 May: Option/discretion to…Proper…Would not subject the lawyer or judge to discipline

 Shall: Must…Required to (or else will subject the lawyer or judge to disciple)
 Should: Is encouraged to, recommended to, but not required to

 Class is about YOU and the law of LAWYERING

 Moral philosophy
□ Are you willing to do something for the greater good at expense of something like torturing a child?
 No one cares… that is irrelevant…We will avoid philosophical abstractions
 Morality
□ You should be an intrinsically good person… loyal, morally centered, conscientious, etc
□ Morality is highly subjective and cannot be taught, but plays a role in some of the rules
 MR 6.1 – lawyer should aspire to render at least 50 hrs of pro bono legal services per year
 Many ethical rules do not align with ABA moral decisions

 HYPO: Your client (Ken) told you he is having sex with Barbie (who used to be your client and recommended
you to Ken). Ken is HIV+. He does not want judge to know if Barbie will find out. Barbie is paying the bills.
 Tension between zealous advocacy and personal morality
□ Moral thing to do is ultimately try to save Barbie from situation that could lead to illness/death
□ However, many duties are owed to Ken, including duty of confidentiality
 MR 1.6 – confid of info - Cannot reveal info unless client gives informed consent, unless situations that
are reasonably certain to lead to death or substantial bodily harm
 CRPC 3-100 – confid info of a client - Cannot reveal info unless client gives informed consent unless
reasonably believe that it is likely to lead to death or substantial bodily harm
 CA B&P code 6068(e) – maintain confid at every peril to himself/herself to preserve secrets of his/client,
unless reasonably necessary to prevent criminal act likely to result in death or substantial bodily harm
 Rules are designed to protect lawyers and the legal profession

 HYPO: 2L worked at DA. Officer stops JP who met description of suspect, so reasonable suspicion. In first 30
seconds, officer notices NO neck tattoo. JP gets out of car, nervous, fidgety, speaking in choppy sentence, dry
mouth, and pupils not dilated. Officer concluded that high on meth. Officer concluded weapon on him (b/c ppl
on meth usually do) and conducted pat down search. Officer finds meth on JP, so faces felony charge.
 Can pat down if reasonable suspicion that person committed or is about to commit crime and may be armed
 Officer said he saw outline of a weapon on him…but that was not on the police report
□ Seems like he really should have put it, b/c so obvious
 If know that he is lying, rules are clear
□ But b/c of adversarial process, it would be D’s attorney’s job to point out potential falsity
 MR 3.3(a) – candor toward tribunal
□ L can’t knowingly make a false statement of fact/law to tribunal, or fail to correct a false statement of
material fact/law previously made to the tribunal by the L
□ L can’t offer evidence that the L knows to be false
□ If L comes to know of its falsity, has to bring it to court’s attention
 ABA prosecution function standard 3-1.2(c)
□ Duty of the prosecutor is to seek justice, not merely to convict

 PR rules are not designed to make you do the right thing

 PR rules are neither vague nor subjective, but basic common sense will not lead you to the right answer
 The chances of being disbarred for violating PR rules is very low, but malpractice suits function on a diff level
 We need to protect our integrity and motivation… Can learn good judgment

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INTRODUCTION

A. The Role of Judgment in Law

□ MR 1.1 – L shall provide competent representation to C which requires legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the representation
 Competence doesn’t require experience…Competence not required before accepting employment
□ MR 3.3d – in an ex parte proceeding, L shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse
 Other side is not represented in the hearing
○ Not just that can’t make up facts, but also can’t say things that are true but against your client
 This is in contrast to MR 3.3a barring a L from misleading the tribunal in hearing w/ both sides

C. Six Rules of Survival

1. Never create a duty you do not want to create. (Don’t assume duty if you don’t want the obligations)
2. Always be prepared to walk away if only alternative is to violate law. (Either quitting or being fired)
3. Assume everything you do or say will become publicly known.
4. Never mistake the client’s problem for your own. (Client should be the one going to jail, not you)
5. Never do as a lawyer anything you find repugnant as a person.
6. If you mess up, fess up. (If you make a mistake, admit it, try to make it right, and move on)

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CHAPTER I. DUTIES LAWYERS OWE CLIENTS

 All lawyers owe all clients three obligations: fiduciary duties, a duty of care, and a duty of confidentiality.
 Duty of Loyalty: Requires the lawyer to put the client’s interests ahead of the lawyer’s own interests and
to do nothing to harm the client
 Duty of Care: Requires the lawyer to act reasonably and to live up to the standard of care of a reasonable
lawyer doing similar work in similar circumstances
 Duty of Confidentiality: Requires the lawyer not to use client confidences for the lawyer’s benefit, unless
the information is generally known, and not to disclose client information unless required by law to do so.
□ Distinguish from attorney-client privilege: duty to maintain client confidences is broader
□ It applies at all times and forbids lawyers from using information as well as disclosure

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A. The Duty of Loyalty = Lawyers as Fiduciaries and Agents
 RESTATEMENT OF THE LAW GOVERNING LAWYERS § 16(3) - A Lawyer's Duties To A Client—In General
 To the extent consistent with the lawyer's other legal duties and subject to the other provisions of this
Restatement, a lawyer must, in matters within the scope of the representation:
□ comply with obligations concerning the client's confidences and property, avoid impermissible
conflicting interests, deal honestly with the client, and not employ advantages arising from the client-
lawyer relationship in a manner adverse to the client;
 Lawyers are fiduciaries. They owe fiduciary duties to clients.
 Definition of Fiduciary Duty. (Burdett v. Miller (1992)). A fiduciary duty is the duty of an agent to
treat his principal with the utmost candor, rectitude, care, loyalty, and good faith (to treat the principal as
well as the agent would treat himself).
□ The duty is owed when the disparity in knowledge or power is so vast that it is a reasonable inference
that had the parties negotiated in advance, they would have expressly agreed that the agent owed the
principal the duty (otherwise the principal would be at the agent’s mercy).
□ Fiduciary duties are sometimes imposed on an ad hoc basis (like in situations of reasonable reliance
when the person holds himself out to be an expert and is not).
 Agency Law. Fiduciary duties are related to agency law.
 Agency is type of fiduciary relation. Agency is foundation for many rules that specifically apply to lawyers.
□ RST (Third) of Agency, § 1.01. Agency is the fiduciary relationship that arises when one person (a
principal) manifests assent to another person (an agent) that the agent shall act on the principal’s behalf
and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.
 The agent must place the principal’s interests above their own.
□ RST (Third) of Agency, § 8.01. “General Fiduciary Principle” of Agency. An agent has a fiduciary
duty to act loyally for the principal’s benefit in all matters connected with the agency relationship.
 Duty of Loyalty: Owen v. Pringle (1993). Fiduciary duties may be summarized under the general rubric
of the duty of loyalty. The duty implied several things. Agents may not:
□ Acquire material benefit from a 3rd party in connection w/ the agent’s actions as an agent (§ 8.02);
□ Take a position adverse to the principal or on behalf of a party adverse to the principal, regarding a
matter related to the scope of the agency (§ 8.03);
□ While an agent, compete with the principal or assist the principal’s competitors (though an agent may
prepare to compete with the principal during this time) (§ 8.04);
□ Use the principal’s property, or either use or communicate the principal’s confidential information for
the benefit of the agent or a third party (§ 8.05);
□ Engage in “conduct that is likely to damage the principal’s enterprise” (§ 8.10).
□ Fiduciaries must also segregate the principal’s property form their own and keep and render an account
of money or property received or paid by the agent for the principal (§ 8.12).
 If you do a transaction with client, must be able to justify it under “reasonable fairness” standard
□ Unethical for prosecutor to call other side and give them info to tank case so innocent man goes free
 Loyalty means that you must protect the client’s interests first, within the boundaries of the law.
 Even when it seems morally right for him to do what he did
□ Ethical to defend/ accept a position you do not believe
 If his conscience will not allow him to, he must withdraw/quit, not undermine his client’s case
□ Tension between what lawyer feels is morally right, and what the rules require

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B. The Duty of Care
 RESTATEMENT § 16(2) - A Lawyer's Duties To A Client—In General
 A lawyer must, in matters within the scope of the representation:
□ act with reasonable competence and diligence;
 RESTATEMENT § 52 - The Standard Of Care
 For purposes of liability under §§ 48 and 49, a lawyer who owes a duty of care must exercise the
competence and diligence normally exercised by lawyers in similar circumstances.
 Act competently as judged by standards of reasonable lawyer in your position
 Origin in tort law…duty to perform services with reasonable diligence
 The duty of care requires that lawyers act carefully — as judged by the prevailing standards of professional
competence in the relevant field of law and geographic region — in performing work for clients.
 Restatement (Third) of Agency: Some particular manifestations of the duty of care. Agents must:
□ Comply with the express and implied terms of any contract with the principal (§ 8.07);
□ Act only within the scope of their actual authority, and comply with all lawful instructions from the
principal regarding the agent’s actions for the principal (§ 8.09);
□ Inform principal of all facts material to the agency relation and all facts the agent knows or has reason
to know the principal would want to have (§ 8.11).
 The duty of care is not a fiduciary duty.
 Loyalty corresponds w/ betrayal and faithfulness, while care corresponds w/ notion of mistake or accident
 Violations occur when the lawyer was foolish, overextended, debilitated (not acting in self-interest)

 U.S. v. 7108 West Grand Ave, 15 F.3d 632 (7th Cir. 1994)  Utilitarian reason for fiduciary relation
 Facts: C was in prison for federal drug offenses. C hired L to represent him in forfeiture proceedings. L did
not file timely claims. C and wife argue that they have good defense to and want 2nd chance to litigate.
 Issue: Does L’s gross negligence in representing C’s interests entitle Cs to another opportunity to litigate?
 Answer: No, malpractice, gross or otherwise, may be a good reason to recover from L but does not justify
prolonging litigation against original adversary. C is responsible for L’s conduct. C is bound by L’s action.
 Discussion: Under the law of agency, the principle is bound by his chosen agent’s deeds. If L’s neglect
could protect a C, Ls will be more negligent and make such errors. No incentive for L to be competent
□ Holding C responsible for the L’s deeds ensures that both Cs and Ls take care to comply.
□ C chooses L at own peril. L’s disregard of professional responsibilities can lead to end of C’s claims.

 Questions:
 What principle governs this case? Principle is bound by the acts of the agent. The errors and misconduct
of an agent to the detriment of the principal (and ultimately, through malpractice litigation, of the agent
himself) should be attributed to principle/agent rather than of the adversary in litigation.
 What was the instrumental argument that the court made for holding L liable? Negligence and willful
misconduct are treated alike. Both are attributed to the negligent party. Therefore, the intermediate case of
gross negligence will also be treated like the polar cases.
 If L had a good excuse for failing to contest forfeiture (e.g. wife/child was injured in accident), would
that affect court’s analysis? Likely not, especially b/c did not show up to hearing or file timely app notice
 In terms of the duties discussed above, what duty was breached in this case? The duty of care

 Notes: Cs in 7108 West Grand Avenue may have suffered because L had the power to act for them but failed to
act. Because L had the power, the court attributed L’s failure to C. Most cases would come out this way.

5
C. The Duty of Confidentiality
 RESTATEMENT §59 - Definition Of “Confidential Client Information”
 Confidential client information consists of information relating to representation of a client, other than
information that is generally known.
 RESTATEMENT §60 - A Lawyer's Duty To Safeguard Confidential Client Information
 Except as provided in §§ 61-67, during and after representation of a client:
□ 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;
□ 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.
 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.
 The lawyer has a duty not to disclose information the lawyer learns while representing a client.
 Some of this information is also covered by attorney-client privilege.
 The duty to maintain client confidences is broader; it prohibits lawyers from using the information for the
lawyer’s benefit as well as disclosing the information.
 Exceptions to disclosure rule
 Model Rule of Professional Conduct 1.6. Allows for disclosure only when L reasonably believes a C
intends to commit an act reasonably certain to result in injury/death, or when a C is using or has used the
L’s services to commit a crime or fraud that has harmed the financial interests of 3rd party.
□ Duty to protect client’s confidentiality…any info gained during course of representing client
 Exception: reasonably certain death or substantial bodily harm [not necessary to be imminent]
 California Rule 3-100 has an even narrower exception
□ Reasonably believe that it is likely to result in death or substantial bodily harm
 Notes:
 Cs may waive confid rights
□ For consent to be effective, have to communicate enough info to permit C to get waiver’s significance
 When C intends to commit crime/fraud or L seeks to rectify a serious financial harm that C caused using
L’s services… No duty to reveal C’s confession of guilt
□ If C on trial, and admits that he did it, and would want to do it again… Can’t just reveal it
 Ls can seek legal advice from another lawyer…Lawyers need lawyers too…Ethics hotlines in every state

Confidentiality AND Fucking Your Client:

(Tante breached the duty of loyalty and a GA disciplinary rule, but not the duty of care.)

 Tante v. Herring, 264 Ga. 694 (1994) (Hunt)

 Facts: Herrings (Cs) retained Tante (L) to pursue claim for social security mental disability benefits for
Mrs. Herring before Social Security Administration. L slept w/ Mrs. Herring while pursuing her disability
benefits. Judge granted a favorable award after L appeared. Cs sued L for malpractice, breach of fiduciary
duty, and breach of K b/c of adulterous relationship, claiming L caused physical and mental harm, taking
advantage of confid info to convince her to sleep w/ him. Cs also said L violated state bar standards.
 Issue: Do Cs have action for legal malpractice against L for having sexual relationship w/ C while acting as
her L, even where no evidence that L’s conduct had any effect on performance of legal services?
 Holding: When lawyer uses confidential information to detriment of client, breach of fiduciary duty exists.
□ Duty of Care: NO LEGAL MALPRACTICE CLAIM
 Elements for an action for legal malpractice are [1] employment of an attorney, [2] failure of the
attorney to exercise ordinary care, and [3] damages proximately caused by that failure.
○ Element of breach (failure to exercise ordinary care) must relate directly to the duty of the
attorney to perform the task for which he was employed.
 Tante did a competent job, so he did not commit malpractice. Duty of care not violated b/c he got
them what they wanted in what was the most professional and appropriate manner
○ A satisfactory result precludes a claim for legal malpractice

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  This requires an affidavit from an expert setting forth one negligent act constituting breach of duty
and the factual basis for each claim of negligence. Cs didn’t have proper affidavit anyway.
□ Fiduciary Duty: BREACH OF FIDUCIARY DUTY EXISTED [loyalty = fiduciary]
 L was a fiduciary with regard to the confidential information provided to him by C. Therefore, he
owed C the utmost good faith and loyalty. Cannot use C’s confid info to the C’s detriment.
○ By using information available to him solely because of L-C relationship to his advantage to
disadvantage C, he breached duty, even though no actual confidential info was leaked out
 Here, there is a violation of the duty b/c he knew she was mentally fragile and he exploited it
○ No expert affidavit is required for this one. Fiduciary duty here arises from L-C relationship.
□ Breach of K: NO BREACH – K doesn’t say anything about not sleeping w/ the parties, so no breach

 MR 1.8(j) – L shall not have sexual relations w/ client unless a consensual sexual relationship existed btwn
them before the lawyer-client relationship commenced
 California 3-120(b)(3) - May not engage in post representation sexual relationships only if relationship
causes the L to perform legal services incompetently. No demands of sex as compensation to represent.
 CASE QUESTIONS
 Causes of action? Malpractice: duty, breach of duty, damages — breach must relate directly to the duty of
the attorney. Breach of fiduciary duty: Misuse of the client’s information for the lawyer’s own benefit
 Malpractice? Breach of K? No malpractice. No breach of K. Breach fiduciary duty so claim for damages.
 Did Tante disclose any confidential information? No. But, he used the information for his own benefit.
 Relationship btwn confidences and CoA? Personal information, which he used to induce her to have sex
 Court gave analogy of confidential info and money. What does fiduciary w.r.t. information mean? L
has duty to protect info and not use it to own advantage to the same extent as protecting C’s money.
 Did L breach any disciplinary rules? What is relationship btwn those rules and the CoA? L’s breach
of fiduciary duty incidentally constitutes a violation of disciplinary rule, but breach in itself does not mean
private CoA for damages. Violation of disciplinary rule is not a necessary or sufficient condition for breach
of fiduciary duty. Some courts allow evidence of disciplinary rule violation when suing for duty of loyalty.
Even in CA, it is bad idea to sleep w/ clients b/c client can still sue you for breach of loyalty.
 What duty was at issue? (Hint: how did Tante’s conduct differ from Habib’s?) Breach of the duty of
confidentiality (and loyalty). Incompetence and disloyalty go hand in hand (the 2 CoA usually overlap).
Habib was an issue of duty of care, where he failed to do his job to competently represent clients. Tante did
his job completely, but used the info obtained through litigation to the client’s detriment

THIS CASE IS BEFORE THE SEX WITH YOUR CLIENT RULES CHANGED.

 Barbara A. v. John G., 145 Cal. App. 3d 369 (1983) (Barry Deal)
 Facts: C retained L to represent her in a post-dissolution proceeding for modification of spousal and child
support. Legal relationship existed when they had sex. C thought L was sterile or had vasectomy b/c L told
her he could not get her pregnant. This representation was false and he knew it. A-C relationship created
sense of trust and b/c she justifiably relied on this representation, she engaged in intercourse. She got
pregnant and she had surgery to save her life. She sued for battery and deceit.
 Issue: Whether a woman (appellant) suffering injuries from an ectopic pregnancy has a cause of action in
tort against the responsible man (respondent) for his misrepresentations of infertility.
 Holding: Fiduciary status does not automatically extend to parties’ sexual relations
□ If fact-finder decides fiduciary/confid relationship (moral, social, domestic, personal) exists, presume
that the one in whom trust and confidence is reposed has exerted undue influence. [legal infers confid]
 Presumption of undue influence is therefore to shift the burden of proof to the fiduciary.
○ In this case, undue influence is relevant on the issue of consent in appellant’s cause of action
for battery and on the issue of justifiable reliance in her cause of action for misrepresentation.
□ Court must assess whether parties were on equal social basis in personal relations or if one had greater
position of power that the other was reasonably relying on (burden on the attorney)
 Burden: C has the burden of proving the existence of a confidential relationship.
○ If established, L has the burden of proving that consent was informed and freely given in the
battery claim, or that her reliance was unjustified in the misrepresentation claim.
 Common law rule: L cannot have sex w/ C unless informed consent was given (MR 1.8g)

7
 □ If court held otherwise, result would be chilling effect on any personal relations between L and Cs.

 Pleading CoA for deceit - P must plead following elements:

 (1) a false misrepresentation (ordinarily of a fact) made by D;
 (2) knowledge or belief on the part of D that the representation is false, or that the representation was made
by D w/out reasonable grounds for believing its truth;
 (3) an intention to induce P to act or to refrain from action in reliance upon the misrepresentation;
 (4) justifiable reliance upon the representation by P;
 (5) damage to P, resulting from such reliance

 CASE QUESTIONS
 What causes of action are at issue here? Battery and fraudulent and negligent misrepresentation
 What is trier of fact supposed to find on remand? Whether there existed a confidential relationship…
Then if one existed, trier of fact decides whether reliance was unjustified or whether there was consent.
 What elements do that finding relevant to? Whether there was a fiduciary duty (and subsequent breach)
 What effect would a positive finding of duty have? A positive finding would shift burden to L to show
consent or unjustified reliance. A negative finding? A negative finding would leave the burden on the C.
 What does the court see as the “essence” of a fiduciary relationship? That the parties do not deal on
equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and
confidence is in a superior position to exert unique influence over the dependent party.
 What is the difference between a fiduciary relationship and a confidential relationship? The existence
of a confidential relationship (a relationship founded on a moral, social, domestic, or merely personal
relationship as well as on a legal relationship) is generally question of fact for jury or trial court. However,
where a legally recognized fiduciary relationship (a recognized legal relationship) exists, the law infers a
confidential relationship.
 What presumption follows from existence of a fiduciary or confidential relationship? If the fact-finder
or court determines that a confidential relationship exists, it is presumed that the one in whom trust and
confidence is reposed has exerted undue influence. The presumption is no longer independent evidence.
The effect of the presumption of undue influence is therefore to shift the burden of proof to the fiduciary.
 Suppose Barbara A’s allegations are true; do you see a potential basis for discipline, rather than tort
liability? Sleeping with clients while representing them is likely a basis for disciplinary liability

 PROBLEM 1-3
 Present the argument you would make for Barbara A on remand. A confidential relationship existed
because he was her L and she confided in him personal info, which he used to lure her into sleeping with
him. Also, a fiduciary relationship existed b/c the events happened as he was representing her and they
were related to the representation because this is why he received the information he used against her.

 PROBLEM 1-4
 Suppose L tells you he is thinking about having an affair with C. If he is determined a fiduciary or to
have a confid relationship, he will have the burden of showing that he did not get her to agree to sleep with
him b/c of that relationship.

NEW Sex with your client rules!!!!!

 BOUNDARY ISSUES I: When you are an L and when you are an ordinary person.
 Now, rules prohibit L-C romantic relationships unless they existed before L began representing C.
□ MR 1.8(j) provides that L “shall not have sexual relations w/ C unless a consensual sexual relationship
existed between them when the L-C relationship commenced.” The relationship between L and C is a
fiduciary one in which L occupies highest position of trust and confidence. The relationship is almost
always unequal. Thus, sexual relationship between L and C can involve unfair exploitation of fiduciary
role, in violation of the L’s basic ethical obligation not to use the trust of the C to the C’s disadvantage.
□ CA Rule of Professional Conduct 3-120(b) is more lenient. Forbids post-representation relations only
if relationship causes L to perform legal services incompetently. In addition, L may not require or
demand sexual relations with C incident to or as a condition of any professional representation.

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9
CHAPTER II. DIVISION OF AUTHORITY BETWEEN LAWYER AND CLIENT

Type of Authority Created by Grants power to

Actual Authority Assent of client, manifested to lawyer
Implied Authority Implication from assent of client,
(still actual) manifested to lawyer
Apparent Authority Manifestations by client to third party
that lawyer has authority
Inherent Agency Power Appearance in court proceeding
Alter client’s legal rights and obligations
within bounds of client assent
Do things necessary to carry out client
instruction (think necessary & proper cl.)
Alter client’s legal rights and obligations
within bounds of manifestation
Alter client’s rights and obligations as
needed to enforce result of proceeding

 Actual Authority: the power to affect the legal relations of a third party
 Express: created by principal’s consent that the agent acts on his or her behalf
□ Implied: principle’s request includes power to do things necessary or incident achieve objective
 Restatement §26 - A Lawyer's Actual Authority
□ L’s act is considered that of a C in proceedings before tribunal or in dealings w/ 3rd parties when:
 [1] C has expressly or impliedly authorized the act;
 [2] Authority concerning the act is reserved to L as stated in § 23; or
 [3] C ratifies the act.
 MR 1.2(d): mandatory power - C has authority over ends of representation; L has authority over means

 Apparent Authority: based on principal’s manifestations to third persons with whom the lawyer might deal.
 Restatement §27 - A Lawyer's Apparent Authority
□ L’s act is considered that of C in proceedings before tribunal or in dealings w/ 3rd parties if tribunal or
3rd party reasonably assumes that L is authorized to do the act on the basis of C’s actual manifestations
 Ex, if C tells opposing L that C’s L has authority to settle for $10K, and C tells own L he has authority to
settle for $5K, the attorney has apparent authority to settle for $10K and actual authority to settle for $5K.

 Restatement §28 - A Lawyer's Knowledge; Notification To A Lawyer; And Statements Of A Lawyer

 Info that communicated to L during and relating to representation of C is attributed to C for the purpose of
determining C’s rights and liabilities in matters in which L represents C, unless those rights or liabilities
require proof of C’s personal knowledge or intentions or L’s legal duties preclude disclosure of info to C
 Unless applicable law otherwise provides, a 3rd party may give notification to C, in a matter in which C is
represented by a L, by giving notification to C’s L, unless 3rd party knows of circumstances reasonably
indicating that L’s authority to receive notification has been abrogated.
 L’s unprivileged statement is admissible in evidence against C as if it were C’s statement if either:
□ C authorized L to make a statement concerning the subject; or
□ The statement concerns a matter within the scope of the representation and was made by L during it.

 Restatement §29 - A Lawyer's Act Or Advice As Mitigating Or Avoiding A Client's Responsibility

 If C’s intent or mental state is at issue, crt may consider otherwise admissible evidence of L’s advice to C
 In deciding whether to impose sanction or to relieve from crim or civil ruling/default/judgment, a court may
consider otherwise admissible evid to show that L represented inadequately or contrary to C instruction

 Restatement §30 - A Lawyer's Liability To A Third Person For Conduct On Behalf Of A Client
 For improper conduct while representing C, a L is subject to discipline, civil liability, and crim prosecution.
 Unless K disclaims liability, L is subject to liability to 3rd party on Ks that L entered into on behalf of C if:
□ C’s existence or identity was not disclosed to 3rd party; or
□ K is btwn L and 3rd party who provides goods/services used by Ls and L knows or reasonably should
know that 3rd party relies on L’s credit.
 L subject to liability to 3rd party for damages for loss proximately caused by L acting w/out C’s authority if:
□ L tortiously misrepresents to 3rd party that L has authority to make K, conveyance, or affirmation on
behalf of C and 3rd party reasonably relies on the misrepresentation; or

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□ L purports to make a K, conveyance, or affirmation on behalf of C, unless L manifests not warranting
that he/she is authorized to act on behalf of C or 3rd party knows that L is not authorized to act.

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B. Client Decisions

 MR 1.2(a) – Scope of Representation and Allocation of Authority Between Client and Lawyer
 L shall abide by C’s decisions concerning objectives of representation and, as required by MR 1.4, shall
consult w/ C as to means by which they are to be pursued. L can take action on behalf of C as is impliedly
authorized to carry out representation. L shall abide by C’s decision whether to settle. In crim case, L shall
abide by C’s decision, after consulting w/ L, what to plea, whether to waive jury, and whether C will testify

 C decides end goals (ultimate authority to determine purposes to be served), L decides the means
□ Cannot change this by K [C decides what to do and L decides how to do it]
 C decides: [1] whether to accept settlement offer, and [2] whether to appeal. In crim cases, C decides {A}
what to plea, {B} whether to waive a jury trial, {C} whether C will testify
□ L decides: [1] tactical decisions, [2] means to carry out the representation, and [3] to take “such
action… as is impliedly authorized to carry out the representation”
 L can advise, pressure, strongly suggest for C to make a certain choice, but cannot make the choice for C

 You can be disciplined and incur civil liability for not listening to your client.

 MR 1.2(b): L’s representation of C does not count as endorsement of C’s view

 MR 1.2(c): L may limit the scope of representation if limitation is reasonable.
 MR 1.2(d): cannot assist C in violating the law but you can test the law.

 MR 1.4 - Communication
 (a) L shall:
□ (1) promptly inform C of any decision or circumstance w.r.t. which C’s informed consent is required
□ (2) reasonably consult with C about the means by which C’s objectives are to be accomplished;
□ (3) keep C reasonably informed about the status of the matter;
□ (4) promptly comply with reasonable requests for information; and
□ (5) consult w/ C about any relevant limitation on L’s conduct when L knows that C expects assistance
not permitted by the Rules of Professional Conduct or other law.
 (b) L shall explain matter to extent reasonably necessary to let C to make informed decisions regarding rep

 California Rule of Professional Conduct 3-500 – duty to keep Cs informed - same rule as MRPC
 CA B&P Code 6068(m) – duty to keep Cs informed - Respond promptly to reasonable status inquiries of
C and keep C reasonably informed of significant developments in matters that L is providing legal services

 Restatement §19 - Agreements Limiting Client Or Lawyer Duties

 Subject to other requirements, C and L may agree to limit a duty that L would otherwise owe to C if:
□ C is adequately informed and consents; and
□ The terms of the limitation are reasonable in the circumstances.
 L may agree to waive a C’s duty to pay or other duty owed to L.

 Restatement §20 - A Lawyer's Duty To Inform And Consult With A Client

 L must keep C reasonably informed about the matter and must consult with C to a reasonable extent
concerning decisions to be made by L under §§ 21-23.
 L must promptly comply with a C’s reasonable requests for information.
 L must notify C of decisions to be made by C under §§ 21-23 and must explain a matter to the extent
reasonably necessary to permit C to make informed decisions regarding the representation.

 Restatement §21 - Allocating The Authority To Decide Between A Client And A Lawyer
 [1] C and L may agree to which will make specified decisions, subject to requirements stated in §§ 18, 19,
22, 23, and other Restatement provisions. Agreement may be superseded by other valid agreement.
 [2] C may instruct L during rep, subject to requirements in §§ 22, 23, and other Restatement provisions.
 [3] Subject to [1] and [2], L may take any lawful measure within scope of representation that is reasonably
calculated to advance C’s objectives as defined by the C, consulting with the C as required by § 20.

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  C may ratify an act of L that was not previously authorized
 Restatement §22 - Authority Reserved To A Client
 [1] Subject to [2] and § 23, the following and comparable decisions are reserved to C except when C has
validly authorized L to make particular decision: [a] whether and on what terms to settle, [b] how crim D
should plead, [c] whether crim D should waive jury trial, [d] whether crim D should testify; and [e] whether
to appeal in a civil proceeding or criminal prosecution
 [2] But, C may not validly authorize L to make decisions described in (1) when other law (such as crim pro
rules governing pleas, jury-trial waiver, and D testimony) requires C’s personal participation/approval.
 [3] Regardless of any contrary K with L, C may revoke L’s authority to make the decisions described in [1]

 Restatement §23 - Authority Reserved To A Lawyer

 L retains authority that may not be overridden by a K with or without an instruction from the C:
□ To refuse to perform, counsel, or assist future or ongoing acts in the representation that L reasonably
believes to be unlawful;
□ To make decisions or take actions in the representation that L reasonably believes to be required by
law or an order of a tribunal.

[1] Authority to Settle Civil Matters

 In re: Grievance Proceeding, 171 F.Supp.2d 81 (D. Conn. 2001)

 Facts: Written fee agreement existed between L and C where L had complete discretion over settlement
offers (could reject them without cause and did not have to communicate offer to client.)
 Issue: Does agreement that transfers decision to accept settlement offer to lawyer violate the Model Rules?
 Holding: Agreement violated rules. L was not punished b/c court concluded that disciplining L many years
after unrepeated and relatively minor violation of MR would not serve purpose of disciplinary proceedings.
Here, agreement violated MR, but respondent’s conduct did not b/c never actually relied on purported right.
 Rule: L is responsible for obeying MR and comments. Can’t K around mandatory MR. MR 1.2 requires L
to quickly inform C of all settlement offers and let C make decision. Can’t ask C to give up settlement right

 CASE QUESTIONS
 Did L violate rule? Why no discipline? Agreement violated rule, but not conduct. Discipline = punitive
 What does this case hold? L must communicate all settlement offers to C. C must decide to accept.
 How would this case be decided under Restatement Section 22? L and C can K around default rules, but
always reserves right for C to take back right to decide whether to accept settlement offer.
 What is the primary purpose of the disciplinary rules? The protection of the court, the profession of the
law, and the public against offenses of Ls, which involve their character, integrity and professional standing

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[2] Apparent Authority and Inherent Authority to Settle Civil Maters

 Apparent authority = power held to affect a principal’s legal relations w/ 3rd parties when a 3rd party reasonably
believes actor has authority to act on principal’s behalf and belief is traceable to principal’s manifestations
 Actual authority is created by communications from the principal to the agent.
 Apparent authority is created by representation from the principal to a third party that wants to bind C to
actions taken by L.

 Fennell v. TLB Kent Co., 865 F.2d 498 (2d Cir. 1989)
 Facts: D’s attorney agreed to settle case for $10,000 during phone conversation. D then reported that he
had previously told lawyer he would not be willing to settle for $10,000
 Issue: Is agreement to settle case binding when attorney did so without client’s permission?
 Holding: C is not bound by L’s agreement b/c L did not have actual or apparent authority. There was no
actual authority. Also, there was no representation to opposing party, so there was no apparent authority.
 Rule: To create apparent authority, principal must manifest to 3rd party consent for agent to act on behalf.
L can’t create own apparent authority. C doesn’t create apparent authority to settle just by retaining L
 Notes: Fact that C has a L means the other side is entitled to rely on that L’s representations ONLY if C
makes representation to the other side that L has authority, or C manifests to L that L has authority

 Lawyer MUST have client’s permission to settle

 Exception: class action -- too difficult to get individual permission -- only context where majority is enough
 Lawyer MUST keep client adequately informed
 Client gets to make decisions (ends)  client could not make decisions without adequate knowledge
□ L will always get in trouble if don’t pass along settlement offer to C, especially if reason is b/c it is in
L’s best interest for the case to go to trial  Duty of loyalty violation

 Performative Utterances and the Practice of Law

 Note: Efficiency concern … a rule that did not enable L to bind C to in-court action would impede the
efficiency and finality of courtroom proceedings and permit stop-and-go disruption of the court’s calendar.
□ Must disclaim authority to bind C  disclaimer is performative utterance b/c words change context
 In the practice of law, words are deeds. Meaning depends on context, which depends on: (i) facts at hand;
(ii) legal rules pertaining to those facts; and (iii) social norms and expectations pertaining to the situation.

 Inherent Agency Power

 Special vs. General Agent:
□ General agent is an agent authorized to conduct series of transactions involving a continuity of service
 Inherent authority can exist…(like insurance agents and store clerks)
□ Special agent is an agent authorized to conduct single transaction not involving a continuity of service
 Inherent authority cannot exist …(like lawyers)
 Principal is not bound by the acts of the special agent, if he exceeds the limit of his authority.
○ Every person who deals with a special agent has the duty to ascertain the extent of the agent’s
authority before dealing with him.
 If this is neglected, such person will deal at his peril, and principal will not be bound by any act
that exceeds the particular authority given.
 Inherent agency power = power, not from authority, apparent authority or estoppel, but solely from agency
relation existing for protection of persons harmed by or dealing w/ servant or other agent. Avoid harm to
3rd parties by binding principal to agent’s acts regardless of the consent or manifestations of the principal.
□ Inherent authority only comes into play when there is no actual authority. It is not implied authority.

 Koval v. Simon Telelect, Inc. (Ind. 1998).

 Facts: Koval sued manufacturer of device that hurt him at work. Same L represented ER and insurer.
Parties attended ADR requiring all persons attending to first obtain authority to settle. Defense L agreed to
settlement on behalf of both Ds. Insurer agreed but ER did not (counsel did not first obtain ER’s authority.)
 Issue: If L settles a claim as to which L has been retained, but does so w/out C’s consent, is the settlement
binding between third parties and the client?

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  Holding: No actual or apparent authority existed here. However, there was inherent authority. C has right
to redress against attorney. Court mandated settlement conference is a context designed to settle cases.
 Rule: C’s retention of L does not itself confer implied or apparent authority on L to settle or compromise
C’s claim. But, retention confers inherent power on L to bind C to in-court proceeding. For purposes of
L’s inherent power, in-court proceedings includes settlement proceedings regulated by ADR rules in which
parties are directed or agree to appear by settlement-authorized representatives (Ls).
 Reasoning: protects 3rd party b/c the principal put L in a position of trust and therefore should bear the loss.

 Blanton v. Womancare, Inc., 38 Cal. 3d 396 (1985)

 Facts: L agreed to submit C’s case to binding arbitration, after C specifically instructed L not to do so. C
wanted arbitration, but wanted to retain right to trial de novo (and stipulation did not comply w/ what C
wanted). C/P did not learn of stipulation for three months, and fired L when she did learn about it.
 Issue: Does L have authority to subject C to binding arbitration if C has not approved this decision?
 Holding: C was not bound by L’s agreement to binding arbitration b/c L did not have apparent authority to
do so. Binding arbitration involves “ends” (giving up trial) and therefore decision rests completely w/ C
 Rule: L is not authorized merely by virtue of retention to impair C’s substantial right or CoA itself. L must
be specifically authorized to settle and compromise a claim. L can’t stipulate to matter that would eliminate
essential defense. L doesn’t have authority to waive findings so that no appeal can be made. L has no
apparent authority to bind C to agreement for arbitration. No actual, apparent, or implied authority here
 Stipulations, insofar as they are necessary or incidental to management of suit, and which affect only
procedure or remedy as distinguished from the CoA itself, and the essential rights of C, are binding on C.

 Note: Blanton’s attorney is liable for misrepresentation to opposing counsel

 Arbitration is on continuum, not clear means or ends [obviously need C’s signature for binding arbitration]
□ Continuum is default, can be contracted around b/c it does not distinctly belong to L or C
□ Here, parties decided discretion rested w/ C  this means that L had no actual authority
 Associate owed duties to C. Partner at firm accepted C’s case. But, as soon as associate began taking action
on her case, he became her L. Thus, C can sue anyone who owed duty and breached it, including associate
□ Knowing C is in the dark, associate should have talked to partner first before saying anything to C
when she called and asked for status of her case, even though firm had not taken any action on case
 Ls owe duty to keep C informed. As a tactical matter, associate must shift-cost benefit structure
and frame issue so that ethical thing is the dominant thing to do monetarily.
○ This will protect associate b/c partner will be more likely to agree to do what associate wants.
 Absent express authority, L does not have implied authority to enter into contracts on behalf of C.
 When C engages L to litigate in a judicial forum, C has a right to be consulted, and his consent obtained,
before dispute is shifted to another forum, particularly where transfer entails substantial consequences

 Ratification: Unauthorized acts may be binding if C later ratifies/accepts the acts.

 In the Blanton case, there was no ratification and plaintiff immediately objected and fired her attorney.

 Doubling Down and Loss Aversion

 Doubling down is when an attorney realizes she has violated some duty or rule and, then decides to violate
another rule or duty in the hope that the second violation will cover up the first.
□ Blanton’s lawyer may have accepted poor terms because he was not ready to take case to trial
 People feel losses more keenly than gains b/c of loss aversion
□ Loss aversion makes some people unwilling to take risks that might lead to losses = risk aversion
 However, loss aversion may also make people more willing to take risks to avoid losses they are
otherwise uncertain to incur  leads to doubling down.
 If you work w/ people who are facing a serious loss, they are more likely to do wrong thing to avoid loss
□ If you mess up, fess up

 Client Ratification
 Allows principals to accept benefits of actions their agents have taken w/out authority or apparent authority
□ Ratification does not occur unless a principal manifests assent or engages in conduct that justifies a
reasonable assumption of consent. Principal who ratifies an act must also accept the costs of that act

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 Ratification may also create agency relationship retroactively
□ The sole requirement for ratification is a manifestation of assent or other conduct indicative of consent
by the principal. Focuses on principal’s intention
 Assent does not need to be communicated to the agent or to third parties whose legal relations will be
affected by the ratification
□ Ratification is not effective if the principal lacked knowledge of material facts to the transaction,
unless the principal ratified knowing he lacked such knowledge. Also under the equal dignities rule,
ratification of an action required to be in writing must itself be written.

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C. Lawyer Calls

[1] Criminal Matters

 MR § 1.2(c) – Scope of Representation and Allocation of Authority Between Client and Lawyer
 L can limit scope of representation if limit is reasonable under circumstances and C gives informed consent

 MR § 1.14 – Client with Diminished Capacity

 (a) If C has diminished capacity to make adequately considered decision in connection w/ representation,
(age, mental impairment, etc), L shall, as far as reasonably possible, maintain normal L-C relationship w/ C
 (b) If L reasonably believes that [1] C has diminished capacity, [2] C is at risk of substantial physical,
financial, or other harm unless action is taken, and [3] C can’t adequately act on own interest … then L
may take reasonably necessary protective action, including consulting w/ those who have ability to protect
C’s interest or seeking appointment of guardian or similar surrogate
 (c) L is impliedly authorized to reveal C confidences protected by Rule 1.6 (info relating to represent of C
w/ diminished capacity), but only to extent reasonably necessary to protect C’s interests

 Restatement § 24 - A Client With Diminished Capacity

 (1) If C has diminished capacity to make adequately considered decision in connection w/ representation,
(age, physical illness, mental impairment, etc), L shall, as far as reasonably possible, maintain normal L-C
relationship w/ C and act in the best interests of the client as stated in Subsection (2).
 (2) If C w/ diminished capacity doesn’t have guardian or other representative available to act, representing
L must, w.r.t. a matter w/in scope of representation, pursue L’s reasonable view of C’s objectives/interests
if C could make adequately considered decision, even if C expresses no wishes or gives contrary instruction
 (3) If C w/ diminished capacity has a guardian or other person legally entitled to act for C, the C’s L must
treat that person as entitled to act w.r.t. C’s interests in the matter, unless:
□ L represents C in a matter against the interests of that person; or
□ That person instructs L to act in a manner that L knows will violate person's legal duties toward the C.
 (4) L representing C w/ diminished capacity may seek appointment of a guardian or take other protective
action w/in scope of representation when doing so is practical and will advance C’s objectives/interests

 There is NO RULE like this in CA that gives permission to violate C’s interest/confidentiality!

Jury Instructions (lawyer decision)

 Arko v. Colorado
 Facts: L requested jury instruction on lesser non-included defense of third-degree assault. C objected to it.
Judge did not deliver it. C says L should not have had that right to make the decision. C didn’t want it b/c
not included in larger offense, so C could be convicted of extra crime that P was not even pursuing, so
possibly subject to penalty that was greater than what P was seeking. L wanted to do it b/c even though risk
of extra charge/sentence/conviction, gives juries an option for a compromise.
 Issue: Does the decision to request a jury instruction on a lesser non-included offense implicate a
defendant’s fundamental rights and therefore belong to the defendant?
 Holding: C’s conviction reversed. Case remanded for trial where jury will hear lesser non-included offense
 Rule: Decision whether to request jury instructions on lesser offenses is a tactical decision that rests with
defense counsel after consultation with D. Decision of what jury instruction to request requires skill of L.
 Dissent: Effect of injecting a lesser non-included offense into the jury’s considerations is to subject the
defendant to an additional conviction and harsher punishment than would otherwise be the case. Difficult to
understand why decision to subject a criminal D to harsher punishment should not be personal to him

 United States of America v. Theodore John Kaczynski (9th Cir. 2001) [[defending Unabomber]]
 Facts: Kaczynski (Unabomber) (C) said actions were self-defense against the intrusion of modernity into
Montana. [it is obvious the Ls lied to C, but for good reason.] C explained that he had a conflict w/ Ls over
presentation of mental status defense. Ls agreed not to present any mental health testimony at guilt phase of
the trial. C accepted their control over presentation of evidence and witnesses to be called, including mental
health expert witnesses and his family members, in order to put on full case of mitigation at penalty phase.

17
 Once C was in courtroom, he learned that Ls intended to portray him as suffering from major mental illness
(schizophrenia), but that he was deterred from bringing his conflict w/ L to court’s attention as Ls were in
plea negotiations with gov’t. L wanted to present non-expert evidence of mental state during guilt phases.
C told Ls he refused to use insanity defense. He wrote the trial judge complaining that Ls had deceived
him, and explaining his objection to the presentation of any mental status defense.
 Issue: Does choice whether to include insanity defense belong with lawyer or client?
 Holding: Ls could present mental-state evidence over D’s objection b/c it was L’s call. Court did not
decide which party controlled defense, but affirmed plea even though C said coerced by L’s deception.
 Reasoning: L wants to protect C’s interest, but going against the call that C wants to make. C had a right to
represent himself, but chose not to. Then, C decided he wanted to b/c he wanted to control the mental status
defense. However, the court said that he was doing it to delay trial, and he forfeited right to defend himself

 Note: Ls of crim Ds commonly convince Cs to plead guilty even if C is innocent so that C will spend minimal
time possible in prison. Rationale: innocent person in jail for short period of time is better than an innocent
person in jail for a long period of time

Appointed lawyers can withdraw if their clients want them to argue shit they don’t want to argue

 Appointed Counsel and Client Control

 In Kaczynski, the trial judge ruled that counsel had the discretion to make an argument that defendant did
not want made. But what if the client wants an argument made that the lawyer does not want to make?
□ Constitutional rules are L-friendly. C does not have constitutional right to present frivolous arguments
on appeal, and therefore has no right to have L present such arguments.
 Anders v. California (US 1967), under the California procedure, L could file a summary letter stating he
had read the record and found no meritorious issues. The court could then affirm the conviction after its
own review of the record but without briefs and argument.
□ The Court held that this procedure violated the Constitution. It distinguished between L’s view that a
record showed no meritorious issues and a record on which an appeal would be frivolous.
 L could request to withdraw if she concluded an appeal would be wholly frivolous, wrote a brief
stating that fact but also pointing to anything in the record that might arguably support an appeal,
gave a copy of the brief to the client, and gave C a chance to raise any points he wanted argued.
 Appellate court would then review this request to withdraw and dismiss or dispose of the appeal.
 If it found any arguable points, however the court would have to provide counsel to argue them.
□ Smith v. Robbins (US 2000), the Court held that the Constitution permits but does not require the
precise procedure the Court specified in Anders.

After Anders, California modified its procedure for dealing with appeals counsel believe have no merit:
□ The Robbins court described it in People v. Wende:
 L, upon concluding that an appeal would be frivolous, files brief w/ appellate court summarizing
the procedural and factual history of the case, with citations of record
 L also attests that he reviewed the record, explained his evaluation of the case to client, provided
client w/ a copy of the brief, and informed client of his right to file a pro se supplemental brief.
 He further requests that the court independently examine the record or arguable issues.
□ Unlike under Anders, counsel following Wende neither states explicitly that his review has led him to
conclude that an appeal would be frivolous nor requests leave to withdraw.
 Instead, he is silent on the merits of the case and expresses his availability to brief any issues on
which the court might desire briefing.
 Jones v. Barnes (US 1983) - held that the constitution does not require appellate counsel to raise on appeal
all nonfrivolous arguments a client instructs a lawyer to make.

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[2] Civil Litigation

 Ls get to make some decisions even if C disagrees. The more a particular question affects efficiency of courts,
the more likely it is for lawyers to have the final say on that question.
 Applegate v. Dobrovir, Oakes & Gebhardt (D.D.C. 1985) - to the extent that P claims Ds breached their
professional duty by failing to introduce specific items of evidence at trial, his claim must fail.
□ Questions of tactics are in the lawyer’s discretion.
 Even on matters w/in L’s discretion, to extent possible, L must keep C informed about what is going on and
should consult with C to ascertain C’s wishes

Disciplinary Rules and the Efficient Conduct of Litigation

 MR § 3.1 – Meritorious Claims and Contentions – forbids lawyers from asserting frivolous claims
 L shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous, which includes a good faith argument for an extension,
modification, or reversal of existing law. L for crim D, or for respondent in a proceeding that could result in
incarceration, may nevertheless defend proceeding as to require that every element of case be established

 MR § 3.2 – Expediting Litigation – requires counsel to make reasonable efforts to expedite litigation.
 L shall make reasonable efforts to expedite litigation consistent with the interests of the client.

 Where litigation costs are asymmetric, they can become a bargaining tool in and of themselves.
 Disciplinary rules attempt to limit the third-party effects of litigation.
□ However, courts often give counsel great discretion over pace of litigation and scope of discovery
 MR § 3.4 – Fairness to Opposing Party and Counsel – forbids Ls from obstructing access to evidence,
falsifying evidence, making frivolous discovery requests, or asking third parties to refrain from giving evidence.
 L shall not:
□ (a) Unlawfully obstruct access to evidence or unlawfully alter, destroy, or conceal a document or other
material having potential evidentiary value. L shall not counsel or assist another person to do such act;
□ (b) Falsify evidence, counsel, or assist a witness to testify falsely, or offer an inducement to a witness
that is prohibited by law;
□ (c) Knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on
an assertion that no valid obligation exists;
□ (d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort
to comply with a legally proper discovery request by an opposing party;
□ (e) In trial, allude to matter that L does not reasonably believe is relevant or that will not be supported
by admissible evidence, assert personal knowledge of facts in issue except when testifying as witness,
or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a
civil litigant or the guilt or innocence of an accused; or
□ (f) Request a person other than C to refrain from voluntarily giving relevant info to other party unless:
 (1) The person is a relative or an employee or other agent of a client; and
 (2) L reasonably believes person's interests will not be adversely affected by not giving such info

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D. Unbundling

 Unbundling = agreement btwn L and C for L to provide some (but not all) services to resolve C’s problem.
 This method provides some level of representation to people who cannot afford to have a lawyer handle all
aspects of some matter.
 Model Rule 1.2(c) allows lawyers to limit the scope of their representation of a client if the limitation is
reasonable and the client gives informed consent to it.
 Some jurisdictions have adopted special rules for unbundled representation.
 Whatever is the case regarding notification of courts and opposing parties, lawyers who limit the scope of their
representation must make sure the client understands:
 (i) what L will do; (ii) what L won’t do; and (iii) the practical implications of the limitation in point (ii).
 Some unbundling arrangements might be impermissible either as a matter of disciplinary rules or tort law.
 It is conceivable that some proposed limitations might make competent representation impossible
 Model Rule 1.1 and the duty of care require that the lawyer be able to provide competent service to the extent
he or she undertakes to do so.

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CHAPTER III. THE DUTY OF CONFIDENTIALITY

 Under the duty of loyalty, you may neither use nor disclose information you learn during the course and scope
of your work for a client. The two prohibitions are not the same.
 You can use information without disclosing it; like trading securities based on client confidences.
□ Converse is generally not true: L who discloses C confidences generally does so to make use of them.
 The prohibition on use is a fiduciary concept embodied in tort law.
 Restatement § 60 reflects this prohibition, which includes a requirement that lawyers account to clients for
any profits the lawyer makes by using client confidences.

 The duty of confidentiality is related to attorney-client privilege but they are different.
 The duty of confidentiality is an obligation arising from the duties of loyalty and care that lawyers owe
clients. A privilege is a rule of evidence.
 The obligations of care and loyalty apply to everything L does in connection w/ representing a C, and duty
of confidentiality based in those obligations applies to info learned in any aspect of this work.
 The evidentiary privilege applies only where the rules of evidence apply.
 The confidentiality obligation is therefore broader than the evidentiary privilege.

 HYPO: TV show clip w/ head found in bag. He is not a pre-existing client, but he knows one of the lawyers
 MR 1.18 - Ls also owe duty to protect C information to prospective clients (even if they don’t retain Ls)
□ Former and prospective Cs are treated the same w/ respect to confidences
 MR 3.4a – L shall now unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy,
or conceal [something of] potential evidentiary value
□ L shall not counsel or assist another person in doing this
 Ls must turn over physical evidence of a crime to prosecution, police, or court
□ Exception: L can keep it for reasonable amount of time for examination (but not altering or destroying)
 Reconciling 1.6 and 3.4
□ Requiring protection of C, but requiring turning over of evidence
 Unlike A-C privilege, presence of non-privileged 3rd party does not necessarily destroy L’s duty of confid
□ Confid info remains confid even if known to others, unless it becomes generally known
 Ls can consult Ethics professor. Privilege extends to the professor. No duty is violated by consulting him.

A. The Duty of Confidentiality Described

 Model Rule of Professional Conduct §1.6 – Confidentiality of Information

 (a) L shall not reveal info relating to representation of C unless C gives informed consent, the disclosure is
impliedly authorized in order to carry out representation, or disclosure is permitted by paragraph (b).
 (b) L may reveal information relating to representation of C to the extent L reasonably believes necessary:
[not mandated…L has the option, but is not required, to disclose]
□ (1) to prevent reasonably certain death or substantial bodily harm;
□ (2) to prevent C from committing a crime/fraud that is reasonably certain to result in substantial injury
to financial interests or property of another and in furtherance of which C used or is using L’s services;
□ (3) to prevent/mitigate/rectify substantial injury to financial interests or property of another reasonably
certain to result or has resulted from C’s crime/fraud in furtherance of which C has used L’s services;
□ (4) to secure legal advice about L’s compliance with these Rules;
□ (5) to establish a claim or defense on behalf of L in a controversy btwn L and C, to establish a defense
to a criminal charge or civil claim against L based upon conduct in which C was involved, or to
respond to allegations in any proceeding concerning L’s representation of C; or
□ (6) to comply with other law or a court order.
 Cal. Bus. & Prof. Code §6068(e) - Duties of attorney
 L has duty to maintain inviolate confidence, and at every peril to him/her to preserve secrets, of his/her C
 L may, but not required to, reveal confid info relating to rep of C to extent that L reasonably believes is
necessary to prevent crime that L reasonably believes is likely to cause death or substantial bodily harm

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 Cal. R. Prof. Conduct § 3-100 - Confidential Information of a Client
 (A) For purposes of this rule:
□ (1) “law practice” includes sole practices, law partnerships, law corporations, corporate and
governmental legal departments, and other entities which employ members to practice law;
□ (2) “knowingly permit” means failure to advocate corrective action if member knows of discriminatory
policy or practice which results in the unlawful discrimination prohibited in paragraph (B); and
□ (3) “unlawfully” and “unlawful” shall be determined by reference to applicable state or fed statutes or
decisions making unlawful discrimination in employment and in offering goods and services to public.
 (B) In managing or operating law practice, member shall not unlawfully discriminate or knowingly permit
unlawful discrimination on basis of race, national origin, sex, sex orientation, religion, age, or disability in:
□ (1) Hiring, promoting, discharging, or otherwise determining the conditions of employment; or
□ (2) Accepting or terminating representation of any client.
 (C) State Bar may not initiate disciplinary investigation or proceeding against a member under this rule
unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first
adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred. Upon such
adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-
occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule. In order
for discipline to be imposed under this rule, however, the finding of unlawfulness must be upheld and final
after appeal, the time for filing an appeal must have expired, or the appeal must have been dismissed.

 Restatement of the Law Governing Lawyers §59 - Definition Of “Confidential Client Information”
 Confidential C info consists of info relating to representation of C, other than info that is generally known.

 Restatement of the Law Governing Lawyers §60 - Lawyer's Duty To Safeguard Confidential Client Info
 Except as provided in §§ 61-67, during and after representation of C:
□ L may not use or disclose confid C info as defined in § 59 if there is a reasonable prospect that doing
so will adversely affect a material interest of C or if C has instructed L not to use/disclose such info;
□ L must take reasonable steps to protect confid C info against impermissible use or disclosure by L’s
associates or agents that may adversely affect material interest of C or otherwise than as C instructed.
 Except as stated in § 62, L who uses confidential information of C for L’s pecuniary gain other than in the
practice of law must account to C for any profits made.

 Restatement of the Law Governing Lawyers §61 - Using Or Disclosing Info To Advance Client Interests
 L may use/disclose confid C info when L reasonably believes that doing so will advance C interests in rep

 Restatement of the Law Governing Lawyers §62 - Using Or Disclosing Information With Client Consent
 L may use/disclose confid C info if C consents after being adequately informed concerning use/disclosure

 Restatement of the Law Governing Lawyers §63 - Using Or Disclosing Info When Required By Law
 L may use/disclose confid C info when required by law, after L takes reasonably appropriate steps to assert
that info is privileged or otherwise protected against disclosure.

 Restatement of the Law Governing Lawyers §64 - Using Or Disclosing Info In A Lawyer's Self-Defense
 L may use/disclose confid C info when and to extent that L reasonably believes necessary to defend L or
L’s associate or agent against charge or threatened charge that L/associate/agent acted wrongfully in rep

 Restatement of the Law Governing Lawyers §65 - Using Or Disclosing Info In A Compensation Dispute
 L may use/disclose confid C info when and to extent that L reasonably believes necessary to permit L to
resolve a dispute w/ C concerning compensation or reimbursement that L reasonably claims C owes L.

 Restatement of the Law Governing Lawyers §66 - Using Or Disclosing Info To Prevent Death Or SBI
 L may use/disclose confid C info when L reasonably believes that its use/disclosure is necessary to prevent
reasonably certain death or serious bodily harm to a person.

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  Before using/disclosing info, L must, if feasible, make a good-faith effort to persuade C not to act. If C or
another person has already acted, L must, if feasible, advise C to warn victim or to take other action to
prevent harm and advise C of the L’s ability to use/disclose info and the consequences thereof.
 L who takes action or decides not to take permitted action is not, solely b/c of action or inaction, subject to
discipline, liable for damages to C or any 3rd person, or barred from recovery against C or 3rd person.

 Restatement of the Law Governing Lawyers §67 - Using Or Disclosing Information To Prevent, Rectify,
Or Mitigate Substantial Financial Loss
 (1) L may use/disclose confid C info when L reasonably believes it is necessary to prevent crime/fraud, and
□ [a] crime/fraud threatens substantial financial loss; [b] loss has not yet occurred; [c] L’s C intends to
commit crime/fraud either personally or through 3rdperson; and [d] C has employed or is employing
L’s services in the matter in which the crime/fraud is committed.
 (2) If crime/fraud has already occurred, L may use/disclose confid C info when L reasonably believes its
use or disclosure is necessary to prevent, rectify, or mitigate the loss.
 (3) Before using/disclosing info, L must, if feasible, make a good-faith effort to persuade C not to act. If C
or another person has already acted, L must, if feasible, advise C to warn victim or to take other action to
prevent, rectify, or mitigate the loss. L must, if feasible, also advise C of L’s ability to use or disclose info
and the consequences thereof.
 (4) L who takes action or decides not to take permitted action is not, solely b/c of action or inaction, subject
to discipline, liable for damages to C or any 3rd person, or barred from recovery against C or 3rd person.

1. The duty of confidentiality distinguished from the attorney-client privilege

 Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979): L cannot act adversely to
former C and attack his own prior work even though joint-C exception removed any privilege btwn the parties

 Duty of confidentiality applies to all information L learns in the course and scope of representing C that is not
generally known, whether L learns it from C or from ppl other than C, even if ppl other than C know
 Confidentiality protects against voluntary disclosure.
 A-C privilege pertains to confid communications btwn L and C for the purpose of obtaining legal services.
 Privilege protects against compelled disclosure. It is an evidentiary privilege, not a fiduciary obligation,
which must be asserted as a defense to disclosure the law would otherwise require
 All privileged communications are confidential information, but not all confidential information is privileged
 L could learn some such information through means other than a confidential communication from a C.
 Confidentiality obligation is broader than evidentiary A-C privilege

 The basic rules governing this relationship hold:

 (i) L may not use/disclose confid info in their own initiative;
 (ii) L must disclose confid info if required to do so by law; unless
 (iii) confid info is also privileged, in which case counsel must assert the privilege against disclosure unless
the client instructs otherwise.

 Problems on p. 98
 1. C accused of crime tells L she arrived in town on a 9pm flight Privileged and confid
 2. L met C at airport and saw that she was wearing an orange jacket and blue hat neither privileged nor
confidential
□ Privilege only protects communication, and there is no communication here.
□ Is the info generally known? Not really confidential b/c everyone watching him can see his clothes
 3. L visits crime scene w/ investigator and observes investigator pick up piece of evidence that had been
overlooked and pocket it. Police attending the visit do not see this. Confidential but not privileged
□ Not privileged b/c not communication btwn L and C, but confid b/c learned in scope of
investigation
Duty of Confidentiality Attorney-Client Privilege
Covers All information relating to representation Confidential communications between an
AND not generally known attorney and client relating to representation

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Applies When ALWAYS Rules of evidence apply
Effect Forbids voluntary disclosure (but not Defense against disclosure tribunal could
disclosure required by law) otherwise compel

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2. Use of client information for personal benefit

 David Welch Co. v. Erskine & Tulley, 250 Cal.Rptr. 339 (1988)
 Facts: P was former client of D. P engaged in collections business. After terminating relationship with D,
D began to acquire the collection business activities on behalf of several employee benefit trust funds. D
offered services to clients at cheaper rates. D learned how to run collections business from working for P.
 Issue: Whether D breached fiduciary duty to P by competing w/ P after L-C relation ended btwn P and D
 Holding: Due to pre-existing L-C relationship during which D obtained confid info about P’s business, D
was to refrain from acquiring pecuniary interest involving collection work for these trust funds unless they
first notified and obtained P’s informed consent to submit their business proposal. Breach of fiduciary duty
 Rule: L may not, at any time, use against his former C, knowledge or information acquired by virtue of the
previous relationship. Duty to protect confid info continues even after formal relationship ends.
 Reasoning: A critical factor in finding breach of duty in this case is the fact that Ds in no way informed P
that they were preparing proposals designed to undercut business relationships. Ls can use info obtained for
the practice of law, but they cannot use info in a way that would be adverse to C. “Adverse” = “being
opposed to one’s interest” or “unfavorable.” L acquiring business clientele of former C operates to
economic advantage of L and unfavorably upon the former C.

 Note: Conflict of interest existed here after representation ended… do not need to show actual harm for conflict
of interest rules to apply. But, Model Rules are unclear whether L may use C confidence if C suffers no harm

 Ls may use confid info learned while working for C1 for benefit of C2 even if L benefits from doing so as long
as the use does not harm C1. If L benefits in some way, need written consent, or must account to C for benefits

 Timing is everything:
do not owe past Cs full duty of care and loyalty, but
always owe previous Cs duty of confidentiality.
Cannot use information to client’s disadvantage unless it has become generally known

 Client Information as Client Property

 Ls may use information about former clients that has become generally known. (Model Rule 1.9(c)(1)).
□ Model Rule 1.6, which pertains to current clients, does not have a similar provision. The duty of
loyalty to current clients extends to the use of information even if it is widely known.
 Confidential information you obtain while working for a client belongs to the client
□ Problem exists when lawyer uses information because it may take away commercial value

 United States v. O’Hagan, 541 U.S. 642 (1997)

 Facts: O’Hagan was a partner at a law firm that represented X regarding a potential tender offer for the
common stock of Y. Both X and law firm took precautions to protect tender offer plan. O’Hagan did not
take part in the representation. While firm still represented X, O’Hagan began purchasing call options. By
the end of his purchases, he owned more options than any other investor did. Firm withdrew from
representing company. A month later, X publicly announced the tender offer. After the tender offer was
announced, the price rose and O’Hagan made a profit of about $4.3 million.
 Holding: O’Hagan breached a duty of trust and confidence he owed to his firm and to the client.
 Rule: A fiduciary who pretends loyalty to principal while secretly converting principal’s info for personal
gain, dupes or defrauds principal. Info belongs to C. Using C info for your own gain is to steal it b/c you
are taking benefits of it from C. Deception through nondisclosure is central to the theory of liability.

 In Carpenter v. US, the court said that a company’s confid info qualifies as property to which the company has
a right of exclusive use. Misappropriation of that information constitutes fraud akin to embezzlement.

 Restatement (Second) of Agency Section 390: “An agent who, to the knowledge of the principal, acts on his
own account in a transaction in which he is employed has a duty to deal fairly with the principal and to disclose
to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless
the principal has manifested that he knows such facts or that he does not care to know them”

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26
3. Disclosure of Client Information for Personal Benefit

 MR §1.6(A – Confidentiality of Info

 (a) L shall not reveal info relating to the representation of C unless C gives informed consent, the disclosure
is impliedly authorized in order to carry out representation, or the disclosure is permitted by paragraph (b).

 MR §4.1(A) – Truthfulness in Statements to Others

 In course of representing C, L shall not knowingly make false statement of material fact or law to 3 rd party

 MR §1.9(C) – Duties to Former Clients

 L who has formerly represented C or whose present or former firm has formerly represented a C shall not:
□ Use info relating to the representation to the disadvantage of the former C except as these Rules would
permit or require with respect to a C, or when the info has become generally known; or
□ Reveal info relating to the representation except as these Rules would permit or require w.r.t. a client.

 In re Wood, 634 A.2d 1340 (N.H.1993)

 Facts: L learned C planned to build mall in location he objected to, L withdrew from representation, and
then used confid info learned from C to publicly oppose construction of mall. C’s attorney contacted L
indicating C’s concern about L taking a public position adverse to C. Proposal was unanimously rejected.
 Issue: What is L’s duty to C when L desires to express personal beliefs that are opposite to C’s objectives?
 Holding: L violated rule b/c he referred to info learned from C that was not generally known to oppose C.
 Rule: L may use info from a former C if that info has become generally known. Info is generally known if
reasonably diligent person w/ ordinary knowledge in some field could obtain info w/ lawful means. Info is
NOT generally known when person could obtain info only by special knowledge or substantial difficulty
 Reasoning: There was no other C, so L did not violate Rule 1.9(a), which says that L cannot later represent
another C w/ adverse interests to former C in same/substantially related matter. MR 1.9 would not prohibit
L from engaging in pro se activities that are adverse to C. L, however, used info obtained from
representing C to disadvantage of former C, and facts were not generally known at the time statements
were revealed.

 L may act adversely to C w/ respect to non-confidential information. L may not disclose C confid info
 Duty of confidentiality survives L-C relationship. Generic things are not disclosure. Specific things learned
in course of representation that are not generally known are disclosure

 Note: Under MR, L may not disclose current C’s info whether generally known or not [violate duty of loyalty]

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4. Disclosure of Client Information NOT for Personal Benefit

 Personal benefit is not required to show a breach of duty.

 Sometimes the violation can take the form of inadvertent or defensive disclosure.

 In re Pressly, 628 A.2d 927 (Vt. 1993)

 Facts: L represented C in abuse and divorce proceedings. C told L that husband was still harassing her and
she wanted father to only have supervised visitation. C told L that she was suspicious that father had abused
daughter, but asked L not to tell the other side. Husband’s L asked whether sexual abuse was an issue in the
case. C’s L revealed C’s suspicions to opposing L, and asked opposing L not to communicate this to
husband. Opposing L told husband. C found out, discharged L, and retained new counsel.
 Issue: Did L violate rule when telling opposing counsel why his C was seeking supervised visitation?
 Holding: L deserves to be publicly reprimanded. L knew he was violating disciplinary rule b/c he knew the
disclosure violated confidence. Does not matter that L did not intend to harm C or know it would harm C.
 Rule: L may not disclose C confidences w/out current C’s consent, even to opposing counsel.
 Reasoning: Even if his disclosure was only negligent, public reprimand is still appropriate.

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5. Confidentiality with Multiple Clients

 Restatement of the Law Governing Lawyers §75 - The Privilege Of Co-Clients

 (1) If 2 or more persons are jointly represented by same L in a matter, a communication of either co-C that
otherwise qualifies as privileged and relates to matters of common interest, is privileged as against 3 rd
person. Any co-C may invoke the privilege, unless C (who made the communication) has waived it.
 (2) Unless co-Cs have agreed otherwise, a communication described in Subsection (1) is not privileged as
between the co-Cs in a subsequent adverse proceeding between them.

NOTE!!!!!!
L was protected in A v B b/c he was in NJ where it has broadest allowance for disclosure. Would not have turned
out the same in jurisdictions governed by the MR. NJ assumes spouses are fiduciaries and therefore have duty to
disclose. Failure to do so would be fraud. L may disclose such fraud.
 No generally duty exists to let one joint client know that the other joint client is a rat

 A v. B, 158 N.J. 51 (1999)

 Facts: One dep’t of firm chose to represent C who was adverse to another C that a diff dep’t of firm was
representing. In paternity action, mother’s former law firm, which contemporaneously represented the
father and his wife in planning their estates, seeks to disclose to the wife the existence of the father’s
illegitimate child. Wife is signing a document, in which she could potentially leave assets to the illegitimate
child that she does not even know of, if she were to die first. Conflict arises from a law firm’s joint
representation of two Cs whose interests initially were, but no longer are, compatible.
 Issue: Whether a law firm may disclose confidential information of one co-client to another co-client
 Holding: Firm may disclose existence of husband’s illegitimate child to wife (but does not have to)
 Rule: Duty of Confidentiality: [MR 1.6] L shall not reveal info relating to rep of C unless authorized by C
or necessary to carry out rep. Duty to inform Cs of material facts: [MR 1.4] L shall explain a matter to the
extent reasonably necessary to permit C to make informed decisions regarding the representations.
□ Exception: L may reveal confid info to extent L reasonably believes necessary to rectify consequences
of C’s criminal, illegal, or fraudulent act in furtherance of which L’s services had been used.
 Discussion: Facts support disclosure to the wife. Court read the term “fraud” broadly. The court determined
that husband’s deliberate omission of existence of his illegitimate child constitutes a fraud on his wife. The
firm did not learn of illegitimate child in a confid communication from him. He concealed info. Therefore,
husband’s expectation of nondisclosure of info may be less than if he had communicated info in confidence
□ Husband and wife also signed letters captioned: Waiver of Conflict of Interest, saying that info
provided by one C should become available to other. Not explicit authorization but spirit of letters

 Note: firm could have put itself in a better position by requiring (as condition of representation) that each
spouse agree that firm could share all confidences relevant to representation w/ each C [explicit confid waiver]

 California does not allow disclosure in circumstances such as the one in A v. B

 If there was properly explicit waiver, there would be no issue. But if case was in CA, L would be screwed
□ Either option would be a risk, but probably better to violate the husband’s confidence
 CA 3-100A: L shall not reveal info protected by 6068(e), which says that L has duty to maintain inviolate
confidence, and at every peril to himself, to preserve the secrets of C, even if secret doesn’t come from C

 Duties do not terminate after representation, so withdrawing would not get rid of the violation
 Assuming the firm is in CA, but they haven’t said anything yet, and want to withdraw. Duty of loyalty
means they have to keep the wife informed. No matter what they do, they are stuck

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6. Entity Representation and Entity Constituents

 When you represent entity client, you represent entity (not the people that make it up) / duty to organization
 Exception: [1] if L agrees to represent constituent as well as entity, or [2] L makes a statement or fails to
make a statement, that makes client reasonably believe that L is going to protect his confidentiality
 Must communicate with individuals to get necessary information to represent the entity, but cannot mislead
employees into believing you represent them in addition to entity

 Model Rules of Professional Conduct §1.13(f)-(g) – Organization as Client

 In dealing w/ org’s directors, officers, EEs, members, SHs, etc., L shall explain identity of C when L knows
or reasonably should know that org’s interests are adverse to those constituents with whom L is dealing
 L representing an org may also represent any of its directors, officers, EEs, etc. If dual consent is required,
consent shall be given by appropriate org official, other than individual who is to be represented, or by SHs.

 Ruben Perez v. Kirk & Carrigan

 Facts: Ls hired to represent Coke visited P (EE) in hospital and told him that anything he told Ls would be
confidential in order to ascertain if P was liable for causing accident with Coke truck. When Ls decided P
was liable, they arranged for defense L to represent him and turned P’s statement over to DA’s office.
 Issue: Did an attorney-client relationship exist between P (employee) and D (entity lawyer) such that a
fiduciary duty attached even though P did not seek legal advice from D?
 Holding: L-C relationship existed at the time P gave consent to Ds. Ds owed at least fiduciary duty not to
misrepresent to P that his conversations w/ them were confidential. L has affirmative duty to make it clear
that not representing individuals. Hinting that it might be confidential doesn’t mean duty of confidentiality
 Rule: Confidential info received during course of any fiduciary relationship may not be used or disclosed to
detriment of the one from whom info is obtained. L fiduciary responsibility may arise even in preliminary
consultations regarding L’s possible retention if L enters into discussion of C’s legal problems with a view
toward undertaking the representation. b/c L has duty to make it clear, any ambiguity is construed against
L

 Note: L is responsible to clear up any ambiguities about representation. L must preempt formation of an A-C
relationship with the constituent where such a relationship is not intended.
 Here, even though not privileged b/c others were in room, convo is still confidential b/c not generally know

UPJOHN RULES!
 Upjohn v. US: A-C privilege does extend to EE communication w/ entity counsel. L must know whom they
represent and make sure entity constituents know that. L must tell EEs:
 [1] whom you represent,
 [2] why you’re talking to them,
 [3 what could happen if they tell you confidences, and
 [4] they are free to consult w/ own L

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7. Disclosure Authorized by Implication

 Restatement § 61: “L may use or disclose confidential C information when L reasonably believes that doing so
will advance C’s interests in representation.” But, C has power to instruct L not to use or disclose confid info
 General rule of authority of § 21(3): L may take any lawful measure w/in scope of rep that is reasonably
calculated to advance C’s objectives as defined by C, consulting w/ C as required by § 20.

 Adams v. Franklin: Privilege only protects C communication intended to be confidential when

communicated.
 Facts: Adams accused D of defrauding her into selling property below market price. D used SOL defense.
 Holding: b/c info was to be basis of demand letter (intend to publish to 3rd party), could not be confidential.

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B. Exceptions to the Duty of Confidentiality

1. Lawyer Self-Defense

 MR § 1.6, Cmt 10 - Confidentiality of Information - L may not disclose unless: 1) C consents or 2) exception
 If claim or disciplinary charge alleges L involvement in C’s (or former C’s) conduct or other misconduct of
L involving rep of C, L may respond only to extent L believes reasonably necessary to establish a defense
in response to civil, criminal, disciplinary, or other allegations from C or a 3rd party
 L does not have to wait until complaint is filed. L’s right to respond arises when allegation is made.

 First Federal Savings & Loan v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. 557 (S.D.N.Y. 1986).
 Facts: CA gov’t securities dealer (Comark) collapsed. Savings loans associations sued Comark’s former
auditor to recover for loss. He impleads former general partners who wanted to use confid info for defense.
 Issue: May lawyer disclose confidential C information as self-defense strategy to avoid liability?
 Holding: Only relevant portions of documents could be disclosed to establish L’s defense. Have to disclose
good and bad facts pertaining to issue. No reason to disclose documents that do not relate to lawsuit.
 Rule: When C’s conduct touches a certain point of disclosure, fairness requires that privilege cease whether
he intended that result or not. He cannot disclose as much as he pleases and then withhold the remainder.
When L accused of wrongful conduct, has right to disclose C confidences as necessary to protect self.
 Reasoning: L can disclose C confidences (only to extent necessary for defense/claim) when L is suing C to
collect fee, or to defend himself when L is being sued for malpractice, when C challenged L’s competence
or integrity even though L was not a party to the suit, or 3rd party accusation of misconduct.

 Disclosure compounding mistakes: Matter of Ponds (DC 2005)

 Facts: L represented crim D. C violated conditions of bail, so warrant was out for his arrest. C appeared at
L’s office and demanded money from L so C could flee the country. C said if L did not give it to him,
someone would get hurt. L writes C backdated check and calls prosecutor to tell him the facts (worried he
would be implicated). C tried to cash check. Bank manager called L who called prosecutor. C was arrested.
 Holding: L violated MR 1.6. Even though L was worried to be implicated as accomplice, no accusations
would have been made. Communications would not have been privileged b/c in furtherance of crime of
jumping bail. Could have simply rebutted accusations by establishing that he wrote backdated check

 CA exception: All states except CA have some form of “self-defense exception” to duty of confidentiality
 Solin v. O’Melveny & Myers (Cal. 2001). (Attorney-Client privilege)
□ Facts: Solin sues O’Melveny for advice he received when he consulted w/ them about his own Cs.
During consultation, he disclosed privileged information about his Cs. O’Melveny seeks to disclose the
information. Solin says O’Melveny cannot b/c Solin must protect confidences of his own Cs.
□ Holding: Unfair for C to sue a firm for advice obtained and then seek to forbid L who gave that advice
from reciting words spoken by his accuser during the consultation. B/c lawsuit cannot be completely
resolved w/out breaching A-C privilege, the suit cannot proceed, and the court dismisses the case.

 Derivative suits: McDermott, Will & Emery v. Superior Court (Cal. 2000). (Attorney-Client privilege)
 In absence of waiver by corp entity, derivative action by SHs against entity L cannot proceed b/c derivative
action does not result in corp’s waiver of the privilege and L therefore cannot properly defend himself.

 Meyenhofer: L found out people at securities firm were taking kickbacks, documented everything, handed it
over to SEC and then quit. Distinguish - not self-defense b/c no accusations had been made against L at the time
 After, SEC attached L as party to suit, so he was able to use this to invoke self-defense exception

 Ethical Rules and Strategic Behavior: C might add corp L to complaint to get L to disclose useful corp info.

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2. Physical and Economic Harm

 Model Rule § 1.6(b)(1): L may disclose confid info if disclosure is necessary to prevent reasonably certain
death or substantial bodily injury. It is permissive -- allows but does not require disclosure.

 McClure v. Thompson (9th Cir. 2003) – case about ineffective assistance of counsel
 Facts: McClure (C) was arrested in the disappearance of 2 children and death of a family friend. Mecca (L)
appointed to represent him. C revealed to L where he would hide children’s’ bodies. Believing children to
be alive, L called sheriffs and told them where to find bodies. L then withdrew from representation.
 Issue: When is it reasonable to believe disclosure is necessary to prevent harm? Was L allowed to disclose?
 Holding: L made disclosure reasonably believing it was necessary to prevent C commission of crime. L did
not violate duty of confidentiality in manner that rendered assistance as counsel constitutionally ineffective
 Rule: L may only disclose confid info if reasonably believed would prevent death/substantial bodily injury.
 Reasoning: Crim Ds are guaranteed effective counsel. Violation of duty can, but does not necessarily,
mean ineffective counsel. If L did not violate ethical duties, then not ineffective counsel
 CALIFORNIA: Has to be to “prevent criminal act” that L “reasonably believes is likely to result in death of, or
substantial bodily harm to, an individual.” MR no longer require crime, just has to be death/serious bodily harm

 In re Goebel, 703 N.E.2d 1045 (Ind. 1998)

 Facts: Firm represented crim C. Firm also represented spouse to witness in crim C’s case. Crim C came to
L’s office to get address of witness to kill him. L said he did not know address and showed him envelope
that had been returned w/ invalid address. C wrote down the address and killed the witness at that location.
 Holding: L did not reveal info to prevent commission of a criminal act, but rather, did so in response to C’s
forceful demand. Therefore, disclosure was not exempt from confid requirements. L violated the rule.

 May Disclose? Under MR, disclosure to prevent death/severe bodily harm is permissive, not required

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3. Protecting an Entity Client

 If you know constituent is:

 [1] Breaching duty to entity or breaking the law in a way attributable to the entity; AND
 [2] Conduct is related to your representation; AND
 [3] Threatens substantial harm to the entity; THEN
 You must act in the best interests of the entity and not the constituent
 Includes: taking matter to entity officials w/ enough power to take action to protect entity, including the board
 MR 1.13(c)(2) - If these people do not do what is necessary to protect the entity and the conduct in
question is a clear violation of the law, then you may reveal confidences as reasonably necessary to protect
the entity from harm, regardless whether exception to MR1.6 applies

C. Interrogating the “American Taliban”: A Case Study in the Strategy of Judgment

 Facts: DOJ contacted Radack to ask whether they could question John Walker Lindh. He had been captured by
the FBI but his parents had retained L for him. Radack responded by email saying they could not question him.
FBI questioned him anyway b/c FBI deleted e-mail and did not follow advice but rather said that it had been
advised it could interrogate him. Radack received negative evaluation of her work from Flynn, her supervisor,
and asked her to resign. Lindh retained counsel and filed a motion to suppress statements he made while
questioned by the FBI. The prosecutor emailed Radack to make sure he had all of the relevant information; she
discovered that he did not. The file had been purged. Radack retrieved all of the emails and showed them to
Flynn. Later Radack heard on the radio that the department officials claimed that they had never taken the
position that Lindh was entitled to an attorney during questioning. Radack thought they were lying.

 L realizes that gov’t has not been doing what it should w/ regard to revealing various types of info. L is not
aware whether there has been a crime. There is just a lot of shady evidence.
 2 extremes: do nothing OR reveal everything to media
□ If crime fraud exception and L has discretion to disclose, could also…
 Contact the relevant ppl in the gov’t and find out if it was complied w/ ethical obligations, but also
in case you are wrong, doesn’t mess up the gov’t case
 Work your way up the chain of command, and keep going up until you get a clear signal of
whether or not it was complied with

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D. Confidentiality and Conflicts of Interest

 RESTATEMENT §132
 Conflicts of interest rules protect duty of loyalty by prohibiting contemporaneous representation of adverse
interests. Rules protect confidentiality by prohibiting successive representation of adverse interests with
respect to substantially related matters.

 Duty of confidentiality never ends  conflict of interest rules enforce duty after representation has ended
 Prevent lawyer from representing client whose interests are adverse to the interests of a lawyer’s former
client in the same matter the lawyer represented the former client, or a substantially similar matter
 Where potential conflict is one that arises from successive representation of Cs w/ potentially adverse
interests, courts have recognized that the chief fiduciary value jeopardized is that of client confidentiality

 Conflict of interest rule broader than duty itself

 Turns on whether matters are substantially related

 In the usual sort of case would the lawyer have received confidential information
 Lawyer could be disqualified from representation even if lawyer did not receive confidential information
and therefore could not disclose anything!

 Confidentiality and Compelled Production

 Unlike privilege, confidentiality is not a defense to compelled production. If a court determines that
privilege does not protect some evidence, the duty of confidentiality does not protect it either.

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CHAPTER IV. ATTORNEY-CLIENT PRIVILEGE

 Privilege: The privilege of attorneys to refuse to provide as evidence communications between them and their
clients for the purpose of securing or providing legal services

 When the privilege applies: The privilege applies only where rules of evidence apply and would otherwise
compel testimony or production of documentary evidence.

 Restatement §68 - Attorney–Client Privilege

 Except as otherwise provided in this Restatement, A-C privilege may be invoked as provided in § 86 with
respect to {A} a communication, {B} made between privileged persons, {C} in confidence, {D} for the
purpose of obtaining or providing legal assistance for the client.

 Restatement §69 - Attorney–Client Privilege—“Communication”

 A communication is any expression through which a privileged person undertakes to convey info to another
privileged person and any document or other record revealing such an expression.

 Restatement §70 - Attorney–Client Privilege—“Privileged Persons”

 Privileged persons are the client (including a prospective client), the client's lawyer, agents of either who
facilitate communications between them, and agents of the lawyer who facilitate the representation.

 Restatement §71 - Attorney–Client Privilege—“In Confidence”

 A communication is in confidence if, at the time and in the circumstances of the communication, the
communicating person reasonably believes that no one will learn the contents of the communication except
a privileged person or another person with whom communications are protected under a similar privilege.

 Restatement §70 - Attorney–Client Privilege—Legal Assistance As Object Of Privileged Communication

 A communication is made for the purpose of obtaining or providing legal assistance if it is made to or to
assist a person: [1] who is a lawyer or who the client or prospective client reasonably believes to be a
lawyer; and [2] whom the client or prospective client consults for the purpose of obtaining legal assistance.

 Restatement §77 - Duration Of The Privilege

 Unless waived or subject to exception, the attorney-client privilege may be invoked at any time during or
after termination of the relationship between client or prospective client and lawyer. Lasts forever

 Restatement §86 - Invoking The Privilege And Its Exceptions

 When an attempt is made to introduce in evidence or obtain discovery of a communication privileged:
□ C, a personal representative of an incompetent or deceased C, or a person succeeding to the interest of
a C may invoke or waive privilege, either personally or through counsel or another authorized agent.
□ L, agent of L, or agent of C from whom a privileged communication is sought must invoke privilege
when doing so appears reasonably appropriate, unless C (or authorized L or agent) has waived it
 Notwithstanding failure to invoke the privilege, the tribunal has discretion to invoke the privilege.
 A person invoking the privilege must ordinarily object contemporaneously to an attempt to disclose the
communication and, if the objection is contested, demonstrate each element of the privilege.
 A person invoking a waiver of or exception to the privilege must assert it and, if the assertion is contested,
demonstrate each element of the waiver or exception.

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A. Elements of A-C Privilage

 Traditional elements of A-C privilege that identify communications that may be protected from disclosure are:
 (1) the asserted holder of the privilege is or sought to become a client;
 (2) the person to whom the communication was made
□ (a) is a member of the bar of a court, or his or her subordinate, and
□ (b) was acting as a lawyer in connection with this communication;
 (3) the communication relates to a fact of which the attorney was informed
□ (a) by his client
□ (b) without the presence of unnecessary 3rd parties
□ (c) for the purpose of securing primarily either
 (i) an opinion of law or
 (ii) legal services or
 (iii) assistance in some legal proceeding, and
□ (d) not for the purpose of committing a crime or tort; and
 (4) the privilege has been
□ (a) claimed and
□ (b) not waived by the client

 Duty of confidentiality encompasses everything protected by A-C privilege and work product doctrine

 ACP is evidentiary rule that can be asserted in opposition to official request for info (e.g. subpoena, deposition
question) or to deny admission of evidence at trial. Survives termination of A-C relationship and death of C
 C controls privilege. C can assert or waive directly. L can also do so as agent of C

 Another way to think of ACP elements:

 Legal advice of any kind sought
 From L in her capacity as such
 The communication relating to that purpose
 Made in confid
 By the C
 Are at C’s insistence permanently protected
 From disclosure by C or L
 Except when waived

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Breakin’ Down the Elements of A-C Privilege:

1. Communications, not facts

 The protection of the privilege extends only to communications and not to underlying facts.
 C cannot be compelled to say what he said or wrote to L, but may not refuse to disclose any relevant fact
within his knowledge merely b/c he incorporated a statement of such fact into his communication to L.

 Lefcourt v. United States, 125 F.3d 79 (2d Cir. 1997)

 Facts: IRS says that if you receive more than $10K in cash payment, you have to report certain things
about it, like the name of the source. L refused to disclose identity of C who gave him over $10K cash
payment for legal services. He claimed it was privileged information. L said it would implicate C in the
very matter for which L was hired (drugs/money laundering).
 Issue: Can law firm refuse to disclose C’s identity to IRS under theory that A-C privilege covers info?
 Holding: L had no reasonable basis for failing to provide info required by IRS statute. Incrimination
rationale is not a valid reason to invoke A-C privilege.
 Rule: Client identity and fee information are not privileged. Privilege encompasses only those confidential
communications necessary to obtaining legal advice. Identity is a fact, not a communication, to the lawyer
 Rationale: Name is constant, fixed aspect of relationship that does not give you info about what is going on
inside the relationship between L and C. The purpose of the privilege is to make Cs feel more comfortable
about full disclosure to their Ls. If the privilege is not needed to get C to reveal info, do not extend it.

 California law: if revealing C identity will inculpate C, it is privileged. Fee info is confidential and privileged.

 Adams v. Franklin – P accused D of defrauding P into selling property below market price. D cited SoL as
defense, cited demand letter sent by P’s attorney after SoL had run.
 L could be deposed on letter he sent to say whether it
□ (1) was authentic;
□ (2) whether he sent it;
□ (3) whether he represented P; and
□ (4) where L learned the information in the letter.

In THIS CASE: (1) to (3) was not protected by privilege b/c it was only facts. (4) was privileged b/c disclosure
would implicitly reveal C’s communications to L.

 Opposing party is always entitled to documents regarding:

 [1] Initial inquiries about potential representation by L,
 [2] Conflict checks,
 [3] Fee arrangements,
 [4] Engagement of Ls,
 [5] Any substitution of counsel agreement

 Any info that C relays to L w/ intent that L then relays info to the opposing side is not protected by privilege

 Note: A-C privilege may vary among states. L has to know where C might litigate in order to know whether a
particular conversation or document would be privileged.

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2. In confidence

 Restatement §79 – Subsequent Disclosure

 A-C privilege is waived if C, the C’s L, or other authorized agent of C voluntarily discloses communication
in a non-privileged communication.

 Minnesota v. Rhodes, 627 N.W. 2d 24 (MN 2001)

 Facts: Man accused of killing his wife. L testified that man and wife had visited him to discuss a possible
divorce. They did not end up getting a divorce. About 15 months later, wife suspiciously drowned. Man
claimed this was protected by privilege. Man argues he received ineffective assistance of counsel at trial.
 Issue: Did court violate A-C privilege by allowing former L to testify that he discussed financial aspects of
divorce with Rhodes and wife?
 Holding: This was not protected by A-C privilege. Husband was sole C. They were not joint Cs. Presence
of 3rd party, the wife, during the discussion destroyed privilege. Privilege waived. Testimony admitted
 Rule: A-C privilege does not apply to confidences given in the presence of 3rd parties. For A-C privilege to
apply, communication must be made btwn C and L in private, with no ppl present who are not privileged
 Reasoning: A-C privilege is ruined b/c of presence of non-client [wife]. Spousal privilege (allowed to share
info and cannot be forced to testify against spouse, especially in crim context) is ruined by presence of
lawyer. Also, spousal privilege doesn’t apply when one spouse was arrested for crime against the other

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3. Between an attorney and a client

 United States v Kovel, 296 F.2d 918 (2d Cir. 1961)

 Facts: Kovel was accountant in law firm, worked under direct supervision of partners. Judge ordered Kovel
to testify on matters he learned in course of work for client and Kovel claimed attorney-client privilege.
 Issue: Does A-C privilege extend to those EEs in firm who work on matters related to litigation?
 Holding: Accountant could claim A-C privilege b/c accounting concepts are foreign to Ls. Presence of
accountant was necessary to permit effective consultation between L and C where purpose was to obtain
lawyer’s (not accountant’s) legal advice. The privilege includes all persons who act as an attorney’s agents.
Privilege attaches to those who act like a “translator”/ interpreter [accountants are like translators]
 Rule: Privilege attaches to agents whose assistance is indispensible to L’s work
 Reasoning: A-C privilege requires communications to be made in confidence for the purpose of obtaining
legal advice from L. If what is sought is not legal advice but only accounting service, or if the advice
sought is the accountant’s rather than the lawyer’s, no privilege exists.

 Privileged persons:
 [1] L,
 [2] C or potential C,
 [3] Agents of either C or L who facilitate (are crucial to) the communication between the two (e.g.
translators),
 [4] Agents of L who facilitate (are crucial to) the representation (e.g. paralegals, investigators, secretaries,
associates)

 Questions: Which of the following situations are A-C privileged within the rule of Kovel?
 A criminal defense attorney hires a chemist to determine whether his client’s white powdery substance is
cocaine; the chemist tests the substance and the attorney and chemist discuss the chemist’s findings.
□ No…Client is not there, so not a client communication, so no ACP
 An antitrust attorney hires an economist to determine whether her client has market power in a given
market; the economist interviews several executives and delivers a report to the attorney.
□ Not clear … Difficult to argue if it is for business purpose not related to litigation
 If it was created in anticipation for litigation it would be protected as work-product
 A business attorney hires a software developer to help trace the origins of software code in a certain
program; the developer discusses the program with the client’s developers and reports back to the attorney.
□ Yes…If software code developers are “translating” then privileged, but not if independent assessments
 Question has to do with whether investigation is analytical or factual
 The attorney in (3) instructs the retained developer to show C’s own programmers how to implement L’s
recommendations for avoiding copyright infringement; the retained developer instructs the programmers.
□ Yes … Programmers are like translators in this case
 A partnership that owns office buildings hires a property management company (which is a separate entity)
to run the buildings. In litigation over the condition of the buildings, counsel for the partnership (not the
management company) interviews employees of the property management company.
□ Court has held this to be privileged, McGowan would not recommend this as doctrinal answer
 In an insurance coverage dispute, counsel for the owner of the lease on the World Trade Center’s
interviews employees of an insurance broker that obtained the policies on the buildings.
□ No privilege…When L conducts own investigation, not protected by ACP

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4. Relating to legal advice

 Stanley M. Neuder v. Battelle Pacific Northwest National Laboratory

 Facts: P was scientist for D and was fired. P argues he was discriminated for age and disability. L present
at meeting. P wants convo btwn L and executives regarding decision to terminate him to come into court.
 Issue: Was entity counsel acting as legal advisor or business advisor with advice related to Neuder?
 Holding: The discussions and deliberations of the meetings where L was present are not privileged b/c
committee’s primary function was to make a business decision, not to obtain legal advice. Non-legal
aspects of consultation must be integral to legal assistance given. Privileged only if primary purpose of
convo is to secure legal advice. Burden to prove primary purpose is on entity claiming the privilege.
 Rule: A communication is not privileged just b/c a L is present at meeting b/c not necessarily acting as a L.
Litmus test: if the communication is the same as it would have been without the lawyer, it is probably not
privileged. Look into whether the lawyer’s presence actually made a difference.
 Note: Primary purpose must be to get legal advice, or legal advice predominates other aspects of convo
EXAMPLES:
If L just shows up to meetings, not privileged.
If L makes personnel decisions, not privileged.
If L is clearly there to offer legal advice or receive info to give legal advice, then privileged.
If part of convo is about business things, doesn’t necessarily destroy privilege, but better if legal decisions that L
makes or advises on.

 Hypo: Is it harassment when a person is saying vulgar thing to females? (Legal question) Company decides if
this is harassment, we want to fire him. (Business decision)
 If company does not want others to find out what is said at committee meetings, company puts lawyer on
committee so it can claim privilege and avoid admission of liability.
□ To disentangle legal aspect from business aspect, must try to break this down word by word.
 L’s duty to make it clear when he is speaking as L so that parties know when they can rely on privilege

 Doctrine: mixed communications (business and legal) are privileged only if primary purpose was legal
 If communication would have been the same if the person was not a L, communication is NOT privileged

 Note: Privilege questions better answered by focusing on particular communications than on general capacities

 Advising or Conspiring? Two Cases

 In re Ford Motor Company (3d 1997).
□ Facts: Ford sued on the theory that its Bronco had a defective design. The company’s lawyer drafted a
report and presented it to a committee at a meeting. The defendant sought discovery.
□ Holding: Decisions of meeting were made only after securing legal advice and thus meeting minutes
are privileged. Handwritten notes by attorney were also protected under the work-product doctrine
because they disclose material prepared as part of Ford’s legal strategy for defending this type of case.
 Burton v. RJ Reynolds Tobacco Co, Inc. (Kan. 1977).
□ Facts: Ps sued RJ Reynolds on products liability theories. Corp had Ls in every aspect of research into
health effects of cigarettes. Ps moved to compel discovery of research. D claimed it was privileged.
□ Holding: Documents not privileged. Not every doc generated by L or that references L is privileged.
Information was not privileged simply b/c it comes from L. Some courts look at whether the work
being performed required the services of L or could be performed equally well by a non-L.

 Bias: if court approves of company’s product (ford explorer trying to make car more safe) they are more
likely to find that privilege applies than if they dislike product (tobacco trying to avoid cancer liability)
□ Court as a player in the game: makes difference in outcome how court perceives you

 Boundary Issues: What Are You Selling?

Beware selling secrecy in lieu of legal services.
The more a judge believes you are trading on the accessories of legal practice rather than providing “real” legal
services, the less likely you are to be treated as a lawyer and more like a coconspirator.

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 In the Matter of Feldberg, 862 F.2d 622 (7th Cir. 1988)
 Facts: Grand jury investigating agents who signed amateur athletes to undisclosed Ks issued subpoena
calling for all Ks between World Sports and college football players. World Sports did not immediately
produce all Ks…it first produced all legal Ks and later produced the post-dated Ks. L has 2 functions: as
document custodian and as L. Court wants to question him on issued related to charges of mail-fraud for
forward dating Ks for athletes who were amateur athletes but were signed on professional forward dated Ks
 Issue: Does the A-C privilege cover the actions of entity EEs when asked to disclose who searched corp
files, and how? Does a distinction exist between the L’s role as advice giver as his role as file custodian?
 Holding: b/c questions about adequacy of search do not entail legal advice, topic is not off limits just b/c L
plays a role. Most corporate records custodians are not Ls and can answer questions about the nature of his
document search. A-C privilege covers only those disclosures necessary to obtain informed legal advice.
 Rule: Privilege extends to the extent it facilitates the candor necessary to obtain legal advice, no further.

 Boundary Issues: What Are You Selling?

Interpreting scope of a subpoena or request for production of documents would require legal judgment, and thus
constitute the practice of law. The same is true of deciding whether a given document was privileged.

Gathering obviously relevant, unprivileged documents is not a particularly legal function, and neither A-C
privilege nor work-product doctrine will protect the info relevant to document gathering function.

 State v. Branham (Fla. 2007)

 Facts: neighbor talks to L about problems he was having with his wife. L made it clear he would not
represent husband or wife in divorce proceedings. Neighbor and lawyer were having social discussion.
Neighbor asked lawyer if he was his lawyer and lawyer said sure. Neighbor said he was going to kill his
wife. Lawyer simply said “don’t talk like that.” Lawyer did not think neighbor was asking his advice.
 Issue: Does the A-C privilege cover conversations unrelated to the reason why L was retained?
 Holding: Just because Kelly said he was his L, does not mean the privilege applies. The privilege cannot be
established by incantation, nor does the privilege come into existence just b/c parties believe that it exists.
 Rule: If a conversation was totally unrelated to the client relationship, even if the lawyer was representing
defendant in an unrelated case, the A-C privilege does not apply.
 Reasoning: Neighbor never asked for legal advice, L never gave any legal advice. L was talking as friend.
Just b/c he is a L talking to someone about a legal problem, does not mean all convos are privileged.
Privilege is context specific, so cannot divorce what was said from situation. Court considered: 1. social
setting and that discussion was not about why L was employed, 2. not seeking legal advice, and 3. any man
who is going to kill wife does not deserve privilege. But, L should have said “don’t want to hear it”

 Lawyer as context manager:

 Would be different if lawyer was representing H in murder trial, and W was already dead
 Crime-fraud exception would apply if H said he wanted to kill wife and asked L where to get a good gun
 Reasonability of reliance is what matters: context affects this greatly

 C can always waive privilege and put L in danger. L must assume everything L does and says can become
public knowledge. “At some point, you or your client will go to prison. Make sure it is not you.”

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B. Entities and Privilege

 When L represents entity such as a corporation, partnership, LLC, etc., L represents entity itself. (MR 1.13).
 You do not represent the individuals working for or involved in the entity.

 The entity itself holds the attorney client privilege.

 Entity constituents (e.g. officers) do not hold privilege even though it is their communications.

 Restatement §73 - The Privilege For An Organizational Client

 When a client is a corporation, unincorporated association, partnership, trust, estate, sole proprietorship, or
other for-profit or not-for-profit organization, the attorney-client privilege extends to a communication that:
□ otherwise qualifies as privileged under §§ 68-72;
□ is between an agent of the organization and a privileged person as defined in § 70;
□ concerns a legal matter of interest to the organization; and
□ is disclosed only to:
 privileged persons as defined in § 70; and
 other agents of the organization who reasonably need to know of the communication in order to
act for the organization.

 Entity’s L must unambiguously inform constituents that the entity, and entity alone, is the holder of the ACP

 “Upjohn” Warnings  if L does not warn constituents that entity is the sole client, constituents can assert ACP
and block entity from producing their statements. Circuits and states vary on what kind of warning is necessary.

 On a practical level, C will still want to talk b/c C would be fired by corp anyway, so C still has an incentive,
even if C knows that L is not representing them

 Tekni-Plex, Inc. v. Meyner & Landis, 674 N.E. 2d 663 (N.Y. 1996)
 Facts: Tang was owner, director, and sole SH of Old Tekni-Plex (OTP). M&L represented both OTP as
well as Tang on personal matters for many years. Tang and OTP entered merger agreement where Tang
sold OTP to Acquisition. M&L represented both OTP and Tang personally in that case. During negotiation,
Tang and OTP told Acquisition not to worry about illegal substance emission. Dispute arose when New
Tekni-Plex (NTP) had to worry about it. After NTP filed suit for breach of representation and warranties,
NTP moved to disqualify M&L from representing Tang. NTP also demanded that M&L not communicate
to Tang information obtained from OTP.
 Issues:
□ Can long-time L for seller company and its sole SHs continue to represent SHs in a dispute w/ buyer?
□ Who controls the attorney-client privilege as to pre-merger communications?
 Holding:
□ Disqualification upheld b/c NTP/OTP is a “former client” of M&L. There is a substantial relationship
between the current and former representations. Interests are materially adverse.
□ NTP is without authority to assert the A-C privilege to preclude M&L from revealing to Tang the
contents of the communications conveyed by OTP concerning the merger transaction. NTP also does
not control M&L’s files relating to its prior representation of OTP during the acquisition.
 Rule: Where efforts are made to run the pre-existing business entity and manage its affairs, successor
management stands in the shoes of prior management and controls the attorney-client privilege with respect
to matters concerning the company’s operations. However, the mere transfer of assets with no attempt to
continue the pre-existing operation generally does not transfer the attorney client privilege.
 Reasoning:
□ Diff between communications related to the merger and those related to the operations of the business
 For operations (general business communications), NTP inherits ACP b/c get all assets and
liabilities when get a new company, so privilege of the old company passes to new management
 For advice given to Tang about merger, NTP shouldn’t get that b/c not about business operations
□ B/c NTP is essentially continuing operations/business of OTP, means they inherit the privilege
 If they had just gotten assets, wouldn’t get the privileges

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 □ New company has burden of satisfying the 3-part test. [Code of Prof Responsibility 5-108(A)(1)], so if
moving party satisfies these 3 criteria, gives rise to irrebuttable presumption of disqualification
 Is the new company a “former client” of M&L? [existence of prior A-C relationship]
○ When control of corp passes to new management, authority to assert and waive A-C privilege
passes as well. New managers may waive privilege w.r.t. communications made by former
officers and directors. [here, OTP and Tang are both “former Cs”]
○ Following merger, business of old company remained unchanged. New company possessed
rights, privileges, liabilities and obligations of the old company in addition to its assets. The
new company is therefore entitled to access any relevant premerger legal advice given to the
old company that it might need to defend against these liabilities or pursue any of its rights.
 Is there a substantial relationship between the current and former representations?
○ M&L previously assisted the company on two matters substantially related to its current
representation of Tang in the arbitration (the merger agreement with the representations and
warranties). The firm also retained the environmental permit for the company.
○ Current and former matters were clearly substantially related
 Are the interests of M&L’s present client materially adverse to the interests of its former client?
○ Arbitration involves interests of purchaser against Tang. Merger agreement provides that
Tang is responsible for indemnification for any breach made by either Tang or old company.
Therefore, the parties plainly contemplated a unity of interest between old company and Tang
should a dispute arise between buyer and seller.
○ Therefore, to the extent that the arbitration involves the merger, Tang (current C) and the old
company (former C) remain on the same side of the table (both in opposition to the buyer).
○ Other than merger, Tang’s interest are totally adverse to NTP b/c Tang wants to say they did
everything right before merger whereas NTP wants to say they didn’t inform them properly

 Client Information As Client Property

 When a client is an entity, the rights in the communications are like one of the company’s assets.
 When one entity buys another, the new company acquires the assets, including the transfer of duties
 Privilege that the entity holds passes from seller to buyer (buyer obtains right to assert or waive privilege)
but only if the exchange was a full sale of the company

 In re Grand Jury Subpoena, 274 F.3d 563 (1st Cir. 2001)

 Facts: Federal grand jury subpoenas corp, seeking records pertaining to affairs of a subsidiary. Corp and
subsidiary waived all claims of privilege, but subsidiary’s former L and 2 former officers intervened and
moved to quash subpoena. They claimed subsidiary had entered into longstanding joint defense agreement
w/ former officers and contended that subpoenaed materials were privileged, and could not be disclosed
 Issue: Does L-created expansion of A-C privilege under joint defense agreement apply to grand jury
proceedings, giving individuals joint privilege (A-C priv and work-product) in documents retained by L?
 Holding: Joint defense agreement does not increase # of parties whose consent is needed to waive A-C
privilege; it merely prevents disclosure of a communication made in the course of preparing a joint defense
by the third party to whom it was made. Corp may unilaterally waive A-C privilege w.r.t. any
communications made by a corporate officer in his corporate capacity, despite existence of individual A-C
relationship between him and corp counsel. Individual’s claims of privilege fail because the oral joint
defense agreement on which they rely cannot defeat corp’s express waiver of privilege
 Rule: Corp L could represent officers, but A-C privilege extends only to communications that involved
individual rights and responsibilities arising out of actions as officers of corp. Manager’s interest must
yield to SH’s interest in disclosing privileged materials. Officer may only assert privilege to extent that
communications regarding individual acts and liabilities can be separated from discussions about corp.
 Reasoning: An individual privilege may exist in these circumstances only to extent that communications
made in a corporate officer’s personal capacity are separable from those made in corporate capacity. If
jointly (rather than solely) privileged, any of the ppl in joint defense agreement can waive privilege. Private
agreements cannot enlarge scope of privileges set by law, so joint defense agreement is unenforceable.

BUT……

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45
 Grand Jury and Tekni-Plex
 Exception to ordinary joint C rules: Even if entity L forms a ACP w/ entity constituent, entity controls
privilege w.r.t. all work related communications and entity can waive privilege w/out EE’s consent
□ Even if L represents both individual and entity at the same time, individual communications may not
be privileged in her individual capacity if related to matters w/in her duties to the corp

 Presumption is that entity counsel represents only the entity; individual has burden to show otherwise.
 5 factor test to show joint representation:
□ 1. Employee approached counsel for purpose of seeking legal advice
□ 2. Employee made it clear that individual advice was sought, not in representative capacity
□ 3. L dealt with employee in employee’s individual capacity, knowing possibility of conflict
□ 4. Conversations with employee were confidential from entity
□ 5. Did not concern matters of company general affair (some overlap is OK)
 5th factor only precludes privilege for individual officer when communication concerns corp rights
and not the individual officer’s personal rights even though the general subject matter of the
conversation pertains to matters within the general affairs of the company.
 Even with joint representation, entity can waive privilege with communications about its affairs
□ Individuals cannot assert privilege to prevent disclosure of overlapping info.
 But privilege with respect to individual communication that doesn’t overlap with entity can only
be waived by individual (In re Grand Jury Subpoena)
 If individual acts/liabilities cannot be separated from discussions about corp, all communications are
corporate communications, so the corporation can waive A-C privilege w/out officer’s consent.

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C. Intra-firm communications and privilege

 Hypo: You work for firm with several Ls including one who advises others on ethics issues. If you discuss an
issue of whether you breached duty to client with your in-house lawyer, is that discussion privileged?
 Cases: Firm may not withhold from a current C at least some privileged or work product information
produced during the firm’s investigation of its conduct regarding that client’s matter.
□ Firm’s fiduciary obligations to C entails only a duty to inform C of material developments and this
duty vitiates the privilege VS. idea that L’s misconduct creates a conflict between the firm and the C
 Restatement: Ls must disclose work product material if the client chooses to waive work product protection
□ “No privilege exists if work product is relevant to an issue of breach by the attorney of a duty to the
client arising out of the attorney-client relationship.”

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D. Exceptions to A-C Privilege

 No ACP under Fed Rules of Evid

 [1] Furtherance of crime/fraud (purpose/consequence of consultation),
 [2] Claimants through same deceased C,
 [3] Breach of duty by L or C,
 [4] Document attested by L (L serving as witness),
 [5] Joint Cs

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1. Communications furthering crime or fraud

 Restatement of the Law Governing Lawyers § 82 - Client Crime Or Fraud

 A-C privilege does not apply to a communication occurring when C:
□ Consults L for purpose of obtaining assistance to engage in crime/fraud or aiding 3rd party to do so, or
□ Regardless of C’s purpose at time of consultation, uses L’s services to engage in or assist crime/fraud.
 Restatement of the Law Governing Lawyers § 93 - Client Crime Or Fraud
 Work-product immunity does not apply to materials prepared when C consults K for the purpose of
obtaining assistance to engage in crime/fraud or to aid 3rd party to do so, or uses materials for such purpose.

 MR 1.2(d) – shall not counsel a C to engage, or assist a C, in conduct that L knows is criminal or fraudulent
 Doesn’t specifically say that ACP is destroyed, but says duties of confid (etc.) do not extend to committing
some sort of crime or fraud, but OK for L to discuss consequences of any proposed course of conduct

 Cal Evidence Code § 956 [pretty much the same as the restatement]
 No privilege if L’s services were sought/obtained to enable/aid anyone to commit or to plan crime/fraud

 Cal Evidence Code § 956 .5 - ACP waived if L reasonably believes that there is death/substantial bodily harm

 Matters in both civil and crim litigation…Both prosecutors and parties in civil litigation may seek to discover
communications otherwise protected by ACP if they can show purpose was to commit a crime or fraud
 Judges can review what the evidence is [in camera] before making determination

 L’s knowledge does not matter: Does not matter whether L knows of fraud or is an innocent pawn of C

 Hypo: C signed document that committed perjury. Even though L did not know that she had committed perjury
by filing this document, the crime fraud exception applied and A-C privilege was waived. Means that: All
documents/testimony relating to L’s representation was now discoverable

 In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997)

 Facts: Campaign rule stated that one person could not contribute over certain amount to election fund.
Company contributed maximum amount of money to political candidate. VP asked individuals to
contribute to campaign and reimbursed them with company money. Corp VP tried to do unlawful end run,
but was consulting w/ entity counsel before, during, and after. Meetings resulted in the 2 docs at issue.
Grand jury investigates violations of fed election laws. Record is sealed. Appellant Co. refused to produce
document that reflects convo btwn VP and counsel about campaign finance laws. Co. claims A-C privilege
 Issue: Is A-C privilege waived when grand jury discovers through in camera review that document fits
within crime/fraud exception?
 Holding: A-C privilege not waived b/c crime-fraud exception does not apply. Cannot assume that VP was
acting on behalf of company when he decided to act illegally. One cannot reasonably infer from the
meeting that the Company was consulting its general counsel with the intention of committing a crime.
 Rule: Requirements for crime/fraud waiver of privilege:
□ [1] C must have made or received privileged info w/ intent to further unlawful act,
□ [2] C must have committed/completed/carried out crime/fraud.
The party who claims A-C privilege has been waived has burden to show elements of
ongoing/imminent crime/fraud
 Reasoning: Crime-fraud exception does not apply even though, at one time, c had bad intentions. Privilege
is designed to encourage, consulting L for the purpose of achieving law compliance. No evidence that
company (C) intended to commit crime, and also no evidence that company was responsible for its agents.

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50
 In The Matter of Michael Feldberg, 862 F.2d 622 (7th Cir. 1988)
 Facts: Grand jury, investigating agents who signed amateur athletes to undisclosed Ks, issued subpoena
calling for all Ks between World Sports and college football players. World sports did not immediately
produce all Ks. It first produced all legal Ks and later produced the post-dated Ks.
 Issue: Is there reason to believe that a crime occurred here such that A-C privilege would be waived?
 Holding: b/c questions about adequacy of a search do not entail legal advice, the topic is not off limits just
because the lawyers plays a role.
 Rule: A prima facie case is one that requires an adverse party, the one w/ superior access to evidence and in
best position to explain things, to come forward w/ explanation. If court finds explanation satisfactory, the
privilege remains. Question here is not whether evidence supports verdict, but whether it calls for inquiry

 COMPARING In re Sealed Case and Feldberg

 In re Sealed Case and Feldberg agree that a party asserting the crime-fraud exception must make a prima
facie showing that the communication it wants disclosed was made in furtherance of crime/fraud.
□ But they define the showing differently:
 Sealed gives 2 definitions:
○ (1) one requires enough evidence to establish elements of an ongoing or imminent
crime/fraud;
○ (2) the other requires evidence sufficient to establish probable cause to believe that
crime/fraud had been committed and that communications were in furtherance thereof.
 The Feldberg court said:
○ evidence sufficient to require an explanation rather than evidence that by itself satisfied a
more likely than not standard.
 The 9th Circuit uses a different test.
□ In a civil case, the burden on the party seeking disclosure is preponderance of the evidence.
 In these cases, party seeking to preserve privilege has right to introduce countervailing evidence.
□ Grand jury: “reasonable cause to believe that L’s services were utilized in furtherance of ongoing
unlawful scheme”  Reasonable cause standard is more than a suspicion but less than a preponderance

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2. Joint clients

 Restatement of the Law Governing Lawyers §75 - The Privilege Of Co–Clients

 [1] If 2 or more persons are jointly represented by same L in a matter, a communication of either co-C that
otherwise qualifies as privileged under §§ 68-72 and relates to matters of common interest is privileged as
against 3rd persons, and any co-C may invoke privilege, unless waived by C who made the communication.
 [2] Unless co-Cs have agreed otherwise, a communication described in Subsection (1) is not privileged as
between the co-clients in a subsequent adverse proceeding between them.

 L may share w/ 1 client communications from another client, and either C may assert privilege against 3 rd party
 No co-C may waive privilege with respect to another’s communications

 When joint attorney sees C’s interest diverging, she must end the joint representation (or else there is problem)
 If Cs end up in litigation against each other, neither may assert privilege against each other

 Policy is to encourage openness and cooperation between joint Cs. However, does not apply to matters known
at the time of the communication to not be in the common interest of the attorney’s two clients

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E. Waiver

 Restatement of the Law Governing Lawyers §78 - Agreement, Disclaimer, Or Failure To Object
 A-C privilege is waived if the C, the C’s L, or other authorized agent of the C:
□ agrees to waive the privilege;
□ disclaims protection of the privilege and
 another person reasonably relies on the disclaimer to that person's detriment; or
 reasons of judicial administration require that the client not be permitted to revoke disclaimer; or
□ in a proceeding before a tribunal, fails to object properly to an attempt by another person to give or
exact testimony or other evidence of a privileged communication.

 Restatement of the Law Governing Lawyers §79 - Subsequent Disclosure

 A-C privilege is waived if C, C’s L, or another authorized agent of C voluntarily discloses communication
in a non-privileged communication.

 Restatement of the Law Governing Lawyers §80 - Putting Assistance Or A Communication In Issue
 A-C privilege is waived for any relevant communication if C asserts as to material issue in proceeding that:
 C acted upon L’s advice or that advice was otherwise relevant to legal significance of C’s conduct; or
 L’s assistance was ineffective, negligent, or otherwise wrongful.
 A-C privilege is waived for a recorded communication if a witness:
 employs the communication to aid the witness while testifying; or
 employed the communication in preparing to testify, and the tribunal finds that disclosure is required in
the interests of justice.

 Model Rule 4.4(b) - Respect for Rights of Third Persons

 L who receives a document relating to the representation of L’s C and knows or reasonably should know
that the document was inadvertently sent shall promptly notify the sender.

 HYPO: cops knock on C’s door and say they have search warrant. L shows up soon thereafter. C talks to L
about accusations while police search nearby areas. Police overheard. Privileged?
 No ACP b/c C knew of presence of 3rd parties

 Communication is not covered by ACP if it was not intended to be confidential

 E.g. deliberate blabbering by C or L to unnecessary 3rd parties

 Communication is confid if it was not intended to be disclosed to 3rd person or any unnecessary personnel
 Inadvertent exposure (e.g. eavesdropping) does not operate as waiver, but complete/total carelessness may

 HYPO: L prepares memo that documents weaknesses in C’s case. L accidentally sends it to opposing counsel.
 MR does not say what happens w/ the “oops” email

 EXAM TIP: to assess the “in confidence” and “purpose” elements of ACP, look out for:
Chatting in crowded area or party, no efforts to make special effort to talk privately, L and C are friends

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1. Inadvertent disclosure

 Privilege belongs to C. Only C can waive, either implicit or explicit. L is C’s agent. C is bound by L actions

 Final determination of whether an assertion of the attorney-client privilege will be upheld in an inadvertent
disclosure context depends on whether the client either expressly or impliedly waived privilege

 If disclosure amounts to waiver, party receiving the information may study and use it without penalty
□ If disclosure does not amount to waiver, L who receives it may be disqualified if studies the info

CALIFORNIA RULE

 Rico v. Mitsubishi Motors, Inc., 42 Cal. 4th 807 (2007)

 Facts: L printed a copy of notes taken by his paralegal and took them to a deposition. He left the room and
opposing counsel acquired the notes. Opposing counsel used it and distributed it to his co-counsel, even
though obvious that it was privileged. Opposing counsel claimed he acquired it through inadvertence.
 Issue: What action is required of an attorney who receives privileged documents through inadvertence?
Was disqualification is appropriate?
 Holding: Opposing counsel violated rule when he took advantage of inadvertently disclosed information.
Disqualification is appropriate here b/c opposing counsel then acted unethically in making use of it
 Rule: L in these circumstances may not read a document any more closely than is necessary to ascertain
that it is privileged. Once it becomes apparent the content is privileged, L must immediately notify
opposing counsel and try to resolve the situation. Ls who receive it and use it are at risk of disqualification
 Reasoning: Court will apply reasonableness standard - what would reasonably competent counsel do,
knowing the circumstances of litigation, to have concluded the materials were privileged.
 Note: FRE 502 makes it clear that inadvertent waiver does not extend beyond the communication disclosed.
 When made in a fed proceeding or to a fed office or agency, disclosure does not operate as a waiver if:
□ Disclosure is inadvertent
□ Holder of privilege or protection took reasonable steps to prevent disclosure; and
□ Holder promptly took reasonable steps to rectify error, including (if applicable) FRCP 26(b)(5)(B)

 Note: Rico gives rule in CA (read as much as necessary to determine it is privileged, notify other side, AND
resolve situation  usually involves returning document)
 Different from MR: if you get document not intended for you, must notify sender. Do not read it, but you
are not required to return it. If you read the document and it is privileged, you might be disqualified.

 Metadata and Inadvertent Disclosure

 Metadata = information about a document that is contained in the document but is not part of the final
contents of the document. (e.g. authors, revisions, etc.)
□ The duty of confidentiality requires lawyers to scrub such data before distributing the document.
 If L fails to scrub document, there is no prohibition under MR on using inadvertently produced metadata.
□ ABA: L “generally” may review and use metadata; no opinion on whether must notify sending L
□ NY: even searching for metadata is forbidden as dishonest and prejudicial
□ DC: reviewing metadata is unethical only if the L “knows” that it was inadvertently sent

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2. Deliberate Disclosure

 HYPO: You are a class action P lawyer. Former corp EE, whose job was to work w/ outside counsel, says she
has some of the documents that the company did not hand over to you in discovery demands.
 This is not really inadvertent disclosure…this is very permissible intentional disclosure by a disgruntled
EE
 Company hasn’t been careless…If company was careless, privilege doesn’t apply, and can use that info

 In re Von Bulow, 828 F.2d 94 (2d Cir. 1987)

 Facts: Von Bulow charged for assaulting his wife (trying to murder through insulin). He was convicted
and hired Dershowitz to represent him on appeal, and was acquitted. L wrote a book about 1st trial. Wife’s
friends filed a civil action and wrote to petitioner saying they would consider publication of book as waiver
of A-C privilege. Book was released and P’s counsel moved to compel discovery of certain discussions
btwn L and C based on the alleged waiver of A-C privilege w.r.t. communications related in the book.
 Issue: Does C waive ACP by deliberately revealing only parts of confidential communications?
 Holding: Extra-judicial disclosure of A-C communication, one not subsequently used by C in a judicial
proceeding to adversary’s prejudice, does not waive privilege as to undisclosed portions of communication.
Waiver occurred here to particular matters discussed in book, but this waiver cannot be broadened to waive
discussions that were not published. Parts not disclosed in the book do not need to be produced. In
extrajudicial disclosures, no subject matter waiver (related matters remain confidential and not disclosed)
 Rule: C’s offer of his own or L’s testimony as to a specific communication to L is a waiver as to all other
communications to L on the same matter. If part of convo/doc is disclosed, remainder must be disclosed.
 Reasoning: Only C can waive A-C privilege, but he can do so implicitly and by giving L implied
authority to waive privilege. C consented to L’s disclosure in publishing the book and so he waived A-C
privilege.

 Selective and Partial Waiver

 Selective waiver permits C who has disclosed privileged communications to one party to continue asserting
the privilege against other parties. [disclosure only to certain persons, like fed agencies]
□ Majority: not allowed b/c a waiver is still a waiver, whether for A-C privilege or work product
 Partial waiver permits C who has disclosed portion of the privileged communications to continue asserting
the privilege as to the remaining portions of communications [disclosure of only part of the info]
□ Waiving with respect to some subjects but not others (this happens all the time)
□ Most courts agree that partial waiver raises fairness concern
□ FRE 502- waives privilege with regard to undisclosed communications only if
 [1] the waiver is intentional,
 [2] undisclosed communications pertain to the same subject matter as those disclosed, and
 [3] fairness requires that the undisclosed and disclosed communications be considered together

 Deliberate waiver arises when C gets in trouble and wants to show he acted according to L’s advice. As L, no
protection against waiver and anything L says can be disclosed

 Default rule: subject matter waiver  if you waive privilege regarding a certain topic, you waive privilege with
respect to ALL communications on that topic

 Majority rule: Any disclosure of privileged material to someone not a “privileged person” will waive privilege
w/ respect to others, even despite promises of confidentiality, even if required to some kind of gov’t agency

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3. Disclosure within another privileged relationship

 General rule: disclosure of a privileged communication within the scope of some other privilege is not waiver.
 Focus of ACP is intent of keeping it confidential [must be separate transactions to remain privileged]
□ Can tell diff ppl the same thing, but cannot disclose to them all at the same time

G. “Common Interest” Exception to Waiver

 Occurs when 2 or more parties want to cooperate but are unwilling/unable to be represented as joint clients by L
 The prisoner’s dilemma exists in the law. The numbers represent the extent of the penalty.
 The best situation is where they cooperate. One way to achieve this is if the same lawyer represents them.

 Counsel can enter into a joint defense agreement when several parties have a common legal interest
 Its purpose is to create an exception to the rule that disclosure of confidential communications waives the
attorney-client privilege with respect to (at least) such communications.
□ Communication from lawyer 1 to lawyer 2 is privileged
 Lawyers can only talk to their own clients and other lawyers for the privilege to be upheld
○ No attorney-client privilege between clients  clients should not speak to each other
□ Most courts would hold communication between lawyer 1 and client 2 privileged
 Joint defense agreement does not have to be written [can be oral or written]
□ If both L1 and L2 are on same page regarding understanding, then privilege would be upheld

 Why can’t 3 Ls represent the 3 Ds and sign a JDA imposing a general duty of loyalty to all 3 Ds?
 Conflict w/ regard to L’s attorney to individual C

 Restatement §76 - The Privilege In Common–Interest Arrangements

 If 2 or more Cs w/ a common interest in a litigated or non-litigated matter are represented by separate Ls
and they agree to exchange info concerning the matter, a communication of any such C that otherwise
qualifies as privileged under §§ 68-72 that relates to the matter is privileged as against third persons. Any
such C may invoke privilege, unless it has been waived by C who made the communication.
 Unless Cs have agreed otherwise, a communication described in Subsection (1) is not privileged as
between clients described in Subsection (1) in a subsequent adverse proceeding between them.

 Restatements § 75 and § 76 combined

 2 or more Cs either
 [1] w/ same L or
 [2] w/ common interest but separate Ls and a JD
□ All enjoy a privilege against disclosure of qualifying communications about common interest matters
□ Any joint C may invoke privilege unless privilege is waived by the C who made the communication
 Unless otherwise agreed, communications are not privileged among joint Cs or Cs w/ common interest

 There is no such thing as a joint defense privilege…There is only the common interest exception to waiver

 Flow chart
 Is confid comm. Btwn L and C for the purpose of providing legal services?
□ No  no privilege
□ Yes 
 Was it disclosed to non-client?
○ No privileged communication
○ Yes 
 Did recipient have a common legal interest w/ C?
◊ no  waiver analysis under von Bulow
◊ yes  privileged communication

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 JDA creates expectation of confidentiality that court will recognize, such that disclosure w/in JDA is not waiver

 United States v. Stepney, 246 F.Supp.2d 1069 (N.D. CA 2003)

 Facts: Ds charged w/ conspiracy and violations of drug and weapons laws. Defense counsels sought to
enter into joint defense agreement that would allow Ds to share factual investigations and legal work
product. L for D1 made motion to withdraw b/c he had been working w/ a D who had since cooperated w/
prosecution. L wanted to withdraw b/c he believed joint defense agreement created an implied A-C
relationship that included a duty of loyalty. L maintained that this duty of loyalty would prevent him from
cross-examining the cooperating D, should he testify at trial.
 Issue: What duty of confidentiality do members of joint defense agreements owe to each other?
 Holding: Court denied motion to withdraw b/c cooperating D waived any A-C privilege with respect to
information received by the moving attorney. L who has C in joint defense agreement does NOT owe duty
of loyalty to all Ds in joint defense agreement. Cs may not contract to create this additional duty.
 Rule: Joint defense agreements submitted in camera for review
□ [1] must explicitly state in writing (and
□ [2] be signed by Ds and their Ls) that is does
 {A} not create A-C relationship,
 {B} must contain provisions conditionally waiving confidentiality, and
 {C} must explicitly allow withdrawal upon notice
 Reasoning: The joint defense privilege was adopted as an exception to the waiver rule, under which
communications between C and his own L remain protected by A-C privilege when disclosed to co-Ds or
their L for common defense purposes. L may be disqualified if her C’s interests require that she cross-
examine (or oppose in a subsequent action) another member of a joint defense agreement about whom she
has learned confid info. Problems w/ proposed joint defense agreement are that the agreement submitted
explicitly creates a duty of loyalty. In addition, the withdrawal provisions are inadequate and may allow
for disqualification before trial.

 Note: although K here created duty of loyalty btwn all Ls and Cs, judge rewrote K to eliminate this extra duty
 Can disqualify L1 from creating duty of loyalty to C2 so that L1 can properly cross examine C2
 Beware listening to information from opposing side, this can disqualify you

 United States v. Almeida (11th Cir. 2003)

 Facts: A indicted for conspiring to distribute cocaine. F was alleged coconspirator. Initially, agreed to
coordinate defense and Ls entered oral joint defense agreement. For 2 years shared much info. F changed
mind and entered plea bargain. F pleads guilty and agrees to cooperate w/ gov’t and testify against A.
 Holding: Anything you say in joint defense can later be used against you on cross-examination if you
withdraw from joint defense. L has no duty of care/loyalty toward other Cs after case is over or
withdrawal.
 Rule: When each party to a joint defense agreement is represented by own L, and when communications by
one co-D are made to the Ls of other co-Ds, such communications do not get the benefit of the A-C
privilege if the co-D decides to testify on behalf of the government in exchange for a reduced sentence.
 How common do parties’ interests have to be?
 Waiving the joint client privilege requires consent of all clients

 In re Teleglobe Comms. Corp. (3d Cir. 2007). Courts have developed a joint defense privilege, which
protects all communications shared within a proper community of interest in a civil or criminal context, and
purely transactional contexts. Two aspects are important: (1) to be eligible for continued protection, the
communication must be shared with the attorney of the member of the community of interest, b/c sharing
the communication directly with a member of the community may destroy the privilege. (2) All members
of the community must share a common (substantially similar) legal interest in the shared communication.
□ Case holds interest must be identical…Restatement allows common interest
□ Interest must be legal (not solely commercial)…Restatement also allows factual or strategic interests
□ If client chooses to withdraw, cannot give prosecutor any info that she does not hold privilege to  if
prosecutor gains such info, punishment could be disqualification, penalties, or dismissal of indictment

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  Armenta v. Superior Court (Cal 2002). This case says that one party to a joint defense agreement may
not waive the work product protection for work procured jointly with another party to that agreement.
□ Note: where work product is result of collaboration by counsel, all holders of the work-product
privilege must consent to waiver of the privilege

 Common Interest in Transactions

 Oxy Resources California v. Superior Court (Cal. 2004)

□ Facts: 2 companies exchanged over 200 documents and expected the transaction to provoke litigation
from a 3rd party with an interest in the subject of the transaction. They signed joint defense agreement
that they had a common interest in defending against 3rd parties
□ Issue: May parties negotiating a business transaction rely on a joint defense agreement as the basis for
refusing to produce privileged documents exchanged long before they are actually sued by 3rd party?
□ Holding: JDA does not protect documents from disclosure. Trial court must first conclude that info
contained in documents is protected from disclosure by A-C privilege or work product. Then, crt must
determine whether disclosure is reasonably necessary to accomplish purpose for which Cs consulted L
□ Rule: Evidence code does not allow creation of new privileges. Documents must fit either work
product or atty/client privilege.

 Nidec Co. v. Victor Co. of Japan (Cal. 2007): To protect disclosures that concern instant litigation, must
be made in course of formulating common legal strategy. Protection is not for joint commercial interests.

 Hypo: Martha Stewart tells Ls she had a conversation with Sam and Sam told her they were going to issue a
press release that the FDA is having a hard time getting drugs into the market.
 L cannot be examined on the conversation w/ Martha. She cannot be examined on her conversation w/ L.
She can be examined on her conversation w/ Sam. She can be asked “did you know that the FDA was
going to refuse to accept this drug?” Conversations with lawyer: privileged; underlying fact: not
privileged

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CHAPTER V. WORK PRODUCT DOCTRINE

 Distinguish from attorney-client privilege:

 1. Not an evidentiary privilege
□ It is a rule designed to prevent one party from taking advantage of another’s work
 Rests on principles of fairness
□ Subject to certain exceptions: party may compel production of work product material when there is no
other way for the party to get it
 2. Lawyer (not client) controls the work product doctrine
□ Broader protection for lawyer’s work
 Work must have been prepared in anticipation of litigation
 Work product refers to what goes on in attorney’s head

 Disclosure of work product does not waive privilege

A. The Basic Doctrine of Work Product

 Like ACP, WPD extends even after litigation is over

 Both are covered by duty of confidentiality

 Key differences:
 ACP = lawyer client communications = what C reveals to you
□ C controls ACP
□ ACP has self defense exception
 WPD = L’s work efforts = L’s impressions, conclusions, opinions, legal research, or theories
□ L controls WPD
□ WPD does not have self defense exception

 Under fed law, work product consists of tangible material (or its oral and unwritten equivalent) that is prepared
by or for a L either for current litigation or in anticipation of future ligation

 Under CA law, WPD applies to everything L produces while working for C, even if not related to litigation
 WARNING: CA WP rules do not apply in fed ct with respect to fed claims!!

 Hickman v. Taylor
 Facts: Party responded to all interrogatories except one which they claimed called for privileged matter
prepared in anticipation of litigation. Question party refused to answer asked for all oral and written
statements of witnesses whose identity is well known and whose availability appears unimpaired. Attempt
to secure the production of handwritten statements and mental impressions contained w/in files and L’s
mind without any showing of necessity or indication that denial would unduly prejudice other side.
 Issue: Extent to which party may inquire into oral and written statements of witnesses, or other info,
secured by adverse party’s counsel in course of preparation for possible litigation after a claim has arisen.
 Holding: This is an attempt without necessity to secure written statements prepared by adverse counsel in
course of legal duty. Therefore, falls outside arena of discovery—documents will not be produced.
 Rule: General policy against invading lawyer’s privacy is so well recognized that burden rests on the one
who would invade privacy to justify production through subpoena or court order.
 Reasoning: Necessity or other justification to inquire into L’s files and mental impressions. Ls get zone of
privacy & freedom of action b/c should be confident that work belongs to them when preparing case

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 Upjohn Co. v. United States
 Facts: Upjohn sells products in US and abroad. Independent accountants performed audit and discovered
one of Upjohn’s foreign subsidiaries made payments for benefit of foreign government officials to secure
government business. General counsel decided to perform internal investigation. Sent questionnaire to
certain EEs and interviewed recipients of questionnaire. L’s mental notes also included in documents
 Issue: Can government gain access to questionnaire and client interviews performed by Upjohn’s counsel?
 Holding: A far stronger showing of necessity and unavailability by other means would be necessary to
compel disclosure. Court shall protect against disclosure of mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative.
 Rule: Where relevant and non-privileged facts remain hidden in L’s files, and where production of those
facts is essential to the preparation of one’s case, discovery may be properly had. Production may also be
justified where witnesses are no longer available or can only be reached with difficulty.

 Ordinary v. Opinion Work Product:

 Ordinary work product is protected from discovery unless party requesting info can show that is has a
substantial need for info and inability to obtain the equivalent through other means without undue hardship
 Opinion work product is almost impossible to obtain through discovery in federal court b/c contains L’s
mental impression. [[In CA, opinion WP is never discoverable]]
□ Work product – essentially undiscoverable…cannot be disclosed simply on showing of substantial
need and inability to obtain equivalent without undue hardship
 Generally do not want to tape record an interview. Tactic: bring associate with you to take notes or
take your own notes and make sure you get everything right – notes have greater protection than
tape.

Experts: anything an expert relies on is discoverable

 Work product, but not opinion work product b/c does not have L’s impressions. Would be substantial need

B. The “Prepared in Anticipation of Litigation” Requirement

□ Can’t be forced to testify about your legal strategy

 United States v. Monroe Adlman

 Facts: Memo at issue was a 58 page legal analysis of likely IRS challenges to reorganization and resulting
tax refund claim. It proposed legal theories for party to adopt in response, recommended methods of
structuring transaction, and predictions about outcome of litigation. Party asserted it was work product.
 Issue: Whether a study prepared for an attorney assessing the likely result of an expected litigation is
ineligible for protection under the rule, if the primary or ultimate purpose of making the study was to assess
the desirability of a business transaction (which if undertaken would give rise to the litigation)?
 Holding: Document at issue does not need to be disclosed. Court can order production for which litigant
makes adequate showing and focus its attention on whether the document or any portion of it should be
disclosed, while retaining the authority to protect against disclosure of the mental impressions, strategies,
and analyses concerning litigation.
 Rule: Where a document is created because of the prospect of litigation, analyzing the likely outcome of
that litigation does not lose protection because it was prepared to assist with a business decision.
 Reasoning: Document will be protected if it would not have been read in certain way but for lawsuit. If it
would have been same w/out impending lawsuit, then it will not be protected. Document at issue here was
for both legal and business purposes, created to explain consequences of solely legal driven business
transaction, where it was 100% certain that business transaction would create litigation, so it was protected

 Confidentiality & Work Product:

 Work product not as concerned with confidentiality as attorney-client privilege
□ Limited disclosure of work product material does not waive the protection of the doctrine unless the
disclosure is likely to reveal work product material to an opponent

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 If counsel discloses opinion work product to an expert witness who relies on that work product in forming
her opinion, the work product must be disclosed under the general rule requiring disclosure of all materials
an expert considers in forming an opinion
□ Court has held that opinion work product may be discovered and admitted when mental impressions
are at issue in a case and the need for the material is compelling
 Hypo: CFO interviewed by company lawyers, lawyers write memos, company tells lawyers to give memos
to accountants. Is this a waiver of work product, privilege, or both?
□ Almost certainly waiver of privilege
 Rationale: privilege based on confidentiality
□ 9th circuit has held this is not waiver of work product

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CHAPTER VI. REQUIREMENTS OF AND RELATING TO THE DUTY OF CARE

 Requires lawyers to act competently and diligently

 Competence = acting with reasonable care
□ Reasonable care = what would competent lawyer do in similar circumstances
 Similar circumstances = type of matter in relevant jurisdiction

 Duty of care violations often give rise to civil liability

 Tort manifestation: client must prove all required tort elements
□ (i) duty; (ii) breach of duty; (iii) proximate causation; (iv) damages/harm
 Duty: never create a duty you don’t want to create
 Breach is considered in relation to standard of care in relevant practice field
 Causation is bad lawyer’s best friend  if you have a bad case and you do a bad job, it probably
will not cost you anything because you would have lost anyway
 Harm is the disparity between what the client would have received had you not breached, and
what client did receive.

 There is no single malpractice

 Rather, C can sue L for:
□ Professional negligence = tort claim
□ Breach of fiduciary duty = agency law claim
□ Breach of L’s agreement to provide professional services = K claim

□ BE CAREFUL offering cheap and limited legal services in exchange for saying they can’t sue you

 Before a duty is owed, there generally must be an A-C relationship

 But remember: L may have professional relationship w/ person she only briefly and casually consulted
□ Thus, no written retainer agreement is required for duty to arise
□ Can be sued for malpractice by a non-C who RELIES
 Ex: Enron scandal: Ls created memo saying everything was kosher and there was nothing fishy
going on
 Reliance upon those letters led to various economic tragedies…It was clear that letters were going
to be relied upon by other parties looking to do various business transactions. Ls breached their
duty.

 Standard of care for Ls is that of the reasonable professional similarly situated in your jurisdiction
□ Onus on L to know things from day 1 of legal practice [does not mean new L or reasonable person]
□ Reasonable professional lawyer  Ls are required to skillfully seek guidance where necessary to live
up to standard of care. It is not OK just to assume someone is looking over your work.
 Standard is even higher for someone who claims to be a specialist/expert
□ b/c then the reasonable person is a reasonable expert of that area in your jurisdiction

 Violations of the duty of care in civil matters can lead to:

 Discipline under MR 1.1 and/or civil liability for breach of the duty

 Violations of duty of care in crim matters can lead to:

 Discipline under MR 1.1 and/or civil liability for breach of the duty, subject to innocence rule and/or retrial
if the breach satisfies the Strickland test for ineffectiveness

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A. Civil malpractice

 Restatement §16 - A Lawyer's Duties To A Client—In General

 To extent consistent w/ L’s other legal duties, L must, in matters within the scope of the representation:
□ Proceed in manner reasonably calculated to advance C’s lawful objectives, defined by C after consult;
□ Act with reasonable competence and diligence;
□ Comply w/ obligations concerning C’s confidences/property, avoid impermissible conflicting interests,
deal honestly w/ C, and not employ advantages arising from A-C relationship in manner adverse to C;
□ Fulfill valid contractual obligations to C.

 Restatement §20 - A Lawyer's Duty To Inform And Consult With A Client

 L must keep C reasonably informed about the matter and must consult with C to a reasonable extent
concerning decisions to be made by L under §§ 21-23.
 L must promptly comply with C’s reasonable requests for information.
 L must notify C of decisions to be made by C under §§ 21-23 and must explain matter to extent reasonably
necessary to permit C to make informed decisions regarding the representation.
 Restatement §48 - Professional Negligence—Elements And Defenses Generally
 In addition to the other possible bases of civil liability described in §§ 49, 55, and 56, L is civilly liable for
professional negligence to a person to whom L owes a duty of care w/in the meaning of § 50 or § 51, if L
fails to exercise care w/in meaning of § 52 and if that failure is a legal cause of injury w/in meaning of §
53, unless L has a defense within the meaning of § 54

 Restatement §49 - Breach Of Fiduciary Duty—Generally

 In addition to the other possible bases of civil liability described in §§ 48, 55, and 56, L is civilly liable to C
if L breaches a fiduciary duty to C set forth in § 16(3) and if that failure is a legal cause of injury w/in the
meaning of § 53, unless L has a defense within the meaning of § 54

 Restatement §50 - Duty Of Care To A Client

 For purposes of liability under § 48, L owes C the duty to exercise care w/in meaning of § 52 in pursuing
C’s lawful objectives in matters covered by the representation.

 Restatement §52 - The Standard Of Care

 For purposes of liability under §§ 48 and 49, a L who owes a duty of care must exercise the competence
and diligence normally exercised by Ls in similar circumstances.
 Proof of a violation of a rule or statute regulating the conduct of Ls:
□ does not give rise to an implied cause of action for professional negligence or breach of fiduciary duty;
□ does not preclude other proof concerning the duty of care in Subsection (1) or the fiduciary duty; and
□ may be considered by a trier of fact as an aid in understanding and applying the standard of Subsection
(1) or § 49 to the extent that (i) the rule or statute was designed for the protection of persons in the
position of the claimant and (ii) proof of the content and construction of such a rule or statute is
relevant to the claimant's claim

 Restatement §53 - Causation And Damages

 L is liable under § 48 or § 49 only if L’s breach of a duty of care or breach of fiduciary duty was a legal
cause of injury, as determined under generally applicable principles of causation and damages

 Restatement §54 - Defenses; Prospective Liability Waiver; Settlement With A Client

 Except as otherwise provided in this Section, liability under §§ 48 and 49 is subject to the defenses
available under generally applicable principles of law governing respective actions for professional
negligence and breach of fiduciary duty. L is not liable under § 48 or § 49 for any action or inaction L
reasonably believed to be required by law, including a professional rule.
 C or former C may rescind an agreement settling a claim by C or former C against the person's L if:
□ C or former C was subjected to improper pressure by the L in reaching the settlement; or
□ (i) C or former C was not independently represented in negotiating settlement, and (ii) the settlement
was not fair and reasonable to the C or former C.

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  For purposes of professional discipline, a L may not:
□ Make an agreement prospectively limiting the L’s liability to a C for malpractice; or
□ Settle a claim for such liability with an unrepresented C or former C without first advising that person
in writing that independent representation is appropriate in connection therewith.

 Restatement §55 - Civil Remedies Of A Client Other Than For Malpractice

 L subject to liability to C for injury caused by breach of K in circumstances and extent provided by K law
□ C is entitled to restitutionary, injunctive, or declaratory remedies against L in the circumstances and to
the extent provided by generally applicable law governing such remedies

 Restatement §56 - Liability To A Client Or Non-client Under General Law

 Except as provided in § 57 and in addition to liability under §§ 48-55, L is subject to liability to a C or non-
C when a non-L would be in similar circumstances.

 Model Rules 1.1 – Competence

 L shall provide competent representation to C. Competent representation requires the legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the representation.
 Model Rules 1.2(c) – Scope of Representation and Allocation of Authority Between Client and Lawyer
 L may limit scope of representation if reasonable under circumstances and C gives informed consent.

 Model Rules 1.3 – Diligence

 L shall act with reasonable diligence and promptness in representing C.

 Model Rules 1.4 – Communication

 (a) L shall:
□ (1) promptly inform C of any decision or circumstance with respect to which C’s informed consent, as
defined in Rule 1.0(e), is required by these Rules;
□ (2) reasonably consult w/ C about means by which the C’s objectives are to be accomplished;
□ (3) keep C reasonably informed about the status of the matter;
□ (4) promptly comply with reasonable requests for information; and
□ (5) consult w/ C about any relevant limitation on L;s conduct when L knows that C expects assistance
not permitted by the Rules of Professional Conduct or other law.
 (b) L shall explain matter to extent reasonably necessary to permit C to make informed decisions about rep

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1. Duty and breach

 Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin
 Facts: [1st mistake] L put himself out there as a sort of trademark expert. Junior L given duty, failed to seek
appropriate supervision and therefore client got in trouble. [2nd mistake] L expected someone would be
looking over his shoulder. Junior L assumed someone was looking at her work.
 Issue: Is junior lawyer liable in malpractice for failing to seek appropriate legal supervision?
 Holding: Yes… junior lawyers’ passivity departed from the applicable standard of care.
 Rule: L shall provide competent representation to C. Competent representation requires legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the representation.
 Not enough to assume your supervisor will correct all of your mistakes  NOT a defense to malpractice
 You can acquire competence while working on the matter, it is not a violation to take a matter you know
nothing about as long as you inquire
 If speaking w/ partner, can disclose details BUT need to ask C for permission if speaking w/ someone
outside firm
 List serves not currently considered violation of confidentiality…So small that not yet considered waiver

 Nichols v. Keller, 15 Cal. App. 4th 1672 (1993)

 Facts: P went to lawyer because he was injured at work. Worker’s comp lawyer filed claim for him but
failed to advise client (P) that wife also had claim. After SoL ran, P learned that wife also had claim.
 Issue: Did worker’s comp lawyer owe duty to client’s wife in addition to client such that he must inform P
of all possible claims that can be brought as a result of the facts giving rise to the worker’s comp injury?
 Holding: L who signs application for adjudication of worker’s comp claim and L who accepts referral to
prosecute claim owe the claimant a duty of care to advise available remedies, including third-party actions.
 Rule: Liability can exist when L failed to provide advice, not only when requested but also when failed to
volunteer opinions when necessary to further C’s objectives. L need not advise and caution of every
possible alternative, but only of those that may result in adverse consequences not considered. L impliedly
agrees to use ordinary judgment, skill, care, and diligence in performance of the tasks he/she undertakes.
 Reasoning: Foreseeability of harm, though not determinative, is chief factor in determining whether there
is a duty. It is a question of law for the court. A trained L is more qualified to recognize and analyze legal
needs than a lay C. L must describe, even w/ incomplete facts by C, the array of legal remedies available,
alert C as to any apparent legal problems, and if appropriate, indicate limitations of the retention of counsel
and the need for other counsel. If L wishes to limit representation, burden of clear communication is on L.
In this case, Ls did not do so and they had a duty to give advice, including third party actions.
 Import: L can breach a duty of care he does not know he has. Here, L should have: (i) pursued all claims
related to problem; or (ii) informed C that C had rights L was not going to go after and to retain a different
L to go after those other rights. Representation must be coterminous w/ scope of problem presented

 What You Say and What They Hear I

When L has info that C does not, especially info about L’s practice in relation to the facts C brings L, there is a risk
of miscommunication. L has the burden to make clear to C that you will only represent him to a limited extent and
that he might have other claims you will not pursue but which he might wish to look into.

 Mirabito v. Liccardo (Cal. App. 1992)

 Facts: P alleged her late husband’s L breached fiduciary duties to husband when L induced him to invest in
ventures in which L had an interest without full disclosure. P sought to introduce evidence at trial from Ls
who would testify that disciplinary rule required L to disclose all facts relevant to the investment decision
and to provide P’s late husband the opportunity to seek independent counsel. Defense moved to exclude
 Rule: The rules of professional conduct, statutes, and general principles relating to other fiduciary
relationships, all help define duty component of fiduciary duty that L owes to his C. No independent CoA
for breach of disciplinary rule. Rather, breach of duty can be measured by violation of the rules.

 Day v. Rosenthal
 L’s duties to C are conclusively established by rules of professional conduct, which trial court was required
to judicially notice. L’s violation of those rules established his negligence even w/out expert testimony.

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66
2. Causation and damages

 Viner v. Sweet, 135 Cal. Rptr. 2d 629 (2003)

 Facts: D led Ps to believe employment termination agreement gave them 3 years of monthly payments – K
did not so provide. P brought malpractice against D
 Issue: When alleged malpractice occurred in performance of transactional work, must C prove causation
element according to “but for” test, meaning that harm/loss would not have occurred w/out L’s negligence?
 Holding: P has to show that L did not use reasonable care (breach some kind of duty). P also has to show
“but for” L’s conduct, he/she would have had a favorable outcome, not necessarily complete/total recover
 Rule: Before the loss can be shifted, C must show that the loss suffered was in fact caused by the alleged
malpractice. Circumstantial evidence may be proved. Burden of proof: more likely than not
 Reasoning: For legal malpractice, C must prove, among other things, that L’s negligent acts or omissions
caused C to suffer some financial harm/loss. For civil liability, P must show proximate cause w/ “but for.”
In litigation, this forces a trial within a trial to determine the merits of the underlying suit. In non-litigation
matters, it requires proof of a better result, such as more favorable K terms. The crucial causation inquiry is
what would have happened if D’s attorney had not been negligent.
□ The two tests for satisfying “but for” causation are: (1) but for the negligence, the harm would not have
occurred, or (2) the negligence was a concurrent independent cause of the harm

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3. Limitations and tolling

 The limitations period on malpractice actions varies from state to state.

 Doctrine: SOL is 1 year
 TOLLED during period while lawyer continues to represent client

 CA: 1 year after P discovers (or would have discovered) the facts constituting the wrongful act/ omission, OR 4
years from the date of the wrongful act/omission, whichever occurs first
 2 questions:
□ 1. When an injury occurs
□ 2. When a lawyer continues to represent a client

 Tactic: lawyer has duty to keep client informed under duty of care. Lawyer must fess up to client if he makes
mistake. Must blow whistle on himself, pick up phone, and call client. MAY NOT double down!
 The longer L continues to represent C in an effort to fix mistake, the longer the limitations period is tolled.
 Until C suffers applicable harm as consequence of L’s negligence, C cannot establish CoA for malpractice
□ Period is tolled from when L commits act to when P sustains actual injury
 Speculative injuries are those which do not yet exist
□ Continuous representation tolls SoL period even if C is aware of the act or omission at issue
 Representation may be deemed continuous where a hiatus separates a completion of transaction on
behalf of C and resumption of legal activities after a problem arises, many years later
○ May continue even after C has replaced the L with another
○ Failure to withdraw from representation will not, by itself, toll limitations period where facts
otherwise indicate the representation has ended
○ Representation ends when C has or reasonably should have no expectation that L will provide
further legal services. If L remains silent, may be inferred from circumstances
 Representation by one L does not toll claims that may exist with unaffiliated L
○ When L leaves firm and takes C, firm loses all ability to mitigate damage to C
 Duty of loyalty would demand disclosure to inform client when he has legal malpractice action against you
□ L who realizes she made mistake must immediately notify C of the mistake as well as C’s right to
obtain new counsel and sue the L for negligence
□ L may not settle with C until L has informed C and has withdrawn from case
 Even core fiduciary duty claims are subject to the limitations period for malpractice

 C may have 3 claims: breach of K, malpractice, breach of fiduciary duty

 C will often plead same facts on each claim and seek same relief on each claim
□ Duty of care  Malpractice claim
□ Duty of loyalty  Breach of fiduciary duty claim
 How to establish claim:
□ Burden of proof: transactions voidable by C unless L can demonstrate they are fair (differs from
normal K case where P has burden of proof in fairness related defense like duress or unconscionability)
□ Manner of proof: P must establish reasonable standard of care in relevant practice field and geographic
area…. Expert testimony in support of fiduciary duty claim used if standard not obvious to lay juror
□ Availability of punitive damages:
 Malpractice: NO [malpractice = negligence]
 Breach of fiduciary duty: YES [disloyal conduct = true fiduciary claim]

 A Duty to Inform On Yourself? YES

 Ls who make mistake and breach duty of care must disclose and let C know of right to obtain new counsel.

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4. Note on fee disgorgement

 Restatement §37 - Partial Or Complete Forfeiture Of A Lawyer's Compensation

 L engaging in clear and serious violation of duty to C may be required to forfeit some or all of L’s
compensation for the matter. Considerations relevant to the question of forfeiture include the gravity and
timing of the violation, its willfulness, its effect on the value of L’s work for C, any other threatened or
actual harm to the C, and the adequacy of other remedies.

 Where L deliberately advances his self-interest at either C’s expense or using C’s info, standard principles of
agency law hold that the L must account to the C for the profits earned from the relevant conduct.

 Disgorgement does not require intentional breach. Willfulness is a relevant factor, but not a condition.

 Conduct constituting malpractice is not always the same as conduct warranting fee forfeiture. Malpractice
damages are diff than forfeited fees. Ex: L’s negligent research is malpractice but would not be fee forfeiture

 Jurisdictions disagree whether C seeking disgorgement must show they were harmed by the breach of duty
 CA: no disgorgement unless harm

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B. Criminal malpractice

 Requirement for crim CofA: C must establish facts to prove innocence [duty, breach, cause, harm, innocence]
 If client pleads guilty this undermines defense [cannot use defense if right person and right crime]
□ Client must prove they caught the wrong person…illegally obtained evidence is NOT enough

 Violations of duty of care in civil matters lead to: discipline under MR 1.1 and/or civ liability for breach of duty
 Violations of duty of care in criminal matters: discipline under MR 1.1 and/or civ liability for breach,
subject to innocence rule and/or retrial if breach satisfies Strickland test for ineffectiveness

 Winniczek v. Nagelberg, 394 F.3d 505 (7th Cir. 2005)

 Facts: D represented P in criminal trial for $170,000. P does not claim to be innocent of crimes. After D
was paid, he told P he would not take case to trial b/c P made statements to authorities when represented by
previous L that ruined defense, and P had no choice but to plead guilty. D then departed, P pled guilty.
 Issue: Does P have valid malpractice action against criminal defense attorney who could have possibly
argued for acquittal on technicality when P is not actually innocent of the crime accused?
 Holding: Overcharge for L’s fees is not barred by actual innocence rule. However, L cannot he held liable
in malpractice for failing to get P acquitted if P is not actually innocent of the crime accused
 Rule: Actual Innocence Rule: A criminal D who files a malpractice claim against her criminal defense L
must plead and prove that she was exonerated of the criminal conviction. Exceptions to “actual innocence”
rule where although D is guilty, he received an unlawful penalty or L overcharged D
 Reasoning: Crim D cannot sue for malpractice if not actually found to be innocent, even if D could have
been acquitted on a technicality if L met minimum standards of professional competence. Crim Ds have
ineffective assistance of counsel claim where conviction can be voided. Civil D needs damages remedy.
 The actual innocence rule is the majority rule [including in CA], but is not the rule in all states

 Peeler v. Huges & Luce: H and W had tax shelter issues. US attorney offered H and W transactional immunity
for all time. L never conveyed that offer to the Cs. L never said that gov’t will give immunity to them until the
end of time, in exchange for their testimony. Do not have to go to jail. Do not have to be convicted felons.
 Both H and W were indicted. They ended up taking a plea to separate their time to take care of their kids.
□ Cannot sue for malpractice b/c they are not innocent

 Unlawful sentence: Crim D ordered to spend 2.5 years in jail for misdemeanor (max=1 year). L did not catch
mistake. Unlawful sentence is an exception to the actual innocence rule. Actual innocence rule did not bar claim
against lawyer’s negligent failure to catch mistake. Situation is closer to that of an innocent person wrongfully
convicted than of a guilty person attempting to take advantage of his own wrongdoing.

 Actual innocence rule applies to disputes that focus on competent representation, not to suits that focus on some
other duty of L or right of the C (like not overcharging the C or not returning the unearned part of the retainer)

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C. Ineffective Assistance of Counsel

 Ineffective assistance of counsel requires P to show:

 [1] L’s conduct (viewed ex-ante) fell outside wide range of reasonableness, AND which
 [2] Create a reasonable probability that but for conduct, the D would have had a better result (e.g. acquittal,
lesser conviction, lesser sentence) unless
□ Conduct stems from conflict of interest, in which case D must show
 [a] actual, active conflict that [b] adversely affects the L’s performance

 Strickland v. Washington, 466 U.S. 668 (1984)

 Facts: L told C not to confess and not to waive jury trial, and C did both against the advice of L. L did not
seek character or psychiatric evaluation or present this evidence at trial b/c he thought it could not
overcome the confessions, preventing the state from cross-examining the C. L also excluded C’s rap sheet.
L argued that C should be spared death b/c he confessed and he committed crimes under extremely stressful
circumstances. L made multiple decisions that a good defense L would have done. Even though wouldn’t
have had acquittal, may have had a lighter sentence C claimed ineffective assistance at the sentencing.
 Holding: L’s assistance was not unreasonable. Even if L was unreasonable, L’s conduct did not cause
sufficient prejudice to D to warrant setting aside his death sentence. Omitted evidence would not have
changed conclusion. It is probable that result would have been different, but it was not reasonably probable
 Rule: To show that assistance was ineffective, convicted D must show 2 things to reverse death sentence:
□ [1] L was deficient, such that L made errors so serious that L was not functioning as required by 6th
Amendment. Fell below the “objective standard of reasonableness” – wide range of reasonableness
□ [2] The deficient performance prejudiced defense, such that L’s errors were so serious that they
deprived D of a fair/reliable trial. “reasonable probability” that but for L’s unprofessional errors, result
would be diff. Reasonable probability is probability sufficient to undermine confidence in the outcome
□ Benchmark for judging ineffectiveness claim must be whether L’s conduct so undermined the proper
functioning of adversarial process that trial cannot be relied on as a just result. [not fair]
 Reasoning: Presumption is that L’s assistance was effective. Crim D must rebut this presumption

 Strickland and later cases are less willing to second-guess judgment calls than the failure to investigate (such as
if the failure itself was based on a strategic judgment).

 Florida v. Nixon (US 2004): D confessed and there was evidence. His public defender urged him to
concede guilt at trial to try to make his penalty phase arguments more credible. He pleaded not guilty.
□ Nixon was unresponsive and neither approved nor disapproved this strategy. After Nixon was
convicted and sentenced to death, new counsel argued that trial counsel was ineffective b/c he did not
get express consent to the concession strategy.
□ The court disagreed…It found counsel had adequately consulted the client and in light of his
unresponsiveness, counsel cannot be deemed ineffective for attempting to impress the jury with his
candor and unwillingness to engage in a useless charade.

 Bad judgments sometimes amount to ineffective assistance of counsel.

 Miller v. Anderson (7th Cir. 2001), D convicted of murder. P had expert testify that hair on victim was D’s.
L chose to only cross-examine that expert and not present one of his own. L also failed to bring in other
evidence that would have contradicted testimony against C. Most questionable was that he called a
psychologist to testify that D was incapable of that sort of violence, even though he had previously been
convicted for very violent crimes; this destroyed case.
□ L could not articulate a coherent reason for putting the psychologist on the stand.
□ Minimally competent L would not have done this.
□ L’s errors were therefore taken together, prejudicial. If no reason for a tactic, the label “tactic” will
not prevent it from being used as evidence of ineffective assistance of counsel.

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D. Special Obligations of Prosecutors

 Prosecutors are ministers of justice, so they have to ensure that D gets procedural justice.

 All the MRs apply to prosecutor

 MR 3.3(a)(1) – can’t knowingly make false statement of law or fact or fail to correct a false statement of
material fact or law previously made
 MR 3.3(a)(3) - L cannot knowingly offer evidence that L knows to be false. If L, C, or a W called by L has
offered material evidence and L comes to know of its falsity, L shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal. L may refuse to offer evidence, other than the testimony
of a D in a crim matter, that L reasonably believes is false. L who knows his C or other W is going to lie,
may not allow W to do so. If W does lie, L must call on W to correct lie, and if he won’t, L must disclose
the lie. If L reasonably believes, but is not certain, that evidence is false, L may (or may not) notify court
 3.4(b) – L can’t falsify evidence, counsel or assist a W to testify falsely, or offer an inducement to a witness
that is prohibited by law

 Specific requirements: NEED probable Cause

 P cannot bring charges that he/she knows are unsupported by probable cause.
 Must timely disclose evidence that P knows of that tends to show D is not guilty or mitigates level of guilt
□ Brady v. Maryland – suppression by P of evidence favorable to accused violates due process where
the evidence is material either to guilt or to punishment, irrespective of good faith or bad faith of P
 If new, credible, and material evidence creating a reasonable likelihood that a convicted D did not
commit an office of which D was convicted, P must disclose the evidence to an appropriate court
or authority

 Model Rule §3.8 – Special Responsibilities of a Prosecutor

 The prosecutor in a criminal case shall:
□ (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
□ (b) make reasonable efforts to assure that the accused has been advised of the right to, and the
procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
□ (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the
right to a preliminary hearing;
□ (d) make timely disclosure to the defense of all evidence or info known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to
the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
□ (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past
or present client unless the prosecutor reasonably believes:
 (1) information sought is not protected from disclosure by any applicable privilege;
 (2) evidence sought is essential to successful completion of ongoing investigation or prosecution;
 AND (3) there is no other feasible alternative to obtain the information;
□ (f) except for statements that are necessary to inform the public of the nature and extent of prosecutor's
action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial
comments that have a substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement personnel, employees or other
persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule
□ (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood
that a convicted D did not commit an offense of which D was convicted, the prosecutor shall:
 (1) promptly disclose that evidence to an appropriate court or authority, and
 (2) if the conviction was obtained in the prosecutor’s jurisdiction,
○ (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
○ (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to
determine whether the defendant was convicted of offense that the defendant did not commit.

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 (h) If prosecutor knows of clear/convincing evidence establishing that a D in prosecutor’s jurisdiction
□
was convicted of offense that D did not commit, prosecutor shall seek to remedy conviction.
CHAPTER VI. LIABILITY TO NON-CLIENTS

 If L owed a duty to non-C and if it is shown that harm was caused by improper conduct by the L, the L might be
found liable to the 3rd party. This includes prospective Cs and intended beneficiaries of L’s work for a C

 When Ls communicate w/ others on behalf of clients outside of “proceedings,” MR 4.1-4.4 apply

 Main ways to be liable to ppl you don’t represent:

 Violate a general legal rule, such as committing fraud
 Invite reliance by 3rd party
 Agree to do work for benefit of 3rd party
 Represent fiduciary who is harming or harmed beneficiaries by crime/fraud using L’s services
 Duty imposed by law, as with the Biakanja factors

 Duties to Parties Related to Clients: Never create a duty you don’t want to create

 2 basic ways to violate duty to non-client:

 1. Violate general legal rule applicable to everyone
 2. Invite third party to rely on you and then fail to do what party reasonably relies on you to do

 Restatement §51 - Duty Of Care To Certain Non-clients

 For purposes of liability under § 48, L owes duty to use care in each of the following circumstances:
□ to a prospective C, as stated in § 15;
□ to a non-C when and to the extent that: [lawyer invitation]
 L or (w/ L’s acquiescence) L’s C invites the non-C to rely on L’s opinion or provision of other
legal services, and the nonclient so relies; and
 the non-C is not, under applicable tort law, too remote from L to be entitled to protection;
□ to a non-C when and to the extent that: [client intention]
 L knows that a C intends for non-C to be primary beneficiary of L’s work;
 such a duty would not significantly impair L’s performance of obligations to C; and
 the absence of such a duty would make enforcement of those obligations to the C unlikely; and
□ to a non-C when and to the extent that: [client status]
 L’s C is trustee/guardian/executor/fiduciary acting primarily to perform like function for non-C;
 L knows that appropriate action by L is necessary with respect to a matter within the scope of the
representation to prevent or rectify breach of a fiduciary duty owed by C to non-C, where (i)
breach is a crime or fraud or (ii) L has assisted or is assisting the breach;
 non-C is not reasonably able to protect its rights; and
 such a duty would not significantly impair the performance of the L’s obligations to C.

 Restatement §56 - Liability To A Client Or Nonclient Under General Law

 Except as provided in § 57 and in addition to liability under §§ 48-55, L is subject to liability to a C or non-
C when a non-L would be in similar circumstances.

 Restatement §57 - Nonclient Claims—Certain Defenses And Exceptions To Liability

 In addition to other absolute or conditional privileges, L is absolutely privileged to publish matter
concerning a non-C if:
□ the publication occurs in communications preliminary to a reasonably anticipated proceeding before a
tribunal or in the institution or during the course and as a part of such a proceeding;
□ L participates as counsel in that proceeding; and
□ the matter is published to a person who may be involved in the proceeding, and the publication has
some relation to the proceeding.

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  L representing a C in a civil proceeding or procuring the institution of criminal proceedings by a C is not
liable to a non-C for wrongful use of civil proceedings or for malicious prosecution if L has probable cause
for acting, or if L acts primarily to help C obtain a proper adjudication of C’s claim in that proceeding
 L who advises or assists a C to make or break a K, to enter or dissolve a legal relationship, or to enter or not
enter a K-ual relation, is not liable to a non-C for interference with K or with prospective K-ual relations or
with a legal relationship, if L acts to advance C’s objectives without using wrongful means

 Restatement §58 - Vicarious Liability

 A law firm is subject to civil liability for injury legally caused to a person by any wrongful act or omission
of any principal or employee of the firm who was acting in the ordinary course of the firm's business or
with actual or apparent authority.
 Each of the principals of a law firm organized as a general partnership without limited liability is liable
jointly and severally with the firm.
 A principal of a law firm organized other than as a general partnership w/out limited liability as authorized
by law is vicariously liable for acts of another principal or employee of firm to the extent provided by law.

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1. Duties Related to the Client’s Status Relative to 3rd Parties

 Mieghan v. Shore, 34 Cal. App. 4th 1025 (1995)

 Facts: Leave him having heart attack without treatment in hospital. Both spouses consulted attorney with
respect to PI claim suffered by husband. L did not inform wife that she might have claim for loss of
consortium. Wife did not know about this right until the SoL had passed and sued L.
 Issue: Does attorney have duty to inform persons in legal privity with him though not actual clients about
potential loss of consortium claims?
 Holding: Yes. When a husband and wife consult L about a PI action against third party b/c of PI to one of
them, and other spouse has a potential claim for loss of consortium of which L ought to be aware, L has a
duty to inform that spouse of the consortium cause of action. Doesn’t matter whether L knew duty existed.
 Rule: Biakanja factors: Determination whether L will be held liable is matter of policy, depends on many
factors:
□ [1] Extent to which transaction was intended to affect P,
□ [2] Foreseeability of harm to P if L is negligent,
□ [3] Degree of certainty that P suffered injury,
□ [4] Closeness of connection between D’s action and P’s harm,
□ [5] Moral blame attached to D’s conduct,
□ [6] Advancing policy of preventing future harm (deterrence interest),
□ [7] Whether recognition of liability would impose undue burden on profession
□ If within the three categories of the restatement, you usually do not have to go through factors b/c you
can usually just use prior cases to fit within one of the categories.
 But if cannot fit it into one of the categories, then need to consider the factors
 Reasoning: This case does not follow restatement § 51. The lawyer needs to be aware of his relationship to
third parties. Because of community property, the interests of H are those of his W, so she will get
whatever he gets, and L has to get C the full amount deserved. It was the L’s job to benefit wife too.
□ Circumstance of privity bears on duty of attorney, but does is not determinative by itself.
□ Spouse is not automatic extension of C, but can’t ignore the fact that the 3rd party is the husband/wife
□ Intent that P benefit from or rely on lawyer’s services is very significant in determining duty

 Lawyer must clarify scope of duty

 Flat refusal of a deal means you are free of any duty

 Note: opinion letter creates reliance interest running from client to firm
 Policy argument against this: it could chill lawyers freely giving advice
□ Courts are wary to extend attorney’s duty to persons who have not come to attorney seeking legal
advice and to whom the lawyer has never met

 All in the family:

 Family relationship is not a defense to misconduct. Do not rely on things family members tell you without
double checking them, you will be liable for family member’s misrepresentation

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B. Misrepresentation

 Duty Rule
 Silence absent a duty to disclose is not misleading.
 If you owe a duty, silence may be actionable as deceit.
 You owe duties to your clients.
 You generally do not owe duties to 3rd parties…however you CREATE duties by telling partial truths.

 Model Rule of Professional Conduct 4.1 - TRUTHFULNESS IN STATEMENTS TO OTHERS

 In the course of representing a client, a lawyer shall not knowingly:
□ make a false statement of material fact or law to a third person; or
□ fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent
act by a client, unless disclosure is prohibited by Rule 1.6.

 MR 4.3 – in dealing on behalf of a C w/ person who is not represented by counsel, L cannot state or imply that
L is disinterested. L should not imply she is looking out for the interests of both the C and unrepresented person

 MR 4.3 – When L knows or reasonably should know that unrepresented person misunderstands the L’s role in
the matter, the L shall make reasonable efforts to correct the misunderstanding. Imposes affirmative duty on Ls

 MR 4.4 – in representing a C, a L shall not use means that have no substantial purpose other than to embarrass,
delay, or burden a 3rd person, or use methods of obtaining evidence that violate the legal rights of such a person

 Restatement §98 - Statements To A Nonclient

 A lawyer communicating on behalf of a client with a nonclient may not:
□ knowingly make a false statement of material fact or law to the nonclient,
□ make other statements prohibited by law; or
□ fail to make a disclosure of information required by law.

 Cicone v. URS Corp., 183 Cal. App. 3d 194 (1986)

 Facts: Cs allege that Cicone is guilty of malpractice in conducting negotiations for sale of C’s business to
URS. Many warranties in auditing book were stated to be correct only to best knowledge of sellers. URS
falsely agreed b/c it intended to rely on strict warranty contained in written agreement. Promise made to
induce Cicone to rely on it and advise sellers to follow through with sale. Cicone says cannot warrant
balance sheet, so will warrant that they do not know that it is false. That means this provides no insurance.
Deal goes through, but corp turns out to have 200K of tax liability that was not on balance sheet. That
means that the buyer is held responsible for amount. So then, URS goes back to seller and says that they
lied. URS sues Lucas for fraud and Lucas sues Cicone for fraud. Cicone, the lawyer, cross complains
against lawyer on the other side, Canady. Canady says they are adversaries.
 Issue: Does URS corp. owe duty to Cicone, where URS made misrepresentation to Cicone and Cicone was
opposing counsel in transaction? How does 4.1(b) intersect with fraud?
 Holding: L may not engage in deceit, and must take pains to avoid negligent misrepresentation. Ls owe
duty of care to opposing counsel. (Opposing counsel must also have reasonable basis for reliance.)
 Rule: L owes a duty not to defraud another L, even if Ls are negotiating at arm’s length. A promise made
w/out any intention to perform constitutes actionable fraud. Negligence in reliance upon misrepresentation
is not a defense where the misrepresentation was intentionally made to induce reliance upon it.
 Reasoning:
□ Basic rule of fraud liability = no duty to disclose (silence absent a duty to disclose is not misleading).
 But a fraud by omission is entirely cogent within the client relationship.
 But if you make a statement, you are treated as a person making a statement and the standard fraud
analysis applies to you: that means if you disclose, you must speak the whole truth.
 4.1(b) says that you have a duty to disclose material facts when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client unless disclosure is prohibited by 1.6.
□ As a lawyer, you must not deceive people, must act as though you are acting on your client’s behalf
 Does lawyer owe duty to speak to other party: NO

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  Does lawyer create a duty to speak after telling part of truth to other party: YES
 If lawyer lied or misrepresented material fact, would this be actionable: YES, for fraud
□ EXCEPTION: Duty not at issue here b/c affirmative representation (best of knowledge guarantee)
 Other elements of deceit: materiality, reliance
○ Materiality: reasonable person would consider it significant in making some sort of decision
○ Reliance: would it be reasonable for other party to rely on what L said when making decision?

 PUFFING is Okay, LYING is not

 NOT a material statement of fact that can be relied upon. Rationale: As policy matter, want to encourage
negotiations and do not want to restrict strategy. C’s opinion will change over time. Ls lie about this all the
time, so it becomes opinion, b/c opponent knows not real fact. However, other side might change strategy

 Misrepresentation can occur through direct statement or through affirmation or misrepresentation of another, as
when lawyer knowingly affirms a client’s false or misleading statement

 Telling half-truth calculated to deceive is fraud

 L only liable for negligence for duty of care to Cs and intended beneficiaries…L liable for fraud to anyone

 Whether misstatement should be characterized as fact depends on whether it is reasonably apparent that the
person to whom the statement is addressed would regard the statement as one of fact or speaker’s state of mind

 No duty to speak to third party

 If you choose to speak, cannot make misrepresentation!
□ Must give complete and non-misleading information w.r.t. subjects on which you choose to speak

 Direct contacts can give rise to duty to disclose

□ Duty not to mislead takes precedence over non-duty to other side

 L may not fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent
act by a C Standards of ethics require greater honesty/candor/disclosure, even if not in best interest of estate
 L must disclose if C dies!

 Liability to non-clients: L may be liable to prospective C for revealing confid info communicated to the L or if
the L fails to tell the prospective C that the SoL on her claim will soon run out
 L may be liable to beneficiaries named in C’s will if, due to the L’s negligence, the will does not carry out
the testator’s intention
 L may be liable to non-C to whom the L expressly assumes an obligation to investigate facts and accurately
report them to non-C

 MR 1.2(d) – L may be liable to non-C for conduct unrelated to representation, self-serving conduct at the C’s
expense, and conduct falling w/in crime-fraud exception
 L who aids a trustee-like fiduciary to breach an obligation to the intended beneficiary of the fiduciary’s
duty may be liable to that beneficiary if acting outside the scope of the L-C relationship (Reynolds)

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C. Secondary liability: aiding and abetting and conspiracy

 Reynolds v. Schrock, 142 P.3d 1062 (Ore. 2006)

 Facts: Physician has affair with patient. They purchased 2 parcels of land together, had disagreement,
decided to each take piece of land under settlement agreement. Decide they will divest themselves of 1
piece of property and they will send 2nd property to Schrock (D). Markely (L) advises Schrock. Schrock
asks Markley whether she can sell property or if she must wait for it to appreciate. L says she can sell. L
found loophole in settlement agreement where D would receive more than half of total value for land. P
alleged that settlement agreement created fiduciary duty between P and D as joint venturers. P said Schrock
violated her duty to Reynolds by disposing of property, which she did on Markley’s advice. P claimed that
L was liable for assisting D to breach this duty. Therefore, Reynolds sues Markley because her advice
triggered the breach of fiduciary duty.
 Issue: Can L be liable to 3rd party for aiding and abetting C’s breach of fiduciary duty?
 Holding: L was immune b/c there was no crime, fraud, or self-interested conduct. No evidence existed here
that reasonable jury could find that L acted outside scope of A-C relationship in representation of D. Thus,
L’s conduct falls within privilege and lawyer is not liable.
 Rule: L may not be held jointly liable with C for C’s breach of fiduciary duty unless the third party shows
that the lawyer was acting outside the scope of the lawyer-client relationship.
□ L acting on behalf of a C and w/in the scope of the L-C relationship may be protected by a privilege
against liability for aiding and abetting or conspiracy.
□ Privilege does not apply to acts violating legal limitations on the practice of law, such as crime, fraud,
or self-interested conduct at the expense of a client
 Reasoning: L was advising on settlement agreement that says that you do not have to hang on to lodge
property even though the agreement contemplates Reynolds will get a security interest. Court determines
this is within the scope of lawyering and is therefore privileged. The rule granting privilege does not protect
L conduct unrelated to representation. It is the plaintiff’s burden to demonstrate privilege.

 Rule: As long as you are doing something that constitutes practice of law, you are in the scope of the privilege

 Note: Exception protects lawyers who are acting in their client’s best interest (not in lawyer’s own best interest)
 If you are breaching your fiduciary obligation, this falls outside the scope and you lose your immunity
 Hypo: lawyer is representing entity, 3 shareholders total. 2 shareholders want to squeeze out third.
□ This does not fall within scope of privilege. L is representing entity and not individual shareholders.
Therefore, b/c it is not in the entity’s best interest to do this, L will not be protected by the privilege.
□ L was operating outside of scope of entity representation b/c acting for majority SHs and not for entity.

 Note: if attorney acts in concert with SHs, he will be held to have acted outside bounds of his role as attorney
 Even if L acting in C’s best interest, he can be held liable if fraud, collusion, malice, or bad faith exists
□ Fraudulent concealment = no liability (attorney typically does not owe duty to disclose)
□ Actual fraud = liability

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 Model Rule 1.2(d) – Scope of Representation and Allocation of Authority Between Client and Lawyer
 L shall not counsel a C to engage, or assist a C, in conduct that L knows is criminal or fraudulent, but a L
may discuss the legal consequences of any proposed course of conduct with C and may counsel or assist a
C to make a good faith effort to determine the validity, scope, meaning or application of the law

 United States v. Sarantos, 455 F.2d 877 (2d Cir. 1972)

 Facts: D essentially worked as marriage broker to obtain permanent residence in this country for male
Greek aliens. D helped locate Puerto Rican women who were interested in marrying Greek aliens for a fee.
L says they just have to fill out form and they will get green card. In some cases, the justice department
thinks it is suspicious when an interpreter comes with them because they do not speak the same language.
Sometimes they execute divorce papers simultaneously with the immigration papers. L later filled out visa
petitions that wives had signed. L knew wives were paid to marry. He told wives called before INS to say
they were living w/ their husbands, but not to mention that they were paid to marry. L is convicted for
submitting false statements to a federal agency, and he appeals conviction for aiding and abetting false
statements to INS. Gov’t could not show that D did not know his clients were participating in sham.
 Issue: Is L liable for willful blindness of C’s conduct when he helps them participate in sham and profits?
 Holding: D deliberately avoided acquiring unpleasant knowledge [criminal sentence confirmed]
 Rule: Ls cannot escape criminal liability on a plea of ignorance when they have shut their eyes to what was
plainly to be seen.
□ If reasonable man who knew what L knew would have inquired further and discovered the illegal
activity, D is aider and abettor. Deliberate effort to avoid guilty knowledge = knowledge
 Reasoning: If you see a red flag, you cannot safely ignore it. Ostrich instruction: Conscious efforts to avoid
knowledge are the same as knowledge. If you see a red flag and you avoid it and stick your head in the
sand, you will be charged with knowledge of the red flag as if you had it completely. It is sufficient to
demonstrate guilt beyond a reasonable doubt on mens rea element of crime. L cannot represent C if
representation will result in violation of rules of professional conduct or other law.

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D. Advising or assisting clients in unlawful activity

 Matter of Scionti, 630 N.E. 2d 1358 (Ind. 2001)

 Facts: C (Gary) and wife divorced. Gary had custody every other weekend. Wife charged with child
molestation. Gary kept child against the custody agreement and against court order based on the advice of
the L to keep the child. Evidence established L counseled C to engage in conduct L knew was criminal,
violating MR 1.2(d). L (Scionti) charged with violating Rule 1.2(d), which says that L shall not counsel C
to engage in conduct that the L knows is criminal. L is also charged with violating 8.4(d) by engaging in
conduct prejudicial to the administration of justice.
 Issue: Is lawyer subject to punishment for violating disciplinary rule by counseling client to engage in
unlawful activity, even when lawyer believes such conduct to be justified by the circumstances?
 Holding: L’s argument that he perceived invalidity of child order is w/out merit. L subjected to public
reprimand. L counseled C to engage in conduct that he knew was criminal, thereby violating 1.2(d). L also
violated 8.4(d) by engaging in conduct that is prejudicial to the administration of justice.
 Rule: L may counsel a C to make a good faith effort to determine validity, scope, meaning, and application
of law. L may refuse to comply with an obligation imposed by law on a good faith belief that no valid
obligation exists. However, belief must have merit and be reasonable under circumstances
 Reasoning: Court is not persuaded by L’s action that crim violation was unforeseeable b/c it was a civil
action L does not claim legal obligations imposed by court order were invalid. C was clearly legally
obligated to return child and the court told him to. His perceived invalidity of the order is without merit.

 Do not mistake your C’s problems for your own!

 Ls can tell Cs of law and their view of outcome from the facts, but Ls cannot encourage C to act criminally

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CHAPTER VII. ASSUMING DUTIES

 Ls assume duties to Cs through acts that give Cs reason to believe the L agrees to assume duties.
 Though the lawyer client relationship rests on assent, it does not rest on formal contract law.
 Duties are not all or nothing.
 Duty of confid begins w/ L accepting confid info from C. Duty of care begins when L renders advice to C.

A. Assuming Duty of Loyalty (Confidentiality)

 Model Rule 1.18 - DUTIES TO PROSPECTIVE CLIENT

 (a) One who discusses w/ L the possibility of forming a L-C relationship w.r.t. a matter is a prospective C.
 (b) Even when no L-C relationship ensues, a L who has had discussions w/ a prospective C shall not use or
reveal info learned in the consultation, except as Rule 1.9 would permit w.r.t. information of a former C.
 (c) L, subject to paragraph (b), shall not represent C w/ interests materially adverse to those of prospective
C in the same or a substantially related matter if L received information from the prospective C that could
be significantly harmful to that person in the matter, except as provided in paragraph (d). If L is
disqualified from representation under this paragraph, no L in a firm with which that L is associated may
knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
 (d) When L has received disqualifying info as defined in paragraph (c), representation is permissible if:
□ (1) both the affected C and the prospective C have given informed consent, confirmed in writing, OR
□ (2) the L who received the info took reasonable measures to avoid exposure to more disqualifying info
than was reasonably necessary to determine whether to represent the prospective C; and
 (i) Disqualified L is timely screened from participation in matter and gets no part of fee therefrom;
 AND (ii) written notice is promptly given to the prospective client.

 Restatement §14 - Formation Of A Client–Lawyer Relationship

 A relationship of C and L arises when:
□ A person manifests to a L the person's intent that the L provide legal services for the person; and either
 L manifests to the person consent to do so; or
 L fails to manifest lack of consent to do so, and L knows or reasonably should know that the
person reasonably relies on the L to provide the services; or
□ A tribunal with power to do so appoints the L to provide the services.

 Restatement §15 - A Lawyer's Duties To A Prospective Client

 When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a
matter and no such relationship ensues, the lawyer must:
□ not subsequently use or disclose confidential information learned in the consultation, except to extent
permitted with respect to confidential information of a client or former client as stated in §§ 61-67;
□ protect the person's property in the lawyer's custody as stated in §§ 44-46; and
□ use reasonable care to the extent the lawyer provides the person legal services.
 L subject to Subsection (1) may not represent C whose interests are materially adverse to those of a former
prospective C in the same or a substantially related matter when L or another L whose disqualification is
imputed to L under §§ 123 and 124 has received from prospective C confidential information that could be
significantly harmful to the prospective C in the matter, except that such a representation is permissible if:
□ (i) any personally prohibited L takes reasonable steps to avoid exposure to confid info other than info
appropriate to determine whether to represent prospective C, and (ii) such L is screened as stated in §
124(2)(b) and (c); or
□ both the affected C and the prospective C give informed consent to the representation under the
limitations and conditions provided in § 122.

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1. Confidences Received from Prospective Clients who do not hire you

 Note on “Beauty Contests”

 Beauty contest = C shops around at a few firms = C invites a few firms to interview for the job at hand
 Status of information exchanged in such interviews
□ MR 1.18 treats the client as a prospective client and prohibits counsel from revealing the information
or using it except as permitted by MR 1.9, the rule governing subsequent conflicts of interest.
 MR 1.18 is easier on lawyers than MR 1.9, because MR 1.18(c) provides for disqualification only
when a conflict is likely to be serious, and MR 1.18(d) allows a firm to oppose the potential client
if the lawyer who obtained the information can be screened effectively
□ If prospective C reveals confidences, will owe duty of confid, even if that person does not select you
 Lawyer must find out enough about matter to give client a sense of how the lawyer would approach it
□ Conflict of interest rules apply
 Disqualification only if conflict likely to be serious
 Firm may oppose potential client if lawyer who spoke with that client can be effectively screened

Did the Client believe there was a relationship?

 Bridge Products, Inc. v. Quantum Chem. Corp. (Ill. 1990)
 Facts: Bridge interviewed 4 firms. Bridge interviewed Sidley and had an initial meeting and discussed
several aspects of case including opponent’s theory of case. Sidley law firm did not indicate information
would not be held in confidence or could be used against Bridge. Bridge ended up hiring Katten and
Quantum ultimately hired Sidley. Bridge moved to disqualify Sidley and the courts granted the motion.
 Holding: Matters were substantially related. Sidley firm’s efforts to screen the affected attorneys did not
preclude disqualification. No formal A-C relationship. Sidley is disqualified from representing Quantum.
 Rule: A party seeking to establish an implied attorney-client relationship must demonstrate that:
□ (1) he submitted confidential information to a lawyer (at an initial interview)and
□ (2) that he did so with the reasonable belief that the lawyer was acting as the party’s attorney
 Reasoning: It is Sidley (L), and not Bridge (C), that must pay for the confusion by being deemed part of an
implicit professional relationship and all the ethical responsibilities arising therefrom.
□ (1) the confidential information was disclosed to Sidley by Bridge.
 Bridge must merely raise an evidentiary inference that actual confidences were disclosed which it
did here. The fact that Bridge interviewed with other firms does not destroy the confidentiality.
□ (2) the confidential information was disclosed with the reasonable belief that there was an attorney
client relationship. The focus is on what Bridge (the C), not Sidley (the L), reasonably believed
 L did not meet burden of making clear to C that initial meeting was preliminary w/ no confidence.
 ** Test: whether confidential information was disclosed w/ reasonable belief that there was an A-C
relationship  Focus on what client reasonably believed b/c burden on L to make things clear
□ Default assumption: client will expect you to keep confidential what was said in interview

 To avoid opportunity cost created by prospective Cs who don’t retain you, Ls can:
 [1] Identify possible conflicts ASAP, [2] Limit info learned from would-be-C, [3] Seek waivers of
confidentiality, or [4] Screen L (generally presumed that if a L has a conflict, the entire firm has a conflict)

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2. Internet Communications

 Barton v. United States District Court, 410 F.3d 1104 (9th Cir. 2005)
 Facts: Law firm posted questionnaire on internet to find potential class action members for anticipated
lawsuit. Firm’s presentation on the web did not say those who answer it are submitting themselves to firm
as potential C. “Yes” box stated, “Checking yes does not constitute request for legal advice, I am not
forming A-C relationship.” Firm explicitly disclaimed the formation of any A-C relationship on the form.
(NOT ENOUGH-as soon as it is reasonable that the client thinks that the info they tell you is
confidential, then, you owe a duty. )
 Issue: Whether questionnaires were submitted in course of A-C relationship and thus protected C under
privilege. If so, whether questionnaire acted as waiver of protections afforded under A-C privilege.
 Holding: Communications made in questionnaire are confidential and cannot be accessed by others. Only
duty of confidentiality existed here. Duty of care would have also existed if website posted advice to client
 Rule: C’s communication is confidential to L if made in course of relationship. Not required that L agree to
represent C at time communication is made. This extends to preliminary consultation.
 Reasoning: Necessary b/c potential Cs must be able to tell Ls private business w/out fear of disclosure
□ Layman seeking law firm’s internet material would likely think he was being solicited as a potential C
 Most submitters completed questionnaire w/ a view to retain the law firm. [A-C relationship]
□ Opponent of privilege, law firm, has burden of showing that answers were not intended to be confid.
 The waiver on the internet does not amount to a waiver of confidentiality—the language is vague.
□ Under CA law, A-C privilege must apply b/c C’s communication to L is confidential if made in the
course of that relationship. C can be one who consults a L for the purposes of retaining the L, getting
legal advice, or securing advice. All three can precede the L’s acceptance of the C.
 In CA, prospective Cs’ communications w/ a view to obtaining legal services are covered by A-C
privilege, regardless of whether they have retained L, and regardless whether they ever retain L
□ The disclaimer does not disclaim the purpose of securing legal advice. The form would lead a person
to think the firm would include him in the class action mentioned at the beginning of the form.
 There is NO privilege where L has specifically stated that he would not represent the individual
and in no way wanted to be involved in the dispute. Law firm did not do that in this case.
□ If communication between L and possible C proceeds beyond initial/peripheral contacts to acquisition
by a L of info that would be confidential were there to be representation, the privilege applies.
 The court therefore does not allow the disclosure of the questionnaires.
 Information submitted by prospective client may be withheld from production

 COPRAC opinion 2005-168:

 Facts: Wife interested in divorce submitted info to law firm on website where there was a list of terms
stating that no A-C relationship and no confidential relationship would be formed by submitting the info.
 Holding: firms’ page invited wife to consult w/ firm. Even w/ no A-C relationship, there was duty of confid
 Rule: A-C relationship is not a prerequisite to L assuming a duty of confidentiality in such a situation.
 Reasoning: Disclaimers were not adequate to defeat reasonable belief that she was consulting to retain
□ The language in the agreement was ambiguous and confusing.
□ Had the law firm written its agreement with a plain-language reference that her submission would lack
confidentiality, then that would have defeated the reasonable expectation of confidentiality
□ Could have avoided problem by first having prospective Cs submit enough info to run conflicts

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3. Confidences From Parties Related to Clients

 Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978)
 Facts: Law firm represented member of trade company and then also wanted to represent company in suit
against trade company. Law firm was essentially taking inconsistent opinions on competition in the
uranium industry. Clients each had reasonable belief it was submitting confidential information re. its
involvement in the uranium industry to a law firm which had solicited such information upon a
representation that it was acting in the undivided interest of each company.
 Issues: [1] Whether A-C relationship arises only when both parties consent to its formation or can it also
occur when the lay party submits confidential information to the law party with reasonable belief that the
latter is acting as the former’s attorney. [2] Whether the size and geographical scope of a law firm exempt it
from the ordinary ethical considerations applicable to lawyers generally
 Holding: Fact that two contrary undertakings by law firm occurred contemporaneously w/ each involving
substantial stakes and substantially related to other outbalances C’s interest in continuing with the chosen L
 Rule: [1] Law firm cannot represent two clients with conflicting interests, b/c this is a violation of duties.
[2] No basis for creating separate disqualification rules for large firms even though the burden of
complying with ethical considerations will naturally fall more heavily upon their shoulders (you can owe
em a duty if the C has a reasonable belief that you’ll represent em AND disqualifying confidences
can)

 There are several common situations where, although there is no express attorney client relationship, there
exists nevertheless a fiduciary obligation or an implied professional relation:

 RULE FOR CONFLICTS: When you have confidential information from C, you may not be adverse to
former C on matter substantially related to representation, and may not be adverse to current C at all!

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B. Duty of Care

 Accepting representation
 Initial C contact
□ Find out whether you are competent (doesn’t require being expert)…Find out who is involved…Do not
seek confid info…Tell C you will get right back to them
 Conflict check
□ Have database of existing representations and confidences up and running to check parties who will be
adverse in new representation…If clear, call back and accept representation…If not, decline and refer
 Representation
□ Enter in conflicts database…The new C and all persons/entities about whom you will have confid info

Before representation MR 1.18 (duties to prospective Cs)

During representation MR 1.7 (entities), 1.8 (conflicts)
After representation MR 1.9 (duties to former Cs)

 Togstad v. Veseley, Otto, Miller & Keith, 291 N.W.2d 686 (1980).
 Facts: Possible medical malpractice occurred in hospital. Wife (P) consulted Miller. No agreement, no fees
charged, nothing said about being C’s L. Miller told her he did not think she had a case, but he would check
with partner and call back if he though there is a case for which they choose to represent C, and then failed
to follow up. Therefore, b/c she relied on what Miller said, P did not consult any other Ls and the SOL
expired. It was later discovered med malpractice did occur, and reasonable L would have discovered this.
□ b/c it is summary judgment, look at facts most in favor of C … disagreement about what happened
 L says he said you don’t have a case we want to take … C says L said you don’t have a case
 Issue: When L renders a legal opinion about merits of a case, does the duty of care attach to this opinion?
 Holding: Yes, L owed duty of care and he rendered opinion negligently (he didn’t even look at her medical
records). This leads to malpractice liability
 Rule: When L is consulted whether he will take case, he can refuse without duty attaching. However, when
attorney renders legal opinion, duty of care attaches to the advice the attorney gives P.
 Reasoning: In a legal malpractice action, four elements must be shows: (1) that A-C relationship existed;
(2) that D acted negligently or in breach of K; (3) that such acts were the proximate cause of Ps’ damages;
and (4) that but for Ds’ conduct, Ps would have been successful in the prosecution of med mal claim.
□ A-C relationship was present. L did not qualify his opinion by urging her to seek advice from another
L. He was negligent in not checking his medical records, which ordinary prudent L would have done.
 General Rule about Duty of Care: L-C relationship is formed when a person “seeks and receives legal
advice from an attorney in circumstances in which a reasonable person would rely on such advice”
 Advice: write a letter that says you are not offering an opinion. Just that you are saying you cannot help
them and what the SOL is.

 Flatt v. Superior Court, 9 Cal. 4th 275 (1995) (skipped in class. Similar to Togstand, diff outcome. Look at
how to reconcile them)

 Facts: Daniel went to see Flatt to see if he had a legal malpractice claim against a lawyer who represented
him in his divorce. Flatt told him he definitely had a case. Later Flatt discovered his firm had previously
represented the lawyer and told Daniel the firm could not represent him. However, Flatt did not tell him to
go seek other counsel and did not warn him about the statute of limitations. Daniel sued Flatt claiming she
breached a duty of care to him by not warning of the limitations period.
 Holding: There was an A-C relationship. However, she had no duty to give advice to Daniel about the
statute of limitations b/c to do so would have run counter to her duty of loyalty to the attorney (former C).
She also did not have a duty to tell Daniel to seek another attorney promptly for the same reason (although
if there had been no duty of loyalty, she would have had to do so). Court did not hold lawyer liable b/c it
concluded lawyer owed duties to other client that would prevent it from providing advice to party
 Dissent: The duty of loyalty to the lawyer did not absolve Flatt of the duty of care to Daniel. The fact that
L already represented different party is not a fault of the C. L assumes duty of care to each C and should be

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 equally liable for damages to each C caused by that breach. Majority merges the 2 questions: [1] does Flatt
owe duty of care to prospective C? [2] Does duty obligate Flatt to not advise Daniel?

 Delso v, Trustees for the Retirement Plan for the Hourly Employees of Merck & Co., Inc. (NJ 2007) .
 Facts: Delso appeared pro-se but Shapiro acted as a ghostwriter for the documents and advised her about
the litigation, but he did not submit the documents or appear on her behalf.
 Rule: A-C relationship begins w/ non-L’s reliance on professional skills of L, who, in turn, knows of this
reliance and accepts responsibility. Both must be aware, and L must accept professional responsibility.
 Holding: A-C relationship existed in this case b/c Shapiro was aware of and acquiesced to the use of his
work product and he said he informed Delso that he should be candid with the Court about his assistance.
The Court deemed Delso’s actions as an acceptance of Shapiro proffering of professional services.

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C. Advertising and Solicitation

 Model Rule 7.1 – Communications Concerning a Lawyer’s Services = no lying

 A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A
communication 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.
 Comment 3: unsubstantiated comparison may be misleading, Need disclaimer to mitigate


 Model Rule 7.2 – Advertising = Ls can advertise by written, recorded, electronic, but can’t pay for testimonial
 (a) L may advertise services thru written, recorded, or electronic communication, including public media.
 (b) L shall not give anything of value to a person for recommending L’s services except that a L may
□ (1) pay the reasonable costs of advertisements or communications permitted by this Rule;
□ (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service
(qualified if approved by an appropriate regulatory authority);
□ (3) pay for a law practice in accordance with Rule 1.17; and
□ (4) refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise
prohibited under these Rules that provides for other person to refer clients or customers to lawyer, if
 (i) the reciprocal referral agreement is not exclusive, and
 (ii) the client is informed of the existence and nature of the agreement.
 (c) Any communication made pursuant to this rule shall include the name and office address of at least one
lawyer or law firm responsible for its content.

 Model Rule 7.3 – Direct Contact w/ Prospective Clients = no for-profit solicitation

 (a) L shall not by in-person, live telephone, or real-time electronic contact solicit professional employment
from prospective C when significant motive for L’s doing is L’s pecuniary gain, unless person contacted:
□ (1) is a lawyer; or
□ (2) has a family, close personal, or prior professional relationship with the lawyer.
 (b) L shall not solicit professional employment by written, recorded, or electronic communication or by in-
person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:
□ (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
□ (2) the solicitation involves coercion, duress or harassment.
 (c) Every written, recorded or electronic communication from L soliciting professional employment from a
prospective C known to be in need of legal services in particular matter shall include words "Advertising
Material" on outside envelope, if any, and at beginning and ending of recorded/electronic communication,
unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2)
 (d) L may participate w/ a prepaid or group legal service plan operated by an organization not owned or
directed by L that uses in-person or telephone contact to solicit memberships or subscriptions from persons
who are not known to need legal services in a particular matter covered by the plan

 General rule(Central Hudson Test): although commercial advertising is protected under 1st amendment,
restrictions on commercial advertising can be justified by a substantial gov’t interest if they directly advance
that interest
 Gov’t has some extra power to regulate speech of Ls b/c Ls are seen as officers of the court [gov’t EE]
□ The court has suggested that L speech will be subjected to a balancing test
 L first amendment rights vs state purported interests

 L shall not make false or misleading communication about services

 Truthfully reporting L’s achievement may be misleading if presented so as to lead a reasonable person to
form an unjustified expectation that the same result could be obtained for other Cs in similar matters w/out
reference to the specific factual and legal circumstance of each C’s case
□ Unsubstantiated comparison of L’s services/fees w/ other Ls may be misleading if presented w/ such
specificity as would lead a reasonable person to conclude that the comparison can be substantiated

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 □ Disclaimer or qualifying language may preclude finding that a statement is likely to create unjustified
expectations or otherwise mislead a prospective C

 FL attorney advertising rules ban: advertising w/ slogans or jingles, “manipulative” visual depictions,
background sound (except for instrumental music), ads that “create suspense”

 NY attorney advertising rules ban: paid testimonials that don’t say anything about compensation, use of actors
to portray Ls w/out revealing that ppl in ad are actors, “techniques to obtain attention that demonstrate a clear
and intentional lack of relevance to the selection of counsel, including the portrayal of Ls exhibiting
characteristics clearly unrelated to legal competence,” nicknames or mottos that imply ability “to obtain
results,” pop up ads on web sites other than L’s own site

 Ohralik v. Ohio State Bar Association (US 1978) - L was sanctioned for in-person solicitation of 2 victims of
an accident. Protection of public from aspects of solicitation that involve coercion, fraud, undue influence,
intimidation, overreaching, and other forms of “vexatious conduct” is a legit and important gov’t interest

 In re Primus (US 1978): Women in South Carolina sterilized as a condition for receiving further welfare.
Primus said the women might have a suit and the ACLU agreed to pay Primus for her services as an attorney.
Williams decided to sue and Primus wrote a letter to Williams informing her of the ACLU’s offer. SCOTUS
held that the letter was not a violation. It was not solicitation for pecuniary gain and she offered her services for
free.
 Her actions were to express personal political beliefs and to advance civil liberties objectives of ACLU
rather than to derive financial gain.
 Ordinary L work, where you are making money, and trying to profit, will not be political work. But when
NAACP or ACLU is trying to change law (not trying to make money), more likely to be political.
 Regulations on their ability to advertise/solicit will be subject to higher level of scrutiny

 Virginia Pharmacy Bd.: First Amendment protection of freedom of speech extends to commercial speech,
including price advertisement. Distinguish ads on purpose of exercising fundamental right v. pecuniary gain
 Powell dissent: unlike public advertisement which simply provides information and leaves the recipient
free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate
response, without providing an opportunity for comparison or reflection.

First Amendment concerns re: limiting speech – here, speech is advertizing

 Regulating commercial speech: Under Central Hudson Gas & Electric Company v. Public Service
Commission of NY (US 1980, as modified by Board of Trustees of the State University of NY v. Fox
 Regulations of commercial speech are permissible if the speech at issue is:
□ (i) protected speech, which means it concerns lawful conduct and is not misleading;
□ (ii) the government interest in regulating speech is substantial;
□ (iii) the regulation directly advances the government’s interest; and
□ (iv) there is a reasonable fit between the scope of the regulation and the scope of the interest
 The aim is to prevent fraud or overreaching.
 Government always has substantial interest in preventing fraud, coercion, or overreaching

 In Re RMJ (US 1982): Advertisements in bad taste that were not misleading could not be limited

 Zauderer v. Office of Disciplinary Counsel (US 1985): Court rejected a state’s claim that the dignity of the
profession is a substantial state interest that could justify advertising restrictions. The court rejected the claim
that the ads (using an illustration to attract women who had used an IUD) presented possibilities for
overreaching, invasion of privacy, exercise of undue influence, and fraud.
 However, the court allowed a state restriction against ads that referred to contingent fee arrangements
without mentioning the client’s liability for costs — the state required disclosure of this liability.
□ Ad must include: (i) whether fee percentage would be calculated before or after costs, AND (ii) that
clients might be liable for costs

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  Because ad was in print, it was not coercive. [print advertising poses less risk than in person solicitation]
□ “Advertisers rights are adequately protected so long as disclosure requirements are reasonably related
to the State’s interest in preventing deception of consumers.”

 Shapero v. Kentucky Bar Association (US 1988): The Court held that KY could not prevent a lawyer from
sending solicitation letters to targeted homeowners facing foreclosure proceedings. “The relevant inquiry is not
whether there exist potential clients whose condition makes them susceptible to undue influence, but whether
the mode of communication poses a serious danger that lawyers will exploit any such susceptibility.

 NO discipline if NO evidence that statements about certifications were misleading. NOT inherently misleading
 Ibanez v. Florida Department of Business and Professional Regulation (US 1994): FL could not discipline
L who was also CPA and certified planner and who listed these on business cards, letterhead, and listings.
 Peel v. Attorney Disciplinary Commission of Illinois (US 1990): Ill. could not discipline an attorney for
proclaiming he was “certified as a civil trial specialist by National Board of Trial Advocacy”

 Florida Bar v. Went For It (US 1995). FL banned written solicitation (concerning personal injury or wrongful
death) to people and relatives of the people involved in accidents if it is within 30 days from date of accident.
Nevertheless, non-Ls like insurance agents could still contact victims. SCOTUS allowed regulation using need
to preserve dignity of the profession as a substantial interest of the state. Law was effort to protect the legal
profession from conduct that is unbecoming of the profession b/c of personal grief and vulnerability

THAT WAS HISTORY.

NOW WE HAVE THIS:

 Points from cases: [modern rules]

 Lawyers planning political litigation have more leeway in advertising and solicitation than those doing
typical work (this was the distinction between Ohralik and Primus)
 States can regulate solicitation more closely than advertising.
□ Solicitation are the communications that cannot be verified and present a genuine risk of undue
influence; other communications are not solicitations.
 Solicitations = telephonic or in-person pitches to particular people
○ Not solicitation = written pitches or verbal pitches directed at large numbers of people.
 Internet communications possibly more lenient
○ Interactive email substitute for personal contact, but present less risk than in-person
 California Rule 1-400 is similar. A communication is solicitation only when it is made in person or by
telephone, unless it is directed at a represented party.
 Law firm websites = communications, not solicitations, even if they provide email services.
 Chat room contacts = not solicitations, however, they can be prohibited as coercive.
□ CA Bar Hypo: Attorney visited chat room for family members of disaster victims and tried to sign up
clients  violation of rule, conduct was intrusive and considered to be real time solicitation

 Model Rule 7.4 – Communication of Fields of Practice and Specialization

 Ls may communicate the fact that they have a specialty… has to be some kind of certification as specialist

 CA law: specific specialties that you can get specialized in

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D. On (Not) Advancing Clients Money

 Model Rule 1.8(e) - CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES

 (e) L shall not provide financial assistance to C in connection w/ pending or contemplated litigation, except
□ (1) L may advance court costs and expenses of litigation, the repayment of which may be contingent
on the outcome of the matter; and
□ (2) L representing an indigent C may pay court costs and expenses of litigation on behalf of the C.

 Notes: Ls cannot advance money to Cs. Rationale: C would choose firm that gives most money, not firm w/
best skills/service. Conflict of interest b/c L would become C’s creditor and attorney (incentive to settle earlier)

 Cal. R. Prof. Conduct 4-210 - Payment of Personal or Business Expenses Incurred by or for a Client
 L shall not directly or indirectly pay or agree to pay, guarantee, represent, or sanction a representation that
L or L’s law firm will pay the personal or business expenses of a prospective or existing C, except allows L
□ w/ C’s consent, to pay or agree to pay such expenses to 3rd persons from funds collected or to be
collected for C as a result of the representation; or
□ After employment, to lend money to C upon C’s promise in writing to repay such loan; or
□ To advance costs of prosecuting or defending a claim or action or otherwise protecting or promoting
C’s interests, the repayment of which may be contingent on the outcome of the matter. Such costs
within the meaning of this subparagraph (3) shall be limited to all reasonable expenses of litigation or
reasonable expenses in preparation for litigation or in providing any legal services to the client.

 Oklahoma Bar Ass’n v. Smolen, 17 P.3d 456 (2000)

 Facts: Attorney Smolen loaned C $1,200 for living expenses through trial b/c client’s house burned down.
 Issue: Is MR 1.8 (prohibiting L from lending to C to cover personal expenses) unconstitutional against C?
 Holding: b/c of potential ethical problems that could arise from L advancing Cs money for living expenses,
the explicit prohibition against such conduct is constitutional. L is subject to discipline for violation of 1.8e
 Rule: Lawyer can only loan money to client to cover litigation and court costs. MR 1.8(e) forbids advances
for living expenses. This prevents Cs selecting Ls for improper factors.

 The rule is very anti-C and pro-L…Ensures L to have most profitable trade possible…Very anti-competitive

 Alternative Funding Mechanisms

 Civil context: Litigation loans exist where C only has to pay back loans if he receives monetary damages
□ Represents unbundling of finance from litigation
□ Cannot give C your money, but can direct C to one of these places where they could secure funding
 Crim context: criminal defense L may post bond for C or arrange it so long as the personal interest
implicated by doing so does not affect L’s ability to represent C

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E. Limitations on the Ability to Assume or Refuse to Assume Duties

 Model Rule 1.16(a) - DECLINING OR TERMINATING REPRESENTATION [mandatory withdrawal]

 (a) L shall not represent a C or, where representation has commenced, shall withdraw representation, if:
□ (1) the representation will result in violation of the rules of professional conduct or other law;
□ (2) the L’s physical or mental condition materially impairs the L’s ability to represent the C; or
□ (3) the L is discharged.

 Cal. R. Prof. Conduct 2-400 - Prohibited Discriminatory Conduct in a Law Practice

 (A) For purposes of this rule:
□ (1) "law practice" includes sole practices, law partnerships, law corporations, corporate and
governmental legal departments, and other entities which employ members to practice law
□ (2) "knowingly permit" means a failure to advocate corrective action where the member knows of a
discriminatory policy/practice which results in unlawful discrimination prohibited in paragraph (B)
□ (3) "unlawfully" and "unlawful" shall be determined by reference to applicable state or fed statutes or
decisions making unlawful discrimination in employment and in offering goods/services to the public
 (B) In management/operation of a law practice, L shall not unlawfully discriminate or knowingly permit
unlawful discrimination on basis of race, national origin, sex, sex orientation, religion, age, or disability:
□ Hiring, promoting, discharging, or otherwise determining conditions of employment of any person; or
□ Accepting or terminating representation of any client.
 (C) No disciplinary investigation or proceeding may be initiated by the State Bar against a member under
this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have
first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred
□ Upon such adjudication, tribunal finding or verdict shall then be admissible evidence of the occurrence
or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule.
□ In order for discipline to be imposed under this rule, however, finding of unlawfulness must be upheld
and final after appeal, time for filing an appeal must have expired, or appeal must have been dismissed.

 Wishnatsky v. Rovner, 433 F.3d 608 (8th Cir. 2006)

 Facts: Legal clinic at university refused to permit Wishnatsky to participate as a client in the clinical
program b/c of his previously expressed views about the Clinic, its director, and its lawsuit challenging a
public display of the Ten Commandments.
 Holding: Court holds a public clinic cannot exclude persons from the program solely b/c of their viewpoint.
□ It would be a violation of the client’s constitutional right to free speech.
 Doctrine: to extent that your law practice is a public accommodation (open to public for legal services) you
may not engage in discriminatory behavior. All business, including law practices, must treat ppl the same.
□ If do not want to represent C, say you disagree about objectives of current representation or that you
are too busy. Cannot exclude prospective C from gov’t funded legal services for 1st amendment rights

Don’t DISCRIMINATE against your clients, damnit.

 Stropinicky v. Nathanson, 19 M.D.L.R. 39 (1997)

 Facts: Attorney Nathanson told Stropinicky that she did not represent men in divorce proceedings. She
only represented women and said her expertise was particular to women. She said that the issues that arise
in representing women are different from those that arise in the representation of men and that she sought
to devote her expertise to eliminating gender bias in the court system. She also said she feels a personal
commitment to women. She said in proceedings not involving controversies between men and women, she
has no problem representing men. She dismissed P solely b/c he was male, w/out looking at facts of case.
□ P sued D alleging that D refused him legal services because he is a man. D dealt aggressively in
divorce proceedings for women. P argued that because he had assumed the role typically associated
with the wife in his relationship, D should be willing to represent him.
 Issue: May a lawyer refuse to represent a client based on his sex?
 Holding: D unlawfully discriminated against P. D must stop refusing to represent men and must pay P $5K
 Rule: The court concludes that an attorney or law office holding itself out as open to the public may not
reject a potential client solely on the basis of gender or some other protected class.

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 □ Complainant may establish prima facie case of gender discrimination by showing: (i) he is member of
protected class, (ii) denied access to/use of (iii) a place of public accommodation.
 Other notes: Court would have allowed L to reject C if she had concluded that the issues raised by divorce
were not consistent w/ her specialty and area of interest, instead of just rejecting him because he was a man.
L can reject a case and give any explanation (e.g. ugly, jerk, crappy case), as long as not an unlawful reason

 Not area of high enforcement…no one disciplined under this…applies to all…poverty is NOT protected class

 L may NOT ask C to waive malpractice liability.

 MR 1.8(h)(1)(d): A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a
client for malpractice unless the client is independently represented in making the agreement
 Restatement §54(2): An agreement limiting a lawyer’s liability to a client for malpractice is unenforceable

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CHAPTER IX. TERMINATING DUTIES

 Model Rule 1.16(a) - DECLINING OR TERMINATING REPRESENTATION [mandatory withdrawal]

 (a) L shall not represent a C or, where representation has commenced, shall withdraw representation, if:
□ (1) the representation will result in violation of the rules of professional conduct or other law;
□ (2) the L’s physical or mental condition materially impairs the L’s ability to represent the C; or
□ (3) the L is discharged.
 Model Rule 1.16(b)-(d) – DECLINING/TERMINATING REPRESENTATION [permissive withdrawal]
 (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
□ (1) withdrawal can be accomplished without material adverse effect on the interests of the C;
□ (2) C persists in course of action involving L services that L reasonably believes is criminal/fraudulent;
□ (3) C has used L’s services to perpetrate a crime or fraud;
□ (4) C insists upon taking action that L considers repugnant or which L has fundamental disagreement;
□ (5) C fails substantially to fulfill an obligation to L regarding L’s services and has been given
reasonable warning that L will withdraw unless the obligation is fulfilled;
□ (6) representation will result in an unreasonable financial burden on L or has been rendered
unreasonably difficult by C; or
□ (7) other good cause for withdrawal exists.
 (c) L must comply w/ law requiring notice to or permission of a tribunal when terminating a representation.
□ If ordered by tribunal, L shall continue representation notwithstanding good cause for terminating rep.
 (d) At termination of representation, L must take steps to extent reasonably practicable to protect C interest,
such as giving reasonable notice to C, allowing time for C to find other L, surrendering papers/property to
which C is entitled, and refunding any advance payment of fee/expense that has not been earned or incurred
□ L may retain papers relating to the C to the extent permitted by other law.

 Restatement §31 - Termination Of A Lawyer's Authority

 [1] L must comply with applicable law requiring notice to or permission of a tribunal when terminating a
representation and with an order of a tribunal requiring the representation to continue.
 [2] Subject to Subsection (1) and § 33, a lawyer's actual authority to represent a client ends when:
□ C discharges the L;
□ C dies or, in the case of a corporation or similar organization, loses its capacity to function as such;
□ L withdraws;
□ L dies or becomes physically or mentally incapable of providing representation, is disbarred or
suspended from practicing law, or is ordered by a tribunal to cease representing a C; or
□ The representation ends as provided by K or b/c the L has completed the contemplated services.
 [3] L’s apparent authority to act for C w.r.t. another person ends when that person knows or should know of
facts from which it can reasonably infer lack of actual authority, including knowledge of any above event

 Restatement §32 - Discharge By A Client And Withdrawal By A Lawyer

 [1] Subject to Subsection (5), C may discharge L at any time.
 [2] Subject to Subsection (5), L may not represent C or, where representation has commenced, must
withdraw from the representation of a client if:
□ [a] the representation will result in violation of the rules of professional conduct or other law;
□ [b] the L’s physical or mental condition materially impairs the L’s ability to represent the C; or
□ [c] the C discharges the L.
 [3] Subject to Subsections (4) and (5), a lawyer may withdraw from representing a client if:
□ [a] Withdrawal can be accomplished without material adverse effect on the interests of the C;
□ [b] L reasonably believes withdrawal is required in circumstances stated in Subsection (2);
□ [c] C gives informed consent;
□ [d] C persists in course of action involving L services that L reasonably believes is criminal,
fraudulent, or in breach of C’s fiduciary duty;
□ [e] L reasonably believes C has used or threatens to use L services to perpetrate a crime or fraud;
□ [f] C insists upon taking action that L considers repugnant or imprudent;

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 □ [g] C fails substantially to fulfill a substantial financial or other obligation to L regarding L’s services
and L has given C reasonable warning that L will withdraw unless the obligation is fulfilled;
□ [h] The representation has been rendered unreasonably difficult by C or by irreparable breakdown of
A-C relationship; or
□ [i] Other good cause for withdrawal exists.
 [4] In the case of permissive withdrawal under Subsections (3)(f)-(i), L may not withdraw if the harm that
withdrawal would cause significantly exceeds the harm to the lawyer or others in not withdrawing.
 [5] Despite Subsections (1)-(4), L must comply w/ applicable law requiring notice to or permission of
tribunal when terminating representation and w/ valid order of tribunal requiring representation to continue
 Restatement §33 - A Lawyer's Duties When A Representation Terminates
 In terminating a representation, L must take steps to extent reasonably practicable to protect C’s interests,
such as giving notice to C of termination, allowing time for employment of other L, surrendering papers
and property to which C is entitled, and refunding any advance payment of fee L has not earned.
 Following termination of a representation, a L must:
□ Observe obligations to former C such as confidences, conflicts of interest, C property/documents, fees;
□ Take no action on behalf of a former C without new authorization; also, give reasonable notice, to
those who might otherwise be misled, that the L lacks authority to act for the C;
□ Take reasonable steps to convey to former C any material communication L receives relating to matter;
□ And, take no unfair advantage of former C by abusing knowledge/trust acquired through representation

 Basic rules governing termination of duties:

 Lawyer may terminate duties of care and loyalty IF:
□ The lawyer can terminate the relationship without causing material harm to the client; OR
□ If there is good cause to do so
 Ex: nonpayment of fees, disagreement over client objectives
□ So long as if tribunal’s consent to termination is needed, the tribunal gives such consent
 Even if withdrawal is otherwise required, L is stuck if judge does not give him permission to
withdraw  you may then not violate any rules and must continue to represent C (all duties apply)
 Lawyer must terminate representation IF:
□ Any conditions of MR 1.16(a) exist (see above)
□ (Subject to some exceptions, the duty of confidentiality survives termination).
 Client may terminate duties of care and loyalty at will. Confidentiality survives lawyer/client relationship

 It is L’s job to let client know when relationship is over. L can do so by sending letter than indicates rep is over
 If L fails to do so, assumption is that relationship is ongoing and lawyer continues to owe client duties

 Three important points:

 (1) it is easier to stay out of trouble than to get out it, so make sure you want to create duties before you do
 (2) when you want to get out, make sure everyone knows it
 (3) make sure the client is no worse off for your leaving than the client would have been had you stayed.

 Hanlin v. Mitchelson, 794 F.2d 834 (2d Cir. 1986)

 Facts: Hanlin, member of Manhattans singing group, had partnership agreement with group. They had a
falling out and Hanlin retained Mitchelson to represent her through verbal retainer that said “as far as it
goes.” There was some sort of arbitration clause. L required C to pay a $25K fee in advance. Client urged
appeal and L declined to pursue. L said that his duties to C ended after original litigation and he was under
no duty to pursue appeal. Facts are not clear how A-C relationship terminated. C was making accusations
against L and then asking L for help. b/c L responded to request for help, C’s accusation was not enough to
terminate atty/client relationship. C asked for return of fee after arbitration award. L would not return, but
said would help in preparing for suits against individuals. C asked for advice. L said C owed money, but
would reopen arbitration for C. C gets a new L. C sued L. L counterclaimed against C.
 Issue: When did representation of C terminate, such that L no longer had duty of loyalty or care toward C?
 Holding: It is not clear here that A-C relationship had been terminated, so say that the relationship had not
been severed. The letters taken together do not conclusively establish that the relationship had ended. B/c
termination was not clear, L did not have a proper basis for denying C’s leave to amend.

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  Rule: C’s malpractice suit against L is enough to indicate that the C has terminated the relationship. Short
of filing suit, C may question L’s tactics and consult w/ other Ls w/out terminating A-C relationship w/ L.
 Reasoning: Even if the relationship had been terminated, the termination would not end the malpractice
inquiry. Questions would still remain about L’s handling of the termination. L did not give proper notice.
□ To withdraw, L must give C a clear and unambiguous notice of intent to withdraw from representation
□ L shall not withdraw until he has taken reasonable steps to avoid foreseeable prejudice to C’s rights

 What could L have done to make sure C knew that representation was terminated?
 L should have sent an unequivocal letter that representation was over (she already had new L anyway)
 Should have put in retainer agreement that the retainer only covered the arbitration

 Haines v. Liggett Group, Inc., 814 F. Supp. 414 (D. N.J. 1993)
 Facts: Law firm Bud Larner sought permission to withdraw from cases for cigarette related health claims
because litigation against the cigarette industry had become an unreasonable financial burden for the firm.
 Holding: Allowing withdrawal is up to the court’s discretion, even when L shows good cause. While L
demonstrated it had expended significant resources, it had not demonstrated sufficient basis to permit
withdrawal absent C’s consent.
□ Court will refuse to permit withdrawal where withdrawal would impair C’s ability to find substitute
counsel or maintain the action, even where representation becomes unprofitable for the C’s lawyers.
 Even if counsel could be found, it would cause severe prejudice to the client’s interests.
□ In this case, there was a contingency fee agreement. Just like C cannot break the agreement b/c the
litigation was very easy, L cannot withdraw, even if litigation is expensive. L bound by the agreement.
 The court therefore refuses to allow withdrawal.

 Whiting v. Lacara
 Facts: C-appellee failed to follow legal advice, was not focused on legal rights, and demanded publicity
against legal advice, did not keep contact with L’s office, and was not expected to be of help during trial. C
wanted L to file meritless claims, went to L’s office without permission, and rifled through L’s documents.
Lawyer was third counsel for case and therefore had notice that client would be difficult. L trying to
withdraw representation from ex-cop who is trying to sue everybody for being fired
 Issue: May L withdraw from representation at time near trial when client has improper motive?
 Holding: L is allowed to withdraw b/c conflict of interest between L and C developed at oral argument (b/c
C will insist L pursue already dismissed claim). However court would normally not allow L to withdraw on
eve of trial when L had notice he was taking on difficult D. Usually need more than just difficult C
 Rule: Withdrawal required when client bringing legal action merely for the purpose of harassing or
maliciously injuring client, or where conflict of interest develops between lawyer and client.

 When you have conflict at the level where the C is screaming at L, this is grounds to get OUT

 Lawyer may generally withdraw from matter if client doesn’t pay his bill
 Where C has agreed to pay hourly fee and does not pay it, considerations of fairness and risk allocation
tend to favor the lawyer
 When lawyer takes case on contingent fee basis, considerations tend to favor client

 Voluntary Withdrawal and Your Fees - Rules of withdrawal in contingent fee cases:
 Counsel may not recover anything if they unjustifiably withdraw
□ Withdrawal just because counsel thinks the case is meritless never counts as justified, nor does the
client’s rejection of a settlement recommended by counsel

 Attorney Withdraws for Ethical Reason: Lawyer may recover value of services IF:
 Withdrawal was mandatory, or if permissive, could survive heightened scrutiny by trial court
 Overwhelming and primary motivation for withdrawal was obligation to adhere to the statute or bar rules
 The action was commenced in good faith
 After counsel withdrew the client obtained some recovery and counsel’s work contributed to that recovery

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 Estate of Falco (Cal. 1987).
 Facts: Four sisters hired L to contest brother’s will. L was to be paid a percentage of the estate. L told
sisters he thought the challenge had no merit and that if they don’t accept his attempt to settle that he will
withdraw. He obtained a settlement and they contested his authority to settle. He filed a petition for fees.
 Holding: L quit and abandoned case so he had no good cause to withdraw, so he was denied compensation.
□ This was true even though court had granted motion to withdraw b/c A-C relationship was entirely
broken. Permission to withdraw does not mean L had cause to withdraw; withdrawal for practicality.
 Rule: L discharged w/ or w/out cause may recover in quantum meruit for value of pre-discharge services

 General Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164 (1994)

 Facts: In-house attorney for GD brings claim for wrongful discharge. P employed L as in house counsel,
client blew whistle on illegal company policy, P then filed employee.
 Issue: Does L’s status as in-house counsel affect the ER’s right to discharge L at will and without cause?
 Holding: Extra protection to in-house counsel due to extra pressure from corp to violate ethical rule
 Rule: In-house counsel can bring discharge tort claim against ER if L was discharged for following
mandatory ethical obligation prescribed by professional rule or statute.
 Discussion: In determining whether an in-house attorney has a retaliatory discharge claim against his
employer, a court must first ask whether the attorney was discharged for following a mandatory ethical
obligation prescribed by a professional rule or statute. (In most cases if he was, he would have a claim).
□ However, if conduct was merely ethically permissible, but not required, inquiry is different and two
questions must be resolved: (1) Whether ER’s conduct is of the kind that would give rise to retaliatory
discharge action by a non-L EE; and (2) the court must determine whether some statute or ethical rule,
such as the statutory exceptions to A-C privilege permits L to depart from the usual requirement of
confidentiality w/ respect to the ER and engage in non-fiduciary conduct for which he was terminated

 Privilege and Confidence in General Dynamics

 General Dynamics only applies to in-house counsel. This mistakenly mixes together privilege and duty of
confidentiality. Just b/c exception to privilege might apply in proceeding does not authorize exception to
duty of confidentiality. Just b/c L might be compelled to disclose confidence does not mean L can volunteer

 Fox Searchlight Pictures, Inc. v. Paladino (Cal. 2001)

 Facts: P was in-house attorney employed by Fox. They told her they would not renew her K. P thought it
was b/c of frequent use of maternity leave. P retained L to sue Fox for wrongful termination. P voluntarily
gave confidential documents to L. Fox sued Paladino for disclosing Fox’s confidences to her attorney.
 Holding: In-house counsel may disclose employer-client confidences to her own Ls to extent that they may
be relevant to preparation and prosecution of her wrongful termination action against former ER. It is not a
public disclosure b/c L is also bound by duty of confidentiality and A-C privilege to in-house counsel. In
house counsel needs the help of L to keep her from disclosing confidences impermissibly.

 Now there is additional protection for whistle-blower  in past the duty to tell truth was considered enough

 The Ethical Significance of Client Diversification

 The more diversified your C base, the easier it is to walk away from a C that wants you to violate a rule,
and the more likely you are to do it. In house counsels are not very diversified.

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X. CONFLICTS OF INTEREST

 CURRENT CLIENTS: cannot represent opposing [directly adverse] Cs [contemporaneous conflict]

 You may not represent one C in a matter in which the C is directly adverse to another current C, even if the
two representations are completely unrelated [risk to duty of loyalty]
□ Disqualification extends to entire firm
 IF you choose to conduct business with a current C, you must make sure:
□ [1] C understands you do not act for them in transaction; [2] Advise C to get another L regarding the
transaction (and give them enough time); AND [3] Be prepared to demonstrate substantive fairness
 Exception: Most courts permit L to continue simultaneous representation of Cs whose interests are adverse
in unrelated matters, provided full disclosure is made and BOTH Cs agree in WRITING to waive conflict

 FORMER CLIENTS: can represent opposing Cs unless substantial relationship exists between subjects of
prior and current representation [subsequent conflict]
 Must not act adversely in a matter substantially related to the prior representation [Risk to duty of confid]
□ Must not use or disclose information learned in the representation in a manner adverse to the former
client unless the information has become generally known
 If there is direct adversity, L cannot represent both parties unless there is written consent required

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 A. Concurrent/contemporaneous conflicts of interest

 MODEL RULE 1.7(A)(1) - CONFLICT OF INTEREST: CURRENT CLIENTS

 a) L shall not represent a C if the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if the representation of one C will be directly adverse to another C

 RESTATEMENT §121 - The Basic Prohibition Of Conflicts Of Interest

 Unless all affected Cs and other necessary persons consent to representation w/ limitations and conditions
provided in § 122, a lawyer may not represent a C if the representation would involve a conflict of interest.
 Conflict of interest is involved if there is a substantial risk that L’s representation of C would be materially
and adversely affected by L’s own interests, by L’s duties to another current C, a former C, or a 3rd person
 RESTATEMENT §122 – Client Consent to a Conflict of Interest
 L may represent a C notwithstanding a conflict of interest provided in §121 if each affected C or former C
gives informed consent to L’s representation. Informed consent requires C or former C to have reasonably
adequate info about material risks of such representation to that C or former C.
 Even with informed consent of each affected C or former C, a L may NOT represent a C if:
□ The representation is prohibited by law;
□ One C will assert a claim against the other in the same litigation; OR
□ Not reasonably likely that L will be able to provide adequate representation to one or more of the Cs

 RESTATEMENT §128 - Representing Clients With Conflicting Interests In Civil Litigation

 Unless all affected Cs consent w/ limitations and conditions provided in § 122, L in civil litigation may not:
□ Represent 2 or more Cs in a matter if there is a substantial risk that the L’s representation of 1 C would
be materially and adversely affected by L’s duties to another C in the matter; or
□ Represent 1 C to assert or defend a claim against or brought by another C currently represented by the
L, even if the matters are not related.

 MR 1.7(a) applies even to completely unrelated matters

 Does not apply to economic adversity, such as competition in the marketplace
□ Economic competition does not mean direct adversity without something more

 Flatt v. Superior Court (Cal. 1995)

 Where potential conflict arises from successive representation of Cs w/ potentially adverse interests, the
chief fiduciary value jeopardized is that of confidentiality.
□ Thus, where a former C seeks to have the previous L disqualified, the test is that C must demonstrate a
substantial relationship between the subjects of the antecedent and current representations.
 If substantial relationship, access to confid info by L in course of 1st representation is presumed
and disqualification of L’s representation of 2nd C is mandatory… disqualification of entire firm
 Where representations are simultaneous, the chief professional value at risk is that of loyalty.
□ Even though simultaneous representations may have nothing in common, and there is no risk that
confidences in the one case have any relation to the other matter, disqualification may nevertheless be
required. Generally, disqualification in simultaneous representation cases is a per se “automatic” one.

 Truck Ins. Exchange v. Fireman’s Fund Ins. Co., 6 Cal. App. 4th 1050 (1992)
 Facts: Kaiser and Truck (insurance) sued FFIC for indemnification for asbestos claims. Truck’s attorney
was disqualified so they hired Crosby. Crosby was already representing FFU, a related entity of FFIC.
When Crosby wasasked to represent Truck, they imagined the conflict, but chose to take the representation,
b/c asbestos lawsuits make so much money. FFIC rejected allowing Crosby to represent Truck and moved
to disqualify Crosby. Before the motion for disqualification was granted, Crosby moved to withdraw from
its representation of FFU. They did not withdraw before taking on the representation.
□ L spoke w/ C1 and asked if C1 would waive conflict so L could also represent C1. C1 refused. L ended
representation of C1 and subsequently began relationship w/ C2. C1 wants L dismissed from case.
 Issue: Can L represent C2 in a suit against C1 when C1 did not give L permission to terminate and L
independently terminated relationship with C1?

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  Holding: L may not represent an interest adverse to a current C w/out that C’s approval, even if L
withdraws from the other cases before the motion to disqualify is heard. Withdrawal from representation of
C1 before the hearing of the motion to disqualify did not convert concurrent representation into subsequent
representation for purposes of assessing the conflict. This is a hybrid situation involving an existing
representation with intent to depart. Absent a recognized exception, the per se disqualification rule used in
concurrent representation cases applies. Crosby is disqualified b/c violated duty by representing both Cs.
 Rule: Law firm that knowingly undertakes adverse concurrent representation cannot avoid disqualification
by withdrawing from the representation of less favored C before hearing
□ L who drops one C to take on another violates duty of loyalty, even if withdrew to make it former C
 Different outcome: When L, upon discovery and absent consent, immediately withdraws from a concurrent
adverse representation, proper disqualification standard is expressed in former representation rule.
□ Unfair to prevent C from retaining L of choice if require disqualification for mere happenstance of
unseen concurrent adverse rep (w/ not substantially related reps and not endangered C confidences)
 Indemnity coverage and wrongful termination are unrelated. If L had withdrawn first before taking on C,
would only be marginally better. If withdrew hoping C would want L, that is still like “hot potato” doctrine
□ If dropping them like a “hot potato” b/c they know Truck needs L, that is still the same idea as if they
had not withdrawn first. Still would fail the “smell test”
□ Only if Crosby had no idea about Truck wanting a L, then that might be OK

 First Clients First

 Client who hired lawyer second may NOT disqualify client who hired lawyer first
□ First in time wins rule. Duty of loyalty runs to the first client
□ Duty of loyalty exists to current C and it is not subordinate to any duty owed to a later acquired C

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 1. Which Clients Are Current?

 Two situations pose problems for determining who is a current client for conflicts purposes: frequent but
intermittent representation, and a current source of confidential information.
 Frequent but intermittent representation: In this situation you represent a client commonly but not
continuously. Pattern of repeated retainers supports finding of A-C relationship
□ Courts tend to adopt client’s-eye-view. L must make interest clear to C. Written notice to C: best thing
to do is to make it clear to C in writing whether representation is continuous or series of discrete reps
□ When you work for a C on a routine basis but not a strictly continuous basis, you run the risk of having
a court treat that C as a current C for conflicts purposes, even if you have no matter pending for that C
at the time you want to accept representation adverse to that C’s interests
 Current source of confidential information: interest adverse to C not arising from A-C relationship
□ Conflict of interest may arise [1] where L’s relationship w/ a person or entity creates expectation that L
owes duty of fidelity; and [2] where L has acquired confid info in the course of such relationship which
will be, or may appear to the person to be, useful in L’s representation in an action on behalf of a C

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2. When Are Interests Directly Adverse?

 Business competitors: Simultaneous representation in unrelated matters of Cs whose interests are only
economically adverse, such as representation of competing economic enterprises in unrelated litigation, does
not ordinarily constitute a conflict of interest, and thus may not require consent of the respective Cs.

 MODEL RULES 6.3 - MEMBERSHIP IN LEGAL SERVICES ORGANIZATION

 L may serve as a director, officer, or member of a legal services organization, apart from the law firm in
which the L practices, notwithstanding that the organization serves persons having interests adverse to a C
of the L. The L shall not participate knowingly in a decision or action of the organization:
□ Where the decision or action could have a material adverse effect on the representation of a C of the
organization whose interests are adverse to a C of the L; or
□ If participating in decision/action would be incompatible w/ L’s obligations to a C under Rule 1.7

 MODEL RULES 6.4 - LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS

 L may serve as a director, officer or member of an organization involved in law reform or its administration
notwithstanding that the reform may affect interests of a C of the L. When L knows that interests of C may
be materially benefitted by decision in which L participates, L shall disclose that but need not C’s identify.

 North Star Hotels Corp. v. Mid-City Hotel Assocs,118 F.R.D. 109 (D. Min 1987).
 Facts: L represented P that is partially owned by partner in D corp. D argues L must withdraw (or be
disqualified) b/c representation of P is directly adverse and will materially limit representation of D. L is
representing P against D, but L also represents 2 other corps that are partially owned by partner in D corp.
Reason is b/c if L fulfilled obligations to P and P succeeded against D, D would be worse off which would
in turn harm entities that L also represented b/c D would not be as able to financially support those corps.
 Holding: L disqualified. L’s representation of P is “directly adverse” to the financial interests of the 2 corps
 Reasoning: Suit is to collect money damages from D. Assets of general partner (GP) include substantial
holdings in 2 partnerships represented by L. If suit is successful, judgment where GP is personally liable
puts other 2 Cs in direct financial risk. Outcome would be diff if limited partner or corporation.
 Case-by-Case Analysis Required: L may be directly adverse to C’s interests even if not oppose C in litigation.
 No tangible threshold ct looks for  analyze both partnership interest and financials of each company
 Big company like Microsoft would pose smaller threat than small company
 Courts exhibit very low tolerance for risk. Magnitude assessment used to determine risk.

 MGM, Inc. v. Tracinda Corp. (Cal. 1995): Firm represented MGM when it was acquired by Pathe. New
entity sued key figures involved in sale claiming they misled Pathe about MGM’s finances. Credit Lyonnais,
which financed the transaction, sued the same Ds. Firm represented the Ds in Credit action but not Pathe
action.
 Holding: Court granted Pathe’s motion to dismiss. B/c the two cases are based on same factual allegations,
every attempt to disprove theory will affect Pathe action. Firm would also have to support the credibility of
a former director of MGM, which would go against the interests of the former corporate client.

 Courts may also find direct adversity where representation of one client will adversely affect a potential claim
another client has but has not brought. Representation begins before claim is filed.

 GATX/Airlog Company v. Evergreen International Airlines, Inc. (CA 1998): Mayer Brown represented
GATX (a plane converter) that contracted with Evergreen to convert planes into cargo planes. The Bank of
New York eventually was the beneficial owner of the planes. Originally, the FAA approved the planes but then
did not. Evergreen sent a demand letter to GATX who retained MB. GATX and BNY negotiated an agreement
to toll the limitations period on claims BNY might have against GATX. MB represented BNY in unrelated
matters. BNY moved to disqualify MB from the Evergreen litigation.
 Court granted motions. MB’s representation of GATX was adverse to BNY b/c had spent time advancing
defenses against plane owners and any defenses in Evergreen claims would be dispositive of BNY claims.

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 Note on “Positional” Conflicts: Model Rules of Professional Conduct 6.3-6.4
 Positional conflict = a conflict arising from diff positions on some legal question, rather than diff legal or
economic interests  do not create direct adversity for purposes of Rule 1.7(a) requiring disqualification.
□ MR 1.7(a), comment 24 = ordinarily, L can take inconsistent legal positions at different times in
different tribunals on behalf of different Cs.
 Exception = positional conflicts can be real conflicts if there is a significant risk that L’s action on behalf of
one C will materially limit L’s effectiveness in representing another C in a different case
□ For example, when a decision favoring one C will create a precedent likely to seriously weaken the
position taken on behalf of the other C
 Williams v. Delaware (2002) [example of a true positional conflict] A firm represented two Cs both
appealing their sentences for convictions that led to capital sentences. L would have argued the exact
opposite theory in each of the cases. The success of one would create unfavorable precedent for the other.
□ Test for disqualification = whether L can effectively argue both sides of the same legal question
without compromising the interests of one C or another
 L must attempt to strike a balance between the duty to advocate any viable interpretation of the
law for one C’s benefit versus the other C’s right to insist on L’s fidelity to their legal position
□ Decision: In this case, the lawyer was disqualified due to the positional conflict.
 Although this rule generally affects current Cs, issues can also arise with former Cs
□ L may advocate position for one C and then attack that position
 L may not attack work done for previous C
 Economic adversity is not generally considered legal conflict for purposes of conflict of interest
□ For conflict of interest to exist, must be tied to what happens in court, not to what happens in market
 DuPont model: when represent entity, agree to represent or at least not to be adverse to any subsidiaries

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3. Limitations on Counsel’s Ability to Represent Zealously

 MR 1.7(a)(2) - CONFLICT OF INTEREST: CURRENT CLIENTS

 (a) Except as provided in paragraph (b), L shall not represent a C if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
□ (2) There is a significant risk that the representation of one or more Cs will be materially limited by the
L’s responsibilities to another C, a former C, or a third person, or by a personal interest of the L.

 Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987)

 Facts: State failed to establish female inmates’ facility that is equivalent to that of male inmates. NHLA
represented 2 classes of Ps w/ adverse interests b/c of possibility that one class could displace other class in
their facilities. Court recognized conflict of interest but ordered trial to continue nonetheless. Combination
of Cs and circumstances placed NHLA in untenable position of being simultaneously obligated to represent
vigorously interests of two conflicting Cs. Therefore, in accordance w/ rule 1.7, court disqualified NHLA.
 Issue: Was counsel able to represent P unaffected by its divided loyalties
 Holding: Trial court abused discretion in ordering counsel to continue w/ trial w/ no rational basis after
acknowledging conflict of interest. No harmful error occurred b/c P won trial. Case remanded for new trial
on issue of proper remedy. Can’t be a zealous advocate for C1 if one solution will conflict w/ C2’s interests
 Rule: Loyalty to C is impaired when L cannot consider, recommend, or carry out an appropriate course of
action for C b/c of L’s other responsibilities or interests. Conflict in effect forecloses alternatives that would
otherwise be available to C. Colliding interests is enough for direct adversity (no need for actual suit).

 Rulings on disqualification are reviewed for abuse of discretion only

 Personal interests of prosecutors: Court will not grant motion to recuse prosecutor unless evidence shows
that a conflict of interest exists that would render it unlikely for D to receive a fair trial. Criminal Ds sometimes
argue that prosecutors have personal interests that threaten to deny D a fair trial.

 Haraguchi v. Superior Court (Cal. 2008): Prosecutor wrote novel about deciding whether to prosecute rape
case involving intoxicated victim. The book was published when the prosecutor was set to proceed on a similar
case. D moved to recuse prosecutor arguing that her personal interest to see book succeed deprived D of a fair
trial.
 The court found that it was only a coincidence and would not deprive D of a fair trial.

 Hollywood v. Superior Court (Cal. 2008): Prosecutor cooperated with director on film about D that was still
at large. D was found and moved to recuse prosecutor.
 Court denied the motion saying the prosecutor had no financial interest in the movie by the time of trial.

 Some jurisdictions will recognize advance waiver of possible future conflicts as part of the boilerplate in their
retainer agreement, whereas others will not. Can Ls make an advance waiver in their retainer agreement?
 If conflict is not consentable, not subject to advance consent. C’s consent ALWAYS must be in writing
 Also, a C’s informed consent to a future conflict, w/out more, does not constitute the C’s informed consent
to the disclosure or use of the C’s confidential information against the C

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4. Remedies for Concurrent Conflicts

 Default remedy = disqualification from participating in pending litigation

 Exercise of power of disqualification requires cautious balancing of competing interests [discretionary]
□ [1] C’s right to L of choice, [2] L’s interest in representing C, [3] financial burden on C to replace
disqualified L, [4] tactical abuse underlying a disqualification proceeding, [5] fundamental principle
that fair resolution of dispute requires vigorous representation by independent counsel w/out conflict
 Burden on moving party to show sufficient reason why L should be disqualified from representing C, and
whenever possible the courts should endeavor to reach a solution that is least burdensome upon C or Cs
□ Only in extreme circumstances can party to a suit be able to interfere w/ A-C relationship of opponent

 Factors considered for disqualification: [harm is not required]

 [1] Nature of ethical violation, [2] Prejudice of parties, including the extent of actual or potential delay in
proceedings, [3] Effectiveness of counsel in light of violations, [4] Public’s perception of profession

 Civil Liability: [harm is required] [Requires that lawyer cause actual harm to client]
 Violation of conflicts rule does not entail civil liability, even though rule violation is relevant to P’s claim
□ Serious rule violation may require disgorgement of fees
 Violations of L duty of loyalty: creates a concurrent conflict of interest, dropping one C to try another
 L may not avoid breaching the duty of loyalty that the concurrent representation rule is designed to avoid
by unilaterally converting a present C into a former C. Such a conversion may itself be a breach of loyalty.
 Research Corp. Tech., Inc. v. Hewlett-Packard Co., 936 F. Supp. 697 (D. Az 1996)
 Facts: Brinks (B) merged into Mcdermott (M). They represented Research Co. against HP. Before this, M
had represented HP in unrelated tax matters but ended representation. Later, they helped HP answer some
tax questions. HP moved to disqualify M from representing Research b/c represented HP at the same time.
 Holding: Court holds that MR 1.7 applies for present clients. However, the court looked at the four factors
above and found that disqualification was not necessary b/c the violation was not egregious enough

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5. Standing and Interlocutory Appeal

 Some sort of confidential or fiduciary relationship must have existed before a party is entitled to prevail on a
motion to disqualify an attorney predicated on the actual or potential disclosure of confidential information
 Does not need to be a party, however must have interest or be affected by outcome of litigation

 Appealing Disqualification:
 Federal law does not allow for interlocutory appeals of disqualification orders as a matter of right
□ Exception for collateral orders that finally determine claims of right separable from, and collateral to,
rights asserted in the action and are too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the whole case is adjudicated
 SC has held that disqualification orders to not fall into the exception in either criminal cases or civil cases.

 Alternative method available if district judges can certify an order for appeal if the order involves a controlling
question of law as to which there is substantial ground for difference of opinion and immediate appeal from
order may materially advance ultimate termination of the litigation
 Courts construed this narrowly… it provides little hope for disqualified counsel

 Under California law, either a client or a disqualified lawyer has standing to appeal a disqualification order.
 Disqualification orders are collateral to the merits of a case and therefore may be appealed immediately.

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B. Subsequent conflicts of interest (Conflicts Arising from Representation Adverse to Former C)

 Model Rule 1.9 - DUTIES TO FORMER CLIENTS

 (a) L who has formerly represented C in a matter shall not thereafter represent another person in the same
or a substantially related matter in which that person's interests are materially adverse to the interests of the
former C unless the former C gives informed consent, confirmed in writing.
 (b) L shall not knowingly represent a person in the same or a substantially related matter in which a firm
with which the L formerly was associated had previously represented a C
□ (1) whose interests are materially adverse to that person; and
□ (2) about whom L had acquired information protected by Rules 1.6 and 1.9(c) that is material to the
matter, unless the former client gives informed consent, confirmed in writing.
 (c) L who has formerly represented C in a matter or whose present or former firm has formerly represented
C in a matter shall not thereafter:
□ (1) use info relating to the representation to the disadvantage of the former C except as these Rules
would permit or require w/ respect to C, or when the information has become generally known; or
□ (2) reveal info relating to representation except as these Rules would permit or require w/ respect to C.

 Restatement §59 - Definition Of “Confidential Client Information”

 Confid C info consists of info relating to representation of a C, other than info that is generally known.

 The rules for former and current clients are different!

 For former Cs, L may be directly adverse unless the new matter is “substantially related” to what the L did
for the former C
 For current Cs, L cannot be directly adverse w/out informed written consent

 The “Substantial Relationship” Rule: Matters are substantially related if they involve the same transaction or
if there otherwise is a substantial risk that confidential info as would normally have been obtained in the prior
representation would materially advance C’s position in the subsequent matter.

 Example: a lawyer who has represented a businessperson and learned extensive private financial
information may not represent their spouse in securing a divorce in the future.

 What is substantially related? In 1st matter you would have learned facts that will help you in 2nd matter
□ Turns on facts and probabilities [do not look at labels]
 Rule does not ask whether L learned facts that would be helpful…Rule prohibits L from accepting
position that would put C in the position of having their confidential information used/disclosed
□ Test: (1) Ask what material facts L would ordinarily learn in representation of C1; (2) Ask same
question about C2. If there is overlap, it is a conflict under MR 1.9 b/c substantially related matters

 Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983)
 Fact: Firm represented NPD and Malec in transferring 10% of corp to Malec. To do this, stock had to be
valued. NPD gave firm the info of NPD’s financial condition, sales trends, and management. NPD adopted
firm’s value. Malec left NPD for Analytica (NPD’s competitor). Analytica hired same firm. Analytica filed
suit that NPD engaged in anticompetitive behavior and firm hired trial lawyers to work with it on matter.
 Issue: Should both firms be disqualified from representing Analytica in antitrust suit against NPD where
first firm represented NPD previously and acquired private financial information about the corporation?
 Holding: L may not represent an adversary of his former C if the subject matter of the two representations
is “substantially related”…If L reasonably would have obtained confid info in 1st representation that would
have been relevant in the 2nd. It does not matter whether he actually obtained such info and used it against
former C. In this case, info obtained was highly pertinent in later representation. Had to be disqualified.
 Rule: Appearance of impropriety test used to determine if firm should be disqualified if it is very difficult
to objectively verify that improper communication has taken place or will take place btwn Ls on 2 sides.

 Maritrans, GP, Inc. v. Pepper, Hamilton (Pa. 1992)

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  Facts: Pepper represented Maritrans for many years on different matters. Pepper furnished with substantial
confidential commercial information in Maritrans’ possession. Pepper was intimately familiar with
Maritrans’ operations including financial goals and projections. Maritrans analyzed each of its competitors
with Pepper. Then, Pepper began to represent some of Maritrans’ competitors in labor negotiations.
Maritrans argued that if the other Cs succeeded in lowering wages, the companies would be able to
compete more with Maritrans. Maritrains sued Pepper for damages and injunction.
 Issue: Does a firm owe duty to a C not to represent its competitors such that there would be business
conflicts instead of legal conflicts?
 Holding: The court will decide on a case-by-case basis based on factors. Here, L was very much involved
in C’s affairs, such that there was a substantial relationship btwn L’s former and current reps. As fiduciary,
L can be fully enjoined from representing C’s competitors b/c too much danger of breach of confid relation
 Rule: Factor test to see if fiduciary can represent competitors: (i) extent of fiduciary involvement former
C’s affairs, (ii) danger of confidences revealed, (iii) substantial relationship btwn former and current reps

 Direct and Indirect Representation: California’s Modified/Weakened Substantial Relationship Test

 California requires that relationship be substantial

□ 3 variables: factual similarity, legal similarity, extent of lawyer’s involvement in representation
 Broader than simply facts, claims, and issues involved
 “Subject” includes information material to the evaluation, prosecution, settlement,
accomplishment of litigation or transaction, gives its specific legal and factual issues.
 If L represents joint Cs, L cannot represent one C against the other in a substantially related claim
□ Aggrieved C need only satisfy a low threshold of proof and does not have to prove that L actually
received confidential information
 Where L acquires knowledge about the former C’s attitudes, practices, business customs, litigation
philosophy, strengths/weaknesses, or strategy, disqualification may be required for this reason alone.
□ When L switches sides and represents former C’s adversary in the same matter, everything L does for
the new C will injure the other
 Seems to conflict with duty of loyalty. Court assumes that confidential information will be
disclosed in course of representing new C

 CA court developed substantial relationship test, which is a weakened version. A “substantial relationship”
has been shown to exist between the former C and the current C, and when it appears that L would normally
have confidential information of former C by virtue of the nature of former representation.
 E.g. if L’s initial representation of C1 was limited to advising it on credit risk, this is diff from interest rate
risk as to which C2 had made its mistake, so matters would not be substantially related

 Whether L should be disqualified in successive representation cases turns on two variables:

 (1) relationship between the legal problem involved in the former and current representations, and
 (2) relationship between L and former C regarding the legal problem involved in the former representation.
□ Turns on whether the relationship was direct, meaning that the attorney would have acquired
confidential information, instead of just a peripheral relationship.

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 Subsequent Conflicts and Confidences Obtained Other Than Through Representation

 If no A-C relationship exists, exposure to confidences of adversary does not alone warrant disqualification
 If L receives confidential information improperly, question exists whether there is a genuine likelihood that
the status or misconduct of L in question will affect the outcome of the proceedings before the court
□ Disqualification improper if to punish if no substantial continuing effect on future proceedings
 Disqualification is proper if, as result of prior rep, or through improper means, there is reasonable
probability that L obtained info that would likely be used advantageously against the adverse party
 Appearance of impropriety always ground for disqualification

 Oaks Management Corp. v. Superior Court (Cal. 2006)

 Facts: D borrowed money from a partnership in which L who represented P was a partner. D argued that
the partnership had acquired important information that would help the P in the litigation.
 Holding: The significant question is whether there exists a genuine likelihood that the status or misconduct
of L in question will affect the outcome of the proceedings before the court. In this case, P already had
access to the information and so the information revealed to the partnership would not have a significant
impact. In CA, an appearance of impropriety is not sufficient ground for disqualification of an attorney.

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 C. Conflicts in criminal cases

 Raise two issues:

 (1) either a defendant or a prosecutor can raise the conflict
 (2) an active conflict that adversely affects representation is a ground for finding counsel ineffective under
Strickland, a standard that is somewhat easier to meet than the normal Strickland rule

 Wheat v. United States, 486 U.S. 153 (1988)

 Facts: L already represented 2 ppl in a drug distribution scheme and wanted to represent the third. C1
acquitted on drug charge and the tax charge plea is pending. C2 pleaded guilty to one transportation count
and the deal includes possible testimony against Wheat. C3 wants L to represent him.
 Issue: What is the extent to which a criminal D’s right under the 6th amendment to chosen attorney is
qualified by the fact that the attorney has represented other Ds charged in the same criminal conspiracy?
 Holding: Waivers by all affected Ds do not necessarily cure all problems from multiple representations.
Where a court finds an actual conflict of interest, it may decline a proffer of a waiver and insist that Ds be
represented separately. Court has discretion to refuse waivers of conflicts not only in rare cases where an
actual conflict is demonstrated before trial, but in more common cases where there is potential conflict.
 Rule: Presumption in favor of allowing criminal D to have counsel of choice can be overcome by a
showing of not only actual but also potential conflict. Actual conflict is not necessary.
 holding in Wheat v. US?
 6th amendment right was not violated

 Strickland required showing that you would have been acquitted. Here, an adverse effect is “an identifiable
difference in the quality of representation between disqualified counsel and the L who represents the D at trial.”
 This is much easier to meet than the Strickland standard.

 United States v. Stitt, 441 F.3d 297 (4th Cir. 2006)

 Facts: Stitt convicted of three murders and got the death sentence. Holding: The court concluded that his
trial counsel had an actual conflict of interest that adversely affected his representation during the penalty
phase of his trial. L’s desire to keep the court from inquiring as to the source of his fees (from drug money)
kept him from asking the court to appoint a qualified expert. The court found the attorney failed to ask the
court to appoint a good expert and instead hired less costly weaker expert whose only knowledge of federal
prisons came from watching television. His desire to shield his fee arrangement from the court’s scrutiny
created an actual, not potential conflict of interest. L’s actual conflict of interest adversely affected Stitt’s
defense and so prejudice is presumed. The court therefore vacated Stitt’s sentence.
 Rule: When L is burdened by an actual conflict of interest, he breaches the duty of loyalty.
□ D must show:
 (1) actual conflict of interest (not just potential);
 (2) that causes adverse effect on L’s performance.
□ To establish that actual conflict caused adverse affect, petitioner must
 (1) identify plausible alternative defense strategy/tactic that his defense L must have pursued;
 (2) show that, under the facts of the case known to L at the time of L’s tactical decision,
alternative strategy/tactic was objectively reasonable;
 (3) establish that defense L’s failure to pursue that strategy/tactic was linked to the actual conflict

 Fed Rule of Crim Pro – Rule 44(c) [fed rules of crim pro only apply in fed court…not the rule in most states]
 Court must promptly inquire about propriety of joint rep, and must personally advise each D of the right to
the effective assistance of counsel, including separate representation
□ Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take
appropriate measures to protect each D’s right to counsel
 Court has the responsibility/obligation to intervene to conduct investigation to make sure this is OK
 Joint representation in a crim case is suspect b/c it tends to preclude defense counsel from exploring possible
plea negotiations, agreements to snitch in exchange for lesser charge or leniency, etc.

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  Although joint representation in a crim case does not necessarily mean ineffective, it creates a link btwn the
question of a L’s conflict and the 6th amendment concern for the effective assistance of counsel

 Automatic Reversal for Failing to Investigate Conflict

 If D’s L objects before trial to proceeding w/ conflict of interest, trial court has obligation to investigate.
Failure to investigate appropriately justifies automatic reversal, w/out a requirement of showing prejudice
□ If neither L nor D object before trial, automatic-reversal rule does not apply

 C (whose L did not object to joint representation) can claim ineffective assistance by showing that L actively
represented conflicting interests and that an actual conflict of interest adversely affected L’s performance
 “adverse effect” is easier than Strickland b/c don’t have to show would have been acquitted but for conflict

 TIP: Look for ways in which L’s duty to D1 stopped him from doing something helpful for D2
 E.g. P’s W puts D2 at scene but not D1. L doesn’t discredit W’s testimony

 Main Points to Recall

 If actual conflict of interest adversely affects performance, presumed ineffective…No need for prejudice
 Courts may decline to allow Ds to waive conflicts. Ps may raise D’s L conflict issues themselves .

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 D. Imputation of Knowledge and Screening

 L tainted by conflict from old firm taints new firm. L who worked on a matter at an old firm that moves to a
new firm taints his firm if he would be prevented from working on a matter at his new firm.
 The taint of a conflict generally runs from lawyers to firms but not from firms to lawyers.
 Ls at old firm are also tainted by conflict. Presumption that Ls know what their firm knows is rebuttable. L
need only submit declaration stating he had no contact w/ substantially related matter while at old firm
 Screening: MR 1.11 and CA law allow for screening for government lawyers moving to private practice.
 They do not otherwise allow screening.

 Imputation = if one L is conflicted, every other L in the firm is conflicted too, unless the affected Cs consent.
 Exception: if conflict is just based on a personal interest and does not present a significant risk of
materially limiting the representation of the C by the remaining Ls in the firm

 Big Rule That Has Changed Since 2009:

 For many years, ABA model rules completely rejected screening when Ls moved from one firm to another
□ Courts today are skeptical about law firm screens, but MRs now allow screening in certain contexts
 Screening
□ MR 1.10(a)(2) – if L is disqualified b/c of association w/ prior law firm, new law firm can avoid
disqualification by screening the disqualified L
□ MR 1.11 – provides for screening of former gov’t Ls
□ MR 1.12 – permits screening of former judges and law clerks
□ MR 1.18 – allows screening of L who talked to prospective C
 Screens are NEVER used to avoid disqualification of a firm that has a current conflict under MR 1.7 and
can’t get informed consent from all affected Cs (e.g. when 2 Ls at the same firm represent adverse parties)

 Effective screening:
 Establish screen ASAP and definitely before any possibility that confid C info could leak
 Screened L is required to promise, in writing, not to communicate with other Ls about the matter
 Instruct all personnel about screen…need to send reminders for screen to remain effective
 Quarantine all paper and electronic files…screened L cannot have access to files and folders
 Establish bookkeeping procedures that assure the screened L does not share in fee revenue from case; and
□ If partner, and amount depends on firm revenue, have to take out that amount
□ If associates all get the same salary, without consideration of specific cases, doesn’t matter
 Promptly notify all Cs, former Cs, or other parties of the screen [all parties have the chance to monitor]
 Model Rules 1.10 – Imputation of Conflicts of Interest: General Rule
 (a) While Ls are associated in firm, none of them can knowingly represent C when any of them practicing
alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal
interest of the prohibited lawyer and does not present a significant risk of materially limiting the
representation of C by the remaining Ls in the firm
 (b) When L has terminated an association w/ a firm, the firm is not prohibited from thereafter representing
a person w/ interests materially adverse to those of a C represented by the formerly associated L and not
currently represented by the firm (presumption of imputation no longer applies), unless:
□ (1) matter is same or substantially related to that in which formerly associated L represented the C; and
□ (2) any L remaining in the firm has info protected by Rules 1.6 and 1.9(c) that is material to the matter.
 (c) Affected C may waive a disqualification prescribed by this rule, under the conditions stated in Rule 1.7
 (d) Disqualification of Ls associated in a firm w/ former or current government Ls is governed by Rule 1.11

 Model Rules 1.11 – Special Conflict of Interest for Former and Current Gov’t Officers and Employees
 (a) Except as law may otherwise permit, L who has formerly served as a public officer or EE of the gov’t:
□ (1) is subject to Rule 1.9(c); and
□ (2) shall not otherwise represent a C in connection w/ a matter in which L participated personally and
substantially as a public officer or EE, unless appropriate gov’t agency gives informed written consent
 (b) When L is disqualified from representation under paragraph (a), no L in a firm with which that L is
associated may knowingly undertake or continue representation in such a matter unless:

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 □ (1) disqualified L is timely screened from participation and gets no part of the fee therefrom; and
□ (2) written notice is promptly given to appropriate gov’t agency to enable it to ascertain compliance.
 (c) Except as law may otherwise permit, L having info that L knows is confid gov’t info about a person
acquired when L was a public officer or EE, may not represent a private C whose interests are adverse to
that person in a matter in which the info could be used to the material disadvantage of that person.
□ Term "confidential government information" means info obtained under gov’t authority and which, at
the time this Rule is applied, the gov’t is prohibited by law from disclosing to the public or has a legal
privilege not to disclose and which is not otherwise available to the public. A firm with which that L is
associated may undertake or continue representation in the matter only if the disqualified L is timely
screened from any participation in the matter and is apportioned no part of the fee therefrom.
 (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or EE:
□ (1) is subject to Rules 1.7 and 1.9; and
□ (2) shall not:
 (i) participate in a matter in which L participated personally and substantially while in private
practice or non-gov’t emp, unless appropriate gov’t agency gives its informed written consent, or
 (ii) negotiate for private employment w/ any person who is involved as a party or as L for a party
in a matter in which L is participating personally and substantially, except that L serving as a law
clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment as
permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b)
 (e) As used in this Rule, the term "matter" includes:
□ (1) any judicial or other proceeding, application, request for a ruling or other determination, K, claim,
controversy, investigation, charge, accusation, arrest, or other matter involving specific party/parties
□ (2) any other matter covered by the conflict of interest rules of the appropriate government agency.

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 E. Non-Client Info and Affiliated Entities

 California: As default matter, corp parent and subsidiary are separate entities. L does not act disloyally to one
by acting adversely to the other. However, will be fired by parent if represent party that is adverse to subsidiary
 Alter ego exception: 2 corporations that satisfy corporate law standards for being the alter ego of each
should be treated as one corporation for conflicts purposes (silly, minority view)
□ Relevant factors: separateness of entities involved, whether corporate formalities observed, extent to
which each entity has distinct and independent management
 Unity of interests exception: representation of one company entailed receipt of confidential information
from the other in circumstances creating an obligation not to use the information to harm any member of
the corporate family
□ Sharing of information such that sharing of 1’s information will be useful to other (Morrison)

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F. Client consent to Conflict of Interest

 Restatement §122 - Client Consent To A Conflict Of Interest

 L may represent a C notwithstanding a conflict of interest prohibited by § 121 if each affected C or former
C gives informed consent to the L’s representation. Informed consent requires that the C or former C have
reasonably adequate information about the material risks of such representation to that C or former C.
 Notwithstanding the informed consent of each affected C or former C, a L may not represent a C if:
□ the representation is prohibited by law;
□ one C will assert a claim against the other in the same litigation; or
□ in the circumstances, not reasonably likely that L will be able to provide adequate representation.

 It’s Not Just A Letter, It’s An Exhibit. Assume that everything you do and say will become publicly known.
This applies also for conflict waivers.

 Note on Waivers Involving Entities and Entity Constituents

 Under MR 1.13 counsel for an entity represents the entity itself and not its representatives
□ In some cases, counsel may represent both, but may need to obtain a waiver.
 When an officer wants joint representation, he might be tempted to sign a conflict waiver even though the
entity would be better off with its own lawyer. Conflict waivers in such situations must be signed by a
representative of the entity other than the representative who will be jointly represented (MR 1.13(g)).

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F. Transactions with clients

 Specific/Personal Conflicts are analyzed under MR 1.7a2

 MR 1.8 lists specific situations that are particularly problematic (but not necessarily banned)

 49/50 states have adopted some form of MR 1.8d, which bars Ls from getting literary or media rights to a story
based on info related to L’s representation of a C prior to ending the representation
 The one exception…CA does not have equivalent to 1.8d
 Instead, media rights in CA are governed by general conflict rules, which means that a L could obtain such
rights w/ extensive disclosure of risks and the C’s knowing and competent waiver of the potential conflicts
 Model Rule 1.8 - CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
 (a) L shall not enter into a business transaction w/ C or knowingly acquire an ownership, possessory,
security or other pecuniary interest adverse to C unless:
□ (1) transaction and terms on which L acquires the interest are fair and reasonable to C and are fully
disclosed and transmitted in writing in a manner that can be reasonably understood by the C;
□ (2) C is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek
the advice of independent legal counsel on the transaction; and
□ (3) C gives informed consent, in a writing signed by C, to the essential terms of the transaction and the
L’s role in the transaction, including whether L is representing C in the transaction
 (b) L shall not use info relating to representation of C to C’s disadvantage unless C gives informed consent
 (c) L shall not solicit any substantial gift from a C, including a testamentary gift, or prepare on behalf of a
C an instrument giving L (or a related person) any substantial gift unless L or other recipient is related to C.
 (d) Prior to the conclusion of representation of a C, a L shall not make or negotiate agreement giving L
literary or media rights to a portrayal or account based in substantial part on info relating to representation.
 (e) L shall not provide financial assistance to C in connection w/ pending/contemplated litigation, except:
□ (1) L may advance court costs and expenses of litigation, the repayment of which may be contingent
on the outcome of the matter; and
□ (2) L representing an indigent C may pay court costs and expenses of litigation on behalf of the C.
 (f) L shall not accept compensation from third party for C’s fees, unless:
□ (1) C gives informed consent;
□ (2) there is no interference w/ L’s independence of professional judgment or w/ A-C relationship; and
□ (3) info relating to representation of a C is protected as required by Rule 1.6.
 (g) Unless each C gives informed consent in a signed writing, L who represents two or more Cs shall not
participate in making an aggregate settlement of the claims of or against Cs, or in a criminal case an
aggregated agreement as to guilty or nolo contendere pleas. L’s disclosure shall include existence and
nature of all the claims or pleas involved and of the participation of each person in the settlement.
 (h) L shall not:
□ (1) prospectively agree to limit L’s malpractice liability to C, unless C is independently represented in
making the agreement; or
□ (2) settle a claim or potential claim for such liability with an unrepresented C or former C unless that
person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek
the advice of independent legal counsel in connection therewith
 (i) L shall not acquire proprietary interest in cause of action L is conducting for a C, except that L may:
□ (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
□ (2) contract with a client for a reasonable contingent fee in a civil case.
 (j) L shall not have sexual relations w/ C unless consensual sexual relationship existed before A-C relation.
 (k) While Ls are associated in a firm, any of (a) - (i) that applies to any one of them applies to all of them.

 Cal. R. Prof. Conduct 3-300 - Avoiding Interests Adverse to a Client

 L shall not enter into a business transaction w/ C; or knowingly acquire an ownership, possessory, security,
or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:
□ (1) transaction and terms on which L acquires the interest are fair and reasonable to C and are fully
disclosed and transmitted in writing in a manner that can be reasonably understood by the C; and
□ (2) C is advised in writing that C may seek the advice of an independent lawyer of C’s choice and is
given a reasonable opportunity to seek that advice; and

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 □ (3) C thereafter consents in writing to the terms of the transaction or the terms of the acquisition.

 Beery v. State Bar, 43 Cal. 3d 802 (1987)

 Facts: L (Beery) had invested in a satellite company in hotel in San Diego. One of his Cs who he had
represented in a personal injury action wanted to invest money to have a fixed income. L recommended
investment in the satellite venture expecting he would be paid monthly and L guaranteed the full amount.
□ L did not disclose his involvement. L did not disclose his interest in the venture that he persuaded C to
enter. L did not tell him to consult independent counsel. L did not tell him that the investment was
risky b/c of problems w/ installation at the hotel and that they could not borrow from comm lender.
□ L promised to personally reimburse C for any losses. L then went bankrupt. Business venture failed. C
lost investment money. L-C relationship existed at the time of the loan transaction. C sued L.
 Issue: Did L violate rules by persuading C to invest in L’s business venture if it was against C’s interest?
 Holding: L violated rule and abused trust that C had in him. L breached duty to C by failing to disclose
highly risky nature of investment. In this case, it was not an arm’s length business deal, material facts were
concealed, the attorney willfully violated a disciplinary rule. L suspended from practice for 3 years.
 Rule: Business transactions w/ Ls are strictly scrutinized by courts w/ care, set aside at C’s mere request,
unless L shows by extrinsic evidence that C acted w/ full knowledge of all facts connected w/ transaction
and fully understood their effect. There is a fiduciary relationship between C and L, which means that the
parties are not on equal terms. L holds burden of proof to prove transaction was fair.
 Other notes: L was C’s L when he gave investment advice. All standards and duties of care and
confidentiality govern. L must meet these requirements. If entering a transaction w/ a former C and not a
foreseeable C, business transaction is OK, but have to make clear that not C’s L during the transaction.
 “stranger rule” - L must advise C as if the L were evaluating the deal from an outsider’s perspective

 Remedies for conflicts: Disqualification

 Charging lien: L can obtain charging lien on some property to secure fee in the event that C fires him and then
prevails.
 However, L must obtain informed written consent (and tell C to seek advice of independent counsel) for
charging lien b/c it is an adverse interest to C. In the event that there is a dispute over the lien or its
existence, L would have the ability to detain the property from being distributed to C.
 Contrast: unsecured promissory note - L does not get present interest in C’s property that L can instantly
realize  grants L considerable authority to detain all or part of C’s recovery if dispute arises over lien

 Sugarman v. State Bar (Cal. 1990)

 Facts: L represented both company and its president. Pres was not paid and refused to do more work. Pres
said he would loan the money on behalf of corp to L and then L would pay pres back. L agreed and they
executed a formal note. Loan went through but L later declared bankruptcy and listed pres as a creditor.
 Holding: All dealings between L and his Cs that are beneficial to L will be closely scrutinized w/ the
utmost strictness for any unfairness.

 Fergus v. Songer (Cal. 2007)

 Facts: Songer hired Fergus to enforce a judgment against a hotel owner. Fergus worked on a contingency
fee basis. Songer wanted to buy the hotel so Fergus advanced him the money in exchange for raising his %
of the contingency fee. Fergus and his wife used their home as credit and advanced the money to Songer.
They became 50% partners. Songer refused to pay the contingent fee claiming the initial fee was voidable.
 Holding: The court agreed but said that Fergus’s wife had a separate claim against Songer because she was
not an attorney and was not bound by the ethical rules.

 Market Baselines, Transaction Costs, and the Economics of Client Transactions

 Voidable transactions: As Beery suggests, if L engages in a transaction with a C, the transaction is voidable
by the C unless the L demonstrates that the C was fully informed regarding all material aspects of the
transaction, and willingly entered into it, and that the transaction was substantively fair to the C.
□ Showing fairness: Burden is on L to establish fairness of transaction. The best way to demonstrate
fairness is to take a comparable market transaction and compare it to the one between the L and C.

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  If no market, then ask why transaction occurred. Natural inference in a fiduciary context is that it
occurred b/c L exercised influence to C’s detriment. Do not engage in business if no benchmark!
 Gifts from your Clients
 When a C wants to give the L a gift, everything rests on the procedure by which the gift was memorialized
and whether L can rebut the presumption that the gift was the product of undue influence. Then, if
necessary, L may need to defeat whatever evidence a plaintiff might introduce to establish such influence.
□ Gift received from client must be fair  no substitute transaction to serve as baseline
 Undue influence: any improper urgency of persuasion whereby the will of a person is overpowered and he
is induced to do or forbear an act which he would not do, or would do if left to act freely
□ Ex: to set aside a will, this court has found that undue influence must be of such a nature as to destroy
the testator’s freedom concerning the disposition of his estate and render his will that of another
 Potential great for abuse when attorney drafts will and stands to benefit from that will
□ Trust can be abused. ALL wills in which L is a beneficiary are presumptively void. L must provide
clear and convincing evidence to rebut presumption of undue influence once it has been raised
 L must tell C to seek outside counsel to write will. If C refuses, L is risking a lot. L must
document advice to C to get another L. The will remains presumptively invalid
 Franciscan Sisters Healthcare Corp v. Dean (Ill. 1983) - L was able to rebut presumption that a bequest
by his C was void. The C gave the L money in a will. They had known each other for over 20 years
socially. The L had her speak to another L alone. The court therefore found there was no undue influence.

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CHAPTER XI. RELATIONS WITH THIRD PARTIES ON BEHALF OF CLIENTS

Represented Person Unrepresented Persons

May not communicate without lawyer’s consent
 Party’s own consent will not do
 Exception: good faith under-cover
investigation
 KNOWLEDGE requirement
May communicate
 If your client’s interests differ from theirs or
are reasonably likely to do so, you may not
give them legal advice
 Exception: tell them to get their own lawyer

 While gathering evidence, may not suppress evidence or advise third party to do so
 Must respect legal rights of third parties and not do things designed to burden or harass them
 Disciplinary violations rare, disqualification common

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A. Represented persons

 Model Rule 4.2 - COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

 The No-Contact Rule: If L knows person is represented by another L in a matter, L may not communicate
w/ him about subject of representation, unless his L consents or L is authorized by law or a court order.

 Comment 7:
□ In the case of a represented organization, this Rule prohibits communications with:
 A constituent of the organization who supervises, directs, or regularly consults with the
organization’s lawyer concerning the matter; OR
 Has authority to obligate the organization with respect to the matter; OR
 Whose act or omission in connection with the matter may be imputed to the organization for
purposes of civil or criminal liability
□ Effects: if employee is dealing with very litigation at issue OR has permission to settle case OR has
done the very bad things at issue, company counsel is deemed to be counsel for this person
 MR 4.2’s ban on contact applies:
□ In both crim and civ cases
□ To represented person and not just parties (even where 2 Cs have same interests)
□ Only when L should know the other person is represented
□ Even if the represented person initiates the contact

 Model Rule 3.4(f) – FAIRNESS TO OPPOSING PARTY AND COUNSEL

 L may not request anyone other than C to refrain from voluntary giving relevant info to other party unless
□ The person is a relative or an employee or other agent of the C; and
□ L reasonably believes that person’s interests will not be adversely affected if refrain from giving info.

 Restatement §99 - A Represented Nonclient—The General Anti–Contact Rule

 (1) L representing C in a matter may not communicate about subject of representation w/ non-C whom L
knows to be represented in matter by another L or w/ a representative of an organizational non-C, unless:
□ the communication is with a public officer or agency to the extent stated in § 101;
□ the lawyer is a party and represents no other client in the matter;
□ the communication is authorized by law;
□ the communication reasonably responds to an emergency; or
□ the other lawyer consents.
 (2) Does not prohibit L from assisting C in otherwise proper communication by L’s C w/ represented non-C

 Restatement §100 - Definition Of A Represented Nonclient

 Within the meaning of § 99, a represented non-C includes:
□ a natural person represented by a L; and:
□ a current employee or other agent of an organization represented by a L:
 if the employee or other agent supervises, directs, or regularly consults with the L concerning the
matter or if the agent has power to compromise or settle the matter;
 if the acts or omissions of the employee or other agent may be imputed to the organization for
purposes of civil or criminal liability in the matter; or
 if a statement of the employee or other agent, under applicable rules of evidence, would have the
effect of binding the organization with respect to proof of the matter.

 Restatement §102 - Information Of A Nonclient Known To Be Legally Protected

 L communicating w/ non-C in a situation permitted under § 99 may not seek to obtain info that the L
reasonably should know non-C may not reveal w/out violating a duty of confidentiality to another.

 The “no-contact rule” only binds the Ls

 Parties to a matter may communicate directly w/ each other
 L can advise a C concerning a communication that the C is legally entitled to make (unless C is a L)

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 What if C is organization? Can L freely communicate w/ EEs, managers, and officers of another L’s entity Cs?

 Entity Rules for Contact w/ Represented Persons: MR 4.2 prohibits communications with:
 [1] The high officials (company’s alter egos whose actions are binding on the corp)
 [2] Those EEs whose acts or omissions may be imputed to the company for liability purposes
 [3] Those implementing the advice of, directing, helping, or consulting w/ the entity’s L on the matter

 Snider v. Superior Court, 113 Cal. App. 4th 1187 (2003)

 Facts: Snider left Quantum and formed Gardenia. Quantum complained that Gardenia was a competing
business in which Snider used confid info from Quantum. Snider’s L began contacting EEs of entity w/out
asking if they were represented by counsel. EEs that L contacted were not high-level executives within
company. L spoke to two Quantum EEs before trial and Quantum’s attorney moved to disqualify them.
 Issue: Did L violate rule that prohibits L from contacting represented persons? When organization is suing,
can D’s L talk to individuals at that organization?
 Holding: L cannot communicate w/ a party he knows to be represented by another L about the controversy
w/out that L’s consent. However, Ls can contact non-management personnel so long as the communication
does not involve EE’s act/omission in connection w/ matter, that may bind corp. Disqualification improper
 Rule - CA rule – EE’s admission imputed only if EE had authority to speak on the ER’s behalf
□ Court here concludes that managing agent refers to those with substantial discretionary authority over
significant aspects of a corp’s business, including decisions that determine organizational policy
 Cannot talk to pres and vice-president b/c they are effectively alter egos of corp
○ The two EEs did not fit this description. They were not officers, directors, managing agents.
Their acts/omissions were not binding/imputed to organization. Their statements could not
constitute admissions of the organization. Need more than a supervisory EE to fit the test.
□ Control group (officers and agents responsible for directing corps’ actions)
 EEs were not managing agents, even though they did have some oversight authority, but it was
limited to relatively specific facts
○ This distinguishes between supervisory authority and general management authority
 Look to see: if EE’s acts or omissions are binding on the corp
□ **Actual knowledge that person is represented by counsel is required before L is held to violate
rule.
 This is consistent w/ Model Rule 4.2. There are 5 tests to determine who L can contact:
 The control group test, the party-opponent test, and the management-speaking agent test, case-by-case
balancing test, and the alter ego test.
□ Control group approach: who can make binding decisions for company?
□ Blanket approach: cannot talk to anyone within company

 MR 4.2 does apply to prosecutors, though they typically are given more leeway
 Police are not agents of a prosecutor
□ Distinguish: paralegal or secretary is agent of law firm
 Courts unclear whether 4.2’s ban applies in the investigation phase of crim cases prior to an arrest or charge

 Former employees: MR 4.2 does not prohibit contact w/ former EEs unless they have a separate L-C
relationship w/ L for the entity or a L of their own. Under 4.4, L must still respect the rights of those 3 rd parties,
so if there is privileged info, L must not ask for it (b/c the privilege belongs to the entity and not the EE).
 Siebert & Co., Inc. v. Intuit Inc. (2007): In this case, the attorneys advised the former EE of their
interest, they asked him not to answer any questions that would disclose privileged information, and he
stated he understood this, and no information was disclosed. There was therefore no basis for
disqualification.
 Ls can interview former EEs w/out permission from entity L, unless know they are actively working w/ the corp
 Opposing L prohibited from eliciting privileged information from former L
 L may interview former EEs who possess privileged or work product information, but must take reasonable
steps not to acquire such information.

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 Indirect contact and scripting: L cannot do indirectly what he could not do himself. Therefore, L cannot
script his client’s contact with the opposing party. The contact must originate and be directed by the client.
 Cannot use C as conduit for conveying to represented opposing party words or thoughts originating with L
□ L may confer with C as to strategy, goals, general nature of communication C intends to initiate w/
opposing party as long as communication itself originates with and is directed by the C and not the L.
 Jorgensen v. Taco Bell Corp (Cal. 1996): Where an attorney hires an investigator to interview an
employee before any suit is even filed who later turns out to be represented by counsel, there is no violation
since there was no matter in which the alleged harasser, in this case, could be represented.
□ Contrast Inorganic Coatings, Inc. v. Falberg (Pa 1996) where contact occurred but the decision to
file suit had clearly been made; in this case, disqualification was appropriate.
 Trial courts have discretion to suppress evidence obtained through violation of no-contact rule
□ Case by case basis, totality of the circumstances test used [same standard used for crim and civil]
□ Most cases find a way around this literal approach that would mean Ls can’t use investigators

 Unrelated matters: The rule does not prevent communications with them regarding a matter unrelated to the
one on which they are represented. United States v. Ford (6th Cir. 1999) (contact concerned threats to
prosecutor and not the crime for which defendant was indicted). This is not a very representative case.
 Miller v. Material Sciences Corp. (Ill. 1999) (contact OK w/ regard to civil suit for which comptroller not
represented but not for SEC investigation for which he was represented)

 Communication: Cases come out differently on what constitutes a communication for purposes of this rule.
 Midwest Motor Sports v. Arctic Cat Sales, Inc (8th Cir. 2003) (investigator speaking to salesperson at
showroom of plaintiff (terminated dealer) was a communication)
 Microsoft Corp. v. Alcatel Bus. Systems (Del. 2007) (technician who installed telecommunication system
that allegedly infringed their client’s patents was questioned and since he was represented, the lawyers
were sanctioned).
 Hill v. Shell Oil Co. (Ill. 2002) (videotaping operations of gas stations not communications)
 Basic outline definition of communication:
□ Simple observation not protected
□ Ls (and investigators) cannot trick protected EEs into doing/saying things they otherwise would not do.
 Cannot normally interview protected EEs or ask them to fill out questionnaires
□ Ls have been disqualified for talking to person represented by counsel even when they did not obtain
confidential information

 When employee does not want representation: When an EE who has been represented by institutional L
perceives conflict of interest in representation and approaches prosecutor or investigator to notify of conflict w/
the corp, prosecutor should inform EE of right to obtain substitute L. United States v. Talao (9th Cir. 2000).
 If opposing party is entity with in-house Ls but has outside counsel representing them in matter at hand,
you may contact that L unless they regularly advise entity’s L or is managing agent of organization
 If employee would be deemed represented by entity counsel but would not want such representation:
□ If conflict of interest exists between individual and corporation, corporate counsel cannot continue to
represent both employee and corporation. Corporation’s interest here does not provide basis for rule
 Import: can speak with member of corporation if clear conflict of interest exists between entity and
individual because corporation’s lawyer cannot represent individual due to conflict

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 Model Rule 8.5 - DISCIPLINARY AUTHORITY; CHOICE OF LAW
 (a) Disciplinary Authority: L admitted to practice in this jurisdiction is subject to the disciplinary authority
of this jurisdiction, regardless of where L’s conduct occurs. L not admitted in this jurisdiction is subject to
the disciplinary authority of this jurisdiction if L provides or offers to provide any legal services in this
jurisdiction. L may be subject to disciplinary authority of more than 1 jurisdiction for the same conduct.
 (b) Choice of Law: In any exercise of the disciplinary authority of this jurisdiction, the rules of
professional conduct to be applied shall be as follows:
□ (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in
which the tribunal sits, unless the rules of the tribunal provide otherwise; and
□ (2) for any other conduct, the rules of the jurisdiction in which L’s conduct occurred, or, if the
predominant effect of the conduct is in diff jurisdiction, the rules of that jurisdiction shall be applied to
the conduct. L shall not be subject to discipline if L’s conduct conforms to the rules of a jurisdiction in
which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.

 Matter of Howes, 940 P.2d 159 (N.M. 1997)

 Facts: Criminal D contacts police to talk about murders with which he is charged. He talked to prosecutor
repeatedly w/ impulse to confess w/out permission from his attorney. Respondent represented the US and
told the detective to listen to D’s statements but not respond or initiate any contact. The public defender
was never told. Later, D called respondent himself. He asked no questions, only listened.
 Issues:
□ [1] Whether P was entitled to rely on advice of his supervisor and should be excused for violation;
 NO
□ [2] Whether prosecutor communicated with D;
 YES; can communicate simply by indicating a willingness to listen
□ [3] Whether any communication that occurred was authorized by law;
 NO; went beyond bounds of investigation b/c D was already being held with probable cause.
□ [4] Whether his actions were authorized under Constitution;
 NO; by not contacting D’s attorney and by encouraging D to talk to him, prosecutor violated rule.
□ [5] Whether if violation occurred, should disciplinary action be taken up against him?
 YES
 Rule: Once L has been appointed to represent litigation, that L’s responsibility is to act on behalf of C and
to protect C from compromising his case by waiving viable defense or from disclosing privileged info
□ L cannot fulfill responsibility when opposing L freely comes into contact with C w/out L’s knowledge.

 Congress resolved the issue by enacting the McDade Act…federal Ls are subject to state ethics rules

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B. Unrepresented persons

 Model Rule 4.3 - DEALING WITH UNREPRESENTED PERSON

 In dealing on behalf of C w/ a person who is not represented by counsel, L shall not state or imply that L is
disinterested. When L knows or reasonably should know that unrepresented person misunderstands L’s role
in the matter, L shall make reasonable efforts to correct the misunderstanding. L shall not give legal advice
to an unrepresented person, other than the advice to secure counsel, if L knows or reasonably should know
that the interests of such a person are or have a reasonable possibility of being in conflict w/ C’s interests.
 MR 4.3: You may communicate w/ unrepresented ppl but:
□ You may not imply that you are disinterested and if they are confused about your role, you must clarify

 MR 4.3: You may not advise unrepresented ppl whose interests conflict or may conflict w/ your Cs except
□ You may advise them to get their own L

 Restatement §103 - Dealings With An Unrepresented Nonclient

 In the course of representing a C and dealing with a non-C who is not represented by a L:
□ L may not mislead non-C, to prejudice of non-C, about identity and interests of person L reps; and
□ If L knows or reasonably should know that unrepresented non-C misunderstands L’s role in the matter,
L must make reasonable efforts to correct confusion, if would materially prejudice non-C otherwise.

 Hopkins v. Troutner, 4 P.3d 557 (Idaho 2000)

 Facts: P’s L withdraws. D’s L contacts P to settle case. P asks D’s L what he thinks case is worth. D’s L
explained that this would forever dismiss CoA, he could seek other legal advice, and then gave estimate of
3-4K. P agrees to settle for 5.5K. P then seeks release from the settlement b/c of L’s overreaching.
 Issue: Should decision reached by L and opposing party be dismissed for prejudice on behalf of the L?
 Holding: b/c L gave advice, and party relied on advice, L is in violation, and P is released from agreement
□ Circumstances regarding conversation should have led L to know that P would rely on his advice
 Lawyer did not only state factual matter to party, but also gave legal advice when he gave estimate
 Rule: L should not give advice to unrepresented person other than advice obtain legal counsel, especially
when unrepresented person is not experienced in dealing w/ legal matter and may assume L is disinterested
 Dissent: Attorney’s statement is mere puffing; other side was not entitled to rely on it.

 Note: had L changed wording to say “my C’s position is….,” problem would have been avoided
□ L also could have said “my need to form your own opinion or find a L. My C will pay you X.”
 Could even offer to pay for opposing party’s L
□ Distinguish opinion vs. position
 Opinion: “this case is worth X.”  VIOLATION b/c equivalent of legal advice
 Position: “my client will offer X.”  NOT VIOLATION
□ Lawyer may NOT imply he is disinterested to third party!
 Lawyer could not undertake joint representation due to conflict of interest

 Model Rule 3.4(f) – FAIRNESS TO OPPOSING PARTY AND COUNSEL

 L may not request anyone other than C to refrain from voluntary giving relevant info to other party unless
□ The person is a relative or an employee or other agent of the C; and
□ L reasonably believes that person’s interests will not be adversely affected if refrain from giving info.

 Kensington Int’l Ltd v. Republic of Congo, 2007 WL 2456993 (S.D.N.Y.)

 Facts: Cleary, a law firm, contacted Mbemba directly and persuaded him not to go to a deposition (even
though he was unrepresented by counsel) it was illegitimate. Then, the firm tried to hide their influence in
persuading him not to go to the deposition by saying that he had contacted them saying he would not go
without a lawyer. L told party to act in a way that would adversely affect their side. L gave misleading info
 Holding: Sanction imposed to all Ls at firm where the L worked. L used unjustified influence when
interacting with one party in the case by suggesting to that party he represented his interests and to act in a
way to harm the other side b/c Lwas trying to control the party in act in way to protect the firms’ interests.

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  Rule: Counsel must not intervene and improperly influence witness or request a person other than a client
to refrain from voluntarily giving relevant testimony.

 Had lawyer refused to send letter calling attention to witness that it would be bad to attend this deposition
without a lawyer familiar with the facts of the case, would have been OK
 Also would be OK to send letter because everything included in it was true

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CHAPTER XII. RELATIONS WITH YOUR FIRM

C. Superior-Subordinate Relations

 Model Rules 5.1 – Responsibilities of Partners, Manages, and Supervisory Lawyers

 (a) A partner in a law firm, and a L who individually or together with other Ls possesses comparable
managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that all Ls in the firm conform to the Rules of Professional Conduct.
 (b) L having direct supervisory authority over another L shall make reasonable efforts to ensure that the
other lawyer conforms to the Rules of Professional Conduct.
 (c) L shall be responsible for another L’s violation of the Rules of Professional Conduct if:
□ (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
□ (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other
lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at
a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action

 Model Rules 5.2 – Responsibilities of a Subordinate Lawyer – can’t say someone else made you do it!
 (a) L is bound by Rules of Professional Conduct even if that L acted at direction of another person.
 (b) A subordinate L does not violate the Rules of Professional Conduct if that L acts in accordance with a
supervisory L’s reasonable resolution of an arguable question of professional duty.

 Restatement § 11 – Lawyer’s Duty of Supervision

 L who is partner is subject to professional discipline for failing to make reasonable efforts to ensure that
firm has measures giving reasonable assurance that all Ls in firm conform to applicable L-code requirement
 L who has direct supervisory authority other another L is subject to professional discipline for failing to
make reasonable efforts to ensure that the other L conforms to requirements
 L is subject to professional discipline for another L’s violation of the rules if:
□ The L orders or, with knowledge of specific conduct, ratifies the conduct involved, OR
□ The L has direct supervisory authority over another L and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable remedial measures.
 With respect to non-L employee of law firm, L is subject to professional discipline if:
□ The L fails to make reasonable efforts to ensure:
 That the firm in which the L practices has measures giving reasonable assurance that the non-L’s
conduct is compatible with professional obligations of ER; and
 Conduct of non-L over whom L has direct supervisory authority is compatible with professional
obligations of L; or
□ Non-L’s conduct would be violation of MR if performed by L, and
 L orders or with knowledge of conduct ratifies it, or
 Has supervisory authority and knows of conduct at time when consequences can be
avoided/mitigated but fails to take reasonable remedial measures

 Kramer v. Nowak, 908 F. Supp. 1281 (E.D. Pa. (1995))

 Facts: Kramer hired Nowak to work in a diff state on a specific single case. All documents went to Kramer
for his approval. Nowak worked 5-6 years on same matter as EE. One of the documents was a motion for
prejudgment interest, which was miscalculated. Kramer had asked Nowak to prepare the document and
told Nowak to sign it with Kramer’s name. Kramer claimed Nowak was an independent contractor and not
an employee. However, Kramer was in control of Nowak’s work. Court says he was his employee.
 Issue: Can a firm sue an associate for negligence?
□ Yes, b/c Ls can owe a fiduciary duty to both C and another L or his ER under the law of agency.
 Holding: In this case, Kramer’s signature amounts to an admission that he vouched for reasonableness of
the motion. Kramer therefore affirmed and ratified Nowak’s calculation. Court remanded.
□ Rule: ER must present evidence whether
 (1) partner ratified the associate’s negligence; and
 (2) whether the miscalculation could have been discovered through reasonable inquiry.
 Note: Court rejected Nowak’s claim that b/c his firm would be liable for his negligence, he could not be.

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 Vicarious liability does not exculpate the agent. Harm imputed to whole firm, but L not exculpated.

 Duty to Seek Supervision

 Beverly Hills Concepts, Inc. v. Schats and Schatz (1998)
□ Under MR 1.1, if L is not competent, must seek supervision to provide competent representation.
 However, not every instance of professional negligence results in a breach of fiduciary duty.
□ Professional negligence implicates duty of care. Breach of a fiduciary duty implicates duty of loyalty.
 b/c L did not represent that she had superior knowledge, negligence was not fiduciary duty breach

 Matter of Howes, 940 P.2d 159 (N.M. 1997)

 Facts: Prosecutor spoke w/ D when D called prosecutor. Prosecutor asked supervisor who said it was OK.
□ Supervisor was not thinking about MR. Supervisor was thinking about admissibility of the evidence.
 Issue: Does P avoid violation of MR b/c he acted in accordance w/ supervisor’s instruction to speak to D?
□ Holding: Here, there was no arguable question of professional duty needing resolution. L cannot avoid
violation of MR if acting in accordance w/ supervisor’s instructions if they are obviously wrong.
 Rule: Associate may only avoid violation of MR if that lawyer acts in accordance w/ supervisory L’s
resolution of arguable question of professional duty. If a question of ethical duty can be answered in only
one way, the duty of both Ls is clear and they are equally responsible for fulfilling it.
□ Rule 5.2 does not excuse Ls from accountability for misconduct just b/c followed another L’s advice
 Reasoning: Junior L only avoids discipline for following reasonable resolution on questionable area of law
□ Never protected from civil liability, unreasonable resolution of question, or incorrect solution not in
questionable area … If all criteria is met, senior L (not junior) is subject to discipline for wrong answer

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XII. SOME ECONOMICS OF PRACTICE. MONEY, BITCHES, MONEY

A. Fees

 Penalties for breaking these rules are among the harshest, also the most common and most strictly enforced.
 Never take $ you have not earned, make clear how you earned it, charge only reasonable fees.
 Violations lead to breach of loyalty violations  very severe consequences for self-serving conduct
 Under MRs, when is it OK to commingle L’s own funds w/ C funds?
 Only when necessary to pay bank service charges on that account

1. What Types of Fees

 MR 1.15 - SAFEKEEPING PROPERTY

 (a) L shall hold property of Cs or third persons that is in L’s possession in connection with a representation
separate from L’s own property. Funds shall be kept in a separate account maintained in the state where the
L’s office is situated, or elsewhere with the consent of C or third person. Other property shall be identified
as such and appropriately safeguarded. Complete records of such account funds and other property shall be
kept by the lawyer and shall be preserved for a period of 5 years after termination of the representation.
 (b) L may deposit L’s own funds in a C trust account for the sole purpose of paying bank service charges on
that account, but only in an amount necessary for that purpose.
 (c) L shall deposit into a C trust account legal fees and expenses that have been paid in advance, to be
withdrawn by the lawyer only as fees are earned or expenses incurred.
 (d) Upon receiving funds or other property in which a C or third person has an interest, L shall promptly
notify C or third person. Except as stated in this rule or otherwise permitted by law or by agreement w/ C, L
shall promptly deliver to C or third person any funds or other property that C or third person is entitled to
receive and, upon request by C or third person, shall promptly render full accounting regarding the property
 (e) When in the course of representation L is in possession of property in which two or more persons (one
of whom may be L) claim interests, the property shall be kept separate by L until the dispute is resolved. L
shall promptly distribute all portions of the property as to which the interests are not in dispute.

 Fees must be reasonable

 Lawyers and clients free to negotiate fees acceptable to them
 Type of fee at issue affects whether fee was reasonable
 Clarity is key  duty to be clear rests with lawyer

 Three types of retainers:

 Classic/ True Retainer: Pay for availability; it is earned when paid.
□ Payment of sum to secure availability over period of time
□ Entitlement to fee exists whether or not the services are ever rendered
□ Provides benefit to client where it guarantees attorney will make themselves available to client and
forego other employment opportunities as result of time commitments/ conflicts
□ Lawyer may also accept fee for placing client’s work at top of attorney’s priority list
□ L may not treat fee as earned simply by labeling it earned on receipt or referring to it as engagement
retainer, must describe in writing the nature of the benefit being provided to a specific C
□ If money already belongs to L (true retainer), client has no entitlement to it, and L does not have to
place it into client trust account. Can put it in your account or firm’s account
 Security Retainer: earned when work is done.
□ Retainer held by L to secure payment of fees for future services that the attorney is expected to render
 Put this in your account to ensure client has enough $ to pay you at any given time
□ Money given as retainer is not present payment for future services
 Remains property of client until attorney applies it to charges for services actually rendered
□ Any unearned funds returned to client
□ Unless fee agreement expressly states that fee is an engagement retainer and explains how fee is earned
upon receipt, presume any advance fee is deposit from which L will be paid for specific legal services

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  Default is security retainer, not true retainer
□ K term stipulating that payment is earned on receipt is not effective if the payment is for the lawyer’s
work in a particular matter rather than simply to secure lawyer’s availability
 Cannot K around default retainer rules … Only true retainers belong to lawyer on receipt
□ L cannot label advance fees non-refundable b/c misleads C b/c C won’t realize can fire L & get $ back
 Advance Payment Retainer: pay for work; it is earned when work is done.
□ Very common for criminal defense attorneys – want to be paid up front because odds are that client is
going to prison and then he would not have incentive to pay you
□ Agreement where C pays in advance for some or all services that L is expected to perform for C
□ Differs from security retainer in that ownership of funds is intended to pass to L at time of payment
□ May NOT suggest advance fees are non-refundable!
 Every fee is refundable as long as it is not entirely earned
□ Must keep down to $ record of what went in and came out- must always balance account

True Retainer Security Retainer Advance Payment

Purpose Secure availability Provide lawyer assurance that Pay lawyer up front for work to
(no work required) money will be there when earned be performed later (may be flat
fee or partial fee)
Belongs to L, on receipt C…L takes only when earned Jurisdictions differ- L in CA
Deposit in Firm or lawyer’s Trust account only Jurisdictions differ- advisable
account only in trust in all jurisdictions

 Courts look to language of retainer to ascertain what type it is – look beyond the name of the retainer

 Trust Account Basics:

 All funds you receive/ hold for C must be deposited into bank acct. that is clearly labeled as C trust acct.
 Must promptly notify client when you receive goods on their behalf
 Account must be in CA unless client consents in writing
 Must identify property received on behalf of writing and immediately put them into safe deposit box/ place
of safekeeping
 NO COMMINGLING: depositing money that belongs to firm into client trust acct. not allowed!
□ When you earn fees, must take them out of client trust acct as you earn them
□ Ethically required to withdraw money as soon as you reasonably can
 Must deliver goods promptly to client if they ask for it
 Must tell client how much money/property you are holding for them or what you have done with it
 Must account for all money to state Bar if they inquire
 For at least 5 years, must keep complete records of all client $ entrusted to you

 ILOTA-- Interest on Lawyer’s Trust Account: small amounts of money/ large amount for short time from
various clients can go into 1 account which is paid to the state bar to fund various programs
 May never use one client’s $ to pay another

 Rationale to keeping attorney and client funds separate:

 Attorney’s primary responsibilities to safeguard interests of client
 Separate account protects property from misuse by attorney and from attorney’s creditors
 Protects client’s right to discharge attorney

 Always know whose money is it

 Cannot co-mingle your $ with Cs…Cannot put C’s $ in personal bank account if you have not earned it

 Fees ALWAYS subject to refund if they are excessive or unearned

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 2. The Third Rail? Taking What You Haven’t Earned

 Matter of Warhaftig
 Facts: Warhatig (L) charged with invading client trust accounts by withdrawing anticipated legal fees in
advance of real-estate closings. L’s wife had cancer and his son needed psychology counseling. L borrowed
fees early and always paid back if transaction did not go through. Were not large amounts of $. No one lost
money as result of his practice. Knew what he was doing was wrong.
 Issue: Should L be sanctioned for knowingly taking un-earned fees when no Cs were hurt as a result?
□ Holding: Warhaftig’s conduct constituted knowing misappropriation. Disbarred.
□ He violates MR 1.15. When acting as trustee, never commingle C funds with L funds until you own
it.
 Rule: Knowing misappropriation consists simply of L taking C’s money entrusted to him, knowing it is C’s
money, and knowing C has not authorized taking. Misappropriation requires disbarment to protect public.

 MR 1.15: if agree to hold money in trust, you take on a non-delegable, personal fiduciary responsibility to
account for every penny for at least 5 years
 When you receive money, you have full responsibility for actions of whomever you hire to do your books
or fill out your deposit slips. Others can help, but you must adequately train and supervise
□ Excuses that don’t work: ignorance of the law, being busy, incompetence, dishonesty by you or others
 Separate Cs are “separate accounts” … C1’s money has nothing to do w/ C2’s money
□ You are NEVER allowed to use one C’s money to pay another C’s obligation (or your own obligation)
 Getting to zero … What comes in for each C must equal what goes out
□ Goal in C trust accounting is to make sure that every dollar received on behalf of C is paid out
 Always maintain an audit trail – make it possible to trace what happened to the money you handled
□ Indicate what C any deposit is for, and what exactly C is paying for

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 3. Reasonability of Fees

 Model Rules 1.5 – FEES

 (a) L shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for
expenses. The factors to be considered in determining the reasonableness of a fee include the following:
□ (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
□ (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;
□ (3) the fee customarily charged in the locality for similar legal services;
□ (4) the amount involved and the results obtained;
□ (5) the time limitations imposed by the client or by the circumstances;
□ (6) the nature and length of the professional relationship with the client;
□ (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
□ (8) whether the fee is fixed or contingent.
 (b) The scope of the representation and the basis or rate of the fee and expenses for which C will be
responsible shall be communicated to C, preferably in writing, before or within a reasonable time after
commencing the representation, except when L will charge a regularly represented C on the same basis or
rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the C.
 (c) Fee may be contingent on the matter’s outcome for which service is rendered, except in matter in which
a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing
signed by C and shall state method by which fee is to be determined. This includes percentage(s) that shall
accrue to L in event of settlement, trial, or appeal; litigation and expenses to be deducted from recovery;
and whether such expenses are to be deducted before or after contingent fee is calculated. The agreement
must clearly notify C of any expenses for which C will be liable whether or not C is the prevailing party.
Upon conclusion of a contingent fee matter, L shall provide C w/ a written statement stating the outcome of
the matter and, if there is a recovery, showing the remittance to C and the method of its determination.
 (d) L shall not enter into an arrangement for, charge, or collect:
□ (1) any fee in a domestic relations matter, payment or amount of which is contingent upon the securing
of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
□ (2) a contingent fee for representing a defendant in a criminal case.
 (e) A division of a fee between lawyers who are not in the same firm may be made only if:
□ (1) the division is in proportion to the services performed by each lawyer or, each lawyer assumes joint
responsibility for the representation;
□ (2) the client agrees to the arrangement, including the share each lawyer will receive, and the
agreement is confirmed in writing; and
□ (3) the total fee is reasonable.

 In California, the communication of scope representation and basis/rate of fees/expenses must be in writing

 Model Rules 1.16(d) – DECLINING OR TERMINATING REPRESENTATION

 (d) Upon termination of representation, L shall take steps to extent reasonably practicable to protect C’s
interests, such as giving reasonable notice to C, allowing time for employment of other L, surrendering
papers and property to which C is entitled, and refunding any advance payment of fee or expense that has
not been earned or incurred. L may retain papers relating to C to the extent permitted by other law.

 Model Rules 1.8(a) – Business Transaction w/ C

 L can’t enter business transaction w/ C or knowingly acquire ownership, possessory, security or pecuniary
interest adverse to C unless: terms/transaction are fair/reasonable to C, terms fully disclosed in writing, C is
advised in writing of desirability/opportunity of seeking independent L, C gives written informed consent

 Model Rules 1.8(i) – Conflicts: Special Rules

 L can’t acquire proprietary interest in CoA or subject matter of litigation conducted for C, except L may get
lien authorized by law to secure L’s fee/expenses and K w/ C for a reasonable contingent fee in a civil case.

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 Restatement §34 - Reasonable And Lawful Fees
 L may not charge a fee larger than is reasonable in the circumstances or that is prohibited by law

 Restatement §35 - Contingent–Fee Arrangements

 L may K with a C for a fee, the size or payment of which is contingent on the outcome of a matter, unless
K violates § 34 or another provision of this Restatement or the size or payment of the fee is:
□ contingent on success in prosecuting or defending a criminal proceeding; or
□ contingent on a specified result in a divorce proceeding or a proceeding concerning custody of a child.
 Unless K construed in the circumstances indicates otherwise, when a L has contracted for a contingent fee,
L is entitled to receive the specified fee only when and to the extent C receives payment.

 Restatement §36 - Forbidden Client–Lawyer Financial Arrangements

 L may not acquire a proprietary interest in CoA or subject matter of litigation conducted for a C, except that
□ L may acquire a lien as provided by § 43 to secure the lawyer's fee or expenses; and
□ L may K w/ C for a contingent fee in a civil case except when prohibited as stated in § 35.
 L may not make or guarantee a loan to C in connection w/ pending or contemplated litigation that Lis
conducting for C, except that L may make or guarantee a loan covering court costs and expenses of
litigation, the repayment of which to L may be contingent on the outcome of the matter.
 Before L ceases to represent C, L may not make an agreement giving the lawyer literary or media rights to
a portrayal or account based in substantial part on information relating to the representation.

 Restatement §37 - Partial Or Complete Forfeiture Of A Lawyer's Compensation

 L engaging in clear and serious violation of duty to C may have to forfeit some or all of L’s compensation
for matter. Considerations relevant to question of forfeiture: gravity and timing of violation, willfulness, its
effect on value of L’s work for C, any other threatened/actual harm to C, and adequacy of other remedies

 Restatement §38 - Client–Lawyer Fee Contracts

 Before or w/in a reasonable time after beginning to represent C in a matter, L must communicate to C, in
writing, the basis or rate of the fee, unless the communication is unnecessary for the C b/c the L has
previously represented that C on the same basis or at the same rate.
 Validity and construction of a K between a C and a L concerning the L’s fees are governed by § 18.
 Unless a K construed in the circumstances indicates otherwise:
□ L may not charge separately for L’s general office and overhead expenses;
□ Payments that the law requires an opposing party or that party's L to pay as attorney-fee awards or
sanctions are credited to the C, not the C’s L, absent a contrary statute or court order; and
□ When a L requests and receives a fee payment that is not for services already rendered, that payment is
to be credited against whatever fee the lawyer is entitled to collect.

 Restatement §39 - A Lawyer's Fee In The Absence Of A Contract

 If C and L have not made valid K providing for compensation, C owes L the fair value of the L’s services.

 Restatement §40 - Fees On Termination

 If L-C relationship ends before L completed services due for matter and L’s fee has not been forfeited:
□ L who has been discharged or withdraws may recover the lesser of the fair value of L’s services as
determined under § 39 and the ratable proportion of the compensation provided by any otherwise
enforceable contract between L and C for the services performed; except that
 Tribunal may allow such L to recover ratable proportion of compensation provided by such a K if:
○ Discharge or withdrawal is not attributable to misconduct of the L;
○ L has performed severable services; and
○ Allowing K-ual compensation would not burden C’s choice of L or C’s ability to replace L.

 Restatement §41 - Fee-Collection Methods

 In seeking compensation claimed from a C or former C, a L may not employ collection methods forbidden
by law, use confidential information (as defined in Chapter 5) when not permitted under § 65, or harass C.

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 Restatement §42 - Remedies And The Burden Of Persuasion
 A fee dispute btwn L and C may be adjudicated in any appropriate proceeding, including suit by L to
recover unpaid fee, suit for refund by C, arbitration to which both parties consent unless applicable law
renders L’s consent unnecessary, or in court's discretion a proceeding ancillary to a pending suit in which L
performed the services in question.
 In any such proceeding, L has burden of persuading trier of fact, when relevant, of existence and terms of
any fee K, making of any disclosure to C required to render K enforceable, and extent/value of L’s services.

 Restatement §43 - Lawyer Liens

 Except as provided in Subsection (2), statute, or rule, L cannot get lien entitling L to retain C’s property in
L’s possession in order to secure payment of L’s fees/disbursements. L may decline to deliver to C or
former C a document prepared by L or at L’s expense if C or former C has not paid all fees/disbursements
due for L’s work in preparing doc and nondelivery would not unreasonably harm C or former C.
 Unless otherwise provided by statute or rule, C and L may agree that L shall have a security interest in
property of C recovered for C through L’s efforts, as follows:
□ L may K in writing w/ C for lien on proceeds of representation to secure payment for L’s services;
□ Lien becomes binding on a third party when the party has notice of the lien;
□ Lien applies only to amount of fees/disbursement claimed reasonably and in good faith for L’s services
performed in the representation; and
□ the lawyer may not unreasonably impede the speedy and inexpensive resolution of any dispute
concerning those fees and disbursements or the lien.
 Tribunal where action is pending may in its discretion adjudicate any fee or other dispute concerning a lien
asserted by L on property of a party to action, provide for custody of property, release all or part of the
property to the C or L, and grant such other relief as justice may require.
 With respect to property neither in L’s possession nor recovered by C through the L’s efforts, L may obtain
a security interest on property of a C only as provided by other law and consistent with §§ 18 and 126.
Acquisition of such a security interest is a business or financial transaction w/ C w/in the meaning of § 126.

 Restatement §18 - Client–Lawyer Contracts

 K btwn L and C concerning the L-C relationship, including a K modifying an existing K, may be enforced
by either party if the K meets other applicable requirements, except that:
□ If K or modification is made beyond a reasonable time after L began to represent C in the matter, C
may avoid it unless L shows that K and circumstances of formation were fair and reasonable to C; and
□ If K is made after L has finished providing services, C may avoid it if C was not informed of facts
needed to evaluate the appropriateness of L’s compensation or other benefits conferred on L by the K.
 Tribunal should construe K btwn L and C as reasonable person in C’s circumstances would have construed.

 Matter of Fordham, 423 Mass. 481 (1996)

 Facts: L represented C in DUI proceeding and charged $50K when other Ls charged between $1K-$10K.
Charged C in good faith. L was big firm L and did not realize how low margin DUI was.
 Issue: May L charge C extremely excessive fee if in good faith where L spent large amount of time
educating himself? [No…public reprimand  sanctioned]
 Holding: Amount of time L spent educating himself was clearly excessive despite good faith and diligence
□ Burden on L to make sure client understands implications of fee arrangement
 Rule: C cannot be expected to pay for L’s time for tasks that if L had a reasonable amount of experience
would just be routine. Successful verdict does not justify unreasonable fee
 Reasoning: Here the attorney had no experience in the area and it took him more time to prepare the case.
□ Witnesses testified that they had never heard of a fee that high for that kind of case.
□ C here did not understand the implications of L’s lack of experience, even though L told him about it.
 The court looks at the factors from MR 1.5 to determine if an attorney’s fee is reasonable

 Ls can bill a C for actual costs incurred in the course of representation

 E.g. postage, messenger, services, photocopy paper, lunch, Westlaw/Lexis
□ But cannot profit off of it

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 Ls may not bill a C for overhead
 E.g. cost of running a library, air conditioning, office space rent, salary for secretaries
 Ratification?
 Some cases hold that ratification of a fee is possible w/ full disclosure if parties perform agreement over a
long period of time. However, Fordham implied that C consent is not a defense to an unreasonable fee.

 In the matter of O. Doyle Martin (SC 2007): Cannot falsely attribute work done on one matter to another
matter, even for an individual C. However, in that case, there might be no risk of misleading C.
 Lawyer for insurance company directed by officer to falsify hours worked, lawyer followed instructions.
□ Problem: lawyer mistook officer of insurance co. for client  insurance co was actually client and that
is who lawyer owed fiduciary duties to (officer was only agent of client)

 Holmes v. Loveless (Wash.) – C and L may re-negotiate fee agreement if it becomes unreasonable to perform

 Retainers and Reasonability:

 Type of retainer you charge affects analysis of whether your fee is reasonable
 Ex ante assessment of fees OK (different from normal K law)
□ Look at agreement after and ask whether it turned out reasonably
 If project goes incredibly well, court may look back on this and approve
 When firm takes equity in company going public, tends to be enforced

 Fee Agreement Formalities

 Model rule 1.5(b) expresses a preference for fee agreements in writing but does not require them.
 Model rule 1.5(c), however, requires that contingent fee agreements be in writing and be signed by the C.
 If a fee modification were treated as a transaction w/ C, Model rule 1.8(a)(1) would require a writing.

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C. UPL (UNAUTHORIZED PRACTICE OF LAW)

 Model Rule 5.5 – Unauthorized Practice of Law

 L can’t practice law in violation of regulation of legal profession in that jurisdiction, or assist other to do so

 Unauthorized Practice Practice of Law Committee v. Parsons Technology, Inc.

 Facts: D has published and offered for sale software program “Quicken Family lawyer” that has over 100
legal forms along with instructions on how to fill out these forms, also includes disclaimer stating that user
should consult lawyer if he is unsure about any questions contained within the program.
 Issue: Does sale of software that helps fill out legal forms constitute the unauthorized practice of law?
 Holding: It is the unauthorized practice of law. Even though the software has disclaimers, the software
goes beyond merely instructing someone on how to fill out a blank form. While no single act constitutes
practice of law, taken as a whole, the program has ventured into unauthorized practice of law.
□ Practice does not require personal contact or L-C relationship. Services do not have to be on C’s behalf
 Note this opinion was later vacated when TX modified its statute. Modified rule: Practice of law excludes
software and other products that clearly state they are not a substitute for the advice of an attorney.

 A person practices law when applying law to facts of a particular case, calls for professional judgment of a L
 Thus, doesn’t apply to cop describes speed limit or court clerk tells L page limit

 Only L can give legal advice

 Only L can appear in court
 Exceptions:
□ Law students (under state student practice rules)
□ Pro se representation (individually w/out a L), but a corp must always be represented by a L in court
 Only L can draft legal document – e.g. Ks, wills, promissory notes
 Exceptions:
□ Pro se drafting of legal documents
□ L can draft a form where non-Ls fill in the blanks
 L cannot aid a non-L in an activity that constitutes the unauthorized practice of law. But…
 L can help non-L represent herself pro se
 L can – and must – supervise paralegals, secretaries, etc. and retain responsibility for their work
 Law related services (not barred as UPL when provided by a non-L) include:
 Being a sports agent; financial planning / tax prep; lobbying; psych counseling; patent, medical, or
environmental consulting; selling forms or kits where customers fill in blanks

 Franklin v. Chavis (SC 2007): The court held that an insurance agent engaged in the unlicensed practice of
law when an elderly acquaintance (and former client) of his asked him to help her draft a will. He put in her
responses into Quicken. He was practicing (and acting as more than a scrivener).

 Note on UPL and Multi-State Practice

 UPL regulations are state regulations, require person be licensed to practice in state in which rule applies
□ Case held NY lawyer could not recover in quantum meruit for work done in CA
 Could only recover fees under agreement for limited services provided in NY to extend they did
not constitute practicing law in CA
 Ls cannot practice in jurisdictions where they’re not admitted/licensed
□ Ls practicing law while physically located in a state cannot recover under a fee agreement for such
work unless L is either admitted to the bar of that state or falls within an exception
 Exceptions: pro hac vice representation (permission from the court for the particular case)
□ If practice in another jurisdiction is “reasonably related” or arise out of practice in jurisdiction where L
is licensed [e.g. having to take a depo in a diff state]

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… TRIAL PUBLICITY AND PUBLIC COMMENT

First, the CONSTITUTIONALITY of THIS

 Intro to Trial Publicity

 SCOTUS has tried to balance competing interest and refused to declare that one amendment trumps another
□ 1st amendment freedom of speech vs. 6th amendment right of crim D to a fair trial by impartial jury
 Press restriction – gag orders on the media – may only be imposed as a last resort
□ Instead, courts will try to remedy problems created by media coverage by: Change of venue; Changing
pool of potential jurors; Postponing trial; Using voir dire to weed out biased jurors; Order jurors not to
read, watch, or listen to coverage, not to research, and not to talk to others; Sequester jury for duration
of trial by housing them in a hotel, screening their phone calls, and monitoring their use of mass media

 When, if ever, can attorneys be restricted from making extrajudicial statements about a pending case?
 Rehnquist: L speech may be regulated by less than a “clear and present danger” standard
□ The “substantial likelihood of material prejudice” standard used by the previous MR 3.6 properly
balanced the relevant interests
 The standard constitutes a constitutionally permissible balance between the First Amendment
rights of attorneys in pending cases and the State’s legitimate interest in fair trials.
□ Ls are not similarly protected by the First Amendment as others
 As officers of court, court personnel and Ls have a fiduciary responsibility not to engage in public
debate that will redound to detriment of accused or will obstruct the fair administration of justice
○ Ls have special access to info by discovery and C communications. Extrajudicial statements
pose a threat to fairness of pending proceeding b/c L statements are especially authoritative.
□ Limitations are aimed at 2 evils:
 (1) comments that are likely to influence actual outcome of trial, and
 (2) comments that are likely to prejudice jury venire, even if untainted panel can ultimately be
found.
 The regulation of Ls’ speech is limited
○ Applies only to speech that is substantially likely to have a materially prejudicial effect on
that proceeding; it is neutral as to points of view, applying equally to all Ls participating in a
pending case; and it merely postpones the L’s comments until after the trial.
 Kennedy: MR 3.6 is void for vagueness
□ The rule allowing the announcement of a “general nature of the defense … without elaboration” was
too vague to let lawyers know what they could and could not say.
 Saying what defenses will be proven is permitted, but describing expected testimony is prohibited
□ Also, the rule banned “classic political speech” – speech critical of the government and its officials.
 ABA rewrote Model Rule 3.6 to eliminate the qualifying terms the Court found misleading and to authorize
a lawyer to respond to adverse publicity by others
□ Model Rule 3.6 – Trial Publicity
 (a) A lawyer who is participating or has participated in the investigation or litigation of a matter
shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be
disseminated by means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter.
 (b) Notwithstanding paragraph (a), a lawyer may state:
○ the claim, offense or defense involved and, except when prohibited by law, the identity of the
persons involved;
○ information contained in a public record;
○ that an investigation of a matter is in progress;
○ the scheduling or result of any step in litigation;
○ a request for assistance in obtaining evidence and information necessary thereto;
○ a warning of danger concerning the behavior of a person involved, when there is reason to
believe that there exists the likelihood of substantial harm to an individual or to the public
interest; and

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 ○ in a criminal case, in addition to subparagraphs (1) through (6):
 identity, residence, occupation and family status of the accused;
 if accused has not been apprehended, info necessary to aid in apprehension of person;
 fact, time and place of arrest; and
 identity of investigating and arresting officers or agencies and length of the investigation.
 (c) Notwithstanding paragraph (a), L may make a statement that a reasonable L would believe is
required to protect C from substantial undue prejudicial effect of recent publicity not initiated by
L or L’s C. Statement must be limited to info as is necessary to mitigate recent adverse publicity
 (d) If L cannot make a certain statement, no associated L (firm or gov’t agency) can make it.
□ Comments to MR 3.6
 There are, on the other hand, certain subjects that are more likely than not to have a material
prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a
criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:
○ (1) the character, credibility, reputation or crim record of a party, suspect in crim investigation
or witness, or the identity of a witness, or the expected testimony of a party or witness;
○ (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea
of guilty to the offense or the existence or contents of any confession, admission, or statement
given by a defendant or suspect or that person’s refusal or failure to make a statement;
○ (3) the performance or results of any exam or test or refusal or failure of a person to submit to
an examination or test, or the identity or nature of physical evidence expected to be presented;
○ (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or
proceeding that could result in incarceration;
○ (5) info that L knows or reasonably should know is likely to be inadmissible as evidence in a
trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or
○ (6) the fact that a D has been charged w/ a crime, unless included is statement explaining that
charge is merely accusation and that D is presumed innocent until and unless proven guilty
 Another relevant factor in determining prejudice is nature of proceeding involved. Criminal jury
trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury
hearings and arbitration proceedings are even less affected. The Rule will still place limitations on
prejudicial comments in these cases, but the likelihood of prejudice may be different.
 Finally, extrajudicial statements that might otherwise raise a question under this Rule may be
permissible when they are made in response to statements made publicly by another party, another
party’s L, or third persons, where a reasonable L would believe a public response is required to
avoid prejudice to L’s C. When prejudicial statements have been publicly made by others,
responsive statements may have the salutary effect of lessening any resulting adverse impact on
the adjudicative proceeding. Such responsive statements should be limited to contain only such
information as is necessary to mitigate undue prejudice created by the statements made by others.
□ Model Rule 3.8 – Trial Publicity by Prosecutors - Prosecutors have a higher bar
 Bars prosecutors from “making extrajudicial comments that have substantial likelihood of
heightening public condemnation of the accused.”

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XIV. ETHICS IN ADVOCACY

A. Introducing Perjured Testimony

 MODEL RULE 3.3 - CANDOR TOWARD THE TRIBUNAL

 (a) L shall not knowingly:
□ (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact
or law previously made to the tribunal by L;
□ (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to L to be
directly adverse to the position of C and not disclosed by opposing counsel; or
□ (3) offer evidence that L knows to be false. If L, the L’s C, or a witness called by L, has offered
material evidence and L comes to know of its falsity, L must take reasonable remedial measures,
including, if necessary, disclosure to the tribunal. L may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter, that L reasonably believes is false.
 (b) L who represents a C in an adjudicative proceeding and who knows that a person intends to engage, is
engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable
remedial measures, including, if necessary, disclosure to the tribunal.
 (c) Duties in paragraphs (a) and (b) continue to conclusion of proceeding, and apply even if compliance
requires disclosure of information otherwise protected by MR 1.6. [duty to tribunal trumps duty to C]
 (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer
that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

 RESTATEMENT §120 - False Testimony Or Evidence

 A lawyer may not:
□ knowingly counsel or assist a witness to testify falsely or otherwise to offer false evidence;
□ knowingly make a false statement of fact to the tribunal;
□ offer testimony or other evidence as to an issue of fact known by the lawyer to be false.
 If L offered testimony or other evidence as to material issue of fact and comes to know of falsity, L must
take reasonable remedial measures and may disclose confid C info when necessary to take such a measure.
 L may refuse to offer testimony/evidence that L reasonably believes is false, even if L does not know false.

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 1. Prohibition on Offering False Testimony

 Which truth telling rule applies for future “lies”

 If L knows C is considering lying in court
□ L must counsel C and refrain from asking C questions that would elicit false testimony
 In civil proceeding, if L suspects but doesn’t know that planned testimony may be false
□ If L “reasonably believes” it’s false, L may refuse to offer – or allow – the testimony
 In crim proceeding, if L suspects but doesn’t know that planned testimony may be false
□ If D insists on testifying, L must allow it even if the L “reasonably believes it is false”
 If L is considering making gale statement of fact or law to a judge
□ L must not do it

 Which truth telling rule applies for “lies” already made

 If L knows C or other witness testified falsely during direct or cross
□ L must counsel C to correct, consider withdrawing, correct record if necessary to undo effect of false
evidence
 If witness has misled court by making statement that are literally true but deceptive
□ L may have duty to counsel C and correct record
 If L knows of directly adverse controlling legal authority that has not been disclosed by opposing counsel
□ L must bring to court’s attention (and distinguish/explain why not binding)
 L knows of facts adverse to C’s interest, not requested in discovery or required to disclose by court rule
□ No need to disclose unless ex parte proceeding

 Perjured testimony:
 Criminal:
□ Lawyer may not introduce perjured testimony he knows to be false
□ Lawyer is obliged to introduce testimony favorable to his client that he does not know to be false
 Rationale: Constitution guarantees right to effective counsel
 Civil:
□ Lawyer may not introduce testimony that he believes but does not know to be false
 You may argue for inferences from true evidence that you believe to be false
□ This is NOT introduction of false evidence
□ Can argue for jury to draw conclusions that you think are ridiculous and would not believe yourself
 Criminal & Civil: If D insists on committing perjury, ask D to testify in narrative (People v. Johnson)

 Nix v. Whiteside (US 1986).

 Facts: L told C not to perjure himself or he would withdraw. C claims ineffective assistance
 Holding: L can refuse to allow perjury. This is not a deviation from professional norms.

 People v. Johnson, 62 Cal. App. 4th 608 (1998) - In California, exception to the rule from Nix v. Whiteside
 Facts: Johnson kidnapped, robbed, raped women. Defense counsel said he had an ethical conflict with
allowing Johnson to take stand and testify. Court misunderstood defense counsel’s request and Johnson did
not take stand to testify. When convicted, he claimed ineffective assistance of counsel.
 Issue: What should counsel do in situation where criminal D wants to take stand and perjure himself?
 Holding: Narrative approach represents the best accommodation of the competing interests of D’s right to
testify and L’s obligation not to participate in presentation of perjured testimony. It allows D to tell the jury
in his own words, his version of what occurred which is a right that has been described as fundamental and
allows L to play a passive role. Here, error occurred b/c D did not get right to testify. Error was harmless
beyond reasonable doubt
 Rule: D has a constitutional right to be heard. L has duty not to introduce perjured testimony. L should use
narrative approach to deal with these 2 conflicting rights. L should tell judge that C will testify in narrative

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 2. Obligation to Correct

 Idaho State Bar v. Warrick, 44 P.3d 1141 (2002)

 Facts: Attorney Warrick charged for allowing false testimony to be presented without taking any remedial
measures to correct the testimony at the time the testimony was presented. Warrick, in charge of
prosecuting felony drug charge, called witness that introduced perjured testimony. L himself did not
introduce this evidence to the court; however, he failed to immediately rectify this situation.
 Issue: When does duty to take remedial measures to correct false testimony apple?
 Holding: Warrick did not take reasonable remedial measures to correct testimony. Suspended for 30 days
 Rule: If L offered material evidence and comes to know of its falsity, L shall take reasonable remedial
measures immediately. L must continue to the conclusion of the proceeding and apply even if compliance
requires disclosure of info otherwise protected. Not enough for L just to correct it before getting in trouble.
Do not have to do it immediately to prevent being screwed. The more time you wait, the worse it will be.

 Correcting false testimony: Rule requiring L to do something to correct false testimony applies to pre-trial
perjury as well as trial testimony. Rule also trumps the disciplinary rule requiring L to preserve C confidences.
Under MR, the default is that you must preserve C confidences. Default trumps the Rule 8.4 requirement that L
report the misconduct of other Ls, but it does not trump the rule that requires candor before tribunals.

 Ls have duty to disclose adverse legal authority that is “directly adverse to any proposition of law on which the
L expressly relies” and “would reasonably be considered important by the judge sitting on the case”

 In re Disciplinary Proceeding against John E. Mack (1994)

 Facts: C, claiming insurance for an accident, lied about when she wrote a check in payment of a premium.
She told her L that she had lied. L did not tell her to correct her testimony. L said C could remain silent.
 Holding: L was disciplined under Rule 3.3 even though he did not introduce the false testimony at trial. If
L discovers that his C has lied to the court, he must urge C to correct the statement. If that does not work,
he must seek to withdraw. Finally, if that fails he must correct misrepresentation himself, even if it means
revealing information that would be protected under Rule 1.6. The remedial action must be taken quickly.

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 3. Client Perjury and the Strickland Standard

 Under Strickland v. Washington (US 1984), an ineffective assistance of counsel claim requires C to show that
 (1) L’s acts violated the standard of care followed by ordinarily competent criminal defense attorneys and
 (2) that there was reasonable probability that, but for L’s actions, the D would have had a better result at
trial.
□ If C brings this claim for telling the truth where L tells the C not to lie, the C will not be successful.
 If C wants to perjure himself and L tells C not to and then C loses his/her case, C will not succeed
on an ineffective assistance of counsel claim.

 What Do You Know?

 Courts are split on the standard of knowledge required of L that the C intends to perjure himself.

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4. Candor Toward the Tribunal

 All courts are tribunals, but not all tribunals are courts.
 Tribunal also includes deposition, arbitration, any legislative bodies or admin agencies acting in an
adjudicative capacity

 CANNOT be an ethics OSTRICH: Although L should resolve doubts about veracity of testimony or other
evidence in favor of C, the L cannot ignore an obvious falsehood

 People of Colorado v. Casey, 948 P.2d 1014 (Colo. 1997)

 Facts: SR apprehended by police for teenage drinking and gave police SJ’s ID. SJ had criminal record from
the incident. L contacted city atty and falsely stated that he represented SJ when he actually represented SR.
After case dismissed, L met w/ SJ and her parents. SJ was upset b/c of crim record and filed suit against L.
 Issue: Did L violate MR when he represented to city atty that he represented diff person that his true C?
 Holding: Respondent had duty to court to disclose that his client was impersonating SJ in criminal
proceedings. Short suspension, L must take and pass MPRE.
 Rule: L must disclose to court if C is making false representation. Suspension appropriate when L knows
that false statements submitted to court or material information is being properly withheld and takes no
remedial action. You cannot appear in court representing the wrong name. You cannot go to court and say
you represent a wrong name. You do not want to violate 3.3 ever! Tribunals hate this.

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5. Handling evidence

 Model Rule 3.4 - FAIRNESS TO OPPOSING PARTY AND COUNSEL

 L shall not:
□ unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal document
or other material having potential evidentiary value. L shall not counsel or assist another to do act;
□ falsify evidence, counsel or assist witness to testify falsely, or offer prohibited inducement to witness;
□ knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an
assertion that no valid obligation exists;
□ in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to
comply with a legally proper discovery request by an opposing party;
□ in trial, allude to matter that L does not reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts except when testifying, or state personal
opinion as to justness of cause, witness credibility, culpability of litigant, guilt/innocence of accused;
□ request a person other than C to refrain from voluntarily giving relevant info to another party unless:
 (1) the person is a relative or an employee or other agent of a client; and
 (2) L reasonably believes that person's interests will not be adversely affected if refrain

 ABA Criminal Justice Standard 4-4.6 - Physical Evidence

 Defense L who receives a physical item under circumstances implicating C in criminal conduct should
disclose location of or should deliver that item to law enforcement authorities only: (1) if required by law
or court order, or (2) as provided in paragraph (d).
 Unless required to disclose, defense L should return item to source from whom defense L received it,
except as provided in paragraph (c) and (d). In returning item to source, defense L should advise source of
legal consequences pertaining to possession or destruction of item. Defense L should also prepare a written
record of these events for files, but should not give the source a copy of such record.
 Defense L may receive the item for a reasonable period of time during which defense L: (1) intends to
return it to the owner; (2) reasonably fears that return of the item to the source will result in destruction of
the item; (3) reasonably fears that return of the item to the source will result in physical harm to anyone; (4)
intends to test, examine, inspect, or use the item in any way as part of defense counsel's representation of
the client; or (5) cannot return it to the source. If defense L tests or examines item, he/she should thereafter
return it to source unless there is reason to believe that evidence might be altered or destroyed or used to
harm another or return is otherwise impossible. If defense L retains item, he/she should retain it in his/her
law office in a manner that does not impede the lawful ability of law enforcement authorities to obtain item.
 If item received is contraband, i.e., an item possession of which is in and of itself a crime such as narcotics,
defense L may suggest that C destroy it where there is no pending case or investigation relating to evidence
and where such destruction is clearly not in violation of any criminal statute. If such destruction is not
permitted by law or if in defense L’s judgment he/she cannot retain item, whether or not it is contraband, in
a way that does not pose an unreasonable risk of physical harm to anyone, defense L should disclose the
location of or should deliver item to law enforcement authorities.
 If defense L discloses location of or delivers item to law enforcement authorities under paragraphs (a) or
(d), or to a 3rd party under paragraph (c)(1), he/she should do so in way best designed to protect C interests.

 Restatement §119 - Physical Evidence Of A Client Crime

 With respect to physical evidence of a client crime, a lawyer:
□ may, when reasonably necessary for purposes of the representation, take possession of the evidence
and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or
destroy material characteristics of the evidence; but
□ following possession under Subsection (1), the lawyer must notify prosecuting authorities of the
lawyer's possession of the evidence or turn the evidence over to them.

 People v. Meredith, 29 Cal. 3d 682 (1981)

 Facts: D tries to burn victim’s wallet but tosses it in alley. In criminal case, defense turned on the fact that
a wallet had been left at the crime scene. D tells his L that wallet is in the alley (protected by privilege). L
requested that defense investigator pull wallet from trashcan (also protected b/c investigator is agent of L

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 and the communication is necessary for representation). Investigator finds the wallet and turned it over the
police after examining the wallet.
 Issue: Whether defense investigator’s observation of the location of the wallet (product of privileged
communication) finds protection under the attorney-client privilege.
 Holding: Observation by defense counsel or investigator which is the product of privileged
communication, may not be admitted unless the defense by altering or removing physical evidence, has
precluded the prosecution from making that same observation. Here, the defense investigator removed the
wallet and thereby frustrated any possibility that police might later discover it in trash can. Conduct of
defense thus precluded prosecution from ascertaining crucial fact of location of wallet
 Rule: Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation
of the original location or condition of the evidence in question. If defense counsel leaves the evidence
where he discovers it, his observations derived from privileged communications are protected.
 Reasoning: If you leave it, the prosecution is no worse off b/c not denying evidence to the other side, so
cannot be called on testify. If you move it or alter it, can be called on to testify. You can retain evidence for
enough time as it takes to test it (the tests must be nondestructive). Therefore, it is permissible to move and
inspect, but it does create some obligations to disclose.

 Hypo: What if C takes wallet and brings it to L?

 Cannot tell him to take it back and consider yourself at stage zero…if you take it from a public place,
putting it back will not remedy this
 ABA opinion: if C brings L something, L can dispose of it. Distinguish: if this was evidence of a separate
crime cannot dispose of it, that would be obstruction of justice
 Hypo: What if C brings you knife from crime?
 Must turn knife over
 Cannot simply say “I don’t want this” b/c can never be certain that if cops investigated scene while knife
was gone, you may have deprived them of evidence, even if client later returned it
 Hypo: C finds gun in his son’s closet
 L can tell C to get rid of gun as long as he has no reason to believe son has not used gun in crime
□ Do not simply have to tell C to go away. L can also dispose of it. You are not depriving anyone of
evidence as long as you have no reason to believe that gun has been used in crime

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6. Discovery (Mis)Conduct

 Redwood v. Dobson, 476 F3d 462 (7th Cir. 2007)

 Facts: L used to represent Cs. Dispute arose because L thought he did good job and C did not think so,
filed suits against each other, instead of using discovery to find admissible evidence. Parties used it to
harass each other. Racial slurs and battery in deposition
 Issue: Did lawyers violate MR when they abused discovery proceedings?
 Holding: Sanctions for all Ls involved - censured and admonished. All Ls are sanctioned for conduct
unbecoming of members of the bar. Further violations will result in sterner sanctions.
 Rule: Mutual enmity does not excuse the breakdown of decorum that occurred in the deposition.
 Reasoning: if other side is being harassing, have to stop the proceeding and go get order from judge, which
is dangerous, b/c if lose, have to pay for other side’s fees. L cannot just tell C not to answer.
 GMAC v. HRFC – answers and questions may harass – court imposed sanctions against both a witness
and his L for obscene answers and other harassing conduct during a deposition

 Cannot instruct client not to answer at deposition, although you can object loudly and quickly

 What is actually going on here: fight for control

 Recognize that when you are in situation like this, your adrenaline will go up
 Most times opposing side will not be abusing you as a personal matter, they will just think it is the best
thing to do for their client
 Options:
 1. Technically what you should do is ask for break, call court for protective order, ask magistrate to sit in
□ Problem: this accumulates expenses and time on behalf of your client
 2. Power of silence
□ Bellowing and pounding on table is not the only way to exert power over situation
□ When someone is trying to take you down beaten path, you don’t have to go
 As long as rules do not require you to disclose, you don’t have to
 3. Try to disengage, use politeness as a tactic
□ Can throw people off, very rare that straight force creates advantage

 People use control and hostility as a defense tactic so that they never have to answer the question
 Less likely to work if you recognize it as a tactic and distance yourself
 When you do discovery, pretrial stuff you said is on the record
□ Ex: letter someone wrote to opposing counsel that said “you are an asshole”  someone letter made it
onto every document for the rest of the case

 Washington State Phys Ins. Exchg. & Assoc. v. Fisons Corp., 858 P.2d 1054 (WA 1993)
 Facts: Fisons produced drug that caused seizures in a little girl that led to brain damage. Criminalizing
memo not produced in discovery. Company said it was b/c that memo was stored in the file of a different
product and company only produced actual drug’s file, so therefore incriminating doc did not appear. They
object to some of the documents and they refuse to produce 10,000 documents on the ground that the
documents are about the active ingredient in the drug rather than the brand name itself.
 Issue: Can party avoid producing criminalizing documents by placing them in file not relevant to claim?
 Holding: Lawyer sanctioned for failure to produce document
 Rule: Discovery rules do not allow party to produce only what it agreed to produce or was ordered to
produce. Must answer all interrogatories and all requests for production, unless specific and clear objection
is made. If a party does not want to respond, it must move for a protective order. All relevant documents
must be produced. Party does not have option of determining what it wants to produce or answer.

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B. Litigation privilege and the scope of legitimate demands

 Cal. Civ. Code §47 - Privileged publication or broadcast

 A privileged publication or broadcast is one made:
□ In the proper discharge of an official duty.
□ In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding
authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and
reviewable pursuant to Chapter 2, except as follows:
 An allegation or averment contained in any pleading or affidavit filed in an action for marital
dissolution or legal separation made of or concerning a person by or against whom no affirmative
relief is prayed in the action shall not be a privileged publication or broadcast as to the person
making the allegation or averment within the meaning of this section unless the pleading is
verified or affidavit sworn to, and is made without malice, by one having reasonable and probable
cause for believing the truth of the allegation or averment and unless the allegation or averment is
material and relevant to the issues in the action
 This subdivision does not make privileged any communication made in furtherance of an act of
intentional destruction or alteration of physical evidence undertaken for purpose of depriving party
to litigation of the use of that evidence, whether or not content of communication is the subject of
a subsequent publication or broadcast which is privileged pursuant to this section. As used in this
paragraph, "physical evidence" means evidence specified in Section 250 of the Evidence Code or
evidence that is property of any type specified in Section 2031 of the Code of Civil Procedure.
 This subdivision does not make privileged any communication made in a judicial proceeding
knowingly concealing the existence of an insurance policy or policies.
 A recorded lis pendens is not a privileged publication unless it identifies an action previously filed
with a court of competent jurisdiction which affects the title or right of possession of real property,
as authorized or required by law.
□ In a communication, without malice, to a person interested therein, (1) by one who is also interested, or
(2) by one who stands in such a relation to the person interested as to afford a reasonable ground for
supposing the motive for the communication to be innocent, or (3) who is requested by the person
interested to give the information. This subdivision applies to and includes a communication
concerning the job performance or qualifications of an applicant for employment, based upon credible
evidence, made without malice, by a current or former employer of the applicant to, and upon request
of, the prospective employer. This subdivision shall not apply to a communication concerning the
speech or activities of an applicant for employment if the speech or activities are constitutionally
protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other
provision of law.
□ (1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B)
legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E)
of a verified charge or complaint made by any person to a public official, upon which complaint a
warrant has been issued.
 (2) Nothing in paragraph (1) shall make privileged any communication to a public journal that
does any of the following:
 Violates Rule 5-120 of the State Bar Rules of Professional Conduct.
 Breaches a court order.
 Violates any requirement of confidentiality imposed by law.
□ By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully
convened for a lawful purpose and open to the public, or (2) the publication of the matter complained
of was for the public benefit.

 Cal. Code Civ. P. 425.16 - Anti-SLAPP actions; motion to strike; discovery; remedies
 (a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances. The Legislature finds and declares that it is in the public interest to encourage
continued participation in matters of public significance, and that this participation should not be chilled
through abuse of the judicial process. To this end, this section shall be construed broadly.

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  (b)
□ (1) A cause of action against a person arising from any act of that person in furtherance of the person's
right of petition or free speech under the United States or California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff
has established that there is a probability that the plaintiff will prevail on the claim
□ (2) In making its determination, the court shall consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.
□ (3) If court determines that the plaintiff has established a probability that he/she will prevail on claim,
determination and fact of that determination shall not be admissible in evidence at any later stage of
the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable
shall be affected by that determination in any later stage of the case or in any subsequent proceeding
 (c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be
entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is
frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable
attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
 (d) This section shall not apply to any enforcement action brought in the name of the people of the State of
California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.
 (e) As used in this section, “act in furtherance of a person's right of petition or free speech under the United
States or California Constitution in connection with a public issue” includes: (1) any written or oral
statement or writing made before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue
under consideration or review by a legislative, executive, or judicial body, or any other official proceeding
authorized by law; (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of free speech in connection with a
public issue or an issue of public interest
 (f) The special motion may be filed within 60 days of the service of the complaint or, in the court's
discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the
court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the
court require a later hearing.
 (g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made
pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling
on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery
be conducted notwithstanding this subdivision.
 (h) For purposes of this section, “complaint” includes “ cross-complaint” and “petition,” “plaintiff”
includes “cross- complainant” and “petitioner,” and “defendant” includes “ cross-defendant” and
“respondent.”
 (i) An order granting or denying a special motion to strike shall be appealable under Section 904.1.
 (j)
□ (1) Any party who files a special motion to strike pursuant to this section, and any party who files an
opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council,
by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy
of any related notice of appeal or petition for a writ, and a conformed copy of any order issued
pursuant to this section, including any order granting or denying a special motion to strike, discovery,
or fees.
□ (2) The Judicial Council shall maintain a public record of information transmitted pursuant to this
subdivision for at least three years, and may store the information on microfilm or other appropriate
electronic media.

 Flatley v. Mauro, 39 Cal. 4th 299 (2006)

 Facts: P (entertainer) brought an action against D (attorney) for civil extortion, intentional infliction of
emotional distress, and wrongful interference with economic advantage. The action was based on a letter
and phone calls in which D demanded a seven-figure payment to settle claims that P had raped D’s client.
Substance is that P had sexual relations with D’s C against her will and that if he does not pay them money,
they will file lawsuit for rape and follow him to every town where dance troupe performs and publicize

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 what happened. Sending the letter is an important speech act, meaning these speech acts are deeds. When
P sues D, D filed a motion to strike the complaint as a SLAPP suit, based on his activity in furtherance of
vindicating the C’s rights. D files an anti-SLAPP motion, saying that he was sued based on constitutionally
protected petitioning activity and for that reason the court should dismiss the suit.
 Holding: Mauro is suspended from the practice of law by virtue of committing extortion. Anti-SLAPP
statute did not apply because defendant’s demands constituted criminal extortion as a matter of law, which
were not protected by constitutional guarantees of free speech and petition.
 Rule: although line between extortion and aggressive lawyering is not that clear, SLAPP suit cannot be
used by defendant to protect speech that was illegal as matter of law
 Reasoning: Extortion, blackmail, and fraud are crimes that are committed with words. The words in some
circumstances might be appropriate. If you strip out some of the elements then the letter would be fine.
□ There are two things driving the court: [1] the implausibility of the events and [2] that D is consistently
emphasizing that they will try to ruin P’s reputation. It seems like they are trying to humiliate flatly.
The notion that they will go public, the court thinks it is a sign of flat out extortion (black mail is a
threat to disclose something that actually happened).
□ But this doesn’t mean that it is a crime to mention to D that if he doesn’t comply with demands, he will
take a reputational hit. Clients do settle to avoid publicity.
□ Anti-SLAPP is an onerous burden—the person has to prove their case without discovery. It is a very
pro-defendant move—we want to protect constitutionally protected activity. The court goes through
and works out the elements of the anti-SLAPP statute: §425.16. Extortion is not protected speech so
425.16 drops out. However, there is a substantive protection in civil code 47. It immunizes from most
torts any conduct that occurs in litigation. The privilege could bar the substantive suit. You do not
want defendants coming back and suing plaintiffs for extortion based on settlement conferences. Pre-
filing claims are ambiguous in terms of how far back in time §47 extends.

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 C. Abuse of Process

 Seltzer v. Morton, 154 P.3d 561 (Montana 2007)

 Facts: Seltzer is a professional art appraiser. Morton bought a painting and had Seltzer look at it. At the
request of an auction house, he rendered his opinion as to the authenticity of a painting that Morton owned.
Morton hired an attorney to file a defamation action and demanded that Seltzer recant his opinion. Morton
wanted Ls to get Seltzer to stop saying that. He refused and Gibson Dunn filed a lawsuit against Seltzer.
The district court dismissed the suit with prejudice, because defendants could not prevail on the merits. He
filed a successful suit for malicious prosecution.
 Holding: Standard for abuse of process is (1) an ulterior purpose and (2) a willful act in use of process not
proper in regular conduct of proceeding. Ls used suit as an instrument of coercion rather than a legitimate
means to solve a genuine dispute. They used the lawsuit to try to get Seltzer to recant his opinion.
 Rule: You cannot get the recanting of the opinion through the court. The firm is counterclaimed for
abusing the system. The court said this isn’t how it works in Montana – if you don’t have a complaint you
don’t assert it (common to ask for things you can’t get but be aware of where you’re litigating). You cannot
get people to change their mind via demand…this is not something people can get in litigation.
 Reasoning: Pre-litigation demand letter threatened to sue unless he changed his opinion. This was coercive
force. Defendants were not harmed by the jury instructions regarding the theories of liability. Because the
law firm did not have a history of this kind of misconduct, calculation of the punitive damages award based
on a single-digit multiplier comported with due process concerns.
 Other Notes: Malicious prosecution when there is completely no basis for the lawsuit. Here, there is no
good basis for basis, but it was not malicious prosecution, and rather it was abuse of process, b/c he was
trying to get a result from the court that would not have been a result of the action anyway.

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 D. Improper Argument

 Model Rule §3.8 – Special Responsibilities of a Prosecutor

 The prosecutor in a criminal case shall:
□ (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
□ (b) make reasonable efforts to assure that the accused has been advised of the right to, and the
procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
□ (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the
right to a preliminary hearing;
□ (d) make timely disclosure to the defense of all evidence or info known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to
the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
□ (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past
or present client unless the prosecutor reasonably believes:
 (1) information sought is not protected from disclosure by any applicable privilege;
 (2) evidence sought is essential to successful completion of ongoing investigation or prosecution;
 AND (3) there is no other feasible alternative to obtain the information;
□ (f) except for statements that are necessary to inform the public of the nature and extent of prosecutor's
action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial
comments that have a substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement personnel, employees or other
persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule
□ (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood
that a convicted D did not commit an offense of which D was convicted, the prosecutor shall:
 (1) promptly disclose that evidence to an appropriate court or authority, and
 (2) if the conviction was obtained in the prosecutor’s jurisdiction,
○ (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
○ (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to
determine whether the defendant was convicted of offense that the defendant did not commit.
□ (h) If prosecutor knows of clear/convincing evidence establishing that a D in prosecutor’s jurisdiction
was convicted of offense that D did not commit, prosecutor shall seek to remedy conviction.

 MR § 3.4(e) – Fairness to Opposing Party and Counsel

 L shall not: In trial, allude to matter that L does not reasonably believe is relevant or that will not be
supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as
witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability
of a civil litigant or the guilt or innocence of an accused; or

 People v. Shazier (139 Cal. App. 4th 294)

 Facts: A jury found true that defendant was a sexually violent predator within the meaning of the
California Sexually Violent Predators Act. D argued that P committed misconduct during his rebuttal
argument by informing the jury of the consequences of a "true" finding.
 Holding: prosecutor's comments were improper and constituted misconduct.
 Rule: Prosecutors are held to an elevated standard of conduct. A prosecutor commits misconduct by using
deceptive and reprehensible means of persuasion.
 Reasoning: Comments violated 2 in limine orders prohibiting reference to consequences of a true finding.
Prosecutor's comments were also deceptive and reprehensible. Prosecutor specifically told jury not to make
a decision based on what it thought it was going to be like for D at a state hospital. Court was not persuaded
by prosecutor's explanation that his motive was to dispel any sympathy defense L might have created in her
questions regarding the environment at the state hospital. Court rejected the People's contention that the
issue had been waived on appeal b/c defense L did not request a curative instruction. Such a request would
have been futile given timing of prosecutor's comments at end of rebuttal arguments. Court concluded that
it was reasonably probable that more favorable result would have occurred absent prosecutor's misconduct.

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XVIII. JUDICIAL ETHICS

A. Impartiality and Independence

 State judges are elected, while fed judges are appointed

 Candidates for state judge positions can state positions on legal issues but cannot promise result on issues

 Impartial = absence of bias or prejudice in favor of, or against, particular issues or classes of parties
 Maintenance of an open mind in considering issues

 Independence = freedom from influence or controls, other than those established by law

 Integrity = probity, honesty, uprightness, and soundness of character

 Impropriety = conduct that violates the law, court rules, or provisions of the Code; also, conduct that
undermines a judge’s independence, integrity, or impartiality

 Canon One of MR = uphold and promote independence, integrity, and impartiality of the judiciary
 Judges must avoid impropriety and appearance of impropriety
□ Judges must act in a manner that promotes public confidence in independence, integrity, and
impartiality of the judiciary
□ Consider: whether the conduct would create in reasonable minds a perception that the judge violated
the Code or engaged in other conduct that reflects adversely on judge’s honesty, impartiality,
temperament, or fitness to serve as a judge
□ Judges may not use or allow others to use judicial office prestige to advance personal or economic
interests

 Canon Two of MR = judges must perform their work impartially, competently, and diligently
 Judges must cooperate w/ each other in their work
 Judges must be fair and impartial
 Judges must be objective and open-minded
 Judges may not be swayed by public sentiment or fear of criticism, not permit social or other relationships
to influence their conduct, and not convey or permit others to convey idea that any person/group is in a
position to influence the judge

1. Impartiality and Independence Requirements of Due Process

 Caperton v. A.T. Massey Coal Co

 Facts: In October 1998, Hugh Caperton filed suit against Massey for tortious interference, fraudulent
misrepresentation, and fraudulent concealment. A state trial court in West Virginia rendered judgment
against Massey and found it liable for $50 million in damages. The Supreme Court of Appeals of West
Virginia granted review. While pending appeal, Mr. Caperton motioned for Justice Brent Benjamin to
recuse himself. He argued that since Massey's C.E.O. had donated $3 million to Justice Benjamin's
SuperPac campaign to win a seat on the Supreme Court of Appeals, Justice Benjamin's participation would
present a "constitutionally unacceptable appearance of impropriety." (More than 60% of all donated funds).
Motion was denied. In a 3-2 decision with Justice Benjamin voting in the majority, the Supreme Court of
Appeals reversed the trial court and ordered it to dismiss the case. After its decision, the court granted Mr.
Caperton's motion for rehearing, but once again denied his motion for Justice Benjamin to recuse himself.
On rehearing, the court maintained in a 3-2 decision that the trial court should be reversed and the case
dismissed. It reasoned that a forum selection clause in a contract between the parties made the trial court in
West Virginia an improper venue. It also concluded that because the parties had previously adjudicated the
dispute in a Virginia state trial court, the doctrine of res judicata did not allow this case to be retried.
 Issue: Did Justice Brent Benjamin's failure to recuse himself from participation in a case where one of the
parties donated $3 million to his election campaign violate Due Process Clause of the 14th Amendment?

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 Decision: Yes. The Supreme Court held that due process required that Justice Brent Benjamin recuse
himself from participation in the case in question. The Court need not find that Justice Benjamin was
actually biased in his decision making in order to find invalid the decision in which he took part. Rather, it
need merely be shown that "under a realistic appraisal of psychological tendencies and human weakness,"
Justice Benjamin's interest posed "a risk of actual bias" and thus he should have recused himself if his
participation threatened the adequate implementation of due process. The Court stated that such a risk of
bias exists where a judge has a "direct, personal, substantial, pecuniary interest," as Justice Benjamin did.
Therefore, the Court reasoned, he improperly failed to recuse himself. [objective standard of prejudgment]

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 2. Freedom of Speech in Judicial Elections

 Republican Party of Minnesota v. White

 Facts: Minnesota's Constitution provides for the selection of all state judges by popular election. The
announcement clause of the Minnesota Supreme Court's canon of judicial conduct prohibits a candidate
from announcing his or her views on disputed legal or political issues. While running for associate justice
of the Minnesota Supreme Court, Gregory Wersal filed suit, seeking a declaration that the announce clause
violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced
to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he
declined response to questions put to him by the press and public, out of concern that he might run afoul of
the announce clause. The District Court found that the announcement clause did not violate the First
Amendment. The Court of Appeals affirmed.
 Issue: Does the First Amendment permit the Minnesota Supreme Court to prohibit candidates for judicial
election in that State from announcing their views on disputed legal and political issues?
 Decision: No. SCOTUS held that the announce clause violates the First Amendment. The Court reasoned
that the announce clause prohibits speech based on its content and burdens a category of speech that is at
the core of First Amendment freedoms - speech about the qualifications of candidates for public office.
Moreover, the Court concluded that the clause did not serve to preserve the state judiciary's impartiality, its
argued compelling state interest. There is an obvious tension between state judges being elected, and the
Minnesota Supreme Court's announce clause, which places most subjects of interest to the voters off limits.
□ For content based restriction issue under the First Amendment, gov’t must have compelling interest
and speech restriction must be narrowly tailored to meet that interest
□ If the goal is impartiality, the law is under-inclusive
□ Virtually impossible to find a judge who has no preconceptions about the law

 Judicial Ethics
 J can preside over a cousin’s trial
□ Assuming no disqualification under general impartiality standard of Rule 2.11
□ Not OK: great grandparent, grandparent, parent, uncle/aunt, bro/sis, niece/nephew, spouse/partner
 J does not have to automatically recuse him/herself if a L in a relative’s law firm appears before the J
 J who leaves the bench and returns to private practice can’t use the title “judge” or “honorable”
 If J thinks L is on drugs, alcohol, or any medical, emotional, or physical conditions impairs a L’s
performance, J must do something about it
 J may not voluntarily testify at a public hearing or as a character witness. But J can (and usually must)
testify pursuant to a subpoena
 J must avoid “facial expressions and body language” that may “reasonably be perceived as prejudiced or
biased”
 J may not accept any “gov’t position” other than appointment concerned w/ matters involving the
improvement of law
 Js may not practice law. But teaching law is OK
 In certain situations, the parties may waive a J’s disqualification pursuant to Rule 2.11(C)

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 3. Prohibitions on Political Activity

 Judges may do some things as candidates that they may not do as judges

 Canon 4 of Model Code = strike balance btwn imperatives of disinterested and independent judging, on one
hand, and the advance if not necessity of political activity to become and remain a judge, on the other
 Judge or judicial candidate may not engage in political or campaign activity at odds w/ independence,
integrity, or impartiality of the judiciary

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 4. Recusal

 MCJC Rule 2.9: judge shall not initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or
impending matter
 Exceptions to ex parte communications rule:
□ Scheduling, admin, or emergency purposes (assuming no talk of substance)
□ Obtaining written advice of a disinterested expert on the law applicable to a proceeding
□ Consulting w/ court staff and other judges
□ Meeting w/ parties while overseeing an effort to settle (w/ parties’ consent)
□ Other communications permitted by other laws

 MCJC Rule 2.11

 J shall disqualify himself in any proceeding in which J’s impartiality might reasonably be questioned

 HYPO: 2 nonprofits sued VP Cheney to obtain energy policy task force records. While the suit was appealed to
the SCOTUS, Scalia went on a duck-hunting trip w/ VP, flying to a private hunting camp on Air Force 2.
 It is common for these relationships to happen
 Not that big of a deal given the suit
 Scalia did not receive any financial benefit

 HYPO: FBI reports that crim D on trial took steps to hire hit man to kill trial J and his family. Trial J knew of
the threats and expedited the sentencing hearing to get the D off the streets “immediately,” J refuses to recuse
himself.
 Reasonable person in this context would think impartiality would be affected
 Doesn’t mean that every time you threaten judge, they can drop the case
 D has to take pretty serious steps towards threatening J for J to have to recuse himself

 Liteky v. United States

 Facts: Petitioners sought review of the judgment denying their motion to disqualify the district court judge
from presiding over their trial for willful destruction of property of the United States. Petitioners' motion
relied on events occurring during an earlier trial of petitioner priest. The judgment was premised on a
holding that matters arising out of the course of judicial proceedings were not a proper basis for recusal.
 Holding: Under §455(a), recusal was required when impartiality might reasonably be questioned. Under
§455(a), presence of extrajudicial source did not establish bias, and absence did not preclude bias.
□ The opinions formed by a judge based on facts introduced or events occurring in course of current
proceedings, or of prior proceedings, did not amount to bias or partiality unless they displayed a deep-
seated favoritism or antagonism that would make fair judgment impossible.
□ If intrajudicial behavior is at issue, manifestations of animosity had to be much more than subtle to
establish bias.
 Outcome: The judgment denying petitioners' motion for recusal was affirmed.

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 5. Expressions of Bias

 Mejia v. United States

 Facts: D was convicted in a bench trial in the Superior Court of the District of Columbia of one count of
misdemeanor sexual abuse. After rendering a verdict against D and articulating the reasons for the verdict,
the trial judge made comments regarding cultural issues and immigration implications that were adverse to
D and to his family. Based on these statements, D asked that his conviction be reversed, and that his case be
remanded for a retrial before a different judge. D argued that trial judge's statements evidenced an
appearance of bias against D and thereby violated D.C. Code Jud. Conduct Canon 3(B)(5) and 3(E)(1).
 Holding: Although the court did not draw any conclusion that the trial judge had an actual bias which
influenced the verdict, or that the judge's musings were not well intentioned, an appearance of bias to an
informed, objective observer might have existed, and the integrity of the judicial process was compromised.
 Outcome: Conviction was reversed. Case was remanded for a new trial. If prosecution so determined, the
appellate court was confident that case would be assigned to another judge w/out directive from the court.

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 6. Extra-Judicial Conduct

 In re Aguinda
 Facts: Petitioners sought a writ of mandamus directing district court judge to recuse himself in underlying
action, which involved claims by Ps, who were citizens of Ecuador and Peru, that D (respondent) oil
company, polluted rain forests and rivers in those 2 countries, causing environmental damage and personal
injuries. Specifically the petitioners argued that the judge's attendance at an expense-paid seminar, at which
a former CEO of D spoke, created an appearance of partiality towards D that required disqualification.
 Holding: Court denied petition. Court was guided by the fact that the topics discussed at the seminar had
no bearing on any material issue in the underlying case and the remote involvement of D in the seminar.
 Rule: Because a reasonable person would not doubt the judge's impartiality, federal law neither requires or
permitted the judge's disqualification.
 Outcome: Denied petitioner request for a writ of mandamus directing district court judge to recuse himself

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