Contents

Policy Considerations..................................................................................................................................2
Pursuing New Clients...................................................................................................................................2
o Ability to Decline Work....................................................................................................................2
o Duties to Prospective Clients...........................................................................................................2
o Advertising Materials & Solicitation.................................................................................................2
Ongoing Client Relationships.......................................................................................................................3
o Client with Diminished Capacity & Juveniles...................................................................................3
o Conflicts of Interest.........................................................................................................................3
o Situations Where Conflicts Arise......................................................................................................4
o Specific Conflict of Interest Rules....................................................................................................5
o Organizational Clients (Including NPOs)..........................................................................................6
o Fees & Billing Practices....................................................................................................................6
Ongoing Duties to Clients & Others.............................................................................................................7
o Competence....................................................................................................................................7
o Allocation of Authority & Advising...................................................................................................7
o Diligence..........................................................................................................................................7
o Communication...............................................................................................................................7
o Confidentiality –..............................................................................................................................8
o Attorney/Client Privilege.................................................................................................................8
o Duties Toward Tribunal...................................................................................................................8
o Duties to Third Parties.....................................................................................................................9
Ending/Terminating Representation & Obligations...................................................................................10
o Withdrawal/Termination...............................................................................................................10
o Natural End of Client Relationships...............................................................................................11
o Returning Documents to Clients....................................................................................................11
o Former Client Conflicts..................................................................................................................11
Lawyer Liability/Discipline.........................................................................................................................12
Public Service & Public Interest.................................................................................................................12
o Government Attorneys, Judges, Appointed Counsel, & Prosecutorial Duties................................12
o Pro Bono Work..............................................................................................................................14
Cases.........................................................................................................................................................15

*(even if it violates MPRC 1.6)

Policy Considerations
 Truthfulness
 Duties to Clients v. Justice System
o Encourage open flow of information w/ clients
o Clients with diminished capacity & scope of representation
o Conflicts of interest and protection of clients
 Personal/Professional Interests v. Fiduciary Obligations
 Self-Regulation of Legal Profession
 Evolution of Legal Profession

Pursuing New Clients

◦ Ability to Decline Work
 Lawyers can only take on work in areas they are experienced in OR if they learn
 Lawyers under no obligation to take on work (skill, availability, desire)
 But cannot reject work if (a) discriminatory or (b) results in violation of MPRC
 Providing advice can form a client relationship, even if no agreement or consent is expressed

◦ Duties to Prospective Clients

 MPRC 1.18 – Even if no client relationship develops, a lawyer cannot reveal that information unless
permitted by MPRC 1.9
 MPRC 1.18 – A lawyer shall not represent a client with materially adverse interests to prospective clients if
the lawyer has received harmful information EXCEPT:
 Both the affected and prospective clients give informed consent in writing; OR
 The lawyer who received the information took reasonable steps to avoid learning more disqualifying
information than necessary to determine whether to represent the client; and
o The disqualified lawyer is timely screened; and
o Written notice is given to the client
 EXCEPTION: Individuals who contact a lawyer for the purpose of disqualifying them is not consider a
prospective client

◦ Advertising Materials & Solicitation

 MPRC 7.1 – Cannot make false/misleading communications about lawyer or lawyer’s services
 Cannot make statements about or conduct nonlicensed practice of law (issue in immigration cases)
o Generally, don't give advice, make law your business, appear in court for another, draft legal
documents, advertise legal services, etc.
 Lay Advocacy
o Questions about publishing/generating forms online – usually must disclose these are not a
substitute for legal services
o Hiring of nonlegal staff for assistance is OK, but lawyers must take responsibility
 Advertising
o Generally permitted as protected first amendment right
o But cannot post information about legal advice (may create relationship)
o Cannot be deceptive, fraudulent, etc.)
 Solicitation
*(even if it violates MPRC 1.6)
 o Generally banned in person, as aren’t as coercive as in-person solicitation
o See MPRC 7.3
o Still subject to other laws on data privacy, etc.

Ongoing Client Relationships

◦ Client with Diminished Capacity & Juveniles
 MPRC 1.14 – Lawyer will attempt to maintain as normal a relationship as possible
 Information related to diminished clients is protect under MPRC 1.6
 If lawyer reasonably believes client cannot act in their own interest, lawyer may take reasonable
action, including consulting with others, seeking guardian ad litem*
 Options: (1) Follow instructions to extent possible; (2) Impose own ideas; (3) Invite others to
substitute guidance; (4) petition for court appointed guidance

◦ Conflicts of Interest
 MPRC 1.7 Conflicts
 Representation of one client will be directly adverse to another
 Significant risk that representation will materially limit the lawyer’s responsibility to client, former
client, third person, lawyers own interest
o (1) How likely is a divergence in interests? And (2) Would it materially interfere with
representation?
 MPRC 1.7 Exceptions
 Lawyer reasonably believes they can provide competent/diligent representation to each client;
 Representation is not prohibited by law;
 Representation does not involve a claim by one client against another; and
 Each client gives expressed informed consent
o Explain risks, advantages, alternatives
o Consent may be withdrawn at anytime
 MPRC 1.10 Conflict Imputation – All lawyers in a firm have a conflict UNLESS
 Prohibition is based on a personal interest of one lawyer; or
 Prohibition is based on association at prior firm AND
o Disqualified lawyer is timely screened
o Written notice is promptly given to each affected client
o Certifications of compliance and screening procedures are given to former client
 If a lawyer leaves the firm, conflicts are gone UNLESS
o The matter is same/similar to that in which former lawyer represented client
o Any lawyer remaining at the firm has information related to matter
 Conflict may also be waived by affected client
 Does not include work done by non-lawyers and lawyers before they became lawyers
 MPRC 1.8 - Personal conflicts of interest are imputed depends on questions of client loyalty or protection
of confidential information
 Determining Conflicts under MPRC
 (1) Whether lawyer reasonably believes they can provident competent and diligent representation?
o Objective inquiry
 (2) Whether the representation is prohibited by law?
 (3) Whether the representation involves litigation in which the lawyer is representing one client
against another client whom the lawyer is representing?
*(even if it violates MPRC 1.6)
 o Can never represent opposing parties, except in divorce cases
 Conflicts with Lawyers Personal/Business Interests
 Should be avoided to maintain clear boundaries. Avoid (1) borrowing/lending money to clients, (2)
selling anything to client, (3) asking clients to invest
 Lawyers not flatly prohibited from doing business with clients but discouraged from doing so
 Doesn’t apply to (1) contracts for legal services, (2) contract in which client sells services to lawyer
that they would normally sell to others
 Gifts
 Lawyer cannot solicit gifts
 Lawyer cannot prepare instruments giving a gift to the lawyer or relatives
 Sexual Relationships
 Prohibited with clients, unless relationship began before client relationship
 No prohibition on relationship with former clients

◦ Situations Where Conflicts Arise

 Cross Examining a Current Client
 Representation of co-plaintiffs/defendants in litigation
 Claims against each other/different goals/views on settlement/remedies/conflicting testimony/AC
Privilege/
 Representing Economic Competitors in Unrelated Matters
 Ordinarily OK unless lawyer has done extensive work and intimately knows one or both clients
 Public Interest Litigation
 Taking Inconsistent Positions in Litigation
 MPRC 1.7 - Will this legal position materially limit the lawyers effectiveness in representing another
client in a different case?
 Representing Both Parties in a Transaction (Buyer & Seller)
 Cannot resolve possible conflicts by limiting scope of representation to document drafting
 May need to withdraw if one party decides to keep information from the other, or if interests
change
 Representing Co-defendants in criminal Cases
 While may be cheaper, uniform, and efficient, codefendants often implicate each other, cross
examine codefendants
 Cannot represent a criminal defendant AND a prosecution witness/prosecutor simultaneously
 Codefendants in Civil Cases
 Permissible through contract, but defendants often have adverse interests to blame each other
 Representing Family Members
 Divorce
o Dual representation sometimes permitted here as parties want same thing. Can prepare
settlement as long as both parties consider it “fair”
 Estate Planning
o Issues arise with secret assets/disinheritance/affairs that create conflicts
 Representing Insurance Companies & Insured Persons
 Lawyer designated to defend insured DOES NOT per se represent insurer as well; but factors may
create a client relationship
o Lawyer subject to A/C privilege even if representing both (insured smokes in bed)  usually
leads to withdrawal of representation from both clients
o Insured wants to settle but insurer does not
o Differing opinions on expenses in litigation
*(even if it violates MPRC 1.6)
  MPRC 1.8 may apply here if insurer is paying but insured is being represented.
 MPRC 5.4 – Lawyer may not permit person who pays lawyer for another to direct/regulate
professional judgement in legal services
 But insurer still has standing to assert malpractice claims against lawyer
 Representing Immigrants & Former Employees
 Employee hires lawyer to represent foreign nationals
o Information from employee/employer that would make company/employee not want to work
there or hire employee
o Limited English makes waiver difficult
 Representing Plaintiffs in Class Actions
 Must represent named and unnamed plaintiffs with differing viewpoints
o MPRC 1.7 comment – unnamed plaintiffs may not be considered clients
 Greater concern about fee than representing class
 Settlement of claims through collusion rather than fairly representing class
 Representing Parties to Aggregate Settlement of Individual Cases
 Mass tort claims  holdout clients may create conflicts
 MPRC 1.8 – aggregate settlements are not permitted unless each client gives informed consent in
writing and lawyer must inform each client about material terms of settlement

Type Type of # of Lawyers Work for Relevant Rules

Representation Lawyers the Same Firm
Involved

Concurrent Simultaneous One Yes 1.7, 1.8, 1.13

Successive Sequential One Yes 1.9, 1.11(a,c,d), 1.12(a, b)

Imputed Simultaneous or Two+ Currently yes, but 1.10, 1.11(b), 1.12(c

Sequential may have been
different previously
 Can
sometimes be
avoided by
screening off
lawyer or
waiving
informed
consent of a
potentially
disadvantage
d client

Government Simultaneous or One   1.11

Sequential

◦ Specific Conflict of Interest Rules

 MPRC 1.8 – Cannot represent compensation from someone other than client EXCEPT:

*(even if it violates MPRC 1.6)

  Client gives informed consent; there is no intereference with lawyers judgement or with
lawyer/client relationship; and information related to representation remains protected under
MPRC 1.6.

◦ Organizational Clients (Including NPOs)

 MPRC 1.13 – Lawyer represents the organization, not individual members
 Must always act in best interest of organization, even if it means reporting misconduct by its
members to higher authorities in organization
 If highest authority refuses to act, lawyer may publicly reveal information as necessary to prevent
substantial injury to the organization.*
 Can represent both employees & organizations, but obligation to inform employees, directors,
lawyers, shareholders, that dual representation is possible, but interests may be adverse and
consent may be required.
 Several Factors may influence whether related entities are clients
 FOR: Lawyer received confidential information from or provided advice to a related entity
(subsidiary); Entity was controlled and supervised by the parent organization; Original client could
be materially harmed by the suit against the related entity
 AGAINST: Lawyer no longer represents the intitial corporate client; Two entities became linked
after the lawyer began representation of the first entity
 Lawyers may sit on board of directors, but conflict may be created based on certain interests (bonuses,
payouts for lawyer on board)

◦ Fees & Billing Practices

 MPRC 1.5 - A lawyer shall not charge unreasonable fees based on (1) time and labor required; (2) likelihood
acceptance of employment will preclude other opportunities; (3) customary fees; (4) Amount in controversy;
(5) time limitations imposed by client; (6) Nature/length of relationship; (7) Experience/reputation of lawyer;
(8) fixed/contingent fee
 MRPC 1.5 – Scope and basis of rate shall be communicated in writing before or reasonably after
commencing representation. Should include hourly rate if applicable, but does not need to estimate total
time/fee
 MPRC 1.5 – Prohibited Fee Agreements: (1) Any fee in domestic relations matters; (2) Contingent fees in
criminal cases; (3) Division of fees unless – (a) division is proportionate to work performed; (b) client agrees
to arrangement; and (c) total fee is reasonable
 MPRC 8.4 - Misconduct to lie/inflate/markup billing hours, do unnecessary work, or bill for personal
expenses
 MPRC 5.4 – Lawyer cannot split fees with nonlawyers or share responsibility w/ nonlawyers at multifaced
firm
 MRPC 1.15 – Lawyer must hold property of clients/third persons separate from their own personal property
and will promptly deliver said property upon request from the client
 Types of Fee Arrangements
 Contingent – Opens courtroom door to poor but may encourage settlement. See MPRC 1.5c

o No limit on recovery as long as reasonable

o No contingent fees in criminal/domestic relations cases
 Advance Payments – Permissible, but lawyer must return any unearned portions
 Lump Sum – Permissible, lawyer does not have to return any payment
 Divided Fees – Permitted ONLY among different firms/lawyers ONLY if
o Division is in proportion to services performed;
*(even if it violates MPRC 1.6)
 o Each lawyer assumes join responsibility;
o Client agrees to arrangement; and
o Total fee is reasonable
 Prohibited Fee Arrangements
 Cannot acquire interest in the subject matter of the litigation/transaction
 Cannot pay costs/litigation fees unless (1) client is indigent or (2) repayment is contingent on the
outcome
 Cannot negotiate for publicity rights of trial while representation is ongoing
 Collecting Fees
 If client doesn’t pay, lawyer can (1) contact client, (2) hire collection agency, (3) withhold
documents that don’t unreasonably harm client, (4) obtain a lien to secure payment
 CANNOT harass, make false statements, reveal information to third parties, retain unearned fees as
leverage
 Fee Shifting
 Generally impermissible, except if by statute (1983, ADA, etc.)
o Buckhannon – prevailing party is one who obtains relief from court, not a
settlement/intervening change in law
o Jeff D. – Party can offer waiver of attorney fees in settlement and attorney is bound to
accept this (puts attorney in precarious position)

Ongoing Duties to Clients & Others

◦ Competence
 MPRC 1.1 – Must provide representation with sufficient skill & knowledge
 Violation can result in malpractice or IAC claims
 ABA Standards Post Strickland to satisfy 6th amendment
o Determine all relevant facts known to accused
o Keep client informed as defense is prepared
o Inform accused of their rights; take all procedural steps necessary in good faith
o Conduct a prompt investigation and explore all avenues relevant to the merits
◦ Allocation of Authority & Advising
 MPRC 1.2 – Lawyer must abide by all client decisions, especially settlement and plea offers
 But lawyer may limit the scope of representation if client gives informed consent
 OR can choose to impose higher standards through contract
 MPRC 2.1 – Lawyers may render candid advice using legal, economic, moral, social and political factors

◦ Diligence
 MPRC 1.3 – Must have reasonable diligence and promptness with clients
 Lawyer is client’s agent; must only act pursuant to express, implied, or apparent authority

◦ Communication
 MPRC 1.4 – Must promptly inform and consult with client about
 Any decision or circumstance affecting informed consent
 Means by which client objectives are to be accomplished
 The status of the matter
 Reasonable requests for information
 Any relevant limitation on the lawyer’s conduct
 Any matter necessary to permit the client to make informed decisions regarding representation
*(even if it violates MPRC 1.6)
  MPRC 1.7 – A lawyer may not make false/misleading statements about the lawyer or lawyer’s services.

◦ Confidentiality –
 MPRC 1.6 – Cannot reveal client information related to representation unless:
 Client grants consent (explicit and in writing) and full information about risk
 Reasonably necessary to prevent certain death/bodily harm
o Either by client/another person even if act is not a crime; lawyer must believe degree of harm
o Some states require disclosure
 Prevent crime or Fraud
 Prevent, mitigate, or rectify injury to financial interests/property
 Secure legal advice
 Establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client
 Comply with other law or court order
 Detect and resolve conflicts of interest
 Reasonable efforts to prevent the inadvertent or unauthorized disclosure
 Past criminal conduct where crime is complete
 Disclosure to third party (email, data breach, garbage) ends confidentiality

◦ Attorney/Client Privilege
 Confidential communication between lawyer/client that includes
 Communication in any form in confidence
o Underlying facts are not protected, just the communication itself
 Privileged persons
 For the purpose of seeking legal assistance
 If information is Privileged:
 Lawyer/Client can’t be forced to testify
 Paper & Electronic Communications are protected
 Waiver
 Client can expressly, impliedly, or apparently waive privilege
 Not objecting to question at trial waives privilege
 Introducing privileged issue to the court waives privilege (malpractice)
 Complying with a court order waives the privilege

◦ Duties Toward Tribunal

 MPRC 3.1 – A lawyer shall not bring or defend issues if doing so would be frivolous or if there is a good faith
basis for modifying the law
 A defendant in criminal case by defend the proceeding so as to require every element of the case
be established.
 MPRC 3.3 – Lawyer shall not knowingly:
 Make a false statement or fail to correct a false statement to a tribunal*
 Fail to disclose controlling adverse legal authority*
 Offer evidence a lawyer knows to be false*
 Permit a client to engage in criminal/fraudulent conduct related the proceeding, and will disclose to
the tribunal if necessary*
 In ex parte proceeding, fail to disclose relevant facts relevant to informed decision*
 MRPC 3.5 – Lawyer shall not
 Seek to influence judge/jury by means prohibited by law
o During trial, cannot communicate ex parte unless authorized to do so
o Some states have limits on representing clients before judges where campaign contributions
have been made
*(even if it violates MPRC 1.6)
 o Cannot mislead/coerce/pressure/harass jurors
 After Trial
o Cannot communicate with juror/prospective juror if (1) prohibited by law, (2) the juror makes
known they don’t want to communicate; or (3) contact is coercive, duress, harassing
 Engage in conduct to disrupt a trial (abusive or obstreperous conduct)
 MPRC 3.6 – Lawyer participating in trial cannot make extrajudicial statements that reasonably should know
would result in substantial likelihood of material prejudice in a proceeding
 EXCEPTIONS about various publicly available facts, or statements reasonably necessary to protect a
client from substantial undue prejudice of recent publicity not made by the lawyer (including
sending documents to the press in some cases)
 May result in dismissal in some cases
 MPRC 3.7 – Lawyer cannot be an advocate in trial they are likely to be a witness except
 If testimony relates to unrelated issue, the nature/value of legal services in the case; or if
disqualification would result in hardship on the court
 Can act as an advocate in cases where other attorneys of firm are to be called except under MRPC
1.7 and 1.9.
 MPRC 3.9 – Lawyers can represent a client in administrative/nonadjudicative proceedings, but must
conform with MPRC 3.3 – 3.5.
 Does not apply to negotiations or hearings that are not considered offical

◦ Duties to Third Parties

 MPRC 4.1 – Cannot make a false statement of material fact to third party or fail to disclose when necessary
to avoid assisting a criminal/fraudulent act by a client (unless prohibited by MPRC 1.6)
 If conducted during a proceeding, must take remedial efforts per MPRC 3.3
 Often occurs when testing if judgements are being enforced or to see if discrimination is occurring
 Negotiations – Cannot knowingly lie for purposes of bargaining – applies only to statements of fact,
but hardly enforced
 MPRC 3.4 – A lawyer shall not:
 Unlawfully obstruct or conceal access to evidence, nor counsel others to do so
o Must have potential evidentiary value to be unlawful
o May also be subject to federal obstruction of justice statutes (Sarbanes Oxley Act)
o In criminal matter, if there is no charge and no investigation is foreseeable, there is no duty to
turn over documents
 Falsify evidence
o Can coach witnesses, but cannot tell them to lie
 Knowingly disobey a rule of the tribunal
 Make frivolous discover requests or fail to reasonably comply with discovery requests
 Allude to any matter at trial the lawyer does believe is relevant
 Request a person other than client to refrain from voluntarily giving relevant information to
another party unless (1) person is an agent/relative of a client and (2) lawyer reasonably believes
the persons interests are not impacted
 MPRC 4.2 – Lawyer cannot communicate with a person about the subject of representation if a lawyer
knows that person is represented by another lawyer in the matter unless lawyer has consent of other lawyer
or court
 Applies to communication initiated by either side
 But clients can call other lawyers to obtain a second opinion

Law Situation Restrictions

Upjohn v. Compel opposing Corp may deny access to documents

US corporation to produce reflecting communications between

*(even if it violates MPRC 1.6)

 documents prepared by the corporations lawyers and employees
corporations lawyer as part if the communications are within the
of an internal investigation scope of A-C privilege

MPRC 4.2 Interview employees of
comment opposing corporation to
7 learn relevant facts w/o
permission of opposing
corporations lawyer
May not interview employees that (1)
Supervise, direct, or regulate
corporations lawyer, (2) has authority
to obligate the organization w/r/t the
matter, (3) whos act/omission in
connection w/ the matter may be
imparted on the organization to
impose criminal liability

 MRPC 4.3 – In dealing with unrepresented persons, lawyer must not mislead about lawyers role in the
matter and correct any misunderstanding
 Lawyer cannot give advice to an unrepresented person other than to secure counsel if the lawyer
reasonable should know about a possible conflict with client interests
 If lawyer believes person is unrepresented, must end conversation as soon as they determine
otherwise
 Cannot mislead into thinking lawyer doesn’t represent client; or that lawyer is looking out for
unrepresented person
 Lawyer CAN negotiate deals and settlements with unrepresented persons
 MPRC 4.4 – Lawyer may not embarrass, delay, burden, or use methods to obtain evidence that violate the
legal rights of the third parties
 If lawyer receives documents and knows they were inadvertent, lawyer shall promptly notify
sender
 No disciplinary cases found for trying to discredit truthful witness

Ending/Terminating Representation & Obligations

◦ Withdrawal/Termination
 MPRC 1.16 – A Lawyer shall withdraw if:
 Representation violates the MRPC
o Conflict of interest/motion to disqualify
 Lawyer’s physical/mental condition impairs representation
 Discharged (cannot do so if it would unduly delay case)
 MRPC 1.16 – A Lawyer may withdraw/terminate if:
 It can be accomplished w/o material adverse impact
 Client persists in action involving services that lawyer reasonably believes is criminal
 Client uses Lawyers services to perpetuate a crime/fraud
 Client insists on action lawyer considers repugnant
 Client fails to fulfill an obligation to lawyer regarding services and has been given reasonable
warning
o Client stops paying
 It will result in unreasonable financial burden or difficulty on the lawyer
 Other good cause exists
o Including deteriorating relationship, doubt about claim validity, etc.
 Withdrawal/Termination During Litigation

*(even if it violates MPRC 1.6)

  Lawyer must comply with applicable law requiring notice/permission if case is in progress (may still
be able to w/d in criminal cases, but not civil cases)

◦ Natural End of Client Relationships

 Depends on clients reasonable understanding of the scope of representation
 Timing not dispositive; not uncommon to go years between work

◦ Returning Documents to Clients

 MPRC 1.16 – Must return papers related to representation
 EXCEPTIONS:
o Documents intended for internal review
o Client refuses to pay the bill
o Substantial grounds (clients would use docs to commit crime, protective orders, commit
perjury)

◦ Former Client Conflicts

 Types of Conflicts
 MPRC 1.9 – Successive clients: Lawyer has information from a former client that could be used to
adversely impact current client
 MPRC 1.7/1.9 – Current Client: Current client wants to sue a former client whom lawyer has
previously represented
 Rules are less restrictive to former clients than current clients
Successive Conflicts Table

Is it the "same If one of these questions is

matter" as the yes, lawyer must ask if new
previous one? clients interests are
"materially adverse to the
interests of the former
client"

If not, is it If the matter is the same or

"substantially substantially related,
related" to the lawyer may not go forward
previous one? without former clients
informed, written consent
Same Matter - Single transaction or lawsuit, or if it involves a document the lawyer was involved in producing

Substantial Relationship - Focuses more on what the lawyer might have learned during the first matter that could be
used to adversely affect the former client in the second. (Same transaction/dispute?; What type of information was
acquired? Would that information create a material advantages? How involved was the lawyer on the previous matter?
Is there long term knowledge of the clients strategies/directives?)

Material Adversity – ABA: Material adversity refers only to direct aversity as defined by MPRC 1.7; Rest: Material
adversity limited to potential harms of the type of interests that the lawyer sought to advance on behalf of the client.

 Duties to Former Clients

 MPRC 1.9 – Cannot represent new clients that involve a substantially related matter AND material
adversity to former clients

*(even if it violates MPRC 1.6)

 o There are no non-waivable conflicts with former clients
o Conflicts with former clients are only a problem if there is a substantial relationship
 Options for former conflicts: (1) Proceed w/o consent; (2) Decline representation; (3) Seek Consent
– difficult

Lawyer Liability/Discipline
o Claims (Disciplinary, civil, criminal)
 Legal Malpractice
 Duty to plaintiff; failed to exercise competence/diligence of ordinary lawyer; harm
 Breach of fiduciary duty
 Breach of K or tort
 Other civil or criminal liability
o Hearings and discipline run and conducted by state’s highest court
o Misconduct
 MPRC 1.2 – Cannot knowingly assist in criminal or fraudulent conduct
 But can advise on legality/repercussions
 MPRC 8.3 – Must report any conduct knowingly related to lawyers
honesty/trustworthiness/fitness (unrelated conduct, government conduct, crimes,
discriminatory practices, outside state of practice)
 EXCEPTION: MPRC 1.6 – Confidentiality; Lawyer assistance programs
 MPRC 8.4 – Cannot engage in dishonesty, fraud, deceit, or misrepresentation
 Conduct prejudicial to the administration of justice (constitutional challenges often fail
here)
 Cannot suggest to clients that they have improper influence w/ government agencies or
officials that would permit them to get away with conduct
 Cannot assist judges in violating rules of law/judicial conduct
o Firm Liability
 Lawyers w/ managerial authority liable if orders/ratifies/knows of the conduct and does nothing
to prevent acts of (a) Lawyers [MPRC 5.1], (b) Nonlawyers [MPRC 5.3]
 Subordinate lawyers responsible for acts not based on a reasonable resolution of an arguable
question of managerial duty
 LLPs – Limit liability among partners; only given partner and subordinate lawyers
o Fee Disputes, Arbitration & Settlement
 MPRC 1.8 – Cannot limit liability though client agreement unless client is independently
represented when making the agreement
 Attorney/client arbitration clauses are permissible so long as enforceable and the client
is fully informed of the scope of the agreement
 Lawyers CAN settle with clients if they do not have independent legal advice, but must advise
client in writing they should seek advice.
 MPRC 1.5 – Lawyer must comply with any mandatory arbitration requirements, if voluntary
lawyer should still consider submitting to it

Public Service & Public Interest

◦ Government Attorneys, Judges, Appointed Counsel, & Prosecutorial Duties
o MPRC 6.2 – A lawyer cannot avoid appointment by a tribunal unless representation:
*(even if it violates MPRC 1.6)
  violates MPRC;
 creates unreasonable financial burden on lawyer; or
 is repugnant to the lawyer
o Right to Counsel
 Criminal - Constitution Requires Counsel for Indigent Defendants
 Meet this via public defender/contracts w/ private lawyers
 Civil – Generally no right to counsel
 Even when faced with incarceration for extended period
 EXCEPTION: If proceeding is deemed fundamentally unfair
o MRPC 1.11 – Lawyers formerly serving as government employees:
 Are not subject to MPRC 1.9; and
 Shall not represent clients in matters connected to which lawyer participated
personally/substantially in.
 Conflicts are imputed unless:
 Disqualified lawyer is timely screened
 Written notice is provided to appropriate government agency
 Shall not represent clients that could benefit from confidential governmental information
learned during service
o MPRC 1.11 – Former Private Lawyers Serving as Government Employees:
 Is subject to MPRC 1.7/1.9
 Shall not represent clients in matters connected to which lawyer participated
personally/substantially in.
 Negotiate for private employment with any person involved
o MPRC 1.12 – Lawyer serving as judge, arbiter, mediator, law clerk etc. Shall not represent clients in
matters connected to which lawyer participated personally/substantially in.
 May not negotiate for employment with any party involved in a dispute, unless that person is a
law clerk and informs the judge in writing
 Conflicts are imputed to the entire firm unless
 Disqualified lawyer is timely screened
 Written notice is provided to appropriate parties
o MPRC 3.8 – Prosecutors must
 Not prosecute unsupported charges
 Prosecutorial discretion permits charges
 Make reasonable efforts to ensure accused knows their rights
 Not seek a waiver of rights from unrepresented accused
 Make timely disclosure of all evidence to the defense
 But if there is no charge and no investigation is foreseeable, there is no duty to turn over
documents
 Not subpoena a lawyer to present evidence about a client unless prosecutor believes
 Information is not privileged; evidence is essential; and no reasonable alternative exists
 Refrain from make prejudicial public statements
 MPRC 3.6 – substantial likelihood of prejudicing a proceeding
 MPRC 3.8 – substantial likelihood of heightening public condemnation
 Promptly disclose new credible evidence that may absolve the client
 See Brady v. Maryland
 Seek to remedy wrongful convictions based on new evidence.
 Often in context of unreliable evidence – prosecutors shouldn’t use evidence they know
to be unreliable, but questions arise with forensic evidence
*(even if it violates MPRC 1.6)
 o MPRC 4.2 – Undercover Investigations & Contact w/ Accused
 May violate lawyer misrepresentation under MRPC 4.1, and talking to unrepresented client
under MPRC 4.2.
 MPRC 4.2 - may be interpreted in favor of allowing prosecutors to have contact with suspects
before they are charged (or allowing them to direct investigations involving contact with such
suspects), but it may be held to prohibit such contact, without the consent of the Ds lawyer
once a charge is filed

◦ Pro Bono Work

o MPRC 6.1 – Lawyer should seek to reach 50 pro bono hours a year dedicated to poor individuals or
organizations dedicated to assist poor individuals at no or reduced costs, or by participating in activities
improving the law, legal system, or legal profession
 Arguments requiring Pro Bono – Special abilities/responsibilities, training, help poor
 Arguments Against – Compulsory charity, subpar practice, deflect from productive methods of
combating legal problems

*(even if it violates MPRC 1.6)

Cases
Kelly v. Hunton & Williams
 Kelly starts @ H&W and gets good reviews despite his inability to gain admission to the bar. Kelly then notices a
partner is committing billing fraud, who reports this to two other partners. Partners tell Kelly this is a non-issue,
and slowly begin to find problems with Kelly's job performance. Unbeknownst to Kelly, these partners are
investing in a scheme by Wolas. Kelly and other associates report Wolas to another partner, who agrees to
conduct an investigation. Kelly is forced to resign, then has to move to Texas when he gets bad references from
H&W.
 Kelly sues for wrongful discharge under Weidner - H&W argues that Weidner is narrow and limited only to those
attorneys actually admitted to the bar
 Court disagrees - it is illogical to tell incoming associates they are not held to the same level of conduct as
practicing attorneys
o Although state bar can't kick these associates out, they can prevent admission in the first place

People v. Belge
 The 5th amendment guarantees service of an attorney who will argue every conceivable protection, assert a full
defense in confidence, and avoid self-incrimination.
 Ethics and the 5th amendment require a finding of non-disclosure, as the interests of due process and client
confidences outweigh potential pseudo-crimes
 ON APPEAL: Affirmed; attorney client privilege shields this information. Legal system must accord justice to the
interests of society and its individual members

Togstad v. Vesely, Otto, Miller & Keefe (Minn. 1980)

 Wife's husband dies in med. Mal. Incident. Wife goes to firm, who's lawyer insists she has no case. Lawyer took
notes during the case. Wife did not talk to another attorney about it for a year, by then SoL had run. Jury found
firm was liable for medical bills and suffering of husband/wife
 COURT: Doesn't matter under tort or K, a lawyer-client relationship was present
o Wife went for legal advice, got it
o Attorney did not qualify opinion or discuss his lack of experience
o Reasonably foreseeable wife would be injured if legal advice was negligently given
o "But for" negligence, Wife would have won malpractice case against hospital

Strickland v. Washington (1984)

 Two prong test for IAC:
 (1) Are the lawyers errors v serious? So serious that counsel was not functioning to level guaranteed by
6th amendment
 (2) Is there a reasonable probability that but for the serious errors, the result of the proceeding would
have been different?
 **Additional criteria if non0US citizen
 Here, not unreasonable behavior.
 DISSENT: Test is too vague, nearly impossible to show a different result

Padilla v. Kentucky (2010)

 Failure to provide accurate advice to noncitizens about immigration consequences of conviction renders
representation ineffective
Missouri v. Frye (2012)
 Failure to inform client of plea bargain is a critical error that renders representation ineffective (plea bargain
knowledge is a constitutional requirement)
*(even if it violates MPRC 1.6)
Lafler v. Cooper (2012)
 Offering incorrect legal advice that leads defendant to reject a favorable plea offer renders representation
ineffective.

Jones v Barnes
o On appeal prisoner sends court appointed attorney brief with arguments
o Lawyer rejects several arguments
o Argues the points in his brief but submits two briefs, his and the prisoner
o Court: indigent defendant has no right to compel appointed counsel to press nonfrivolous points he requested if
counsel, as a matter of professional judgment decides not to present those points
o Blackmun Concurred
o Brennan and Marshall dissented
o 1.2(a) distinguished between the "objectives" of the representation (for the client) and the means by which they
are to be pursued as to which the lawyer must consult the client

Holloway: Whenever a trial court improperly requires joint representation over timely objection [here it was the lawyer]
reversal is automatic, no prejudice was required.

Cuyler : no one objected to joint representation, but conviction could be overturned if the conflict significantly affected
the representation
 "Defendant must show that there was "a conflict of interest [that] actually affected the adequacy of his
representation" Court held no need to demonstrate prejudice only an adverse impact in
representation
 e.g. of adverse impact = lawyer failed to cross ex a prosecution witness because he wanted to
persuade the jury that a co defendant was innocent
 e.g. not adverse impact = lawyer persuaded a man to plead guilty and then sought leniency for
his co Ds by saying their cooperation induced guilty plea. Not adverse impact because man
retained the right to plead guilty or not guilty.

Mickens: Lawyer represented a homicide victim before being appointed to his murderer and didn’t object. Court held "if
the trial judge is not aware of a conflict (and thus not obligated to inquire) . . . prejudice will be presumed only if the
conflict has significantly affected counsel's performace-thereby rendering the verdict unreliable
 Denied habeas because did not prove significant impact
 DUTY to prove adverse impact from the representation is greater if no objection to the conflict was
proffered at the trial
--> Decision makes it less likely that a criminal conviction will be overturned on the basis that the
defense attorney had a conflict of interest
 
Westinghouse v. Gulf (1978) - "determination of substantial relationship turns on the possibility or appearance thereof,
that confidential information might have been given to the attorney in relation to the subsequent matter in which
disqualification is sought." Three levels of inquiry:
i. Factual reconstruction of the scope of the prior legal representation
ii. Whether it is reasonable to infer that the confidential information allegedly given would have been
given to a lawyer representing a client in those matters
iii. Whether that information is relevant to the issues raised in the litigation pending

Fordham Matter
1. Fordham is retained to represent 21yo in drunk driving matter; Fordham had never done criminal or
driving cases
a. Fordham comes up with revolutionary defense (and wins) BUT charges $50,000 (v. typical
$10,000)

*(even if it violates MPRC 1.6)

 2. COURT: This is unreasonable; Fordham disclosed his inexperience; work was novel & successful; BUT
Fordham never estimated how many hours that would take and this was OBJECTIVELY out of line with other
fees

State v. Olwell (1964) - should turn over physical evidence of crime after inspection and testing, with or
without subpoena
a. Prosecutor should be careful not to disclose where the knife came from to avoid prejudice
b. Lawyer resisted coroner subpoena
In re Ryder (1967) - Concealing evidence by moving money/guns to lawyers own safe deposit box is unethical,
motivation doesn't matter because lawyer helped to conceal evidence
a. FBI obtained a warrant on deposit box
People v. Meredith (1981) - Lawyer instructing an investigator to move evidence at a crime scene is
impermissible if intended to deceive prosecution
a. Unless it is necessary to test/examine the evidence
b. Knowledge of evidence location remains privileged
c. Defendant appealed his conviction arguing lawyer violated attorney client privilege
Morell v. State (1978) - Almost no difference between documents and other physical evidence, applied same
rule of law as Olwell.
a. Defendant appealed his conviction arguing lawyer violated IAC

The Messing Case

i. Messing law firm interviews several Harvard employees, including those with direct supervisory
authority of Messing, without Harvard permission.
ii. COURT: This is permissible; only contact banned is with managing authorities with managing authority
to give them the right to speak for and bind the corporation
iii. Edits in 2002 change this to those with "managerial authority over the matter at issue"
Cronin Case
i. Employees come to opposing lawyer regarding destruction of documents
ii. COURT: "neither a client's interest nor an opponent's conduct justify communication with an adverse
party that a lawyer knows is represented by counsel"
Brady v. Maryland: suppression by the prosecution of evidence favorable to an accused upon request violates
DP where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution
iii. SCOTUS later says that Pros. Must disclose exculpatory evidence to the defense even if D has
not requested
iv. Codified in 3.8(d)

Bates v. State Bar of AZ (US 1977)

a. Historical foundation for advertising based on etiquette, not ethics; free trade depends on fair trade of
information about services
b. Although services are unique, impossible to advertise for these services. Advertised services will most likely be
for routine, conventional generic services
c. Potential for additional litigation is better than individuals suffering a wrong without knowing redress
d. DISSENT: This will impact the character of a noble profession

*(even if it violates MPRC 1.6)