If L doesnt reasonably believe: organizational client communicates with the organizations L in that persons organizational Appropriate response within reasonable time capacity, the communication is protected by rule 1.6. ~ Then L shall explain reasons to CLO, CEO or directors AND MAY disclose to extent 1.13(f) Cmt. 10 - L shall explain the identity of the client (organization) when the L knows or necessary to: reasonably should know that the organizations interests are adverse to those of the constituents Rectify consequences of with whom the L is dealing. (Must explain to individuals that they are not C, org is) IF L knows (c.3) officer intends to act or refuses to act in a manner that is Material violation That may cause substantial injury to financial interest or property of issuer or A violation of legal obligations to organization OR A violation of law imputed to org. investors Likely to result in substantial injury to organization THEN If Ls services used in furtherance. o Subordinate Lawyer Rule 5.1, 5.2) L must act in best interest of organization and shall refer to higher authority, including, Complies by reporting to supervising L if warranted, highest authority that can act on behalf of organization (UNLESS NOT in MAY take steps permitted or required if R believes supervisor has failed to comply with the best interest of org) requirements. ~ 1.13(b) Cmt. 4-5 - Normal situation is to go up the ladder This permits disclosure to subordinate atty doesnt get in trouble under 5.2 ~ Ohio old rule, if the things above are true, consider going up the ladder OTHERWISE: L may disclose whether or not Rule 1.6 permits disclosure, if necessary to o Violation can result in discipline by SEC No civil or discipline for inconsistent state rule - so if you disclose under Sarbanes, you are prevent substantial injury to organization IF despite efforts (Rule 1.13(d)) the action or protected from state law violation/discipline refusal to act is: ~ Not addressed in timely, appropriate manner, AND o L fired for complying MAY report firing to board of directors ~ Clearly a violation of law AND ~ L reasonably believes violation is reasonably certain to result in substantial injury to organization (so note this does NOT apply to violation of legal obligation to organization unless also violation of law) ~ 1.13(c) Cmt. 6 v - and may also require L to withdraw.

Ethics Outline Denay Knope Pizz Spring 2009

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Confidentiality
EXCEPTIONS to Confidentiality Rule 1.6
Law or Court Order: Physical Evidence o Privileged Statements for legal representation - for purpose of legal advice Writings for legal representation - for purpose of legal advice Observations - for legal advice (look at when it moves beyond observation // argue that you havent touched it or its not on your side of desk) o Not Privileged Evidence including: fruits of the crime (like money), instrumentalities of the crime (guns, weapons, etc) Issue is going to be whether you have control over it - if you have control, you have to hand it over Has to be made for the purpose of legal advice, so documents used to commit a crime that are handed over are considered physical evidence which is NOT privileged. 1.6(b)(6) allows disclosure to comply with other law requiring L to hand it over. ~ See also R119(b) - notify or turn over Before handing it over, L may use evidence to do non-destructive test, but if you alter or destroy it then youve committed a crime R119 Cmt. C = procedure for admitting evidence

EXCEPTIONS to Confidentiality Rule 1.6

Law or Court Order: Perjury (AKA Fraud v. Tribunal) o Before Perjury Rule 3.3(a)(3) - L shall not knowingly offer evidence the L knows to be false. L doesnt need C admission that testimony is false, if L has reasons to believe (like inconsistencies in testimony) then considered knowing. Knowing can = inferred from the circumstance Cant ignore obvious falsehood; but has to be more than conjecture Narrative rule - that if witness lies in narrative okay, is Minority. Rule 1.1 - competence; have to be checking with C to find out what is going on. Comment says that if you talk to C and talk to other people and there are doubts, you can resolve in favor of C - but not to extent of willful blindness. Rule 1.4 - informed consent - try to talk them out of it and dissuade them Either dont call the witness, or dont ask them questions about the subject they want to lie about. In civil you dont have to call witness, but in criminal they have constitutional right to testify so. o EX. Belge - young girl was killed and C told L where she was. L went and took pictures but didnt disclose. The community o If Criminal Case and C demands to testify: was outraged and L was indicted for violating public health law. Attempt to withdraw - problem is you have to withdraw in front of court. 1.6 is triggered, Argument that if the statute did say he had to disclose, then its unconstitutional for violating clients 5th but you can say you have to withdraw due to conflict with client (thats code for my client amendment rights is going to lie) Belge makes clear that client confidentiality is not a violation of obstruction of justice. o EX. Gardener in Detroit. Worked for atty who had represented gardener in divorce 10 years prior. Gardner tells atty I If judge refuses withdrawal, dont examine witness about information likely to encourage buried my girlfriend in your backyard. Big issues! Is gardener a client? Is the conversation in capacity of homeowner or perjury atty (since he was atty in past). Does that lawyer have control over the evidence if its buried in his backyard? Client ended Raise issue with court, putting it on the record up calling police and divulging. In minority jurisdictions McDowell use narrative form Law or Court Order: Practice Before a Tribunal - General Dont use the lied about statement in closing. o Rule 1.6(a) - might be allowed to hand something over if impliedly authorized, or 1.6(b)(6) if required by law or rules/discovery rules, etc. o After Perjury Tribunal - denotes court, arbitrator in binding proceeding or a legislative, administrative, body etc. in If material misstatement made by C AND L comes to know of the falsity, THEN L shall take adjudicative capacity. And Rule 3.9 says rules apply to tribunals if lawyer represents party before remedial measures, including, if necessary, disclosure to tribunal. agency or legislature in nonadjudicative proceeding. First thing to do is tell Client to fix (this includes deposition, you cant have a flat Tribunals use 3.3 - dont lie, dont offer false evidence, fail to disclose controlling case law known material lie in deposition because it is being relied on) to be adverse controlling in jurisd. and not disclosed by opposing counsel (all cards on the table) Attempt to withdraw - but that is almost always not enough 3rd Parties use 4.1(b) - dont lie and dont hide material information if disclosure is necessary to o Duty continues to end of proceeding, even if otherwise protected by 1.6 avoid assisting in criminal or fraudulent act by client. ~ IRS is not tribunal (L cant lie, but cant violate 1.6) if L sits and lets C lie, then almost assist o Ineffective Assistance of Counsel - it is not IAC to dissuade client from testifying falsely Reporting settlement authority to judge - Lies about ID L only has to be reasonably effective as within ethics rules (dont lie to be more effective) Client Death - half truths are fraud , and fraud upon a tribunal are a violation. With respect to death, No prejudice will be found where C is only deprived of testifying falsely; no proof of its a half-truth even if you dont say anything. Dead client changes landscape of the suit. different outcome Disclosures of fact - normally, you dont have to disclose issues of fact that will harm your client. No Law or Court Order: Disclosing Violation of Court Order duty to report negative facts unless its covered by a court rule. o If the client violates the court order, but neither client or lawyer has perjured continuing to Witnesses - Rule 3.3(a)(1) just says dont lie. Rule 3.4(a) says you wont unlawfully obstruct or appear for a client is not an affirmative representation that a client is abiding by court orders. encourage witness to testify falsely o Normally, with speaking, no affirmative duty to say that client is violating a court order UNLESS Prosecutors - Prosecutors are not supposed to just convict. Rule 3.8(d) says you have to make Order says disclosure timely disclosures of all evidence that negate guilt (any exculpatory evidence) because prosecutors are supposed to uphold justice, not convict innocent people. Client is dead (material fact changes landscape of the suit) see practice before a tribunal In Ex Parte hearing Rule 3.3(d), may have to disclose some facts Dissipation of subject matter
Error of court - Rule 3.3(a) - no duty to correct, but dont lie if youre asked. Dont speak in half truths. With court mistakes, no duty to report unless the court asks.

Ethics Outline Denay Knope Pizz Spring 2009

12

Conflicts of interest
INTRODUCTION PERSONAL CONFLICTS - Rule 1.7, 1.8
Questions to ask Will or Gift - NON-Consentable Conflict o Identify the client o Not an issue where L asks to be executor of the will theyve written because its not a gift o Determine whether conflict exists (review categories) o Per Rule 1.8(c) o Decide whether its consentable representation A L shall not solicit any substantial gift from a C, including a testamentary gift Ask if atty would do the same thing if there were no conflict at all Its okay if C wants you to have it, and you dont solicit the gift, but you still cant draft o If so, ask whether consultation informed consent occurred (in writing?) the document. A L may accept gift from C if fair and not solicited o If L, firm also? Imputed conflicts L shall not prepare an instrument giving L or person related to L any substantial gift Rule 1.7 - Conflicts Generally unless the L or other recipient of the gift is related to the C. o Lawyer SHALL NOT represent if conflict [1.7(a)] Even if someone is related and they give themselves more than the intestate share, Conflict = direct adversity OR then might be a presumption of undue influence. So dont have your law partner do it, Conflict = materially limited by responsibilities to current C, former C, 3P, or personal also dont try giving it to partner. interest. Ohio R. 1.8 - also talks about a close family-like relationship might be okay (more o Lawyer MAY represent if [1.7(b)] (ALL must be true) flexible definition of family, but case law hasnt developed, so dont do it yet) L reasonably believes he will perform competent, diligent representation (objective test) Can recommend people to draft a will so long as you give lots of names and they are Representation is not prohibited by law (sometimes per statute or common law, there will not friends of yours be express statement prohibiting) Literary, Media Rights NON-Consentable Conflict NOT same litigation AND o Rule 1.8(d) - cant offer service in exchange for literary or media rights prior to conclusion of Informed consent confirmed in writing representation. Whos the Client? o Could compromise judgment where L wants big story about case, negatively impacts o Always based on Clients point of view (L must communicate and make clear) representation. o Rule 1.7, Cmt. 34 = L representing corp. or other org. does not necessarily represent any Financial Assistance in Connection with Litigation constituent or affiliated org. such as parent or subsidiary (unless circumstances are such that o Rule 1.8(e) - A L shall not provide financial assistance for pending or ongoing litigation affiliate could be considered client) - will legal judgment be impaired, or is it possible that what EXCEPT you do for one client will have material adverse affect on another Advance court costs and expenses of litigation may be contingent o Or Will rep of subsidiary substantially limit representation of parent If acceptable under 1.8(a) can loan client $$ - but cant give it to them under 1.8(e) Lawyer MAY NOT provide/give: (not universal rule, but rule in Ohio) PERSONAL CONFLICTS - Rule 1.7, 1.8 Living expenses, etc. NON-Consentable Conflict (in Ohio) General Rule 1.7(a) - conflict with a significant personal interest may be an issue, if none of the In Cali & DC L allowed to provide C with living expenses, but cant advertise it, they can below examples apply, go back to 1.7a. only do it after the L has been retained o See 1.7(b) - atty can stay if personal conflict IF Reasonable belief he can provide competent and diligent representation, not prohibited by law, diff litigation AND consent from client (writing) Agreements Regarding Malpractice o Rule 1.8(h) Business Transaction or Financial Interest of Attorney Consentable Conflict L may NOT limit liability to a C for malpractice UNLESS the C is represented by indy counsel o Rule 1.8(a) - L shall not enter into a business transaction with a client or knowingly acquire an L may NOT settle a claim or potential claim for such liability with an unrepresented client ownership, possessory, security, or other pecuniary interest UNLESS or former client unless that person is advised in writing of the desirability of seeking and is Fair & Reasonable terms given a reasonable opportunity to seek the advice of independent legal counsel (under Presumption of undue influence that must be rebutted by clear and convincing evidence. 1.8(a) always worry about fairness of transaction) Adequate consideration - not an arms length bargain so look to see if its fair Conflict b/c L might try to rip off C; even if trying to do the right thing, L might try to Fully Disclosed and transmitted in understandable writing undersell it - so judgment is impaired. Informed Consent in writing to the terms and role of the L in transaction Proprietary Interest in Litigation Client must be advised in writing of desirability of seeking counsel and have a o Rule 1.8(i) - L cant take an interest (or piece of the pie) in litigation. Non-Consentable if reasonable chance to get it. proprietary interest (ex. deed, C wants to quiet title, L cant charge 1/2 of the title) o This rule doesnt apply to regular sales transactions, but does apply to shares, borrowing Exceptions (ie. its okay if) : money, promissory notes, security interests Lien authorized by law to secure fee or expenses OR o Does not apply to ordinary fee arrangement governed by 1.5, but 1.8 does apply if non Contract for a reasonable contingent fee (in writing) Family relationship with opposing monetary property as payment. (so it must be a reasonable fee under 1.5, see comment 1)
counsel not prohibited, but should talk about it with your client

Ethics Outline Denay Knope Pizz Spring 2009

13

Conflicts of interest
PERSONAL CONFLICTS - Rule 1.7, 1.8
Familial Relationship with Opposing Lawyer o Rule 1.7 - L must decide whether ability to represent someone is materially limited b/c of relationship Under 1.7, have to disclose to client, explain how judgment might be colored, in order to get informed consent. Sexual Relationships with Clients o Rule 1.8(j) - L shall NOT have sexual relationship w Client UNLESS the relationship existed prior to formation of the L-C relationship. Even that may be conflict under 1.7 o NON-CONSENTABLE Affects judgment C rights might be affected and could harm client L might be required to be witness. May also violate Rule 2.1 o Note - Law firm is not imputed via 1.8(k) o If jurisdiction doesnt have 1.8(j) then 1.7 applies Exceptions (ie. its okay if) :

MULTIPLE CLIENTS (concurrent conflict)

Multiple Clients o Recall 1.7 - L may not represent if interests are: Directly adverse OR Materially limited by responsibilities to another C UNLESS Reasonable belief L can AND Not prohibited by law AND Not same litigation AND Informed consent in writing. Dual Representation o C v. C in same Litigation - NON-Consentable Conflict - cant even ask. Includes divorce, even where parties are amicable Where competing for limited asset, directly adverse or material limitation o C v. C in unrelated cases = Rule 1.7 applies. Must ask self if reasonable belief that atty can represent both, and if yes, then may requrest consent o C v. C in thrust upon conflict - sometimes reason for conflict is because of a corporate merger. Hot Potato Principle - where L drops client to take another. Court says NOT allowed. 3rd PARTY CONFLICTS L may NOT fire the disfavored C to take more attractive C 3rd Party Payors L cant drop like a hot potato and turn into a past-client-conflict o Rule 1.8(f) - L shall NOT accept compensation from other than the client Flexible Approach in thrust upon conflict - flexible balancing test factors: Unless no interference with judgment (1) prejudice to the parties - including whether confidential info has been conveyed Unless Consent (and must be informed consent) (you can never have a secret benefactor (2) Costs and inconvenience to the party being required to obtain new counsel paying) (3) the complexity of the various litigations Rule 1.6 still applies and confidentiality must be maintained; all information relating to (4) the origin of the conflict - which party created the conflict - cant be from client is protected. affirmative act of lawyer o Co-Defendant where one pays Where case is in late stage of litigation, then NO dropping client. Some Courts will say that o Non-profit Orgs paying for legal rep of clients - okay for legal aid to set legal guidelines for who in thrust upon conflict the rule is the same and cant drop (this is normal situation) qualifies. Board cannot have any input on individual cases. o C v. C in Negotiation o Rule 1.13 - Client is corporation, but influence by officer/director possible Contentious, Directly adverse o Class Actions - who is client if you represent a class? Have to look at possibility of conflicting Representing Buyer and Seller - if advice would be different, theres a conflict interests and treat class as entity. Cant be counsel unless you fairly represent the interest of Many jurisdictions have an absolute ban the class as opposed to specific class members. Informed consent must continue as circumstances change Insurance Defense Issues - 3rd Party Payors Common Representations (Wills, creation of business entity, ER - EE K) o Special problems exist where the L is paid by the insurance company (Paradigm) Can L represent both without material limitation? Informed consent necessary (both The insured is ALWAYS the client advantages and risks) In some jurisdictions, Insurance Co may also be Client. May IF amicable, mutually advantageous can reduce cost of representation ~ Use 1.7 regarding 3rd parties, and 1.8(f) accepting $ from other than client Must not if risk of failure is so great that multiple representation impossible If theres a conflict like settlement or coverage, theres an issue of competence Must not if impartiality cannot be maintained If theres a 1.6 issue and dual jurisdiction, L must withdraw Appraise A-C privilege at outset of relationship - Smart thing is to explain no secrets One rule you ALWAYS follow, is that you cant disclose to insurance company up front and have all sign a waiver. Matters because If any C fires, L cant represent any Impacts who can sue Impacts attorney-client privilege Control - at the end of the day, if there are 2 clients, can be a control issue.

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Conflicts of interest
3rd PARTY CONFLICTS FORMER CLIENTS
Co - Plaintiffs Rule 1.9 - Duties to Former Clients o Rule 1.7(a)(2) - L may not represent if there is a significant risk that the representation of one or o In Rule 1.7 substantially related didnt matter, but with THIS rule it does. more C will be materially limited by the Ls responsibilities to another client o Lawyer may not represent party IF Reasonable & consentable 1.7(b) Former Client A limited amount of $$ is direct adversity and NOT consentable Remember, just because you represent corp. doesnt mean you represent 1.8(g) - L shall not participate in making aggregate settlement of the claims of or against shareholders. the C unless Matter the same or substantially related Informed consent in writing and signed by clients Same - means switching sides on same matter. Cant attack a document that you Disclosure of L includes existence and nature of all the claims and participation of each drafted. person in the settlement Substantially Related - Common factual issues material to adjudication. This test A disagreement regarding settlement requires withdrawal from both clients permits court to assume that during the course of the former representation Driver & Passenger confidences were disclosed to the atty bearing on the subject matter of the representation. No proof is needed that atty actually had access to or received Passenger should probably sue both drivers. If there is any indication Plaintiff driver privileged information was also negligent, theres a conflict ~ 1. Make factual determination about scope of first representation (look at the NOT Consentable - unless no valid claim for countersuit facts atty would likely be exposed to/ what type of things would generally be Co-Defendants covered in this type of representation) o Rule 1.7(a)(2) - Conflict if there is a significant risk that the representation of one or more C will ~ 2. Reasonable to infer confidential information would have been given regarding be materially limited by the L responsibilities to another client. these matters (not asking whether in fact discussed, just whether it would be o 1.7(b) MAY represent IF reasonable to think that they could) L reasonably believes he can provide competent and diligent representation to each ~ 3. Issues raised in first matter relevant to this matter - & if so, substantially related affected client and irrebuttable presumption that client confidences shared.. (not saying we Not prohibited by law should allow courts imagination to run free, just whether it would not have been Does not involve the same litigation unusual for client to have discussed it) Each client gives informed consent in writing New Clients Interests Materially adverse to interests of former client o Criminal UNLESS - informed consent, confirmed in writing Generally non-consentable Rule 1.18 - Former Prospective Clients o Prospective client - is any person who discussed the possibility of representation Mediators o If they are prospective client, do not discuss or reveal any information learned in consultation, Should mediator be judged under 1.9 or 1.12? except as permitted by Rule 1.9. o Rule 1.9 is broader than 1.12 o Before taking on case, do a conflicts check o L shall not represent client with materially adverse interest to potential client IF received info 1.9 = same matter or substantially similar matter that could be significantly harmful, except (d) 1.12 = limited to same matter This is what they mean by controlling the interview. It has to be enough to be significantly o Most courts are going to say that rule 1.9 applies harmful. If you keep conversation short and shallow regarding facts, then less likely to be significantly harmful. o Mediator isnt just impartial because they seek out info to find out Except (d) - okay if consent of both OR L took reasonable measure, plus screen, plus more // not like judge or arbitrator written notice to prospective client. o Majority of jurisdictions, Mediator is subject to 1.9 AND 1.12 If L says - dont tell me anything and client blurts, Atty can say he immediately screens himself and give notice to that prospective client Take measures to ensure that no atty-client relationship was established.

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Conflicts of interest
GOVERNMENT LAWYERS - Rule 1.11, 1.12
Former Government Lawyer - Rule 1.11 - 2 THINGS o (1) Former Govt Official subject to 1.9(c) Cant use info or reveal information same or substantially similar (you may make an argument that if its inevitable that it will be revealed) Substantial relationship test has not been adopted, but could be helpful in evaluating

IMPUTED (VICARIOUS) DISQUALIFICATION - Rule 1.10-1.12

General Rule 1.10 o While lawyers still associated with a firm, none shall represent client if one is prohibited by 1.7 or 1.9 (ie. rebuttable presumption that secrets are shared) If Lawyer is out, firm is out (This part of 1.10 has not been changed) Note - watch office space, advertisements, etc. because if share or use certain names, you will be deemed a law firm. Substantially Related - Common factual issues material to adjudication. This test permits court to assume that o Person Interest - none in firm shall represent unless not a significant risk of materially limiting the during the course of the former representation confidences were disclosed to the atty bearing on the subject representation of the client by other members of the firm matter of the representation. No proof is needed that atty actually had access to or received privileged Theres a recognition that just because a single atty is conflicted, it doesnt mean the whole firm information should be out. ~ 1. Make factual determination about scope of first representation (look at the facts atty would likely be exposed to/ what type of things would generally be covered in this type of representation) Cmt. 3 says: seems to say if 1.8 rule applies (personal belief, what about having small shares in a firm) ~ 2. Reasonable to infer confidential information would have been given regarding these matters (not asking 1.8(k) - looks like 1.10(a) except for (j) regarding sexual relations whether in fact discussed, just whether it would be reasonable to think that they could) So looks like more flexible rule if dealing with personal interst ~ 3. Issues raised in first matter relevant to this matter - & if so, substantially related and irrebuttable o EXCEPTIONS presumption that client confidences shared.. (not saying we should allow courts imagination to run free, 1.18 Screen; measures taken just whether it would not have been unusual for client to have discussed it) 6.5 - non-profit and court annexed limited legal services programs. o (2) Shall not represent if: If youre doing this, you have to have knowledge that your represent or know that firm Personal, substantial participation or confidential government info represents. In a matter (substantially participated in AND conflict of interest issue) Consent - can always waive as long as its informed (and arguably in writing) any judicial or other proceeding, application, request for a ruling or other Joint Defense - allow you to rebut the presumption that you got information. If you cant rebut, then determination. (not talking about general rulemaking) - look at particular matters, theres a problem. The mere fact that theres a joint defense agreement doesnt create presumption. Lawyer Leaves Firm - May Lawyer represent Client adverse to C (or former C) of Former firm? same related facts, same or related parties, time elapsed o Situation In a matter - covered by conflict of interest rules of the appropriate govt agency Honigman represents Joker (in Batman v. Joker) UNLESS appropriate govt agency gives consent, confirmed in writing L leaves firm, joins Jones Day Rebuttable presumption that Firm is disqualified May L represent Robin in related case, Robin v. Joker Screen rebuts presumption & written consent o RULE - 1.9(b) Shall not if Current Government Lawyer - Rule 1.11(d) Same or substantially related matter; AND o (1) Subject to 1.7 (personal conflicts) and 1.9 (former clients) Material adversity AND o Same test as Former Govt Official - shall not participate in a matter which the lawyer L acquired information (now rebuttable) o Depends on when representation occurred: participated personally and substantially regarding former private activity AND While with firm - irrebuttable presumption that L acquired info, so NO per 1.10(a) Cant negotiate for private employment during matter (law clerk 1.12) Once you leave firm, becomes rebuttable presumption. So you cant talk to adverse party about potential employment while you are working Lawyer Leaves Firm - May old firm represent someone adverse to client of Lawyer (that L represented while on the case. With Law Clerk have to talk to judge and make arrangements on how to at old firm) handle o Situation Judges, Arbitrator, Mediator - Rule 1.12 Honigman represents Joker (in Batman v. Joker) o L Shall not represent in a matter participated in personally, substantially, absent informed L leaves Honigman, takes Joker May Honigman now represent Robin in related case, Robin v. Joker consent in writing o RULE - 1.10(b) - Shall not if: o Some caselaw - should also apply 1.9 to mediators (Polysoft) Same or substantially related matter o No negotiating for employment (except law clerk tells judge) Materially adverse AND o Screens Any L in firm has info o Partisan arbitrator not covered by 1.12 o Presumption may be rebutted - Harder burden to meet. This is about the lawyers left behind. If you can rebut the presumption that secrets were shared, then you can represent Here, Robin could be repd by Honigman

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Conflicts of interest
IMPUTED (VICARIOUS) DISQUALIFICATION - Rule 1.10-1.12 CONFLICTS REMEDIES
Assuming L Cannot Rebut Presumptions Injunction, other equitable relief - Maritrans o Govt Lawyer or Judge - if L cannot rebut presumptions, new firm is permitted to represent so o Where party cant get other relief, may file for injunction long as there is a screen. o Grounds for injunction: o MAJORITY RULE - No screen allowed unless: Activity is actionable if breach of duty imposed by statute or CL Theres consent Ethics Rules are only part of what guide our behavior; theres a range of agency law that If not govt lawyer or judge applies o Minority of States - presumption may be rebutted if Lawyer is properly screened (Oh, Mi) Duties at Common Law - lots of examples of clients being successful in these ELEMENTS of a PROPER SCREEN circumstances. o Large firm with structural divisions; minimizing contact Equity - injunctive will lie where there is no adequate remedy at law o Likelihood of contact low o Court will look at o Existence of safeguards, procedures limiting access Extent to which fiduciary is involved in affairs o Prohibition against sharing fees Situations may exist where danger is so great that injunctive relief is warranted o Screen erected immediately Malpractice/Breach of Fiduciary Duty - Maritrans, DePape, Perez o Affidavits/certification o Malpractice - although fiduciaries owe a duty to act carefully, malpractice includes carelessness Managing partner & screened lawyer should submit affidavits regarding the screen, how and incompetency. Must show causation and damage in this. its erected, and acknowledgement that people shouldnt be discussing o Brach of Fiduciary Duty - deals with duty of loyalty. Issues of disloyalty, self-interested profiting o Notice from client information, self-dealing with clients, taking client business opportunities. o NOTE: Remedy - should be disgorgement of profits, including fees earned from disloyal acts. May not work in side switch case Forfeiture of Fees - Arce o Arce - court is much more flexible about damages and causation because the idea that there is Its one thing if a lawyer is at a firm and a case comes up where a lawyer worked on it damage to the relationship which you should get (but wouldnt get that for malpractice suit) years ago, then screen might be okay o Constructive Fraud Theory - where acts of concealment and omission, though actually not But where a lawyer leaves one firm (side-switching) you cant fraud, are deceitful & dishonest and get punitive damage Theres flexibility with support staff, and also law students (support staff has less flexibility o Procedure - Because SJ, P had responsibility to show as a matter of law that they suffered no with movement) damages. Court goes farther and says dont even have to show actual damages. How to Walk through Conflicts Problem o When lawyer commits clear and serious breach = fee forfeiture (C doesnt have to pay) (1) Identify the client (s) o Fee Disgorgement is when fee has already been paid and court tried to get it back. Serious (2) Determine whether a conflict exists. There are 6 categories: breach is not technical rule necessarily. o Personal Interests of Lawyer o Usually equitable remedies - so court tries to figure out what is fair. General Rule 1.7 & Specific rules: o Rest. 37 - Relevant factors that have to be weighed for extent of fees: 1.8(a) - Business transactions w/ clients Gravity and timing (how serious and when did it occur) 1.8(b) - Use of client information Willfulness; effect on work 1.8(c) - Client gifts to lawyer 1.8(d) - Literary rights Threatened or actual harm - allowed to look at what would have happened had Ls bad act 1.8(e) - Financial assistance to client gone through 1.8(h) - limitation of liability to client Adequacy of other remedies 1.8(i) - proprietary interest in litigation Arce ads public interest 1.8(j) - Lawyer/client sexual relationship Discipline - big remedy. Violating rules of ethics is misconduct (rule 1.4) 3.7 - Lawyer as witness Disqualification - Its an injunctive-type relief. Court will decide whether to prevent lawyer from o Interests of another current client [General Rule 1.7, Specific Rules 1.8(g), 1.13(g)] o Interests of a third person [General Rule 1.7, Specific Rules 1.8(f), 5.4(c), 1.13(a)] o Interests of a former client [General Rule 1.9] o Government lawyers [General Rule 1.11, Specific Rule 1.12] o Imputed conflicts [General Rule 1.10, Specific Rules 1.8(k), 1.11, 1.12] (3) Decide whether the conflict is consentable (4) If it is, consult with affected clients and obtain informed consent o Writing preferred or required
further participation in a matter pending before a court. o It is sought to prevent a L or former L (and the lawyers current law firm) from representing another client. o When granted, disqualification can ensure that the case will be presented w/o conflicting loyalties or that confidential information of a former client will not be used against that client in the current matter. o While disqualification provides relief from real or serious threats of breaches of loyalty or confidentiality, unlike other remedies, it imposes costs on other parties to a proceeding. Opp. for a fee forfeiture claim! o When a L is disqualified, the time schedule of a proceeding often must be adjusted to allow the client who has lost a lawyer time to retain new counsel.

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Fees
HOURLY FEES
Fees and expenses shall not be unreasonable, 1.5 Agreements negotiated after representation begins are presumed to have undue influence o 1.5(a) Factors to determine reasonableness Time and labor required, novelty and difficulty, skill requisite to perform service properly Time a reasonably prudent attorney would have spent Will not just believe you when you say it took x amount of time- expert opinion, time to educate atty does not count Likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment Amount of time case will involve Will you be conflicted out? ~ Clients can pay nonrefundable retainer to have lawyer on call and conflict them out of representing other clients Fee custom in locality Time limitations imposed by the client or by the circumstances Nature and length of the professional relationship May be worth more because of specialized knowledge Experience, reputation and ability of lawyer or lawyers performing the services Fixed or contingent fee In some cases contingent fee can be more than fixed fee, but the lawyer takes the risk they may not be paid at all o Have to look at what L earned (cant bill more time than hours in a day) o Gen rule for flat hourly and contingent fees- must be reasonable Scope of representation and basis for fee shall be communicated to the client, preferably in writing 1.5(b) If fee is always the same, dont need to communicate it every time o Ethics Issues with Hourly Fees Double Billing- can only bill for amount of time spent on case Look at the amount of work done ~ Can bill for travel ~ Do not overstaff ~ Pass benefits of economy to client ~ Pro bono may get money back by statute later on ~ Support staff Secretary should be general overhead Paralegals may be hourly if agreed to up front ~ May round up o Ethics issues involving costs, disbursements, regardless of fee method (hourly, contingent, flat, etc) Cant use external costs as profit centers Cannot allocate general overhead- should only make profit off the practice of law, not copies and sandwiches Distinguish between fixed costs which cant be part of the bill, and variable costs which may be passed to client Disbursements - you can t charge more than you actually spent, so if you get a break, have to pass that on to client (Actual expense) (Cant make profit on savings) In-house services (copy, lexis) Put in fee agreement ~ If not in agreement, cost of service plus reasonable overhead Look at what other vendors are charging Cant bill secretarial fees, but can bill paralegal fees

CONTINGENT FEES
Contingent Fees 1.5(c) In writing, signed by the client, stating method by which fee is determined must be reasonable at time of agreement, not reasonable in hindsight Include % for different stages of litigation Include expenses to be deducted and whether deducted before or after % established Clarify expenses client pays if they do not prevail o Give C information and let them choose. Factors to consider: Sophistication of client Likelihood of success/recovery Contingent Fee Ethics Issues: o Reverse contingent fees (L gets % of amount that defendant saves) o Liability is obvious Allowed even though liability is certain, when damages can be wide ranging Contingent fee allowed unless damages are also certain - Cant use contingent fee when it is clear you will win- and win certain amount - reason they are allowed to be higher is because there is a possibility you will get nothing (or very little) - better to have sliding scale o Contingent Fees NOT allowed in Domestic relations (divorce) 1.5(d)(1) Dont want to set up scenario where atty trying to extract everything from other side for a bigger fee Ok if divorce is over and you are just suing to collect fees (judgment collection) Criminal cases 1.5(d)(2) Rights are too important- will make client plea to get a bigger fee o Costs and disbursements Fee Splitting 1.5(e), only if o Division is in proportion to services rendered OR each lawyer assumes joint responsibility for malpractice (incentive to refer to good atty and not one with highest fee split) Joint responsibility means if you refer to shitty lawyer, and theres malpractice, both attys are on the hook Michigan does not require joint responsibility, may pay referral fee o Client agrees to arrangement, including share each lawyer will receive, confirmed in writing Has to be consent: ie. there will be a feed paid to X and the client signs o Total fee is reasonable The client cant end up paying more because theres been a referral Flat Fees o CON - Have to ask whether this will impact the Ls ethical judgment or the incentive to advocate o PLUS - Good thing because it avoids hourly billing abuse OKAY if reasonable - perfect situation for flat fees is if the time involved is relatively ascertainable, sufficiently routine, and L handles lots of these types of cases. Look at Custom (how long do these normally take?) Sometimes might take longer, sometimes less, so balances out Refundable - fee almost always has to be refundable. If client learns that L is suspended (if suspended, have to let C know) - K cant label fee as nonrefundable b/c its misleading - unless its a general fee Court distinguishes between general and special retainer: General - the exception to refunds. You get the $$ for the wonder of being you. L gets paid to remain available, so theres a K and consideration. As soon as you get $, you have earned it by giving client peace of mind that L will be available to take case. ~ RARE case - usually only works in commercial K with sophisticated client Special - ie. in advance. This is what most cases are. Basically an advance against work. This can either be a flat fee or down payment, but either way is ABSOLUTELY REFUNDABLE

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Fees
TERMINATION FEES
Fees upon termination (comes up when advance or contingent fee) o For Cause (atty is bad guy) Recall forfeiture, a breaching party may not collect Some possibility if offered value before wrong o Without Cause, Even if Fired (so atty is the good guy) Focus is on what was earned and what wasnt more about value of services Becomes an issue when talking about contingent fees (confusing) Traditional Rule atty can get damages for K price Most rational measure of damages, avoids problem of setting value for partial work Client is not breaching by discharging attorney- can fire for any reason or no reason Contract rule in some jurisdictions permits alternative recovery on quantum meruit Quantum Meruit = Reasonable value of services before discharge ~ NY Rule accrues as soon as lawyer is fired ~ CA Rule cannot allow any disincentive to fire Care about client having right to choose- client can fire without harm Old rule was that atty gets to choose Modern Rule (Rosenberg) MAJORITY Lesser of contract price or reasonable value of services Applies in OH, but not maj rule yet Want to assure client is not worse off than if they had kept atty o Who Pays? K as provided If no K presumption 2nd L will pay out of award. Statutory Fees to Prevailing Party o gen rule- each pays his own- no equitable power in state or fed cts to award atty fees- some statutes allow fee shifting o Lodestar: Reasonable hours x Reasonable amount Court will scrutinize for fairness & can delete wasteful or duplicative hours Reasonable amount is the difficulty of finding counsel (market would not take case) Use 1.5 factors If fees are more than award, use Loadstar if its not just private, but public right has been vindicated. o Contingent fees and lodestar Nothing prohibits also entering into contingent fee agreement But you dont get both statutory amount and contingent fee amount (no double dipping) If contingent fee was for 70K, then L can get 50 from statute, and 20 from client. o Other statutory schemes As many schemes as there are types of practice Juveniles, bankruptcy, class actions are evaluated by court for reasonableness of fees

CLIENT PROPERTY
1.15 Client Money and Property o Must keep funds of client or third person in separate account NO CO-MINGLING No non refundable fee, could get fired tomorrow Keep complete records for 5 years 1.15(a) IOLTA (Interest on Lawyer Trust Acct) for short term or small amount of money ~ Interest pays for legal services of the poor Client has own account for long term or very large amount Must wait for clients check to clear Property of client or third person Identify Keep safeguarded o Comingling exception: Lawyer funds may go in client account only for bank service charges 1.15(b) o Advance fees and retainers in client account 1.15(c) General/engagement retainer to keep attorney available and conflicted out Earned upon receipt because it is an immediate benefit to the client Still evaluated for reasonableness Some states say all retainers, even general, must go in client account Special retainer/advance on fees/flat fee Client has an interest because it may be refundable if the client fires you Must go in client account o Receipt of funds 1.15(d) Notify client or third person of receipt of check Promptly deliver check unless permitted by law or agreement Render accounting upon request o Dispute 1.15(e) Distribute part not in dispute (cant hold money hostage) Put disputed part in client account Fiduciaries cannot do accord and satisfaction

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Limit of Law
TERMINATING RELATIONSHIP
o o o o 1.16(a) Mandatory Withdrawal Continued Representation violates RPC or other law, or if thrust upon client created problem, may be able to pick one side to continue representing o Physical or mental condition materially impairs the lawyers ability to represent the client, or o o Discharge (client fires you) Does not matter if it is for good reason or no reason o No reason can get compensation, quantum meruit o Wrongful Discharge Every state recognizes public policy exception to employment for nonlawyers For lawyers Outside counsel ~ No such thing as wrongful discharge In house counsel, split ~ Maj- no difference in treatment o ~ Min- can have suit for damages, but not reinstatement o Different b/c they only have one client, so it is their whole job at stake atty should not have to choose btw doing the right thing or their job o Some of minority say that it is ok to have a case as long as no confidential o information is used- cruise and 1.6 say that you are allowed to use o confidential info in action for wrongful discharge ~ Firm Not client firing lawyer o Implied promise the firm will operate within ethics rules Wrongful discharge allowed Elements ~ Employee at will ~ Public Policy Issue Not all ethics rules are public policy ~ Departure non-voluntary ~ Public policy was a substantial factor in firing 1.16(b) Permissive Withdrawal- (if ct appointment, 6.2 applies instead) Anytime it will not have an adverse effect on client Lawyer reasonably believes services are being used in crime or fraud Client has used services to commit crime or fraud If fraud is over, may leave If fraud is continuing, mandatory withdrawal Action lawyer considers repugnant or with which the lawyer has a fundamental disagreement Client fails substantially to fulfill obligation to lawyer after reasonable warning Client has stopped paying bills Distinguish between willful nonpayment and inability to pay ~ Is nonpayment foreseeable ~ Is nonpayment intentional Firms are not at liberty to abandon a case Obligations do not evaporate because case becomes more complicated or the work more arduous Unreasonable financial burden on the lawyer Other good cause Before Tribunal 1.16(c) Practicing before tribunal as soon as appearance is entered May not withdraw without courts permission (whether mandatory or permissive) In situation where withdrawal will prejudice client or system, court will say no Must determine whether withdrawal is mandatory or permissive Protect Client Interests 1.16(d) Lawyer shall take steps reasonably practicable to protect a clients interests Reasonable notice Time before statue runs Sophistication of client Allowing time for employment of other counsel Surrendering papers and property to which the client is entitled. May retain papers relating to the client to the extent permitted by law Liens ~ Charging lien Possessory lien Part of judgment subject to dispute Keep part you believe is yours in separate account ~ Retaining lien May keep items as security Work product o No automatic right to keep papers o Unethical to prejudice clients rights, ok if little or no to client o Some states say there is no retaining lien in criminal cases because the interests are so strong o More appropriate if avoiding client fraud or gross imposition o May hand over papers, but ok to ask for adequate security Return all clients own papers

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Limit of Law
LIMITS OF THE LAW LIMITS OF THE LAW
c. FRAP o 38 Damages and Costs of Frivolous Appeals, o 28(c) No deposition before relative or financially interested Rule 11- only covers pleadings o A lawyers signature on pleading doc means 1) L Did a reasonable inquiry, AND a) Some leeway when it is close to statute of limitations 2) Warranted by law or nonfrivolous argument to extend, modify or reverse law, AND a) When attacking law, better to state that fact 3) Facts have evidentiary support or are likely to after investigation AND 4) No improper purpose o If one of the above is not true 1) Court may sanction lawyer, firm, or client 2) Procedure a) Motion, 21 days or withdraw; or b) Judge may sua sponte file order to show cause (if judge does this, theres no safe harbor) o Sanctions are to deter repetition, pay to court or attorney fees 1) Duty is on person seeking fees to show they deserve them

A.

Statutes requiring reporting 1. Sarbanes Oxley 2. 26 USC 60501 a. Disclose if receive more than $10,000 in cash b. Penalty for intentional disregard (mens rea just means you know you got more) o Greater of $25,000 or cash received Frivolous Claims & Defenses 1. Discipline a. 3.1 - Lawyer shall not bring or defend a proceeding, controvert an issue, unless basis in law and fact is not frivolous (objective, not honest belief) which includes good faith argument for extension, modification, or reversal of law- applies to issue raised in complaints and responsive pleadings b. Exception: Lawyer in criminal case can defend to require elements of crime to be established o Dont abuse law 1) Be zealous within limits of the law o Not frivolous if all the facts havent been substantiated 2. Civil Liability a. No malpractice suit b. Malicious prosecution in extreme case- NOT ON EXAM o Lack of probable cause o Improper purpose 3. Procedural Rules/Sanctions a. 28 USC 1927 Imposition of excess costs, expenses and attorneys fees on counsel who vexaciously multiples proceedings look for pattern of activity b. Inherent Power of Court to discipline attys o Court must find explicit finding it was in bad faith o Powers 1) Control admission 2) Discipline attorneys 3) Punish attorneys for contempt 4) Vacate judgment for fraud 5) Bar a criminal defendant from courtroom 6) Dismiss a suit 7) Fine/disqualify counsel 8) Preclude claims and defenses 9) Limit future access to courts o Typically courts look for a rule before inherent power, but they dont have to look at rules first

d.

B.

D.

Discovery Abuse/Related Trial Activities 1. Disclosure of facts a. No untruths 4.1 Truthfulness in Statements to Others o Cant lie, but no affirmative duty to turn over non-mandatory damaging documents b. Affirmative duty in ex parte proceeding to disclose material facts even if adverse 3.3(d) c. Make reasonable efforts to expedite discovery 3.2 d. You have to openly challenge anything you dont want to turn over 2. 3.4 Fairness to Opposing Party and Counsel a. Dont unlawfully obstruct access or alter, destroy or conceal a document b. Dont falsify evidence or counsel or assist a witness to testify falsely c. May not knowingly disobey an obligation under the rules of a tribunal: o Exception, may openly refuse that no valid obligations exist 3. FRCP 26(g) Certification a. Signature is certification that response is complete and correct b. If challenging, make certification that challenge is legal and not frivolous c. 26(a) Requires initial disclosures o Automatic disclosure of names and documents that will support your claim o Remedy is prohibition of use of witnesses or documents 4. Discipline a. Sanctions 26(g)(3) Appropriate sanctions including cost and attorneys fees

b. c. d.

37(a)(3) Incomplete or evasive disclosures is nondisclosure 28 USC 1927 Inherent powers

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Limit of Law
LIMITS OF THE LAW LIMITS OF THE LAW
10. Experts a. Not clients and not represented by opposing counsel b. May talk to them if they do not have their own lawyer, but they will likely not talk to you c. Can tell your own expert they do not have to talk to the other side 11. Federal Prosecutors a. Situations o Witness o Gathering information b. Court order o Necessity o No alternative way to get information 12. Posing as an employee a. 4.1 Cannot be untruthful b. Cannot get your employee to do what you cannot do c. Can pose as a consumer

A.

Bias 1. 8.4(d) Do not engage in conduct prejudicial to the administration of justice 2. Ohio 1-102(b) a. Explicit anti-discrimination rule b. Race, color, religion, gender, national origin, sexual orientation or disability 3. Cannot discriminate even for a good reason Transactions with Persons other than Clients 1. 4.3 Unrepresented persons a. Shall not state or imply lawyer is disinterested (make it clear you represent the other side) b. Shall make reasonable efforts to correct misunderstanding regarding lawyers role c. Shall not give legal advice other than to secure counsel 2. 4.2 Represented persons a. No communication about the subject of representation absent consent of counsel o Even if client initiates- still cant talk to them 1) Clients can talk to clients provided they were not instructed to do so o Talking to government 1) Does not prohibit talking to a government agent on behalf of client 2) If unclear whether you may talk to someone, get a court order o Corporate issues 1) May not speak to present employees whose a) Managerial responsibility with regard to the subject of the cause of action b) Actions or omission may be imputed to the organization c) Persons whose statement may constitute an admission, has created split of opinion i) Many states, exception to hearsay, all employees ii) Control group iii) NY: Decision makers on the course of litigation Adopted by ABA d) Other employees i) Cannot direct answers, but can send a memo informing them they have a right not to talk or to hire counsel e) Past employees i) 4.2 does not apply because no longer represented by counsel for the org

B.

B.

3.5 Impartiality and Decorum of the Tribunal 1. Judge a. 3.5(a) Dont bribe the judge b. 3.5(b) Do not communicate ex parte during proceeding unless authorized by law or court order o Can discuss unrelated or housekeeping matters o Covers all forms of communication o Prohibited even if judge initiates 2. Jury a. 3.5(b) Cannot communicate ex parte during trial o Includes innocent communication b. 3.5(c) Communication after trial allowed, unless o Prohibited by court order o Juror expresses desire not to speak o Communication involved misrepresentation, coercion, duress or harassment o Disruption of tribunal 3.7 Atty as a Witness 1. Atty may not act as advocate at trial if necessary witness UNLESS: a. Uncontested issue - just authenticating a document or saying you mailed something on a certain day b. Legal services - cost, time spent. c. Substantial hardship- incredible amount of time and unforseeability 2. Issue is that jury will be confused if atty is testifying or advocating a. Atty des not choose if they are a witness or L- if they are necessary they are W b. Think ahead- dont wait until you are called as a witness

C.

Ethics Outline Denay Knope Pizz Spring 2009

22

Limit of Law
SELF-REGULATION
o 5.6 Restrictions on Right to Practice 5.6(a) Covenants not to compete o Shall not participate in offering or making agreement that restricts the right of a lawyer to practice after termination of the relationship Client gets to choose the lawyer, will not agreements that restrict that choice Exception, agreement concerning benefits upon retirement Dont offer to make them- everyone gets in trouble 5.6(b) Settlements Prohibits offering or making an agreement in a settlement which restricts the lawyers right to practice I will settle these cases if you have a cov. not to compete so you can never file these suits again Go around it by negotiating with atty to be their consultant- dangerous to do this when you are still representing the other side Inherent Powers to Regulate the Bar Positive Things the court can do Negative Areas that are so clearly part of the power of the courts, the legislature may not make regulations Some may allow laws if they augment and do not conflict 6.

LIMITS OF THE LAW


7.2 Advertising appropriate mediums a. Subject to 7.1 and 7.3 can use any medium o 7.1 Cannot be misleading o 7.3 Cannot be in person o TV, print, webpage, snail mail email all ok o Website disclaimer of areas you are authorized to practice 1) Make sure to keep site up to date 2) Disclaimer so clients know there is not a relationship unless they talk to you avoid reliance 3) Chat room NOT okay b. No money for recommendation, except o Reasonable costs of advertising o Usual charges of legal service plan or non-profit, qualified referral service o Allowed to pay for a law practice o Reciprocal referral IF (not exclusive, C is informed, complies with rules) 1) Im happy to send clients to you (OKAY) 2) Saying Ill only refer you if you refer me - not okay c. Ad should include name and address of at least one lawyer o If trade name, have to have at least 1 living lawyer on ad 7.3 Solicitation a. Absolute prohibition on in-person, live phone or real time electronic communication, if motive if a pecuniary gain (Ok if you are soliciting a class action for pro bono), UNLESS: o Contact is a lawyer o Contact has relationship with lawyer 1) Family-like- so you will not take advantage b. Even if allowed under (a), cannot solicit if person said do not solicit or lawyer uses coercion, harassment, duress c. If written, recorded message or electronic communication to person known to need services, must include ADVERTISEMENT on the outside envelope and at the beginning and end of any record communication o Unless contact is lawyer or has relationship o In Ohio, if soliciting within 30 days of event, must include outline of clients rights d. Seminars are okay - making people aware of legal rights with general statement is fine. o If L starts saying hire me = bad o Can do booth - but no initiating 1 on 1 o Look at bar rules 7.4 Communication of Field of Practice and Specialization a. May communicate fields practiced or not practiced b. Specialist only if o Patent Bar o Admiralty o Certified by state authority or group accredited by ABA and certifying organization is listed 7.5 Firm Names and Letterheads- Trade Name a. Trade names may be used that dont imply connection with government, public, charitable, legal service organization b. List bar affiliation if practicing in more than one jurisdiction c. No name in firm if in public office d. List only those practicing (At least 1 lawyer name)

ADVERTISING & SOLICITATION


o 7.1 Communications Concerning a Lawyers Services Shall not make a false or misleading communication about the lawyer or lawyers services Contains a material misrepresentation, OR o Cant say something implying that you can improperly influence judges. (Can be unjustified expectations) Omits a fact necessary to make the statement considered as a whole not materially misleading o Lies o Misstatements of Law Bankruptcy ads o Misstatements of Fact I tried a hundred cases o Other statements Unjustified expectations Saying you won 1,000 cases but not saying you lost 10,000 In many jurisdictions, client testimonials are unjustified expectations o Ohio May talk about skills 1-800-PITBULL - holding out as aggressive trial tactics (FL no, other jurisdictions may be okay) Cannot compare services or fees unless they can be substantiated o Ohio Cant mention discount fees Saying you will use improper means Omission- no fee unless you recover but not telling them you will still have to pay costs

7.

8.

9.

Ethics Outline Denay Knope Pizz Spring 2009

23

Limit of Law
CONSTITUTIONAL ISSUES
1. Commercial Speech (1st amendment) a. Absolute prohibition of actual, inherently misleading communications is constitutional (So allowed to LIMIT if) : o Regarding illegal activity o Actually false- can be prohibited (7.1) o In person solicitation has possibility for coercion and overreaching- prohibited (7.3) 1) Lower courts have determined live phone and electronic are the same as in person o Trade name- can totally prohibit if desired (7.5) 1) Could be regulated b. If not misleading, may regulate if it meets Central Hudson Test o Substantial state interest; and 1) If practice is harmful, reputation of bar (not always strong enough) 2) Invasion of privacy 3) Concerns about overreaching, duress 4) Fraud o Regulation directly advances to a material degree o Regulation narrowly drawn 1) Does not need to be least restrictive 2) Reasonable and proportional fit c. Narrowly drawn waiting periods are constitutional Florida Bar v. Went For It, Inc d. Cards, videos and pamphlets cannot be physically handed out e. No one may solicit on your behalf Difference btw commercial and political speech: a. Commercial speech- can say false or misleading is ok b. Commercial- need substantial, not compelling interest c. Commercial- reas fit d. Commercial- can have prior restraint e. Commercial- can always have time place and manner restrictions f. Commercial- can require more speech

LIMITS OF THE LAW

A.

2.

B.

Federal Intervention 1. Rules prohibiting partnership with Non-L when the practice is law are constitutional and do not violate Sherman Act a. ABA can lobby entities for what rules to adopt b. Judiciary has immunity as a state actor c. No due process claim because there is no fundamental right or suspect class 2. 5.4 Professional Independence of a Lawyer a. No fee sharing 5.4(a), except o Payment to lawyers estate o Lawyer purchases practice from estate o Employee retirement plan based on profits 1) Can pay salaries from profits, but do not share contingent fees o Non-profit group (ACLU) b. No partnership with nonlawyer if any of the activities of the partnership consist of the practice of law 5.4(b) o Professional judgment of attorneys should not be dictated by nonlawyers o Confidentiality o Can be in-house counsel 3. Reciprocal referral 7.2(b)(4) (Cannot be exclusive) - C must be informed of the existence and nature of the agreement /Not allowed by many state bars

5.5 Unauthorized Practice of Law; Multijurisdictional Practice 1. Lawyer shall not assist in unauthorized practice of law 5.5(a) a. Not limited to courtroom o Counseling on law o Drafting legal documents 1) Nonlawyers can sell and fill out forms as directed a) Cannot offer legal advice or questions about what forms should be filled out- if you do anything more than say here is your kit it could be trouble b. Skill particular to one trained and experienced in law, custom o May hire paralegals o State rules allow law students to do legal work 2. Lawyer shall not practice in violation of rules of the jurisdiction 5.5(a) a. May not practice if suspended or disbarred o Inform clients b. May not practice where unlicensed 5.5(b) o Systematic and continuous presence in the jurisdiction, then you are holding yourself out at licensed 5.5(b) o Sufficient activities in state, continuing relation with client 3. Multijurisdictional practice, Licensed lawyer may provide temporary legal services 5.5(c) a. In association with local lawyer b. Authorized by the state c. Related to lawyers practice where admitted and there is not requirement for pro hac vice o If lawyer and client are in the same state, work anywhere is considered doing in-state work for client 4. Licensed lawyer may provide services in anther jurisdiction 5.5(d) a. In-house counsel b. Federal or other law 5. Result of Unauthorized Practice a. Discipline for violating 5.5 b. Fee contract is unenforceable o May sever for activities in state where licensed o Quantum meruit 1) No recovery if client was not aware lawyer was unlicensed 2) Client knew lawyer was unlicensed, split a) Lawyer should have known better, no recovery b) Lawyer is suffering and should receive value for services