PR Outline

Admission to Practice, Regulation of Lawyers, Professional Discipline……..……………………………………………………………………….3

Confidentiality…………………………………………………………………………………………………………………………………………………………………..5

Attorney-client privilege……………………………………………………………………………………………………………………………………………………7

Lawyer-client relationship…………………………………………………………………………………………………………………………………………………8

Conflicts of Interest………………………………………………………………………………………………………………………………………………………..10

Fees………………………………………………………………………………………………………………………………………………………………………………..15

Lawyers duties to courts…………………………………………………………………………………………………………………………………………………17

Truth and falsity in litigation……………………………………………………………………………………………………………………………………………18

Communications with lawyers and third persons………………………………………………………...…………………………………………………20

Duties of
prosecutors…………………………………………………………………………………………………………………………………………………………………….21

Conduct prejudicial to administration of justice…………………………………………..…………………………………………………………………21

Model Rules of Professional Conduct

Rule 1.0 Terminology

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Client-Lawyer Relationship
Rule 1.1 Competence
Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
Rule 1.3 Diligence
Rule 1.4 Communications
Rule 1.5 Fees
Rule 1.6 Confidentiality of Information
Rule 1.7 Conflict of Interest: Current Clients
Rule 1.8 Conflict of Interest: Current Clients: Specific Rules
Rule 1.9 Duties to Former Clients
Rule 1.10 Imputation of Conflicts of Interest: General Rule
Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees
Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
Rule 1.13 Organization as Client
Rule 1.14 Client with Diminished Capacity
Rule 1.15 Safekeeping Property
Rule 1.16 Declining or Terminating Representation
Rule 1.17 Sale of Law Practice
Rule 1.18 Duties to Prospective Client
Counselor
Rule 2.1 Advisor
Rule 2.2 (Deleted)
Rule 2.3 Evaluation for Use by Third Persons
Rule 2.4 Lawyer Serving as Third-Party Neutral
Advocate
Rule 3.1 Meritorious Claims and Contentions
Rule 3.2 Expediting Litigation
Rule 3.3 Candor toward the Tribunal
Rule 3.4 Fairness to Opposing Party and Counsel
Rule 3.5 Impartiality and Decorum of the Tribunal
Rule 3.6 Trial Publicity
Rule 3.7 Lawyer as Witness
Rule 3.8 Special Responsibilities of a Prosecutor
Rule 3.9 Advocate in Nonadjudicative Proceedings

Transactions with Persons Other Than Clients

Rule 4.1 Truthfulness in Statements to Others
Rule 4.2 Communication with Person Represented by Counsel
Rule 4.3 Dealing with Unrepresented Person
Rule 4.4 Respect for Rights of Third Persons
Law Firms and Associations
Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer
Rule 5.2 Responsibilities of a Subordinate Lawyer
Rule 5.3 Responsibilities Regarding Non-lawyer Assistance
Rule 5.4 Professional Independence of a Lawyer
Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law
Rule 5.6 Restrictions on Rights to Practice
Rule 5.7 Responsibilities Regarding Law-related Services
Public Service
Rule 6.1 Voluntary Pro Bono Public Service
Rule 6.2 Accepting Appointments
Rule 6.3 Membership in Legal Services Organization
Rule 6.4 Law Reform Activities Affecting Client Interests
Rule 6.5 Nonprofit and Court Annexed Limited Legal Services Programs

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Information About Legal Services
Rule 7.1 Communication Concerning a Lawyer's Services
Rule 7.2 Advertising
Rule 7.3 Solicitation of Clients
Rule 7.4 Communication of Fields of Practice and Specialization
Rule 7.5 Firm Names and Letterhead
Rule 7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges
Maintaining the Integrity of the Profession
Rule 8.1 Bar Admission and Disciplinary Matters
Rule 8.2 Judicial and Legal Officials
Rule 8.3 Reporting Professional Misconduct
Rule 8.4 Misconduct
Rule 8.5 Disciplinary Authority; Choice of Law

Admission to Practice and Regulation of Lawyers

1. Institutions that regulate lawyers

a. Highest state court
i. Inherent powers doctrine: courts claim inherent authority to regulate lawyers’ conduct as a
matter of common law reasoning that they need to be able to govern the conduct of those who
appear before them
ii. Negative inherent powers doctrine: some state courts assert that their power over regulation of
lawyers is exclusive of other branches of government and will invalidate legislation that
attempts to do that
iii. Adopt rules of conduct that govern lawyers – not state legislatures (Hagan v. Kassler Escrow)
iv. Rely heavily on state bar associations
v. Supervise agencies that investigate and prosecute complaints of unethical conduct by lawyers
who violate ethics codes
b. State and local bar associations
i. Unified bar states
1. Disciplinary system is independent from bar association or
2. Bar association runs disciplinary system
ii. Non-mandatory/non-unified bar states: court runs disciplinary system
c. Lawyer disciplinary agencies
d. ABA
e. Federal and state courts
2. Requirements for admission
a. In WA (one of the following)
i. Must have graduated from ABA accredited law school
ii. WSBA Board of Governors approved law school
iii. Need not have graduated from a law school (clerk and take bar)
b. Requirements for state admission
i. Education
ii. Competence
iii. Good moral character
iv. No need to be resident or citizen
v. Some states require an office in the state but not WA
c. MR 8.1 Applicant for admission shall not
i. Knowingly make a false statement of material fact or

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 ii. Fail to disclose a fact necessary to correct a misapprehension known by the person to have
arisen in the matter or knowingly fail to respond to a lawful demand for information from an
admissions or disciplinary authority
3. Professional discipline
a. Cases
i. Embezzlement, even when minor and temporary, can prevent bad admission (In re Mustafa)
ii. Applicant for bar admission denied for 2nd degree murder and heroin possession despite
recommendation from Board of Governors (In re Wright)
b. Violation of a rule of professional conduct in and of itself does not create a cause of action
c. Washington (order from first to last)
i. WSBA Office of Disciplinary Counsel – recommends action
ii. Hearing officers – conducts hearings and may approve stipulations to admonition and reprimand
iii. Disciplinary Board – Reviews ODC rec and reviews hearing records
iv. Washington Supreme Court – final appellate review, order suspension, disbarment, reciprocal
discipline
d. WA Discipline Procedures
i. Burden of Proof: disciplinary counsel
ii. Standard: clear preponderance
iii. WSBA cannot disclose pending grievances
iv. Dismissed files destroyed after 3 years
v. WSBA cannot disclose disability cases
e. Common misconduct
i. Misappropriating client funds
ii. Commingling client and personal/firm funds
iii. Missing filing deadlines
iv. Failing to respond to client communications
v. Mail fraud and tax evasion
vi. Neglecting client cases
f. MR 4.1: Truthfulness in statements to others
i. Lawyer shall not knowingly make a false statement of material fact or law to a third person
g. MR 8.3 and 8.4
i. Mechanics of disciplinary system
1. For most state, highest court runs disciplinary system
2. Independent office set up by court use paid staff attorneys to investigate and prosecute
lawyers.
3. Agency presents case to adjudicator if it thinks it is warranted
4. Adjudicator makes findings of fact and recommends sanctions
5. Administrative board reviews recommendation and makes decision
6. Decision may be appealed to state’s highest court
ii. Attorneys may be disciplined by the bar for things that have nothing to do with the practice of
law
iii. Reporting misconduct by other lawyers
1. In nearly all states lawyers are obligated to report other lawyers’ serious misconduct
that is not confidential. Rule 8.3 (WA is an exception to this)
2. Only have to report things that raise “a substantial question as to that lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects.
3. Test/question to ask: whether a reasonable lawyer in the circumstances would have a
firm opinion that the conduct in question more likely than not occurred.
4. Don’t need to self-report misconduct
5. Not required to report lawyer misconduct if
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 a. Information protected by confidentiality rules
b. Information learned while participating in a lawyers’ assistance program.
h. MR 5.1, 5.2, 5.3 Supervisory role, junior attorneys, non-lawyer assistance
i. Subordinate lawyers may be held accountable for unethical actions that they were ordered to
take if the supervisor’s instruction was not based on a reasonable resolution of an arguable
question of professional duty
ii. Can’t order someone else to do a prohibited act to keep hands clean
iii. Must take remedial action if lawyer discovers subordinate’s error
iv. Law does not allow discipline of other lawyers or partners in firm if associate violates rule
v. Supervising lawyers are liable for the unethical acts of lawyers they are supervising if they direct
the act or know of the proposed act and do not prevent it
vi. Wieder
1. Lawyers can’t be fired in retaliation for blowing the whistle on unethical practices.
2. Extended to unadmitted law grads in Kelly v Hunton & Williams
vii. Disbarment presumed for falsification of documents and forgery but mitigating factors can
justify departure from presumption for a lighter sanction (In Re Christopher)
i. Elements of attorney malpractice
i. Attorney-client relationship existed
ii. D acted negligently or in breach of contract
iii. That such acts were the proximate cause of the Ps damages
iv. But for Ds conduct the Ps would have been successful in the prosecution of their medical
malpractice claim.

Confidentiality

1. MR 1.6
a. Test for confidentiality: does it relate to the representation?
b. Doesn’t matter if info is otherwise publicly available
c. Your spouse doesn’t get special privileges to hear confidences
d. Exceptions
i. Can talk in hypotheticals as long as there is not reasonable way a person could decipher who the
client is
1. Virtual certainty client/situation cannot be identified (Hazard & Hodes)
2. No reasonable likelihood of identification (1.6 cmt 4)
3. No reasonable prospect of material harm to client (Restatement 60)
ii. For information that is “generally known”
iii. To prevent reasonably certain death or substantial bodily harm
iv. A lawyer may reveal client criminal or fraudulent conduct whether it is past, ongoing, or future if
1. There is reasonable certainty that the client’s conduct will result in substantial financial
injury or substantial injury to the property of another person
2. The client is using or has used the lawyer’s services in committing the acts and
3. The purpose of revealing confidences is to prevent the criminal; or fraudulent act or to
prevent, mitigate, or rectify the harm, resulting from the act
v. If a lawyer needs to reveal confidences to protect her own interests, she must take steps to
avoid the need for revelation, to limit its scope, or to limit the dissemination of the information.
e. Rule: A lawyer shall not reveal info relating to representation of a client unless the client gives
informed
consent, the disclosure is impliedly authorized in order to carry out the representation, or the
disclosure is permitted by paragraph b exceptions
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 f. Consequences for revealing confidential info
i. Subject to professional discipline
ii. Liable in tort or K for negligent or intentional breach of duty
iii. Disqualified from representation of one or more clients or
iv. Enjoined by a court from further revelation
2. Restatement position
a. distinguishes between disclosures that could harm client and those that cannot while RPC has more of a
bright line rule against any disclosure
b. Prohibits revelation of confidential info only if there is a reasonable prospect that doing so will adversely
affect a material interest of the client or if the client has instructed the lawyer not to use or disclose
such information
c. § 59: Confidential client information consists of information relating to representation of a client, other
than information that is generally known
d. Spaulding v Zimmerman MN Supreme Ct 1962
i. D’s lawyers got copy of P’s medical report indicating risk of imminent death of P from aneurysm.
Under MN rule, not required to disclose to P but it does allow for vacating the settlement since
Ds knew of more serious medical condition and thus were to lose bargaining position if
information was disclosed to P.
e. § 60: (1) Except as provided in §§ 61- 67, during and after representation of a client:
i. (a) the lawyer may not use or disclose confidential client information as defined in § 59 if there
is a reasonable prospect that doing so will adversely affect a material interest of the client or if
the client has instructed the lawyer not to use or disclose such information;
ii. (b) the lawyer must take steps reasonable in the circumstances to protect confidential client
information against impermissible use or disclosure by the lawyer's associates or agents that
may adversely affect a material interest of the client or otherwise than as instructed by the
client.
f. § 60 (2) Except as stated in § 62, a lawyer who uses confidential information of a client for the lawyer's
pecuniary gain other than in the practice of law must account to the client for any profits made.
g. § 66: (1) A lawyer may use or disclose confidential client information when the lawyer reasonably
believes that its use or disclosure is necessary to prevent reasonably certain death or serious bodily
harm to a person.
h. (2) Before using or disclosing information under this Section, the lawyer must, if feasible, make a good-
faith effort to persuade the client not to act. If the client or another person has already acted, the
lawyer must, if feasible, advise the client to warn the victim or to take other action to prevent the harm
and advise the client of the lawyer's ability to use or disclose information as provided in this Section and
the consequences thereof.
i. (3) A lawyer who takes action or decides not to take action permitted under this Section is not, solely by
reason of such action or inaction, subject to professional discipline, liable for damages to the lawyer's
client or any third person, or barred from recovery against a client or third person.
3. Third party liability
a. Attorney can be held liable under tort law for revealing confidential information to the detriment of a
third person
b. Ex: atty gets medical records of opposing party in divorce proceeding and turns them over to prosecutor
in midst of a separate criminal investigation.
4. Past criminal conduct
a. Information about past criminal activity protected if revealed in the course of representation.
b. People v Belge

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 i. Dismisses indictment saying that client’s disclosures were under atty-client privilege and atty
was doing the right thing by not revealing info because he had to represent his client as best as
possible.
ii. Atty-client privilege shielded D-atty from having to report under public health law.
Constitutional duty to client trumps

Attorney-client privilege

1. Privilege
a. Confidence: All info relating to a representation whenever and however obtained – privileged under
atty/client
b. =/= “secrets” – either client says keep quiet or disclosure would embarrass or harm client
2. MR 1.2(d)
a. a lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is
criminal or fraudulent.
b. If lawyer assists in conduct he originally thought was proper and later discovers is criminal or fraudulent,
lawyer must withdraw from representation.
c. A lawyer who assists a client fraud or participates in making material misrepresentations could face civil,
criminal, or disciplinary liability
3. Confidentiality and attorney-client privilege compared
a. Duty to protect confidences is imposed by ethical rules
i. More demanding because they require lawyers to protect confidential information whether or
not someone is trying to compel the disclosure of information.
b. A lawyer may be entitled to disclose confidences under an ethics exception but the communication may
still be privilege
c. Privilege is evidence law which governs what kinds of evidence can be admitted in court.
i. Neither lawyer nor client may be compelled to testify in court about protected communications.
ii. Pretty close to absolute.
iii. By contrast to broad confidentiality duty, privilege covers only relatively small part of that
information: the part that involves communications between lawyer and client in which the
client is seeking legal advice or legal services.

MR 1.6 Duty of Confidentiality Attorney-Client Privilege

Law of agency; Rule 1.6 Common-law evidence rule
Information relating to the representation of a client Narrower scope: communications made in confidence
(obtained from any source) from client to lawyer, for purpose of seeking legal advice
Endures forever; survives termination of A/C relationship Same
and client’s death
Lawyer has duty to keep confidential unless client Client can assert or waive directly; lawyer can assert or
consents to disclosure waive as client’s agent
Prevents lawyer disclosure. Does not bar admission of Can be assert in opposition to official request for
evidence at trial information or to deny admission of evidence at trial.
Underlying facts are not privileged – lawyer or client can
be questioned about them.

4. Elements of attorney-client privilege

a. Communication: any mode of exchanging information between attorney and client
b. Privileged persons
i. Communications with agents of the lawyer also privileged

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 ii. Interpreters covered
iii. If another person like a psychologist is needed to facilitate communication between attorney
and client that person is also covered
iv. Communications with a prospective client or lawyer are privileged.
c. Communication in confidence
i. Client must reasonably believe that the communication is confidential
ii. No privilege for communication that occurs in presence of other people
d. Communication is for the purpose of seeking legal assistance
5. While communication with the lawyer is privileged, the underlying facts are not.
6. Waiver of privilege
a. Client can expressly waive by a voluntary act
b. Privilege is waived if client reveals the privileged info to a non-privileged person
c. Also waived if client puts the privileged communication into issue in a case
7. Upjohn Co v United States
a. introduces subject matter test- scope of the privilege should depend on the subject matter of the
communication, not on who was doing the communicating (low-level or high-level employees/officers)
b. Protects more communications than control group test (which WA adopted in Wright v Group Health)
8. Exceptions to doctrine
a. Crime-fraud
i. No privilege attaches if the client consults a lawyer for assistance in committing a crime or a
fraud or if client uses information obtained from attorney to commit a crime.
ii. Distinction though if a client is asking whether a certain act is permitted under the law.
iii. Persists beyond death of client (Swidler & Berlin v United States)
b. Work product doctrine
i. Protects notes and other material that a lawyer prepares in anticipation of litigation from
discovery in pretrial civil proceedings.
ii. Codified in FRCP 26(b)(3)
iii. If certain info would have been collected routinely but was also collected because litigation was
anticipated, most courts will deny protection to the information.
iv. Judge can order disclosure of docs if opposing party shows substantial need.
v. Types
1. Opinion work product: Stronger protection for work that reveals lawyer’s thoughts,
strategies, or mental impressions
2. Ordinary work product – less protection

Lawyer-client relationship

1. Competent representation MR 1.1

a. Lawyer may take on work in a new field only if he does the necessary study
b. Criminal cases
i. D entitled to effective counsel as a minimum under 6th amendment
ii. D appealing a conviction must prove not only that the assistance was unusually poor but also as
in civil malpractice cases that better representation would have made a difference
iii. Strickland v Washington: case showing how difficult it is to demonstrate ineffective assistance
of counsel. D must show counsel’s performance was deficient – errors so serious that counsel
was not functioning as counsel guaranteed by 6th amendment. Two part test
1. Counsel’s performance was deficient
2. Client was prejudiced as a result
2. When relationship forms

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 a. Relationship found to have formed where potential client relied on casual advice that she did not have a
tort case and then statute of limitations ran on her claim (Togstad v Vesely, Otto, Miller & Keefe)
b. Avoiding accidental clients
i. Engagement letter
ii. Nonengagement letter
iii. Disengagement letter
3. Agents
a. Lawyers are agents of their clients who are principals
b. Clients generally bound by actions of their agents
c. Need express authority from client to settle a case
4. Contractual reduction of duties – lawyer may be able to contract below minimum ethics rules in exchange for
reduced fee
5. Terminating relationship MR 1.16
a. Duty to protect client confidence continues indefinitely
b. Lawyer must return any papers and property to which client is entitled and any unearned payment
c. Restatement 46
d. May retain docs if client has not fully paid lawyer’s fees unless it would unreasonably harm the client
e. Ground for termination before work is complete
i. Mandatory
1. Lawyer must withdraw if client fires him
2. Lawyer must withdraw if illness or loss of capacity would materially impair
representation
3. Must withdraw if representation will require lawyer to violate the law
ii. Permissive
1. If client has already used the lawyer’s services to commit a crime or fraud but continued
representation will not result in a new or continuing crime or fraud, the lawyer may
withdraw but is not required to do so
2. If lawyer reasonably believes client persists in course of action that is a crime or fraud
and lawyer’s services are being used to assist this action, lawyer may withdraw
3. If client insists on “repugnant” action, lawyer may withdraw
4. 1.16(b)(1): may withdraw if it is possible to do so without material adverse effect on the
interests of the client
5. If client doesn’t pay the lawyer’s fee but the lawyer must first warn the client that
nonpayment will lead to withdrawal
6. If the case turns out to impose an unreasonable financial burden on the lawyer
7. If the client makes continued representation unreasonably difficult.
f. Kingdom v Jackson: Factors to determine if court abuses discretion in allowing withdrawal
i. Delay or interference with functioning of court
ii. Client’s opportunity to secure substitute counsel
iii. Client has sufficient prior notice of lawyer’s intent to withdraw
iv. Client’s ability to prove pima facie case
6. Generally cannot withdraw if lawyer filed suit on behalf of client or entered an appearance in a matter in
litigation
7. Diligence and truthfulness
a. MR 1.3
b. Shall act with reasonable diligence and promptness in representing a client
c. If lawyer is diligent and honest with client about what she does learn in research and investigation, she
is being truthful even if she makes a mistake
d. Ethics rules explicitly direct lawyers not to lie to tribunals or to persons other than clients.
e. No explicit rule against lying to client but should be generally truthful.
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 f. Client injured by a dishonest lawyer may sue for tort of fraud or breach of fiduciary duty
g. Duty of communication 1.4(2)-(4)
i. Reasonably consult with client about means to accomplish their objectives
ii. Keep reasonably informed about status
iii. Promptly comply with reasonable info requests
iv. Caveat: communicate about settlements
h. Duty of candor as a counselor
i. 2.1
ii. Exercise independent professional jmt and render candid advice
iii. Give bad news in a positive way – propose potential solutions
iv. Don’t sugar coat your advice for fear that the client will opinion shop elsewhere
8. Clients with diminished capacity
a. Rule 1.14 client with diminished capacity
i. Lawyer is to maintain a normal client-lawyer relationship as is reasonably possible
ii. Lawyer may take reasonably necessary protective action e.g. seeking appointment of guardian
ad litem
iii. Lawyer impliedly authorized under 1.6(a) to reveal information about the client to the extent
necessary to protect client’s interests
iv. Same standard applies to minors with mental impairments
1. Enjoy self-determination authority in delinquency and criminal cases
b. When a lawyer correctly perceives incompetence, some intervention is appropriate since permitting
client to engage in self destructive behavior is arguably morally wrong
c. Persuasion is appropriate but coercion or persuasive threat is not
d. Appointing a guardian ad litem for children/people with diminished capacity complicates normal
attorney-client relationship and may be paternalistic.
e.

Conflicts of interest

1. Categories
a. Conflicts that on close examination do not present a real risk of harm to one or more clients so the
lawyer may proceed without advising the client or asking for consent
b. Conflicts that may be adequately addressed if the affected clients are willing to provide consent after
the lawyer explains all the potential problems
c. Conflicts that are so serious that even consent would not solve the problem, and the lawyer should turn
down the second client or withdraw if the lawyer has already begun representation
2. Possible consequences of representing a client in the face of a conflict
a. Legal sanctions
i. Disqualification
ii. Discipline
iii. Malpractice liability
iv. Injunction against representation (transactional case)
v. Fee forfeiture
b. Business repercussions
i. Client may retain different lawyer
ii. Client may mistrust you
iii. Your professional reputation may suffer
3. Rules
a. Conflicting obligations to more than one current client (1.7, 1.8, 1.18)
b. Successive conflicts (1.7, 1.9) – impact of a successive conflict on a former client or present client
c. Imputed conflicts (1.10)
d. Conflicts for present and former government lawyers (1.11)
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4. MR 1.7
a. Lawyer is prohibited from representing a client if one of the conflicts in 1.7(a) exists unless under 1.7(b)
conflict is waivable by client and client gives informed consent
b. Conflict can be either
i. Directly adverse or
ii. Significant risk that a representation will be materially limited by another obligation of the
lawyer. Includes obligations to
1. Another present client
2. A former client
3. Someone else to whom a lawyer owes a duty
4. Someone other than the client who is paying the lawyer’s fee
5. The lawyer’s own financial, employment, personal or other interests
iii. To evaluate whether a conflict is present, a lawyer must ask
1. How likely is it that a difference in interests will eventuate
2. If there likely is such a divergence, would it materially interfere with the lawyer’s
advice to or representation of a client
c. Lawyer may proceed if conflict is consentable but may not if it is nonconsentable
d. Most conflicts are consentable. To determine if a conflict is such, lawyer asks
i. Whether she reasonably believes that she will be able to provide competent and diligent
representation to relevant clients
ii. Whether the representation is prohibited by law and
iii. Whether the representation involves litigation in which the lawyer is representing one client
against another client whom the lawyer is representing in that matter
e. If the conflict could adversely impact only a former client, the conflict is consentable
f. To obtain informed consent, lawyer must orally explain to client the risks, advantages and possible
alternatives to the lawyer going forward with the representation. Client’s oral consent must be
confirmed in writing by lawyer.
g. Client may later withdraw consent
h. Withdrawal and disqualification
i. If a lawyer is representing a client in the face of a conflict without obtaining consent, opposing
counsel may file a motion to disqualify the lawyer from continuing with the work
i. Representing economic competitors: simultaneous representation in unrelated matters of clients whose
interests are only economically adverse does not ordinarily constitutes a conflict of interest
5. Imputed conflicts MR 1.10
a. A firm of lawyers is essentially one lawyer for purposes of rules governing loyalty to client
b. Generally, if a client’s interests conflict with the personal interests of a lawyer in the firm, under 1.10(a)
those interests are not imputed to other lawyers in the firm and firm may proceed with representation
without informed consent of client.
6. Conflicts between current clients in litigation
a. In nearly every state, a lawyer cannot file suit against another present client unless the lawyer
reasonably believes that she can represent both without adverse impact on either and unless both
clients give informed consent
7. Positional conflicts
a. When a lawyer makes a legal argument on behalf of one client in one case that is contrary to the
interests of another client who is not involved in the case
b. Normally a lawyer may make inconsistent legal arguments in difference courts at different times without
running afoul of conflicts rules
c. Whether it presents a serious conflict is likelihood that one client would be materially harmed if a lawyer
made an argument in another case that was contrary to client’s interest and materially harmed them
d. Factors in Rule 1.7 and Restatement to be considered when making this assessment
i. Whether the issue is before a trial or appellate court
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 ii. Whether the issue is substantive or procedural
iii. The temporal relationship between the matters
iv. The practical significance of the issue to the immediate and long run interests of the clients
involved
v. The clients reasonable expectations in retaining the lawyer
8. Conflicts involving prospective clients
a. 1.18 mandates protection of confidences received from prospective clients and lays out a set of
standards by which to evaluate conflicts with prospective clients
b. Gives prospective clients some protection from conflicts with lawyer’s other clients but not as much
protection as actual clients
c. 1.18(b) bars lawyer from using or revealing info from prospective client except as permitted by 1.9
d. 1.18(c) bars a lawyer from continuing to represent current client if she receives info from prospective
client that could be significantly harmful to her if it were revealed to other client
e. However, even if one lawyer in a firm is disqualified because she revealed confidential info, under
1.18(d) other lawyers in the firm may continue to represent the current client
i. If both the current and prospective clients give informed consent or
ii. If the lawyer who received the potentially damaging information took steps to prevent being
exposed to more than the necessary amount of info to determine whether the firm could
represent the client, the disqualified lawyer is screened from contact with the matter and
written notice of the conflict is given to prospective client
9. Representing both parties to a transaction
a. In most cases a lawyer may represent two clients seeking legal assistance with a common goal but must
provide info about possible downsides of joint representation and obtain consent
b. Are clients interests entirely harmonious? May not need to obtain consent
c. There is no attorney-client privilege shielding info from either of the clients when they are jointly
represented
d. Less clear in 1.7 about keeping confidences from one client. Rule suggests that a lawyer usually should
not keep confidences received from one joint client from the other
e. If a conflict developers that will lead to litigation, lawyer cannot continue to represent both
10. Representing an organization
a. Factors affecting whether a related entity is a client
i. Related entity more likely to be a client if:
1. The lawyer received confidential info from or provided advice to the subsidiary
2. The entity was controlled and supervised by the parent organization
3. The original client could be materially harmed by the suit against the subsidiary
ii. Related entity less likely to be a client if
1. The lawyer no longer represents the initial corporate client
2. The two entities became linked e.g. by a merger after the lawyer began representation
of the corporation
b. Lawyer in private practice who represents an org may represent a member or an employee of the org
unless the interests conflict in which case consent is needed
c. Lawyer’s duty is to the org, not the senior executives (1.13) so lawyer should report any misconduct to
higher authority within org
11. Representing insurance companies and insured persons
a. Two primary duties contained in most insurance policies
i. To indemnify
ii. To defend
b. Insured person is always a client, insurer – not necessarily
c. Lawyer may represent both as long as there is no conflict between their interests
d. If lawyer learns confidence from insured – must keep confidential and withdraw if it creates a conflict.
e. Must work in best interest of insured but can’t commit client fraud
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12. Conflicts involving former clients MR 1.9
a. Ethical rules are less restrictive as to successive conflicts than they are as to concurrent conflicts
b. Duties to former clients
i. Protect confidences - must decline any new matter that presents a substantial risk that lawyer
would make material adverse use of the former client’s confidences unless former client
consents
ii. May not do work on behalf of new client if that work involves the same or substantially related
matter as a former representation and the new client’s interests are materially adverse to the
interests of the former client unless former client gives informed consent in writing
c. Needs to be a clear letter saying representation has ended or the client could still be considered a
current client even though not working on it anymore.
d. Can’t withdraw to represent a more profitable client that would be in conflict with current client. Need
to withdraw for another reason that is valid.
e. For in-house counsel, you need to have worked on a matter for than a trivial amount to trigger conflicts
reviewing. Not every single thing that came through while you worked there will count.
f. Evaluating successive conflicts
i. Is it the same matter as the previous one?
ii. If not, is it substantially related to previous one?
1. Relationship between two matters depends on whether factual information would
normally have been learned during the first matter that could be used adversely to the
first client during the second representation. Inquiry is about common facts not legal
issues
2. Depends on what facts a lawyer normally would have learned, not what they actually
learned
iii. If one of the two questions above is yes the lawyer must ask whether new client’s interests are
materially adverse to the interest of the former client
1. Probably less restrictive than direct adversity
2. Requires consent if the use of former client’s confidence might harm former client’s
interests
3. Restatement: if new matter is adverse to interests of a former client but it unrelated to
lawyer’s previous work, this is not material adversity.
iv. If yes again, lawyer may not go forward with new rep unless gets informed consent in writing
g. Lawyer MAY sue former client on behalf of new client if the new matter is not same or substantially
related matter and new representation is not materially adverse to interests of former client. No
consent required.
h. Ordinarily, representation of economic competitors poses no serious conflict of interest
i. Conflicts between the interests of a present client and a client who was represented by a lawyer’s
former firm
i. Same inquiry as before but under 1.9(b) consent is not required unless the lawyer had acquired
information protected by 1.6 and 1.9(c) that is material to the matter
ii. 1.9(a) asks whether lawyer could have acquired confidential information while 1.9(b) asks
whether lawyer actually acquired material confidential information
j. Using or revealing a former client’s confidence
i. Lawyer must protect confidences of his own present and former clients, of other present and
former clients of law firms where he works or used to work and of prospective clients
ii. If the info received in confidence has since become generally known the lawyer must keep the
information confidential but is not barred from using the information adversely to the client
k. To what extent are conflicts caused by work done for former clients imputed to other lawyers in a firm
i. General rule in 1.10 is if one lawyer in a firm is disqualified from working on a matter because of
a conflict, none of the other lawyers in the firm are permitted to work on the matter unless one
of the exceptions in 1.10 applies. Exceptions
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 1. Allows use of a screening procedure to avoid imputation to a firm of conflicts of a lateral
lawyer (lawyer who has come from another firm)
ii. Can be waived by affected client
iii. Conflicts are not imputed to a firm from nonlawyer employees of the firm so long as employees
who have previously done conflicting work are properly screened by the firm
iv. Old firm NOT prohibited from representing client with materially adverse interests to client
represented by former lawyer but not currently represented by firm unless
1. Same/substantially related matter and
2. Any lawyer still at old firm has material confidential information
l. Imputation example and what rules apply when
i. Ex: lawyer moves from firm A to firm B and does not bring any clients with him
ii. To analyze conflicts the lawyer carries with him into firm B based on confidences learned at firm
A: 1.9(b)
iii. To analyze conflicts that other lawyers at firm B may have because of the lawyer’s work at firm
A: 1.10(a)
iv. To analyze conflicts remaining at firm A as a result of the work lawyer did while there: 1.10(b)
13. Conflicts issues for government lawyers and judges MR 1.11
a. Rule 1.11 imposes less stringent standards regarding successive conflicts that arise from a lawyer’s
present or past government service and orgs can resolve former client conflicts of former govt lawyers
by screening the conflicted lawyer from the matter.
b. Still subject to 1.9
c. Barred from participating where lawyer participated “personally and substantially” unless the govt
agency gives its informed consent confirmed in writing
d. 1.11(b) when a lawyer is disqualified from rep under (a) no lawyer in a firm associated may knowingly
undertake or continue representation in such a matter unless
i. DQ’d lawyer is timely screened from any participation in the matter and is apportioned no part
of the fee and
ii. Written notice is promptly given to the appropriate govt agency to enable it to ascertain
compliance with the provisions of this rule
e. 1.11(c): Even if a former govt lawyer is not precluded from representing a client on the basis of personal
and substantial participation in a matter, lawyer may still may be precluded because lawyer learned
confidential govt information about a person and the new matter could involve material adverse use of
that information
f. Conflicts of govt lawyers who formerly worked in private practice
i. 1.11(d): except as law may otherwise expressly permit a lawyer currently serving as a public
officer or employee
1. Is subject to rules 1.7 and 1.9 and
2. Shall not participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental employment unless the
appropriate government agency gives its informed consent
ii. Both present and former govt lawyers subject to 1.9(C)
iii. Former govt lawyers are to evaluate the potential impact of conflicts on former govt clients
under 1.11(A)-(C) instead of 1.9(a). 1.9(C) still applies to them
iv. Present govt lawyers are subject to the restrictions of 1.9(a) in addition to 1.11
g. Judicial conduct
i. Generally a judge is prohibited from initiating, permitting or considering communications about
a pending matter by the parties or their lawyers unless all relevant parties or their lawyers are
present
ii. Judge shall disqualify himself in any proceeding in which the judge’s impartiality might
reasonably be questioned
iii. Former judges joining new practice
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 1. Can be disqualified from matters under 1.12(a)
iv. Conflict not imputed on rest of firm if timely screened out under 1.12(c)
v. No negotiating for employment with person involved as party/lawyer in a matter in which you
are P&S participating as adjudicator or mediator unless you were a law clerk
14. Conflicts between lawyers and clients (fees)
a. Reasonable fees
i. 1.5(a): lawyer shall not make an agreement for unreasonable fee or unreasonable amount of
expenses
ii. Reasonableness factors
1. Time and labor required
2. Novelty and difficulty of questions involved
3. Skill requisite to perform the legal service properly
4. Likelihood that acceptance of the particular employment will preclude other
employment by the lawyer
5. The fee customarily charged in the locality for similar legal services
6. Amount involved and the results obtained
7. The time limitations imposed by the client or by the circumstances
8. The nature and length of the professional relationship with client
9. Experience, reputation and ability of the lawyer or lawyers performing the services
10. Whether the fee is fixed or contingent
iii. 1.5(b)
1. Scope of representation, rate of fee, and what expenses client responsible for needs to
be communicated before or within a reasonable time after commencing the
representation
2. Except when lawyer will charge a regularly represented client on the same basis or rate.
3. Lawyer must disclose the general nature of the legal services to be provided.
iv. Test: is the fee charged excessive not whether the fee is accepted as valid or acquiesced in by
the client (In the matter of Fordham)
b. 1.5(c) Contingent fees
i. Lawyer required to disclose to a client how lawyer intends to calculate the fee
ii. 1.5(d) prohibits charging contingent fees in crim and most domestic relations cases
iii. Must be in writing and signed by client
iv. Must state method of determining fee (whether client liable for expenses and whether award
taken from gross or net amount)
v. Should also explain what happens if a client terminates lawyer early
vi. Brobeck Phleger & Harrison v Telex Corp: $1m contingent fee not excessive because attorney
was clearin negotiations would only agree to do a contingent fee arrangement if the fee in the
event of success was significant.
c. Forbidden and restricted fee and expense arrangements
i. Buying legal claims (1.8(i): lawyer may not acquire a proprietary interest in the subject matter of
litigation the lawyer is conducting for a client except for permitted liens and contingent fees)
ii. Financial assistance to ta client 1.8(e): lawyer may not provide financial assistance in connection
with pending or contemplated litigation except that
1. A lawyer may advance court costs and expenses of litigation the repayment of which
may be on a contingent basis
2. A lawyer representing an indigent client may pay court costs and expenses of litigation
on behalf of the client
iii. 1.8(d): prior to conclusion of representation of client, lawyer shall not negotiate agreement for
literary or media rights to a portray based in substantial part on information relating to the
representation
d. Advance fees
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 i. 1.15(a): general rule that advance fees must go into a trust account
ii. 1.5(f): limited exceptions
1. Retainers defined to be for lawyer’s availability only
2. Prepaid flat fees with detailed written disclosures and client signature
e. Fee splitting
i. Is permitted if
1. The division is in proportion to services provided by each lawyer OR each lawyer
assumes joint responsibility for representation
2. Client agrees in writing AND
3. Total fee is reasonable
ii. Non-lawyers
1. Generally prohibited
2. Reciprocal referrals? See 7.2(b)(4)
f. Fee disputes
i. Can avoid issues with engagement letter and subsequent progress reports that detail
1. Scope of representation
2. Fee terms – providing an estimate is important
3. Billing practices
4. Payment due dates and penalties
5. Conflict disclosure and waivers
6. Ownership of docs
7. Conflicts
ii. Client must go into agreement with “open eyes” regarding fee arrangement
iii. 1.8(h): can create contract eliminating malpractice liability but client has to be independently
represented in making the agreement.
iv. 1.8(h): must advise client to consult another attorney before making a settlement for a
malpractice claim
v. If client doesn’t pay
1. May contact client to request payment
2. May sue client to collect fee
a. Subject to FDCPA
b. Can obtain a lien
vi. 1.5(e) governs division of fees between lawyers in different firms working on same matter
vii. Lawyers can receive a referral/finders fee for referring work to another attorney
viii. Lawyers may not routinely divide profits with nonlawyers
ix. Payment of fees by a third party allowed only if
1. Client consents after being advises
2. The third person does not direct the lawyer’s decisions or otherwise interfere in
representation
3. Lawyer avoids sharing with the third persons any confidences learned
g. Unethical billing practices
i. Padding bill with additional time
ii. Billing second client for recycled work
iii. Running up with unnecessary work
iv. Fabricating records out of thin air
v. Profiting on overhead costs
vi. Double billing two clients for same period
vii. Rounding up billing increment
viii. Personal expesnes
h. Lawyer as custodian of client property

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 i. Must have separate trust account in which client funds go. Can’t mingle with lawyer’s property.
(1.15)
ii. Lawyer must make prompt delivery of client funds or property like when settlement comes in
iii. If client funds in dispute about how much lawyer is entitled to, lawyer must distribute amount
that is not in dispute and keep disputed amount in trust account (1.15(e))
iv. If a creditor claims client funds that lawyer has in his/her possession, lawyer doesn’t have to
consider turning it over unless creditor has legitimate claim. Lawyer’s duty is to client not third
party
15. Conflicts with lawyers’ personal or business interests
a. 1.8
i. (a) lawyers not flatly prohibited from doing business with clients but strongly discouraged from
doing so
ii. Lawyer barred from business arrangement whenever there is significant risk that presents itself
that may materially limit the ability to represent the client
iii. Gifts from clients
1. (c) lawyer prohibited from soliciting substantial gifts or bequests from client unless they
are close relative
2. 1.5: bans disguised fees in excess of reasonable limit
3. Unsolicited gifts not barred but client may sure for return if too large
iv. May be paid in stock/stock options but must comply with 1.8
1. Terms of transfer must be fair to client
2. Lawyer must make full written disclosure of terms and explain possible conflict
b. 1.7(a)(2): prohibited if there is significant risk that rep of one or more clients will be materially limited
by a personal interest of the lawyer
c. Sexual relations with clients
i. 1.8(j) A lawyer shall not have sexual relations with a client unless a consensual sexual
relationship existed between them when the client-lawyer relationship commenced.
ii. A lawyer who represents corporation may not have a sexual relationship with any person in the
corporation who supervises, directs, or regularly consults with that lawyer concerning the
organization’s legal matters
d. Intimate or family relationship with adverse lawyers
i. If the relationship between the two lawyers representing clients with adverse interests is that of
parent, child, sibling, or spouse, they normally may not represent clients who are adversaries
unless clients gives informed consent
ii. This conflict is not imputed to other lawyers in a firm
e. Imputation of lawyer-client conflicts to other lawyers in a firm
i. 1.8(k): financial interest conflicts of one lawyer in a firm are imputed to all other lawyers in the
firm
ii. 1.10(a): imputes to all lawyers in a firm any conflicts of one client with the interests of another
present or former client or another lawyer in the firm unless it does not present a significant
risk of materially limiting the representation of the client by the remaining lawyers in the firm

Lawyers duties to courts

1. 3.1
a. Lawyers are not expected to limit themselves to filing sure winners but they are not allowed to file
frivolous lawsuits or pleadings
b. May not file suit on basis of mere speculation that a prospective defendant has done something wrong –
must make reasonable effort at investigation.
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2. FRCP 11
a. Party’s legal theory must be warranted by existing law or by a nonfrivolous argument for the extension,
modification or reversal of existing law
b. Factual assertions must have evidentiary support or be likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery
3. Differences between MR 3.1 and FRCP 11
a. Sanctions
i. 3.1 violation can result in bar disciplinary action
ii. FRCP 11 violation is imposed by a judge, not the bar, and can result in nonmonetary directives or
monetary sanctions against lawyer or party
b. Safe harbor
i. FRCP 11, unlike 3.1, has safe harbor provision where if the opposing party makes a FRCP 11
motion, the lawyer may withdraw the allegedly frivolous pleading within 21 days and suffer no
sanction other than paying attorney’s fees
ii. This does not protect the lawyer from 3.1 sanctions.
4. Truth and falsity in litigation
a. Same rules about honesty and candor apply in non-adjudicative proceedings
b. 8.4(c): general ban against deception
c. 3.3: Candor to tribunal
i. False statements are prohibited by some less direct forms of deception permitted
ii. Perjury requires a literally false statement (Bronson v United States)
iii. Lawyer may present evidence about which he is unsure but can’t present evidence he knows to
be false
iv. Lawyer may not allow his client or any other witness to testify falsely and must disclose
confidential information to correct false testimony if the client will not do so.
v. Attorney is precluded from taking steps or in any way assisting the client in presenting false
evidence or otherwise violating the law and should admonish the client about his duty to inform
the court if defendant perjures himself on the stand (Nix v Whiteside)
vi. Civil cases: lawyer may refuse to offer evidence the lawyer reasonably believes to be false
vii. Criminal cases: if the lawyer only has a reasonable *belief* that evidence/client testimony is
false but is not absolutely sure, then the lawyer must allow/offer the evidence/testimony.
d. 7.1
i. Bars lawyer from making false or misleading statements about themselves or their services
ii. A statement is false or misleading if it contains a material misrepresentation of fact or law or
omits a fact necessary to make the statement considered as a whole not materially misleading
e. Concealment of physical evidence and documents
i. 3.4
1. Lawyer shall not falsify evidence, counsel or assist a witness to testify falsely or offer an
inducement to a witness that is prohibited by law
2. Coaching a witness not prohibited as long as it does not induce false testimony
(Restatement position)
3. Lawyer shall not unlawfully obstruct another party’s access to evidence that has
potential evidentiary value
4. Concealment of evidence is a violation of the ethical rule only if the lawyer already has
some obligation to disclose it
5. What is unlawful?
a. Conduct at issue would violate a criminal obstruction of justice statute

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 b. If the conduct violates a court order
6. 3.4(d) responding to discovery: cannot make frivolous discovery request or fail to make
reasonable diligent efforts to comply with a legally proper discovery request by
opposing counsel
ii. Guidance from court cases
1. If a client tells a lawyer about location of evidence, lawyer may inspect it but should not
disturb or move it unless doing so is unnecessary to examine or test the evidence.
2. If lawyer just inspects and does not move evidence, its location remains privileged
3. Lawyer may take temp possession of it to conduct limited exam that does not alter or
destroy the evidence but applicable law may require the law to turn it over to police
4. If client delivers physical evidence to lawyer, lawyer must turn it over to law
enforcement in reasonable amount of time (some jurisdictions)
5. Prosecutor who receives evidence of a crime from the lawyer for a suspect should take
steps to avoid revealing to a jury the fact that the incriminating evidence came from D’s
lawyer.
iii. Differences in obligation between civil and criminal matters
1. Criminal
a. If a lawyer has no knowledge that a violation of law has been committed and no
criminal investigation is foreseeable, a lawyer has no duty to turn evidence over
to a prosecutor
b. In some states lawyer’s duty not to conceal tangible evidence takes effect as
soon as the lawyer believes that an official investigation is about to be
instituted. In other states doesn’t begin until investigation has actually started
2. Civil matters
a. Obligations governed by civil discovery rules as well as PR rules. Soon after
commencement of civil case, lawyer may have duty under pertinent rules of
procedure to turn over some info to opposing party even in absence of
discovery request
b. Some states require preservation of business records for a period of time even if
no dispute on horizon. When a lawsuit is pending or foreseeable individuals and
businesses have more stringent duties to protect and disclose relevant material.
c. Once a duty to preserve docs applies, relevant records and objects should be
retained even if they could otherwise routinely be destroyed
f. Duty to disclose adverse legal authority
i. MR 3.3(a)(2)
ii. Lawyer need not inform adversary of adverse facts but lawyer is prohibited from knowingly
failing to disclose legal authority in the controlling jurisdiction that the lawyer knows is directly
adverse to her client’s positions
g. Disclosures in ex parte proceedings
i. MR 3.3(d) requires that in ex parte proceedings a lawyer must inform he tribunal of all material
facts known the lawyer that will enable the tribunal to make an informed decision whether or
not the facts are adverse
ii. Overrides obligation to protect confidences under 1.6 but still not required to reveal info
protected by atty-client priv and work product doctrine
5. Improper influences on judges and juries
a. MR 3.5(a): lawyer may not seek to influence a judge, prospective juror or other official by means
prohibited by law
b. No ex parte communication with a judge about pending case
c. Only prohibits communications related to particular proceedings not personal communications
d. Not improper to contribute to judge election fund

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 6. 3.5 and 3.6 - Improper influences on juries
a. MR 3.6(c) allows lawyer to make a statement a reasonable lawyer would believe is required to protect a
client from the substantial undue prejudicial effect of recent publicity initiated by others
b. Comments to the press
i. OK: 3.6(b)
ii. Bad: 3.6(b)  comment 5
c. A lawyer defending a client whom lawyer knows to be guilty may assist client in pleading not guilty and
may force state to present its evidence
d. MR 4.4(a) lawyer may not use means that have no substantial purpose other than to embarrass, delay,
or burden a third person. Doesn’t address directly whether lawyer may attempt to discredit a witness
the lawyer believes is telling the truth.
e. Advocate witness rule (MR 3.7): lawyers may not generally testify as witnesses in cases that they are
handling unless
i. Testimony relates to an uncontested issue
ii. Testimony relates to nature and value of legal services rendered in the case or
iii. Disqualification of the lawyer would work substantial hardship on the client
f. Lawyer cannot communicate his own knowledge or opinions even if included as questions posed to
witnesses.

Communications with lawyers and third persons

1. 4.1: Deception of third persons

a. Whenever a lawyer is representing a client such as when the lawyer is talking to a potential witness or
opposing counsel, the lawyer shall not knowingly make a false statement of material fact or law to a
third persons
b. 3.3 only applies to proceedings before tribunals
c. 4.1(b): may require lawyer to take remedial measures if he knows client is lying to third persons
d. Truthfulness in negotiation: 4.1 does not allow lawyer to lie for purpose of bargaining
2. Lawyer is obliged to undertake reasonable inquiry before filing a suit
3. Using an undercover investigator does not violate 8.4(c) especially where info would be difficult or impossible to
gather otherwise. Limited use of deception is accepted.
4. 4.2
a. bars the lawyer only from communicating with the represented party about the subject of the
representation
b. lawyer shall not communicate about the subject of the representation with a person the lawyer knows
to be represented by another lawyer in the matter without permission of opposing counsel
c. lawyer may not circumvent rules by directing another person to contact opposing party
d. Lawyer may give advice to client if client contacts opposing party which is not barred
e. Exception to talk to government officials but ABA urges lawyer to notify govt attys first and give them
chance to advise
5. Messing, Rudavsky & weliky PC v President & Fellows of Harvard College: 4.2 forbids ex parte communication
with 3 types of employees
a. Persons having managerial responsibility on behalf of the org with regard to the subject of the
representation
b. Persons whose act or omission in connection with that matter may be imputed to the org for purposes
of civil or criminal liability
c. Persons whose statement may constitute an admission on the part of the org
6. 4.4(b): receipt of inadvertently transmitted information – a lawyer who receives a doc relating to the
representation of the lawyer’s client and knows or reasonably should know that the doc was inadvertently sent
shall promptly notify the sender (but can still use the information)
7. 4.3 – Restrictions on contact with unrepresented persons
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 a. Lawyer shall not state or imply that the lawyer is disinterested
b. When lawyer knows unrepresented person misunderstands lawyer shall correct the misunderstanding
i. Applies to lawyer who represents a corp and the corp’s employees.
c. Lawyer shall not give legal advice to an unrepresented person if reasonable possibility of being in
conflict with the interests of the client
d. Prohibits a lawyer who is communicating with an unrepresented third person on behalf of a client from
giving advice to the third person if that person’s interests may conflict with those of the client.
8. 4.4(a): Lawyer’s duties to third persons
a. Lawyer could be civilly or criminally liable for failure to respect rights of third party
b. In representing a client, lawyer shall not use means that have no substantial purpose other than to
embarrass, delay or burden a third person or use methods of obtaining evidence that violate the legal
rights of such a person
9. 4.1 versus 3.3
a. 4.1: cannot make MATERIAL false statement of fact or law
b. 3.3: cannot make ANY false statement to tribunal
c. 8.4(C): no deceit or misrepresentation

Duties of prosecutors

1. 4.2 may be interpreted in favor of allowing prosecutors to have contact with suspects before they are charged
but it may be held to prohibit such contact without the consent of D’s lawyer once a charge is fuled
2. 3.8(a): prosecutor in crim case shall refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause
3. 3.8(d): prosecutor must disclose exculpatory evidence to the defense even if the D has not requested it
4. (some states) Prosecutor who obtains new credible and material evidence creating a reasonable likelihood that
a convicted D did not commit an offense of which the D was convicted must disclose the evidence to an
appropriate court or authority. If D had been prosecuted locally, prosecutor must make reasonable effort to
investigate whether an innocent person was convicted

Conduct prejudicial to the administration of justice

1. 8.4(d): it is professional misconduct for lawyer to engage in conduct that is prejudicial to the administration of
justice
2. Lawyer who knowingly manifests bias or prejudice on grounds such as race, sex, religion and sexual orientation
in the course of representing a client violates the rule IF such actions re prejudicial to administration of justice

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