PR (Muth) Spring 2019 Outline

Professional Responsibility (Muth) – Spring 2019
Table of Contents
I. Purpose of this class and the Model Rules..................................................................1
II. Judging the problem.....................................................................................................1
III. Five Main Sources of Rules..........................................................................................1
Duties Lawyers Owe to Clients.......................................................................................................2
I. Overview........................................................................................................................2
II. Fiduciary Duties of Lawyers........................................................................................2
III. Implications of Duties of Loyalty, Care, and Confidentiality...................................3
IV. Hypotheticals and Practice Questions.........................................................................4
Division of Authority Between Attorney and Client (MR 1.2).......................................................5
I. Model Rule 1.2(a) – Allocation of Authority between Attorney & Client...............5
II. Client Decisions.............................................................................................................6
III. Attorney Decisions.........................................................................................................8
IV. Scope of Representation/Unbundling..........................................................................9
Duty of Confidentiality (MR 1.6)..................................................................................................10
I. Overview......................................................................................................................10
II. Model Rule 1.6(a)........................................................................................................11
III. Using Client Information for Pecuniary Gain (MR 1.9(c)).....................................11
IV. Using Client Information for Personal Benefit.........................................................12
V. Confidentiality with Multiple Clients (MR 1.6(b))...................................................13
VI. Entity Representation (Model Rule 1.13)..................................................................15
VII. Disclosure Authorized by Implication.......................................................................16
VIII. Exceptions and Defenses.............................................................................................16
IX. “Confidentiality or Attorney Client Privilege?” Problems.....................................20
Attorney-Client Privilege...............................................................................................................22
I. General Overview........................................................................................................22
II. Elements.......................................................................................................................22
III. Defining Communication............................................................................................22
IV. In Confidence...............................................................................................................23
V. Defining Between “Client and Attorney”..................................................................23
VI. Defining “Relating to Legal Advice”.........................................................................24
VII. Entities and Privilege..................................................................................................26
VIII. Exceptions to Attorney-Client Privilege....................................................................28
IX. Waiver of Privilege......................................................................................................32
Work Product Doctrine..................................................................................................................37
I. Overview......................................................................................................................37
II. Scope of the Doctrine..................................................................................................37
III. Waiver..........................................................................................................................37
IV. Exceptions....................................................................................................................38
V. Origins of the Work Product Doctrine......................................................................38
VI. Prepared in Anticipation of Litigation......................................................................39
Duty of Care..................................................................................................................................41
I. Overview......................................................................................................................41
II. Civil Legal Malpractice..............................................................................................41
a. Introduction.  alleging malpractice must do the following:........................................41
i
III. Causation and Damages.............................................................................................45

IV. Statute of Limitations and Tolling.............................................................................46
V. Criminal Malpractice (liability, not discipline)........................................................46
VI. Ineffective Assistance of Counsel...............................................................................47
VII. Special Obligations of Prosecutors............................................................................49
Liability to Non-Clients.................................................................................................................51
I. Introduction.................................................................................................................51
II. Basic Concerns.............................................................................................................51
III. Duty Imposed by Law.................................................................................................51
IV. Misrepresentation........................................................................................................52
V. Secondary Liability: Aiding & Abetting and Conspiracy.......................................54
VI. Advising or Assisting Clients in Unlawful Activity..................................................56
Assuming Duties............................................................................................................................58
I. MR 1.18 – Duties to Prospective Clients...................................................................58
II. Accepting Representation...........................................................................................58
III. Duty of Confidentiality...............................................................................................59
IV. Duty of Care.................................................................................................................62
V. Attorney Solicitation...................................................................................................63
VI. Advancing Clients Money...........................................................................................66
VII. Limitations on Forming Duties..................................................................................67
VIII. Grounds for Refusing Representation.......................................................................68
Terminating Duties........................................................................................................................70
I. Overview......................................................................................................................70
II. Rules for Permissive Withdrawal..............................................................................71
III. Withdrawal and the Duty of Confidentiality............................................................73
IV. Voluntary Withdrawal and Contingency Fees.........................................................73
Conflicts of Interest.......................................................................................................................76
I. Relevant Model Rules.................................................................................................76
II. Overview......................................................................................................................76
III. Concurrent Representation........................................................................................76
IV. Directly Adverse Interests..........................................................................................79
V. Positional Conflicts......................................................................................................79
VI. Limitation of Client’s Ability to Represent Zealously.............................................80
VII. Subsequent Conflicts...................................................................................................81
VIII. Conflicts in Criminal Cases........................................................................................84
IX. Imputation of Knowledge and Screening..................................................................85
X. Client Consent and Waiver........................................................................................88
XI. Transactions with Clients...........................................................................................89
Relations with Third-Parties on Behalf of Clients.........................................................................92
I. Represented Persons...................................................................................................92
II. No-Contact Rule & Undercover Investigations........................................................94
III. No-Contact Rule & Class Actions..............................................................................94
IV. Unbundling..................................................................................................................94
V. Extension of Liability..................................................................................................94
VI. Unrepresented Persons...............................................................................................95
VII. Embarrassing or Burdening Others..........................................................................96
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Relationship with your firm...........................................................................................................97

I. Agency Law..................................................................................................................97
II. Soliciting Former Clients............................................................................................97
III. Superior-Subordinate Relations................................................................................98
Economics in Practice..................................................................................................................100
I. Fees.............................................................................................................................100
II. Retainers....................................................................................................................100
III. "Premature Withdrawals".......................................................................................102
IV. Reasonability of Fees.................................................................................................102
Ethics in Advocacy......................................................................................................................106
I. Relations with Other Lawyers.................................................................................106
II. Scope of Legitimate Demand....................................................................................107
III. Candor Towards Tribunal.......................................................................................108
IV. Conduct During Discovery.......................................................................................109
V. Introducing Perjurious Testimony..........................................................................111
VI. Obligations to Correct..............................................................................................113
VII. Strickland Standard/Ineffective Assistance of Counsel..........................................114
Judicial Ethics..............................................................................................................................115
I. ABA Model Code of Judicial Conduct....................................................................115
II. Impartiality and Independence................................................................................115
III. Prohibitions on Political Activity (see chart on pages 1124-25)............................116
IV. Recusal........................................................................................................................116
V. Expression of Bias.....................................................................................................116
Model Practice Questions and Answers......................................................................................118
iii
Sources of Ethics and Rules

I. Purpose of this class and the Model Rules
a. Legal ethics can differ from moral ethics so we must learn the rules and develop judgment.
b. Spot Trouble, avoid trouble, get out of trouble
i. Ethics committees, pigs, and the client can all fuck with you.
ii. Acquire the proper sort of judgement to avoid this
iii. Trouble = legal malpractice/civil liability or bar discipline/sanctions
1. For legal malpractice, you need to harm client and be but for cause of damages
2. Can not only be what you did, but what you didn’t do
II. Judging the problem
a. Think interactively, considering both parties
b. Think dynamically, beyond the initial decision and into what else could happen
c. Think probabilistically, weighing the uncertainty
d. Sometimes, you take the L
i. Daniels v. Alander (Hypothetical Case in Book)
1. F: Child custody case for Inez who lives in CT against father in NJ; mother has
counsel in both states, asks for an emergency ex parte custody proceeding in CT,
despite there being a proceeding in NJ. During the hearing, Douglas (senior atty)
assures CT court that the atty in NJ did not plan to file any emergency
proceedings b/c Veronica (Inez’s NJ atty) tells Dennis (junior atty) that the court
in NJ sucks; CT judge approves.
a. BUT, as it turns out, Veronica never said that stuff & the CT judge gets
pissed; Dennis and Douglas are both reprimanded.
2. So what should Dennis have done?
a. Ask for a recess, or hand a note to Douglas, or ask to correct the record
during the proceeding.
b. First two probably will get denied/ignored though so best (of bad)
options is ask to correct “inadvertent” confusion in record and fall on
your sword for senior attorney.
3. What if the senior attorney tells Dennis to shut the fuck up?
a. That sucks, but you should know when to walk away and watch out for
your own ass. You’ll lose your job, but you won’t get disciplined by bar.
4. Who else gets hurt by senior attorney lying?
a. Client (Inez)
b. Veronica (NJ atty)
c. NJ Judge
III. Five Main Sources of Rules
a. General Legal Rules
i. Rules governing business aspects of law
ii. Lawyers are subject to same general legal rules as everyone else (see Michael Cohen)
b. Duties to Clients
i. Duties of Loyalty (place client’s interest ahead of your own), Care (perform work
competently), & Confidentiality (don’t disclose to others or sue for your own benefit
with confidential information learned while representing your client)
c. Rules that Create Duties to Non-Clients/Third Parties
i. People you are not representing who are still affected by your representation, like third
party beneficiary when drafting a will.
d. Rules of Professional Conduct (disciplinary rules)
i. Formal rules adopted by states to regulate lawyers’ conduct
ii. Violation of rules creates a basis for administrative discipline to lawyers
a. In Daniel above, they did not violate any duty to their client, but they did
misrepresent themselves to the tribunal, which is against the rules
e. Rules of Government Institutions (patent bar, SEC, military law, etc.)
i. Courts have inherent power to sanction lawyers in some cases & express power in others
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Duties Lawyers Owe to Clients

I. Overview
a. The Law assumes attorneys are sophisticated, powerful parties, and thus attorneys owe fiduciary
duties to their client.
b. A-C relationship inherits duties from agency law
i. Lawyers are agents of their clients, and act on their behalf
ii. Thus, at the most basic level, if the agent fucks up, the principal must bear the cost of that
fuck up – that is why it often comes to the client to settle with atty
iii. Because of that, the court imposes rules governing the conduct of attorneys so the
principal isn’t always responsible for the agent’s mistake
II. Fiduciary Duties of Lawyers
a. Duty of Loyalty
i. Lawyers must put a client’s interests first and above their own
1. Personally, financially, etc. – don’t screw your clients (figuratively/literally)
ii. Hypo – Bibb
1. Didn’t do anything morally wrong, BUT
2. He did something ethically wrong b/c violated duty of loyalty b/c govt was his
client and he sandbagged case so should have withdrawn/quit
b. Duty of Care
i. Lawyers must act reasonably and meet the standard of care of a reasonable lawyer
doing similar work in similar circumstances.
ii. Hypo – Muto
1. Got himself in a bad situation by taking on too many cases
iii. U.S. v. 7108 West Grand Avenue
1. F: Husband and wife get charged with a drug crime; forced to forfeit their
property; they claim attorney misconduct fucked them over, failing to show up in
court during this proceeding; demand another go
i. Claim the attorney breached his duty of care owed to the client
2. Governing Principle of the case: Under agency-principal law, the principal is
responsible for the actions of the agent
i. Court agrees that the attorney was shitty, but someone has to bear the
burden of mistakes being made.
ii. Duty of Care problem b/c attorney was grossly negligent
3. H: Atty is liable to client, but third party (govt) is not liable. The agent was the
attorney, and while he fucked up, the principal is responsible for hiring a crappy
attorney.
i. So, regardless of the attorney's mens rea, you can't overturn a judgement
for attorney misconduct in a property proceeding
4. Forfeiture proceedings are not criminal
i. Making them do a re-do puts the taxpayer on the hook for the do-over,
and is a poor use of judicial economy
ii. And now they don’t have any impetus to do a decent job the first time
around
c. Duty of Confidentiality
i. (1) Lawyers must not disclose confidential information learned while representing a
client.
1. Iron-fucking clad in California.
ii. (2) Lawyers must not use confidential information for the lawyer’s benefit or to the
client’s detriment.
iii. Sort of a mix between first 2 duties above
iv. Hypo – Coventry & Kunz
1. Had to maintain confidentiality until time client allowed to disclose (after client’s
death here
2. Seems bogus, BUT duty of conf. may have been reason client disclosed
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III. Implications of Duties of Loyalty, Care, and Confidentiality

a. Breach of Fiduciary Duty of Care (Tort)
i. Clients can sue their attorney for breach of fiduciary duty
1. The client, however, cannot relitigate the case b/c the client (principal) bears the
burden of the agent’s (lawyer’s) mistake (see 7108 West Grand Ave. above)
1. This minimizes the cost of re-litigating the main action, AND
2. Places liability on the deserving party (aka it’s not the court’s fault)
ii. Breach of fiduciary duty is a stand-alone cause of action, unlike a violation of Model
Rules (which is just evidence that attorney may not have conformed to standard)
iii. You can breach one duty and not the other, and still be on the hook for breaching your
fiduciary duties.
b. Legal Malpractice (Tort)
i. Clients can sue you for legal malpractice
ii. Elements for legal malpractice:
1. Duty: Lawyer hired by client OR client believes lawyer represents him/her
2. Breach: Failure of attorney to provide reasonably competent representation
3. Causation: Attorney’s action/inaction is but for cause for damages
4. Damages: Non-satisfactory result under agreement for legal services
iii. Important: Client cannot sue lawyer for legal malpractice if the lawyer wins the case (no
damages) or lawyer’s action/inaction was not the but for cause of damages
1. BUT: Client can still have a cause of action for breach of fiduciary duty (see
Tante v. Herring below)
iv. Note: For MPRE questions always look if question is asking about discipline or liability
(liability only pertains to lawsuit from legal malpractice, breach of fiduciary duty, etc.)
c. Occasionally, the rule can set the standard for breach
i. Tante v. Herring
1. F: The Herrings retain Tante for a disability claim; he bangs the wife; the
Herrings sue on breach of fiduciary duties (tort), break of K, & malpractice (tort)
2. Herring wins at the trial level, and they are happy with his services, but are still
suing since he banged the wife.
1. For malpractice, need duty (hired by client), breach (failed to represent
sufficiently), breach was but for cause & damages.
i. No malpractice claim here b/c there were no damages.
2. Additionally, not in the K to not bang a client so no breach of K
3. However, fiduciary duties are a stand-alone cause of action
1. Duty of Confidentiality possibly breached b/c he used conf. info about
the strained relationship to bang the disabled wife.
i. Information is like money – if the client entrusts you with it, you
can’t use it for your own good.
2. Duty of Loyalty possibly breached b/c he put his own interests above his
client’s interests (the husband’s, at least)
3. BUT Duty of Care isn’t breached since he did okay at trial.
4. Finally, violating a disciplinary rule does not create a cause of action
1. But the rule can set the standard for fiduciary duties and, Georgia bans
banging clients, so he may have violated it.
d. Fiduciary relationship only applies to your actions as an attorney
i. You don’t automatically have a fiduciary duty to your significant other because you
happen to be an attorney.
1. No heightened decorum or standards.
2. Barbara A. v. John G.
1. F: Barbara hires John to help with a child custody/spousal support issue;
they get ready to bang, she says you gotta wear a condom, he says that
isn't a problem since he got his balls cut off; turns out she got pregnant;
his ass sues for failing to pay, she counter-sues.
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i. One of her main theories is that John has status as a fiduciary,

and that extends to their sexual relationship
ii. He had an obligation to be honest with me, and he lied to me
before fucking
2. Is there an auto-fiduciary status when dealing with a non-attorney?
i. No; a sexual relationship can be a confidential relationship, built
on an expectation of trust based on moral/social understandings.
ii. Confidential relationships require the other person to put on
evidence that such a relationship existed, there were duties, and
they were breached (question of fact)
iii. Fiduciary relationship is just a question of law, so P doesn't have
to prove as much
e. Can you have sexual relations your clients?
i. Model Rule 1.8(j) – Lawyers shall not have sexual relations with their clients UNLESS
that relationship existed prior to the attorney-client relationship
1. By and large, the answer is no, unless there was preexisting relationship.
2. Note: This is a personal issue so any conflict is not imputed to the firm.
ii. California Rule 1.8.10 – Sexual Relations with Current Client
1. A lawyer shall not engage in sexual relations with a current client who is not the
lawyer’s spouse or registered domestic partner, UNLESS a consensual sexual
relationship existed between them when the lawyer-client relationship
commenced.
IV. Hypotheticals and Practice Questions
a. Hypo: Daniel Bib, prosecutor; prosecuted a few guys but decide they did not do it; bosses decide
to uphold the conviction anyway; Bib sandbags and throws the case to the defense counsel,
giving them new evidence and explaining how to dismiss the case.
i. Was Bib right to harm the DoJ's case in the manner in which he did?
1. Probably not; he violates his duty of loyalty to his client, the state
1. Placed client's interest above your own
2. Also violating duty of confidentiality, probably, in handing over state evidence.
ii. What should he have done?
1. Can withdraw for ethical reasons and end your duty of loyalty on this case to the
state
b. Hypo: Muto has a high volume, low cost practice doing immigration work; problem is that he is
shitty at his job, and is harming his clients through his incompetence
i. What duty is he violating - Duty of care in not acting as a reasonable attorney in similar
context.
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Division of Authority Between Attorney and Client (MR 1.2)

I. Model Rule 1.2(a) – Allocation of Authority between Attorney & Client
a. The division of authority between the attorney and client is essentially a continuum with clear
extremes and some grey area in the middle.
b. A lawyer shall abide by a client's decisions concerning the objectives of representation &, as required
by Rule 1.4, shall consult w/ the client as to the means by which they are to be pursued. A lawyer may
take such action on behalf of the client as is impliedly authorized to carry out the representation.
i. (MR 1.4) (a) A lawyer shall:
1. Promptly inform the client of any decision or circumstance with respect to
which the client’s informed consent is required;
2. Reasonably consult with the client about the means by which the client's
objectives are to be accomplished;
3. Keep the client reasonably informed about the status of the matter;
4. Promptly comply with reasonable requests for information; and
5. Consult with the client about any relevant limitation on the lawyer’s conduct
when the lawyer knows that the client expects assistance not permitted by
the RPC or other laws
6. (b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
c. Things Lawyer Can Do: Briefing, case strategy, objections, procedural and tactical decisions
i. The attorney’s job is to figure out the means to that end.
1. However, whenever you’re spending the client’s money, you should check in and
make sure they’re cool with your expenditures.
2. All things being equal, the more something affects the client’s ultimate goal in
representation, the more likely it is the client’s decision to make
d. Things Client Must Do under MR 1.2(a): Civil: Decide to settle. Criminal: Decide what plea to
enter, and whether to testify or waive trial by jury
i. Basically, the client decides the ends and the goals of the case.
e. Authority
i. There are things only the client can do; things the client can authorize the attorney to do;
and things the attorney can do on their own.
1. 100% client calls are: Should I take the plea bargain? Should I settle?
2. 100% attorney calls are: Should I object to this line of questioning in court?
1. Why? Things get tricky when client can take the reins on shit normally
reserved for the attorney
Type of Authority Created By: Attorney Granted Power to:
Actual Authority Assent of client, manifested to Alter client’s legal rights and
lawyer obligations within bounds of client
assent
Implied Authority Implication from assent of client, Do things necessary to carry out
(still “authority) manifested to lawyer client instruction
Apparent Authority Manifestations by client to 3rd Alter client’s legal rights and
party that lawyer has authority obligations within bounds of
manifestation
ii. Actual Authority – The client explicitly, or implicitly, authorized the attorney to act in a
certain way.
1. “I want you to sue my employer” authorizes an attorney to serve a complaint,
research causes of action, pay filing fees, etc.
iii. Apparent Authority – Third Party reasonably believes that an attorney is authorized to act
on behalf of the client.
1. Client tells the third party that the attorney has permission to settle the case;
principal has stated the extent of the agent’s authority.
f. Fiduciary Duties and the Ethical Rules establish the division of authority
i. Lawyers and clients may not alter authority allocated by law via contract; attempts to do
so look suspicious, and might violate MR 1.2
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II. Client Decisions

a. Model Rule 1.2(a) – Lawyer must abide by the client’s decision concerning the
objectives/purposes of representation (see MR 1.4 above)
b. Clients get final say over the ends and goals of representations, including pleadings,
settlements, and offers to settle.
i. This right cannot be waived by fee agreement
1. In Re Grievance Proceedings
a. F: Attorney has a written fee agreement with the clients; gave attorney
full discretion to settle; allowed him to reject any offer on his own, for
any reason; waived any requirement he communicate with his clients
about the terms of a settlement.
b. Question becomes whether the client can actually waive these rights
i. And rule said you, as the client, cannot just delegate to the
attorney the right to settle a case.
c. Attorney wants this rule b/c clients are dicks and don’t want to settle
sometimes; could say something is about justice, rather than money.
i. Legit Concern 1: At some point case becomes too expensive to
make the case worth the effort, OR
ii. Legit Concern 2: Client would want to settle earlier than the
attorney thinks they should
d. Why do we have these stupid fucking rules?
i. Safeguard administration of justice & protect the clients/public
1. However, primary purpose is not to be disciplinary
ii. So since this guy didn’t harm the public, no harm/no foul
e. Why would clients be more risk averse?
i. Reluctant to pay out if they were going to lose; lack of general
knowledge and experience with the law; want some money,
rather than no money; trials suck; clients want certainty
f. Why would an attorney be risk averse?
i. You want to get paid something; reputation is of some concern,
and attorneys don’t want to lose; trials take a lot of time and
expense.
c. Apparent Authority
i. The Principal must go to a third party and tell them that the attorney can settle on behalf
of the Principal
1. Unless this is explicit, there is no apparent authority
2. Attorneys are considered “special agents,” as they are hired as a one-off situation
and require actual or apparent authority to bind a client
a. General agents, on the other hand, normally perform transactions for the
principal, so the law is more willing to recognize those actions as
binding.
3. There is some inherent tension between attorneys and clients because of the
client’s authority to settle
a. Attorneys want a perfect brief to signal their abilities to judges and
opposing counsel; clients just want to win.
b. Thus attorneys will often exaggerate and overshoot when advising a
client, messing with their ability to judge a settlement
i. Comes down to just picking an attorney that isn’t known for
lying to his clients.
4. Louis Fennell v. TLB Kent Company
a. F: Attorney represents client in a race discrimination claim; agrees to
settle with the defense counsel over the phone for $10k; Fennell told
attorney he does not want to settle for that much money, and even writes
him a letter to say so; eventually he decides to fire him
6
i. Brewington, the attorney, decides to write a letter to the court as

well saying the settlement is no longer acceptable to his client
ii. Opens the door for the judge to make it look like client has
buyer's remorse, and cover his own ass in case he goes up in
front of the same judge
1. This sort of letter sets him up to lose, and there may be
another way to write it to just say the deal needs to be
undone
b. Anyway, the district court upheld the deal, and the appeals court
overturned
i. Apparent authority requires the principal represent that the
attorney can settle to the third party, and that did not exist
c. Why did the district court uphold this?
i. They have a general desire to uphold settlement agreements, and
the defendant may be unduly prejudiced
1. Although here, trial didn’t even happen yet
ii. Seems strategic, and that isn't fair
ii. The Client sets the boundaries of the Attorney’s authority, and if the Attorney oversteps
that authority by settling a case or making substantive agreements, the client is not bound.
1. Blanton v. Womancare Inc.
a. F: Blanton gets a botched abortion, hires Harris; tells Harris she is cool
with arbitration, as long as it isn't binding; two days before trial, Harris
goes to defense counsel and asks if they can do binding arbitration;
agreement winds up being heavily favorable to the defense since Blanton
is limited to 15k, defense can choose the arbitrator; she finds out about
this three months later and fires Harris; arbitration goes forward, and
arbitrator finds for the defense; P appealed the finding.
i. Trial court found for defense; upheld arbitration; P appeals to
Supreme Court.
ii. Terms are shitty, but trial court believes the agreement for
arbitration and terms are procedural, not substantive
b. H: This is ends, not means so client needed to make the call
c. Can you square this with 7108?
i. Yeah; the attorney was authorized to represent the clients in
7108 and just did so badly.
ii. However, in this the attorney was told he cannot agree to binding
arbitration, and did so anyway.
d. Could he have agreed to non-binding arbitration, even without the
express agreement?
i. Dunno; if it's non-binding, the opinion is just advisory.
ii. But you probably cannot unless it was discussed because there is
some substantial harm done
iii. Non-binding arbitration takes time, money, and effort; that
damages the plaintiff, Plus you tip your hand in a lot of ways in
showing what you're bringing up in trial
e. Why did Harris agree to these terms?
i. Probably isn't ready; he's continued this case a few times, and he
is going to need an expert opinion and lots of evidence.
ii. Defense likely figured that out and just crammed in the most
ridiculous terms they could imagine and see if Harris agrees
1. Should have asked for signature of attorney AND client
2. Blanton Hypo
a. You are an associate at the firm representing Blanton; first job is to work
for Harris, and he hands you the case file, saying familiarize yourself
with this, we’re headed to trial in seven months.
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i. Harris tells you to just review it for an hour and we’ll talk about
it later since he isn’t concerned about a trial seven months down
the line.
b. Time passes and you start to panic; Blanton calls and asks what the status
is; what do you say?
i. Let me discuss the specifics with the supervising attorney and
call you back later. But if Harris tells you to fuck off, that’s
harder.
ii. Be honest, but mindful Harris is paying your checks
iii. Clarify position and why you can’t do it in writing. May then get
his response in writing.
iv. Talk to client and let them know what happened (you will get
canned probably)
c. You're on the eve of trial, and Harris comes to you and says we entered
into a stipulation; draft it and get it ready for counsel signatures. The
terms are the same poor terms as in the case.
i. Do you push back at all? Or do you just draft the terms?
ii. A lot of people would probably just draft the terms, but you're
ethically supposed to make sure the client has agreed to these
terms.
1. Ethically, the right answer is to go directly to the client
as your duties are to them, not the firm.
2. Practically, you should try and build a relationship with
other attorneys at the firm who won’t snitch on you for
asking for help or backing you up.
d. Does the attorney for the doctor have any duties to disclose these terms
are bad for Plaintiff?
i. Of course not – just make sure that all parties stipulate that
arbitration is binding and you’re good.
III. Attorney Decisions
a. Criminal Matters
i. Model Rule 1.2 – In a criminal case, a lawyer shall abide by the client’s decision, after
consultation with the lawyer as to…
1. Pleas to be entered; Whether to waive trial by jury; Whether the client will testify
2. Lawyer may withdraw over a fundamental disagreement, or client can fire lawyer
3. Otherwise, absent a material change in circumstances. attorney can rely on
advance authorization to take specific actions without consulting the client.
ii. Tactical, procedural decisions (like jury instructions and objections) properly lay with the
attorney, even when it may affect the client’s outcome
1. Arko v. Colorado
a. F: D breaks into his gf’s apt and fucks her up; gets charged w/ attempted
murder, assault, etc; D’s attorney wants to include a lesser, non-included,
defense w/ jury instruction (basically a play for a compromise since jury
won't like D, & we don't want them to grab a worse charge); D says no,
so trial judge says don't include it since it feels like more of client's call
i. Clients always think they will beat the rap, and don't want to get
hit with any crime. Turns out, he gets the harsher crime and
hangs his attorney out to dry
b. On appeal, court says this is a means, not an ends, decision, so attorney
should've been allowed to make it
i. Client cannot choose these tactical things, though there is an
argument that it should be a client decision since it's like saying
he can't choose to plead guilty to something.
c. Key Takeaway: When confronted w/ these situations (client call vs atty
call), look for analogous cases to see whose call the court considers it
8
iii. Client has a right to control defense, so the attorney should try to effectuate his will.
1. Kaczynski/Unabomber Case
a. F: Child prodigy, math PhD, very high functioning; attorneys want to
present statements to show he has schizophrenia, but he does not want
them to introduce that evidence; he comes into court and says he would
rather die than have this evidence put on, and he's going to just represent
himself if that is the case.
i. Judge sort of punts, saying this is a stalling tactic, and
prosecution is getting nervous since they do not want to have this
overturned and they have to do it again.
b. Defense winds up cutting deal to avoid death penalty, & D pleads guilty.
c. So did defense do the right thing by saving his life in disregarding his
instruction to keep out mental health shit?
i. Debatable – I don’t think you should be able to manipulate
someone for their own good, but the class was split about this.
b. Civil Matters
i. Model Rules limiting attorney actions
1. 3.1 – Attorneys may not assert frivolous claims
2. 3.2 – Attorneys must make reasonable efforts to expedite litigation
3. 3.3 – Lawyers cannot lie to tribunals or introduce false evidence
4. 3.4 – Lawyers cannot obstruct access to evidence
ii. Even when a tactical decision is a lawyer’s call, they should keep the client up to date as
to what the hell is happening.
1. But they can’t be strung up for refusing to follow a suggested tactic, like who to
interview or what to home in on.
IV. Scope of Representation/Unbundling
a. Model Rule 1.2(c) – Scope of Representation: Attorneys may limit the scope of their
representation of a client if the limitation is reasonable under the circumstances AND the client
gives their informed consent
i. Unbundling: A lawyer and client can agree that the lawyer will provide some, but not
all, services necessary to resolve the clients problem.
ii. BUT the lawyer must CLEARLY lay out the scope of representation and get the client’s
written consent.
1. That means laying out what the attorney will do, and the attorney will not do,
AND the practical implications of these limitations.
iii. As a matter of practice, the attorney needs to be clear as to who is handling any other
aspects of the matter, just to cover their own asses (GET IT IN WRITING).
iv. Why is this good for client?
1. Allows client to keep costs down.
v. Why is this good for attorneys?
1. Some money is better than no money
2. Lawyer might not have ability to do full service on legal issue, but can do 1 part.
vi. Creates problems for who you contact on behalf of client
vii. Can’t do waiver in retainer agreement (malpractice/ethical violation)
1. Instead can do limited scope retainer but still stuck with whether that’s
reasonable and atty is sophisticated party so client can’t really determine
b. Jurisdictional Variations on this
i. Ghost writing and giving the client to file
1. Some jurisdictions allow it, while others don’t allow it and require disclosure.
2. CA: Lawyer and client must give notice to the court and opposing counsel.
ii. How should opposing counsel communicate w/ a client who unbundles lawyer services?
1. Call attorney before calling the pro se litigant to ensure no violation of MR 4.2
for counsel contacting person you know is represented by counsel.
2. Put it in writing
iii. Further, non-appearing counsel is allowed to draft pleadings for the client
9
Duty of Confidentiality (MR 1.6)

I. Overview
a. Confidential Information: Confidential information is all information relating to the
representation of a client that is not generally known
i. Generally known is defined as information a reasonably diligent person with
ordinary knowledge could obtain using lawful means (like searching publicly
available indexes and similar methods of access).
b. Sourced from two duties
i. Duty of Loyalty – Must keep C’s confidential information to yourself, and not
exploit it for your own benefit.
ii. Duty of Care – Cannot negligently disclose a client’s information.
c. Confidential Information vs. Attorney Client Privilege
i. Confidentiality extends to a broader amount of information than evidentiary AC
privilege (big circle is confidential info and little circle in that big circle is AC).
So, if it’s AC, it’s also confidential.
1. Privilege applies to confidential communications between lawyer and
client for the purpose of obtaining legal advice.
2. Duty of Confidentiality applies to all info related to representing a client
(not generally known) and learned over the course of representation.
ii. The Duty of Confidentiality restricts voluntary use/disclosure and is sourced from
the duties of loyalty and care.
1. An attorney is duty-bound not to voluntarily disclose confidential info.
2. Confidentiality pertains to VOLUNTARY disclosure and applies in and
outside of court. Must disclose if required to do so by law though.
iii. Attorney-Client Privilege is a rule of evidence (narrower)
1. Attorney is protected from compelled disclosure when asserting AC priv.
2. Must only disclose if required to do so by court
3. Otherwise, no disclosure unless privilege waived (by client or disclosure
to 3rd party)
iv. Information can be BOTH CONFIDENTIAL AND PRIVILEGED
1. However, you cannot object to confidential info on the basis of privilege.
d. When in doubt, treat the information as confidential, especially in California which has far
fewer exceptions to confidentiality (default in CA is keep your mouth shut)
i. CPRC 1.6 (in conjunction with Bus. & Prof. Code § 6068(e)):
1. Shall NOT reveal confidential information, unless client gives informed
consent. The only exception is when there's a risk of serious bodily harm
or death.
2. CA B&P § 6068(e): (1) To maintain inviolate the confidence, and at
every peril to himself or herself to preserve the secrets, of his or her client.
(2) Notwithstanding paragraph (1), an attorney may, but is not required to,
reveal confidential information relating to the representation of a client to
the extent that the attorney reasonably believes the disclosure is necessary
to prevent a criminal act that the attorney reasonably believes is likely to
result in death of, or substantial bodily harm to, an individual
e. Questions on p. 103
i. Both (client communication & confidential b/c not generally known)
ii. Confidential only - Not AC priv b/c no communication. Whether wearing clothes
at airport is generally known shades to confidential b/c atty knew what witnesses
said about clothes. Also, should just err on treating that info as confidential
iii. Confidential but may need to disclose. Not AC priv b/c no communication
10
iv. Picking out specific apps qualifies as a communication

v. Confidential. No AC priv b/c no communication (would be once you sent that info
via email or talked to client)
vi. Confidential. No AC priv b/c third parties are present
II. Model Rule 1.6(a)
a. Disclosure of Confidential Information: An attorney cannot reveal information related
to the representation of a client unless the client gives INFORMED CONSENT or AN
EXCEPTION APPLIES (may NOT MUST disclose) (only exception i applies in CA):
i. MR 1.6(b)(1): To prevent reasonably certain death or substantial bodily harm;
ii. MR 1.6(b)(2)-(3): To prevent or rectify substantial financial harm;
1. Caused by the client, AND
2. In which your services were or are being used;
iii. MR 1.6(b)(4): To obtain advice about your obligations under the rules;
iv. MR 1.6(b)(5): To establish a claim or defense in a controversy with a client;
v. MR 1.6(b)(5): To respond to allegation regarding your representation;
vi. MR 1.6(b)(6): To comply with law or a court order; OR
vii. MR 1.6(b)(7): To detect and resolve conflicts when moving firms, as long as
disclosure does not prejudice your client
III. Using Client Information for Pecuniary Gain (MR 1.9(c))
a. Model Rule 1.9(c) – Attorney cannot use confidential information adverse to a former
client for pecuniary gain
i. Confidential info obtained while working for a client belongs to client; you can’t
use that info for your own benefit w/o violating duties of loyalty & confidentiality.
b. BUT you may use confidential information for pecuniary gain as long as you have a
former client’s written and informed consent!
i. David Welch v. Erskine & Tulley
1. F: E&T is a firm that represented Welch in the past; Welch is a collections
agency; Welch got taken over by another person, they increase prices, and
stop using E&T; a bunch of old collections client went to E&T and asked
them to take over collections (firm didn’t solicit biz tho)
a. Welch sues, accuses them as breaching their fiduciary duty, and
wants disgorgement
2. Court holds that E&T did breach
a. A fiduciary duty existed (have a duty to protect confidential info
even after done representing client) – comes down to whether it
was breached
i. You violate 1.6 you get bar discipline
ii. But here, violation of fiduciary duty existed through
violation duty to not use confidential info
b. E&T accepted new clients adverse to a former client;
c. Related to a matter in which client communicated confidential
information (methods for collection & fee schedules were
confidential and client took measures to keep those two
confidential – if the method was not confidential, then case would
have been dismissed)
i. NOTE: If you get rid of that confidential element, there is
no breach of duty.
1. But if you establish that the information is
confidential, there may be a breach
ii. Kind of chills the free market since now customers of
Welch can’t shop around for a better deal in collection
11
d. Takeaway: So E&T can’t take on Welch’s business clients

without written and informed consent from Welch
i. Perfectly fine to write your old client & tell them clients
are reaching out, & you want permission to bring them on
IV. Using Client Information for Personal Benefit
a. Model Rule 1.9(c) – Lawyer that has formerly represented a client in a matter cannot use
information to the disadvantage of the former client, unless the information is generally
known or an exception applies.
i. "Wood’s Case"
1. F: Woods represents Heritage in prior zoning cases; Woods is approached
by Heritage about building a new mall; turns out it is near his property,
and there is now a conflict of interest since he doesn't want a mall here;
Woods gives an interview to a paper opposing the project, discloses they
were looking at other places, and Heritage isn't able to build the mall.
2. Court holds that it is generally known that strip malls cause environmental
impact and create traffic problems;
3. HOWEVER, it is not known that the realtor was looking at other sites,
which, despite not saying outright, Wood implied with his disclosure.
a. Used this information for his own personal gain, and the fact they
were looking around (and had another option) wasn’t generally
known.
b. Personal benefit is not required to show a breach of duty; a violation can occur through
inadvertent or defensive disclosure.
i. In re Pressley
1. F: Custody dispute between parents; wife discloses information that she
believes husband is molesting her kid; says she wants to get full custody
of the kid, but tells Pressley, her atty, to not to tell the dad
a. Attorney goes in asking for supervised visits, and those are
normally only asked in situations of child abuse or molestation
b. And husband’s attorney kept pushing about why wife’s atty
wanted these, and eventually husband’s atty disclosed to husband
the mom thought he was molesting the kid
2. Court publicly censured the attorney for effectively saying "Yeah, that's
what we are thinking."
a. But what could he have done?
i. "I'm not alleging anything - I'm asking for supervised
visits."/Walk Away
ii. The attorney knows what will be alleged
iii. BUT Pressley can easily just say I asked for supervised
visits, that is what I did, and the bar won't punish him.
b. A better lawyer would also prepare for this inevitable question
i. He should tell his client that asking for supervised
visitation will make them ask why, and to think about an
answer.
12
V. Confidentiality with Multiple Clients (MR 1.6(b))

a. Joint Representation
i. Rule: Neither of the two clients may assert privilege against the other with respect
to communications pertaining to joint representation.
ii. However, remember privilege and confidentiality are not the same thing, and joint
representation does not remove duty of confidentiality
1. There’s a serious potential of conflict between Rules 1.6 and 1.4.
2. Thus, make sure you have both clients waive their right to confidentiality
IN WRITING, especially in CA with strict disclosure law.
b. Model Rules
i. 1.4(b) – A lawyer has a duty to keep the client informed of any information
necessary for the client to make informed decisions regarding representation
ii. 1.6(b)(2) – A lawyer may reveal information in relation to the representation of a
client when the lawyer reasonably believes it is necessary to prevent the client
from committing a crime or fraud; OR
1. To prevent, mitigate, or rectify injury to the financial interests of another
that resulted from the client’s commission of crime or fraud
c. A vs. B
i. F: Husband (B) and wife (W) working with Hill Wallack; executing a will
together that says the property of the other will be conferred to the living partner,
with the understanding that the living partner will use it to support the kids; as it
turns out, the husband had another illegitimate kid with A, and A hires the firm to
sue B for paternity
1. What did the firm do wrong?
a. Nothing, really; there was a screw up in the conflicts database
2. Did the firm mess up by dropping A as a client?
a. No; you can drop clients for whatever reason, and a conflict
works
ii. But now the firm knows B has a kid with A, and they want to disclose the fact this
kid exists to W because this fact is vital to her estate planning.
1. Duty to W to communicate all relevant information relating to her
property and will/trust (Rule 1.4)
a. Timing critical, since they haven't signed these documents yet
and,
i. If the will/trust existed, then there is the assumption that
shit always happens after a will is made and there is some
risk assumed in knowing that
2. Duty to B and A not to disclose confidential information (Rule 1.6)
iii. Court holds firm MAY tell the wife that B has an illegitimate child, but need to
keep identity of A confidential
1. However, since B is trying to defraud W and use the firm, firm can choose
to disclose this information to protect W
2. Exceptions to confidentiality requirements ARE ALWAYS MAYS,
NOT SHALLS
a. You get to choose, and in this case the firm may choose
3. However, in California, there are no "may" opportunities (CPRC 1.6 (in
conjunction with Bus. & Prof. Code § 6068(e))
a. Shall NOT reveal confidential information, unless client gives
informed consent. The only exception is when there's a risk of
serious bodily harm or death.
13
b. CA B&P § 6068(e): (1) To maintain inviolate the confidence, and

at every peril to himself or herself to preserve the secrets, of his or
her client. (2) Notwithstanding paragraph (1), an attorney may,
but is not required to, reveal confidential information relating to
the representation of a client to the extent that the attorney
reasonably believes the disclosure is necessary to prevent a
criminal act that the attorney reasonably believes is likely to result
in death of, or substantial bodily harm to, an individual
iv. Should the firm disclose?
1. Yes…
a. Husband was the subjectively bad person in all of this, and is
trying to defraud his wife, so feels like he should be hurt and not
her
b. Wife could potentially sue for breach of duty of loyalty in
choosing not to disclose
i. Though the professor says he'd rather get sued by the
husband, rather than wife, since only her estate could sue
and only if she dies first, and her kid finds out about the
other ones.
2. No…
a. She may never find out about it, and she (should have) tacitly
contemplated and agreed that illegitimate children may be
covered by the will
b. Also, he may die first, and she wouldn’t take care of a kid she
doesn't know about
3. Alternatively…
a. The will has not been signed, so why not just tweak it so it says
that only legitimate kids of the marriage
v. How to solve this problem
1. Hire a better conflicts checks person
2. Use a waiver that says we will disclose all information to our joint clients
that is relevant to their case, regardless of the source of information.
14
VI. Entity Representation (Model Rule 1.13)

a. When you represent an entity client (like a corporation), you represent the entity as such
i. You do not represent the CEO, or the COO, or any employees, unless there is a
separate agreement saying otherwise.
ii. That creates some tension since you must talk to your client’s constituents as the
corporation’s attorney
1. Further, constituents pay your fee and sign your checks; while those
running a large corporation understand this, smaller companies do not.
b. Upjohn Warning: On you to ALWAYS CLARIFY for whom you work.
i. Required to give an Upjohn warning, stating…
1. (1) I represent [the entity], and I am here to discuss [subject matter];
2. (2) I do not represent the employee/executive/constituent personally;
3. (3) That, while the conversation is privileged, the corporation holds the
right to the privilege, and not the constituent. Therefore, the entity can
choose to disclose to third parties if it so chooses; AND
4. (4) Finally, that the constituent has a right to talk to his own counsel if
they so choose.
c. Model Rule 3.4(f): Covers whether corporate attorney can request that employees keep
their mouths shut.
i. MR 3.4(f): Lawyer cannot request a person other than a client to refrain
from voluntarily giving relevant information to another party unless:
1. the person is a relative or an employee or other agent of a client; and
2. the lawyer reasonably believes that the person's interests will not be
adversely affected by refraining from giving such information.
d. Perez v. Kirk & Carrigan
i. F: Perez driving a Coca-Cola Bottling Company truck; fails to stop at a stop sign
and collided with a school bus, killing the kids; Kirk & Carrigan retained, met
with Perez in the hospital and took a statement under oath; according to Perez,
K&C said they represented him AND his employer, and ensure the
communication would be confidential; he says he doesn’t think the
company/managers could've done anything to avoid the accident; but then, when
Perez received criminal charges, K&C turned over a copy of the statement under
threat of subpoena, which led to Perez’s indictment by a grand jury on involuntary
manslaughter; he sues K&C on claim they breached their Fiduciary duty
1. Trial court granted SJ for defendants, Perez appealed.
ii. So you represent the bottling company, and a partner comes in and says hey, this
case is on your desk, figure it out.
1. Bottling company are likely concerned about investigating the facts and
liability involved and getting information they can use for public relations
and media since killing 21 kids is big news.
2. Probably want to get some statement exonerating the company as well,
w/o giving him too much detail as to what the company thinks happened
iii. Court says don’t get cute with 3rd party AC privilege blown stuff (his family being
present during interview). Still had duty of care to advise him of that happening.
1. Also, attorneys were by far the more sophisticated party here.
iv. What SHOULD you tell the guy?
1. Upjohn warning (I rep company and am here to talk to you about X,Y.Z. I
do not rep you so whatever you tell me – See book for full thing)
2. How you navigate and emphasize the warning is up to you
15
a. But when you are dealing with an unsophisticated party, you

really should make your warnings extremely clear.
b. Good way to handle this is just having a standardized form for
them to initial, and make a statement you presented the form to
declarant
i. Otherwise you're going to be arguing about whether or
not you gave the warning, since witnesses can't really be
in the room for confidentiality reasons
VII. Disclosure Authorized by Implication
a. When the client does not intend to keep the information confidential, then disclosure is
authorized via implication
b. Lawyers are authorized to take any lawful measure that is reasonably calculated to
advance a client’s objectives after consulting with the client
i. However, the client has the power to instruct you not to use or disclose
confidential information, even if you’re otherwise allowed to.
ii. Should always get EXPLICIT client consent before making this disclosure.
VIII. Exceptions and Defenses
a. Lawyer Self-Defense
i. Generally, an attorney is not allowed to disclose information for his own benefit,
or the client’s detriment.
1. However, if the client sues the lawyer or accuses him of misconduct, the
attorney may disclose that information
ii. Model Rule 1.6(b)(5)
1. A lawyer may reveal information relating to the representation of a client
to the extent the lawyer reasonable believes necessary to…
a. Establish a claim or defense on behalf of the lawyer in a
controversy between the attorney and client;
b. Establish a defense to a criminal charge or civil claim against the
lawyer based on the conduct in which client is involved; OR
c. Respond to allegation in ANY PROCEEDING concerning the L’s
representation to the C
2. Comment 10
a. You don’t have to wait for a formal proceeding, and the context
can be civil, criminal, or disciplinary.
i. Though you usually want to wait so you have a formal,
court order stating you can turn this information over.
b. Once client, or 3rd party, makes the accusation, you have a right
to respond as far as reasonably necessary to establish a defense
i. Applies to former and current clients
3. Policy:
a. When an attorney is sued, he has a compelling interest to defend
himself.
b. Interest to defend oneself can outweigh interest in confidentiality
c. Disclosure ultimately helps the truth-seeking function of a trial
and is in keeping with normal practice
4. Rule of Completeness
a. Rule: Fairness requires disclosure of all documents pertaining to
the communication at issue.
b. Policy: Ensures disclosure is not 1-sided so attorney can’t just
disclose favorable stuff.
16
iii. California Rule – No self-defense exception unless in defense of misconduct

1. CA Business & Professions Code § 6068(e) states that all confidences
must be kept confidential, and there is no exception for self-defense.
a. However, in limited circumstances, CA Evidence Code § 958
allows an attorney to introduce privileged information if the client
sues over a breach in the fiduciary relationship.
2. How do you square the two?
a. No great answer, but there is dicta that says a lawyer should be
allowed to defend himself in disputes with the client; so when the
client sues you, or you sue a client, you can get it in.
i. However, if a third party is involved, it is not clear
whether the information is permissive
b. BE VERY CAREFUL, and look at jurisdictional rules.
iv. First Fed. Sav. & Loan Ass'n v. Oppenheim, Appel, Dixon & Co.
1. F: P are clients of Comark, a securities firm; they sue Comark, originally,
but Comark is going Bankrupt and don't have a lot of money; they decide
to sue the accountants as well; OAD impleads general partner (Owens)
and general counsel (Harkens) of Comark, saying they messed up, as well
as law firm of general counsel
a. Harkens, the general counsel, wants to reveal information in
defense; Owens objects, since if Harkens narks on him, he's
screwed; but his privilege objection bounces since Harkens
represents the company, not Owens
b. Trustee, however, who holds the privilege while Comark is in
bankruptcy, opts not to waive the privilege
i. He wants to control who the creditors are, and who gets
paid
2. Court is willing to allow attorney to turn the information over…
a. If the attorney is sued and has a compelling interest to defend
himself;
b. That interest may be greater than the confidentiality/interest of the
client;
c. And this helps to further the truth-seeking function of the
judiciary
3. What would the attorney want to hand over?
a. Probably a bunch of documents that are privileged, so court says
the counsel should turn over everything that was privileged, and
the court will decide what is relevant and what is not relevant
4. What rights are implicated?
a. At the very least confidentiality - Attorney is trying to
VOLUNTARILY disclose information
b. And maybe AC privilege since this might be under threat of
subpoena; however, you cannot assert AC privilege unless you're
being forced to hand over the information
5. If you were Harkens, would you prefer a subpoena, or to volunteer the
information?
a. Subpoena - even if you went through all the analysis, and you
think you're right, you might be found wrong
i. So it's better to be forced, so you have a court order
17
b. So in these situations is probably better to go the formal route that

gives you more backing
v. Problem 4-5
1. You represent an Islamic charity whose director is on the Government
Watch List; FBI knocks on your door to serve a warrant and seize a bunch
of your crap; they tell you they are collecting information re: possible
connections to terrorist suspects who bombed a train in Spain; worried
about being arrested on a material witness warrant.
2. Can you disclose confidential information about representing the
charitable information?
a. No; you have not been accused of any sort of wrongdoing
i. ABA Model Rule 6.5 and Comment 10
ii. You don’t have to wait for an action to commence, but
someone has to at least accuse you of wrong doing first
3. What if you know they are doing some shady stuff with respect to taxes?
a. Less likely to disclose since it would now harm the client, adding
an extra element of caution
b. Physical or Economic Harm Exception (permissive!!)
i. Model Rule 1.6(b)(1) – Lawyer MAY (not must!) disclose any information
necessary to prevent reasonably certain death or substantial bodily injury
1. Really narrow in on the reasonable basis/reasonably certain prong
(McClure)
2. CA Rule: Exceptions below do not apply in CA. Can only disclose to
prevent the client from committing a criminal act that would likely result
in imminent death or substantial bodily harm.
ii. MR 1.6(b)(2) – Lawyer MAY (not must!) disclose any information necessary to
prevent the client from:
1. committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial interests or property of another and
2. in furtherance of which the client has used or is using the lawyer's
services.
iii. MR 1.6(b)(3) – Lawyer MAY (not must!) disclose any information necessary to
prevent, mitigate or rectify substantial injury to the financial interests or property
of another that
1. is reasonably certain to result or
2. has resulted from the client's commission of a crime or fraud in
furtherance of which the client has used the lawyer's services.
iv. Focus: Need to prevent a further criminal action.
v. Standard: Objective reasonableness in light of the surrounding circumstances.
vi. Note: Exception may be triggered when a client’s omission to act could result in
imminent death or substantial bodily harm constituting a separate and more severe
crime than the one already committed.
vii. Mandatory Disclosure Note
1. Model Rule 4.1 – You cannot knowingly fail to disclose a material fact if
it is necessary to avoid assisting a criminal or fraudulent act by your
client, unless such disclosure is prohibited by MR 1.6
a. So, if MR 4.1 requires disclosure that MR 1.6 would otherwise
just make permissive, then you MUST disclose.
viii. McClure v. Thompson
1. F: McClure accused of killing a bunch of kids; tells Mecca, the attorney,
that Satan killed one of the victims but Jesus saved the kids; told this
18
under attorney-client privilege, as well as where to find the children;

Mecca tries to cut a deal with the DA, then has his secretary call the cops
and anonymously disclose the location of the children; turns out they are
buried at those spots and McClure is convicted; he then files a habeas
petition, claiming ineffective assistance of counsel.
a. Why didn't Mecca ask McClure if he killed the children?
i. Because criminal defense attorneys cannot let the client
perjure themselves, and cannot put them on the stand.
b. Does the secretary calling anonymously solve the ethical
problems?
i. Nah; you can't just make someone else violate your
ethical obligations
2. Court found for Mecca, appellate court affirmed
a. If we were hearing this as the trial court, we may have come out
differently, but in they said, in this context, Mecca had a
reasonable basis for fearing the children may be alive
i. Really hang their hat on the trial court finding
b. Therefore, under Rule 1.6, he may disclose information to prevent
bodily harm or death and prevent future crime
3. Dissent disagrees, saying the standard under Rule 1.6 is reasonable belief
a. This man is insane, and a reasonable attorney would not disclose
this information until he investigated the case a little bit
i. So before you drop the bomb that takes you right to the
bodies, you need to look into things
b. And while this might've been the right thing to do as a human
being, you're an attorney, and your obligation is to shut up
4. Why is the disclosure permissive in this case?
a. We want to encourage AC privilege, & if clients think atty MUST
disclose info, they won’t speak to attys with any sort of candor
c. Protecting Entity Client
i. Model Rule 1.13
1. If you represent a corporate client, and you are aware that somebody at
the company is
a. (1) breaching a duty to the entity, or breaking the law in some
way attributable to the entity; AND
b. (2) the conduct is, in some way, related to your representation;
AND
c. (3) the conduct will substantially harm the entity;
2. THEN You MUST ACT in the best interest of the entity, and not the
constituent
a. Normally that means talking to the constituent, and then
reporting up through the levels of the company
ii. If they do nothing, & you’re in Model Rules jurisdiction, MR 1.13(c) MAY report
out to someone outside the company that would minimize harm to the company.
1. Need to use most discreet way to protect agency though so no “noisy
withdrawal.”
2. Exception: Does NOT apply to attys investigating an alleged violation of
the law for entity or defending entity against charges of illegal conduct.
3. Exception to Exception: Can’t report out under CRPC 1.6 though unless
there’s imminent death or substantial bodily harm.
a. So, you would need to withdraw, i.e., resign from the company.
19
iii. Radack v. United States

1. F: Radack advises the DOJ; American Taliban dude is picked up; parents
retain counsel; they want to interrogate him while in custody.
a. Does the fact the parents retained counsel matter? Or can they
interrogate the dude?
i. She says they cannot do the interrogation, but they do it
anyway.
b. And, as it turns out, DOJ deleted her e-mails
2. First time she hears about this is when she checks the hard copy of
information related to Lindh's interrogation, which was subpoenaed.
a. Finds out some of her e-mails were deleted, and takes home a
hard copy to make sure they would not be deleted again.
b. If you are doing a response to a discovery request, you have to
actually go back and ask the client for other documents since you
cannot just trust what is in the file
3. Then she hears on the radio no one in is looking into whether department
heads can contact a represented client
a. She knows that isn't true; she sent over the e-mails that would be
relevant in this case, so she leaks the e-mails to the media
4. She violated duty of confidentially by leaking to the media. But what else
could she have done?
a. Go back up the chain of command and ask what is going on
i. This is the right answer since she must go up before going
out.
b. Could write to the judge, but that also breaches confidentiality
i. DOJ doesn't give her permission to do this, though going
to a judge might look better in the long run and at a
disciplinary hearing.
IX. “Confidentiality or Attorney Client Privilege?” Problems
a. Problem 1: Client accused of crime tells attorney she arrived in town on 9:00 flight, which
left enough time for her to be at the scene of the crime when the crime was committed.
i. Both AC and Confidential
1. Attorney-Client privilege as it relates to legal matter at hand
communicated from client to attorney
2. And Attorney-Client information is always confidential
ii. NOTE: If the client is on the stand and asked if she was on that flight, the attorney
can't object on the basis of privilege
1. Not asking what she told her client; asking what she factually did.
b. Problem 2: Same lawyer met the client at the airport and observed she was wearing an
orange jacket and blue hat, which were the same clothes seen by witnesses at the crime
scene.
i. Not AC - there is no communication element
1. Only left with confidential, or neither
ii. Maybe confidential, but you can make the argument everyone could see what the
client is making.
1. However, you are drawing lines as to what generally known actually
means
2. But generally, people would not note that this is a relevant fact, so may
not be generally known and thus confidential
a. However if, for example, she was seen on television in this
clothing, it is more likely generally known
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c. Problem 3: Attorney goes to a crime scene with an investigator, and sees the investigator
pocket overlooked evidence from the scene. Police on the scene do not take note of this.
i. Probably Confidential - Something learned during the course of representation;
potentially harmful to client; AND not generally known
1. Did you see, hear, or observe something over the course of
representation?
2. Was it generally known?
a. Police didn't see it, so no
d. Problem 4: Client sends lawyer a copy of patent application which are available on PTO
website.
i. Doctrinally, it would be neither since it is generally known and available to the
public
ii. However, judge would come to a different conclusion
1. The patent application, itself, may not be confidential, but the fact that the
communication was made IS
a. Fact client picked these specific ones out and sent them to the
attorney is important, and could disclose information to opposing
counsel
b. After all, opposing counsel would love to know which patent
applications they thought were relevant.
e. Problem 5: In reviewing documents for a corporation, attorney determines officer is guilty
of bribery.
i. Confidential - learned over the course of representation; information was not
generally known.
1. Nothing was communicated, so not AC.
f. Problem 6: Lawyer and her client engaged in negotiations and come to an agreement with
a third party to buy her business; third party present with her lawyer.
i. Confidential - course of rep; not GENERALLY known
1. But not privileged, even with communication, since the third party was
present.
2. However, the presence of another party does not make it GENERALLY,
or widely, known.
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Attorney-Client Privilege
I. General Overview
a. ACP kicks in when lawyers refuse to provide as evidence communications between them
and their clients that relate to legal advice
i. All privileged communications are confidential, but not all confidential
information is privileged.
b. Rule of Evidence; NOT an affirmative duty.
i. Effectively, you can assert privilege to avoid compulsory release of information,
like in a subpoena, or via objection.
c. Varies from state-to-state
i. FRE 501 – Common law as interpreted by the US courts and considering reason
and experience governs any claim of privilege
1. Except in state court, where state law governs privilege regarding a claim
or defense for which the state law supplies the rule of decision
ii. ACP Surviving Death
1. Federal Courts hold that ACP survives the death of a client
2. CA Sup. Ct. held that, under the CA evidence code, it expires when
decedent’s personal representative is discharged
iii. In Camera Review
1. Federal courts may order a party claiming ACP to submit the
communication to court for review
2. Other courts do not allow that review to occur
iv. Make sure you know what body of law provides the relevant rule of evidence.
II. Elements
a. Attorney Client Privilege applies when:
i. The Communication…
1. Does not apply to the facts communicated (Upjohn) – difference between
how fast you were going, & how fast you told attorney you were going.
2. Applies to words, documents, and any other expression through which
information may be conveyed
ii. Made was between a client and an attorney…
1. Client = client OR someone who sought to become a client
2. Attorney = attorney OR the attorney’s subordinate
iii. In confidence…
1. Not in the presence of strangers/non-parties
iv. For purpose of seeking, obtaining or providing legal assistance for the client,
1. Opinion of law, legal service, or assistance in some legal proceeding, etc.
v. Not for the purpose of committing a crime or tort, AND
vi. The privilege has been:
1. Claimed, AND
2. Not waived by the client.
a. Client, not the attorney, holds the privilege so they can waive it
b. But it’s otherwise asserted on behalf of the client.
III. Defining Communication
a. Varies by jurisdiction – for example, in CA, written fee agreements are privileged (CA
BPC 6149), while in Federal Jurisdictions they are not.
i. Lefcourt v. U.S.
22
1. P: Criminal Law attorney; reps a client accused of money laundering;

pays Lefcourt in $10,000 in cash; firm reports this to IRS, but does not
disclose client's name; IRS penalizes the firm for $25,000 for not
following reporting requirements; firm challenges
a. Firm does not want to turn over information since it might
implicate the client for money laundering
i. Gov't wants to point to unexplained sources of wealth as
evidence in their prosecution
2. But that argument does not work; privilege recognized in specific
circumstances
a. Name and amount of fee agreement ain't privileged in this
jurisdiction.
b. Know where the litigation may occur so you know whether certain documents or
communications are privileged.
IV. In Confidence
a. Rule: AC Privilege does not apply to confidences given in presence of third parties.
i. Minnesota v. Rhodes
1. F.
2. H:
V. Defining Between “Client and Attorney”
a. Anyone deemed “an extension of the attorney” is basically the attorney; be they a
paralegal, an assistant, an interpreter of language, or an interpreter of numbers.
b. So, AC privilege attaches to all persons/agents who assist the attorney with work, are
indispensable to that work, and with who the communications must necessarily be shared
to complete that work
c. Limit: If what is sought is not legal advice, but only an accounting service or if the advice
sought is the accountant’s rather than the lawyer’s, then no privilege exists.
i. U.S. v. Kovell
1. F: Grand jury investigated a client of law firm where D employed; D is a
non-lawyer accountant, but does work for a firm specializing in tax law;
client investigated for Federal Income violation; D asserts his
communication is also privileged
a. Says that you can't force a secretary, or attorney assistant, to
release privileged information
b. D said he is the same as those menial workers
2. Trial court blew the argument away and he gets arrested, but appellate
court says Kovel is protected by privilege
a. Liken him to an interpreter, which is an extension of the attorney
i. And that doesn’t add a stranger to the communications
since they are just facilitating the A-C relationship
ii. Accountant is explaining business in language of numbers
to the attorney
d. If someone doesn’t fall into a Kovel category, they may be a stranger to the
communication, and it would no long be in confidence
i. So there is a lot of argument over whether it applies
e. Problem 5-1, pg. 184
i. PD hires a chemist to determine if client's cocaine is, indeed, cocaine; discusses
the chemical composition of the substance with Chemist
1. Not Privileged b/c there isn't a communication between the client and the
attorney. No interviewing. (could be protected in another way though)
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ii. Antitrust attorney hires an economist to determine if client has market-power in a

given market; interviews several executives at the client's company, and delivers
report to attorney
1. Privileged, probably; economist is interpreting what the company execs
are saying, and delivering the report. Corporate executives are
constituents of client-company.
iii. Business attorney hires software developer to trace origins of software code in a
certain program; developer discusses the program with client's developers, and
reports back to attorney
1. This is a Kovel problem, but seems more like facts.
a. Less interpreting, more fact-finding; hiring someone to dive into
where code comes from isn't akin to translating a language
iv. That same attorney instructs developer to tell programmers how to implement the
attorney's recommendations for avoiding copyright infringement; the retained
developer instructs the programmers
1. This is privileged; interpreter is explaining to the client what the attorney
said and needs developer to facilitate the communication of legal
information
a. Doesn’t matter which way the information is flowing
v. Partnership owns office buildings, hires property management company (a
separate entity) to run the buildings; in litigation over condition of buildings,
counsel for the partnership (not the management company) interviews employees
of the property management company
1. Not privileged; counsel is not interviewing or communicating with the
client - counsel is talking to the constituents of the management company
a. Outsourcing problem. But if partnership's own employees are
being interviewed, we get closer to yes, as long as lawyer for
partnership interviews partnership's constituents.
f. Problem 5-2, 185
i. Communications with X to Accountant, and Accountant going to Attorney
1. X to accountant not privileged; so no attorney-client privilege for the
conversation between X and accountant
ii. Communications with Y to Attorney, and then Attorney brings in the accountant
1. This communication IS privileged
iii. So even though it's reasonable to go to an accountant re: a problem in the books,
you must go to the attorney first, who decides whether or not to bring in the
accountant
VI. Defining “Relating to Legal Advice”
a. Primary Purpose Test: Primary Purpose of communication needs to be to obtain legal
advice; or the legal advice MUST predominate all other aspects of the communication.
i. Predominate = legal advice was not merely incidental to business advice
1. Can’t just CC attorney or assert blanket privilege b/c attorney was present
ii. Would the communication have been worded differently if you were not speaking
to a lawyer?
b. Burden: The party asserting privilege bears the burden of proving it, and an attorney’s
presence does not automatically privilege communication.
i. Neuder v. Battelle
1. F: P filed suit against D over wrongful termination; decision to terminate
made by personnel action review committee; in-house counsel a member
24
of the committee; parties have a discovery dispute when D refused to

produce documents for inspection on basis of AC Privilege; D submitted
documents to MJ for in-camera inspection; MJ rules that some documents
were subject to AC privilege, but others were not; parties filed motions to
re-consider
a. Court agreed that PARC's primary purpose was to render a
business decision and, accordingly, presence of in-house counsel
did not make all documents generated and distributed in
connection with PARC privileged
b. An attorney being there doesn't mean there is automatically
privilege
i. Were the communications related to business/for the
primary purpose of business? Why was counsel
consulted?
2. Party trying to assert privilege is the one who has the burden
a. And did not show that the communication related to legal advice
b. Must look into the nature of specific communications that are
taking place.
3. Does the fact that the attorney is a non-voting member have any impact?
a. Good fact, but not dispositive; if he can vote, it is much more
likely a business decision
4. What if the attorney was outside counsel?
a. It isn't dispositive; lawyers can be brought in for lots of reasons,
and not necessarily to give legal advice.
b. Can be a useful fact, but does not decide anything
5. What could they ask that would be privileged?
a. If we fire this guy, what is our liability?
i. Everything he answers will be legally related
ii. Problem 5-4: CC’ing E-Mails
1. You work for a firm that represents a drug company; CC you on
everything relating to health risks of a new drug; you ask the partner to
explain what the hell is happening; she says yeah it’s fine, they just CC
you so they can claim A-C Privilege on everything they produce
a. Is this information privileged?
i. No; not at all. They are just trying to cover their ass by
CC’ing an attorney on everything that might open up
litigation regarding new drugs.
b. Is the firm’s conduct ethical?
i. Not really; the purpose of attorney client privilege is to
make people want to seek out business advice.
ii. This is just being done to throw a wrench into possible
discovery
c. What should you do?
i. Talk to the partner and at least let them know these emails
aren’t really privileged; could take the conversation
offline, but intent matters
1. You might get fired though if you’re going
around your supervising partner
2. But the client may not realize the AC privilege
doesn’t exist and partner may not realize how
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much CCing is going on. So that may help client

and partner get on same page.
ii. However, this could also be a hint that litigation is
incoming
1. Muth says you should find something else to do
within the firm; make yourself busy and just get
off the case.
c. An attorney can sell legal advice – but he cannot sell privilege.
i. Ford and RJ Reynolds
1. Both of these involved very similar issues to Problem 5-4; one was
problems with the Pinto, the other that tobacco is addictive; side suing the
company said you are just including attorneys to keep things privileged
a. Interestingly, they were both doing the same thing, despite the
fact the judges made it seem like "only an idiot" wouldn't see this
as privileged
2. So minds differ; but just be aware that you can sell legal advice, but
cannot sell secrecy
a. How you shade those communications might effect the final
decision.
d. An attorney may wear many hats – only communications made for the purposes of seeking
legal advice are privileged, so be aware of what you are doing.
i. Pro tip: Lawyer needs to be mindful of which capacity the lawyer is functioning
in, i.e., as lawyer, custodian of record, business partner, etc.).
ii. In the Matter of Michael Feldberg
1. F: Grand jury investigating agents signing college athletes; subpoenas
contracts, and a batch is turned over; they indict when it becomes clear the
contracts were missing, and finds some of those contracts were post-
dated, which they needed to do in order to ensure college athletes can stay
in college since pro players can’t play.
a. Feldberg asserts privilege as to why those seven were not turned
over with the first batch
2. Whether or not that works depends on if he was acting as a lawyer, or
custodian of records
a. Can assert the privilege if he handed those documents over and
asked "is this privileged," that is privileged
b. But not in regards to whether you walked over to a guy and said
hey do you have the contracts
VII. Entities and Privilege
a. General Rule – The entity holds the Attorney-Client privilege; constituents who
communicate on behalf of the entity do not hold the privilege and cannot waive it, even
though it is literally their communications that are, or are not, privileged.
i. MR 1.13 – When you represent the entity, you represent the entity itself.
b. Approach privilege like a property right
i. When one entity buys another, the buyer gets all the assets, including privilege.
ii. However, if only some assets are sold, privilege doesn’t change hands.
iii. Former Representation and Conflict
1. Lawyer cannot represent interest adverse to former client on matters
substantially relating to former representation.
a. Existence of proper attorney-client privilege
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b. Matters in prior and current representation are substantially

related, AND
c. Interests of the present client and former client are materially
adverse.
iv. Tekni-Plex, Inc. v. Meyner and Landi
1. F: Tang owns Tekni-Plex, sort of the sole shareholder; M&L attorneys
work with the company, and handle Tang's personal stuff; aqualung winds
up taking over Tekni-Plex; turns out, one of the business's products has
terrible repercussions on the environment;
a. Fighting over environmental issue, and representations made over
merger agreement
2. New company wants three things
a. M&L cannot represent Tang in arbitration
b. M&L cannot disclose any information from old Tekni-Plex to
Tang, which is weird since they were talking with Tang directly
i. So cannot disclose what you talked to Tang about, to
Tang
c. Order forcing M&L to hand over all files related to old Tekni to
new Tekni
3. To disqualify opposing counsel, you have to show
a. Existence of prior A-C relationship between movant and opposing
counsel
b. Matter involved in representations is substantially related
c. Interest of present and former client materially adverse
4. So who is really the client? And who holds the privilege?
a. If you prove the above three elements, there is an irrefutable
presumption that the counsel must be disqualified, and Tang may
be more willing to just pay New Tekni-Plex to go away
5. Is there a relationship between New Tekni-Plex and M&L?
a. Yes; when they bought old Tekni-Plex, they bought the right to
assert AC Privilege in relation to all the shit they bought. May be
different if they just sold some assets
6. Are the matters involved substantially related?
a. Yes, in respect to environmental advice. But as far as the merger
goes, yeah they are probably related, but it's tricky and the court
needs the third prong.
7. Are the interests materially adverse?
a. Privilege for communications related to the merger negotiations,
since Tang and new Tekni-Plex were not on the same side during
that.
i. Don’t get to buy the communication as far as that is
concerned since the parties are adverse
c. Successor Management holding the privilege
i. Successor management stands in shoes of prior management and controls the AC
privilege with respect to matters concerning the company’s operations.
d. Individual Employee Asserting Attorney-Client Privilege: Presumption of privilege
between the entity & attorney is rebuttable, if you can prove…
i. The employee approached counsel for purpose of seeking legal advice;
ii. The employee made it clear she was seeking advice in her individual capacity, i.e,
not as a representative of the company;
27
iii. Counsel saw fit to communicate w/ employee knowing a conflict could arise;
iv. The conversation(s) with counsel were confidential; AND
v. The substance of the conversation(s) did NOT concern matters w/in the company,
or general affairs of the company
1. Just related to the company is fine but can’t be about the company.
2. Note: Only bars employee from asserting AC privilege when the
communication concerns the company’s rights/responsibilities
3. Can satisfy this prong if employee focuses on the individual, i.e.,
employee’s personal rights and liabilities (e.g., What would happen to me
if the company is sued?”)
4. Corporation can unilaterally waive-attorney client privilege when an
individual company employee seeks legal advice from company counsel
vi. In Re Grand Jury Subpoena
1. F: Subsidiary and Corporation being investigated by the feds; want to
waive their right to privilege since they are being investigated for stuff the
old company did; trying to cut a deal with the government since, at the
end of the day, it just implicates those old guys; general counsel and old
company officers don't want to waive the privilege since it puts a target on
their back and they did something bad; schemed to say we had a joint-
defense agreement that says no one can waive unless everyone waives.
a. Court doesn't buy the oral joint-defense agreement
2. Runs through the above five factors, and finds communications between
officers and old lawyer, then, appear indistinguishable from concerns of
officer of company.
a. Then goes even further and says the corporation may thus waive
any communication between the officer and the attorney, though
not all jurisdictions agree to this.
VIII. Exceptions to Attorney-Client Privilege
a. Crime/Fraud Exception: Communications furthering crime or fraud
i. Where the purpose or consequence of the consultation is to commit or further
crime/fraud, any communications in connection w/ consultation are not privileged
1. Does not matter if lawyer knows or was an innocent pawn.
a. Mens rea based on the client and whether the client know that the
purpose was to commit a crime/fraud?
2. Talking about a crime or fraud DOES NOT WAIVE ATTORNEY
CLIENT PRIVILEGE!
a. Rather, the communications must be made TO FURTHER the
crime or fraud
ii. Conditions:
1. Client must have made/received the otherwise privileged communications
with the intent to further an unlawful or fraudulent act; AND
2. Client must have carried out the crime or fraud.
a. Policy: Don’t want to penalize client for consulting a lawyer w/
purpose of complying w/ the law.
iii. Burden : Probably cause type of standard in order to break privilege
iv. In Re: Sealed Case
1. F: Unnamed company violates campaign contribution laws; appears
company is trying to orchestrate payoffs to clients; prosecutor wants
disclosure of 2 memos: (1) one that CC’d GC between VP and Pres and
28
the other written by attorney about the payoffs; idea is these documents
were done with the purpose of furthering crime or fraud
a. Client must have made or received the communication with the
intent to further the crime or fraud; AND
b. Client must have actually carried out the crime or fraud
i. Policy behind this: We want people to tell attorneys their
shit ideas so attorneys can talk them out of it
2. We are looking at the client's intent, not the attorney
a. And the burden lays on the one trying to get the records
3. Burden changes based on jurisdiction
a. In this case, it is probable cause standard
i. In the Ninth Circuit, it's a preponderance of the evidence
standard
b. Though it appears the VP had a bad intent, they were not forced
to waive the privilege b/c the client was the company and not the
client
i. But how do you demonstrate a company has bad intent?
1. Look to the constituents of the company and
figure out what their intent is
2. The higher up the constituent, the easier it is to
establish a control group and intent
3. So, this holding is weird on that note; you'd think
a memo involving the VP would help establish
the intent of the entity
ii. Not clear why the DOJ didn't go down this road, and if
you read the full case it looks like this issue was not
raised
4. What constitutes a Prima Facie case for purposes of exception?
a. Something to establish the elements of the case that's a bit higher
than reasonable suspicion
i. Can be hard without the document
v. Matter of Michael Feldberg
1. RULE: Crime-fraud just needs enough evidence to raise the issue
where a reasonable person thinks some explanation is needed, it's
enough
2. F: Attorney called in grand jury subpoena; worked for an agency that was
post-dating contracts for student athletes; asked questions about how he
got the initial batch of contracts.
3. I: What standard applies when asserting crime fraud exception.
a. In some circuits, you need enough evidence to support a burden in
favor of the person supporting the claim
b. In other circuits, it's more akin to prima facie evidence in a
discrimination case (evidence that is enough to require
explanation)
4. In order to survive a demurrer, you just have to raise suspicion that
something is going on
a. So you just have to create enough evidence to raise a suspicion
warranting an inquiry
vi. Jurisdictional Variations on Standards
29
1. D.C. Circuit - Sealed Case (enough evidence to establish the elements of

an ongoing or imminent crime/fraud)
2. Second Circuit - evidence sufficient to establish probable cause
3. Seventh - enough to require explanation, rather than evidence by itself
4. Ninth Circuit - Differs in civil and criminal cases. In a civil case, burden
is a preponderance of the evidence standard (probably need to go a little
further than that if you want to win tho). In a criminal context, grand jury
doesn't have to get to that level; reasonable cause standard.
a. More than suspicion, but less than preponderance (Muth: idk what
that means – probably find analogous cases and liken your facts to
those cases)
vii. Both cases agree that the party asserting the crime-fraud exception has to make a
prima facie showing it wants disclosed was made in furtherance of a crime or
fraud
1. Sealed needs enough evidence to test the elements of an ongoing or
imminent crime or fraud
2. Feldberg needs enough to require explanation, rather than evidence, that
by itself satisfies a more-likely-than-not standard
b. Joint Clients Exception
i. Rule: Lawyers may share information from one joint client to another joint client
without waiving A-C Privilege
1. Either joint client can assert privilege against third parties; BUT
2. Neither joint client can assert privilege against each other (e.g., if there’s
litigation between the joint clients).
ii. Waiver : BUT, each joint client can waive the privilege as it applies to them but
cannot waive privilege of the communications of the other joint client.
1. A can waive A's communication, but not B's communication, even though
they are joint clients and even if they made the communication in the
same room
2. If B wants to disclose advice that is intertwined in with A's
communication with the attorney, A would probably be able to assert
privilege since it is way too tied up.
a. Need informed consent in writing from both to disclose otherwise
iii. Default for when conflicts arise: If co-clients’ interests diverge to an unacceptable
degree, the lawyer should end joint representation
1. Lawyer must withdraw; can’t just pick whichever client pays more or
which one has stronger case.
iv. Eureka Case Squib
1. What happens when one client wants to roll on another one?
a. When joint client interests no longer align, you should withdraw
from representing both of the clients
b. And if the lawyer knows the conflict arose and continued to rep
both clients, the privilege is waived.
2. Joint clients are dangerous since relationships tend to go bad, and it's too
easy to argue the attorney is conflicted when representing two clients.
v. Concurrent Clients
1. Joint Clients: Clients who are involved in the same action (cases rise and
fall together)
30
2. Concurrent Clients: Lawyer represents tow clients at the same time, suing
the same defendant, but each client’s interests may not perfectly align
(and cases don’t rise and fall together).
a. Ex. Two people in a protected class who both want to sue Wal-
Mart for pregnancy discrimination.
i. Possible one can win and the other won't.
3. Rule: Concurrent clients can assert the privilege against each other.
a. Policy: Lawyer doesn't share information between concurrent
clients, and thus can assert privilege against each other since they
shouldn't hear the privileged information anyway
c. Beneficiary of Fiduciary Relations Exception

i. Depends on who is the ultimate beneficiary of the communications.
1. If grantor or trustee is worried they will be sued by the beneficiary of the
trust, and talk about personal liability, you don't get access to those
communications.
ii. Otherwise, any communications made for the benefit of beneficiary in
performance of the fiduciary’s obligations, even if not made by beneficiary, are
exempt from AC privilege.
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IX. Waiver of Privilege

a. Waiver via Inadvertent Disclosure
i. Parties can waive privilege intentionally, or through lack of care
ii. Model Rule 4.4
1. A lawyer who receives a document or electronically stored
information relating to the representation of the lawyer's client and
knows or reasonably should know that the document or electronically
stored information was inadvertently sent shall promptly notify the
sender.
2. So, once it becomes apparent that the content is privileged, then counsel
must immediately notify opposing counsel to try to resolve situation.
a. Does not say you have to stop reading though!
3. What happens next depends on the state you are in.
iii. CRPC 4.4 requires stopping once it become apparent the contents are privileged.
1. Must then promptly notify opposing counsel and try to resolve situation
by agreement or may have to go to the court for guidance.
2. But, other states say it's fine to keep on reading.
iv. Standard: Objective test based on a reasonable attorney in this situation
v. Policy:
1. Preserve the rights of lawyers to prepare cases for trial w/ degree of
privacy to prepare cases thoroughly
2. Prevent lawyers from taking advantage of their adversary’s efforts
3. Respect interests of lawyers, judiciary, & administration of justice
b. Waiver via Inadvertent Disclosure – General Jurisdictional Variations
i. Strictly Responsibility Approach - Attorney screwed up, but oh well. Sorry client.
ii. Balancing Approach – Weigh interests of both parties. Is it fair? How important
was disclosure? How much does it hurt the client? What did attorney do/not do?
iii. Client Focused - Did the client intend to waive privilege on the info?
iv. Rico v. Mitsubishi
1. CA Rule: Objective standard by which we determine when a
reasonably competent attorney would realize a document is
privileged; and then turns on whether he notified the opposing
counsel promptly
a. Once you realize it is privileged, you must stop reading
documents and then notify opposing counsel.
2. F: A car rolls over on the freeway; plaintiffs sue; defendants met with
experts and had some notes typed out, made more notes on them; when he
meets with opposing counsel, he leaves the room and “somehow”
opposing counsel got a hold of them; Ps attorney knew within a few
minutes that the notes were privileged, but made copies anyway for his
experts and team; court disqualified plaintiff attorneys from the case.
a. P says the court reporter must have given him these notes, which
is a crappy excuse since court reporters are very detail-focused.
i. This drives the hostility of the court against P
3. Court says P didn't deliberately take the document, or at least it wasn't
proven
a. But that doesn't matter; his handling of the inadvertent disclosure
forces him off the case
4. Is counsel automatically disqualified after reading these documents?
32
a. No; you only disqualify when the damage is irreversible (don’t

want shady attys sending other side docs to get them DQ’d).
These decisions are made case-by-case.
i. Easy in this case, but trickier when the opposing counsel
actually received the documents inadvertently
ii. Sometimes, if something in the document is so vital that it
is absolutely the lynchpin of the case, you might still get
booted, even though you did nothing wrong
5. Seem like the right result? Doesn't it appear Mitsubishi's experts
deliberately perjured themselves in their deposition testimony?
a. Court basically punts, but once something is AC privileged, we
don't make judgements
b. Sure, it's unethical, but otherwise the ends can justify the means
and that drives attorneys to steal
v. HYPO: Someone sends you a bunch of documents they shouldn't have; you let
them know, and they say okay hand them back over; do you turn them over?
1. Yeah; it isn't required you turn them over, but it makes you look better to
the court since, otherwise, the court is going to get involved and they'll be
mad at you.
2. Judge is going to force you to turn them over anyway.
c. Waiver via Inadvertent Disclosure – Metadata
i. MR does not take into consideration how technology has changed how legal
issues work on stuff like metadata
ii. Metadata: Info w/in a digital file (who last edited a document/quickbooks
information showing what was recently changed/etc)
1. Ex. Settlement agreement is going back and forth; you hit track changes
and it shows the dollar amount was originally $750,000, but then went
down to $500,00; that information is pretty useful to know their limits
iii. Duty of confidentiality requires lawyer to “scrub” files of metadata not authorized
by client for disclosure.
iv. If it reveals info opposing counsel did not reveal, it may be privileged
1. In CA, there is no case on point re: snooping around in metadata, but this
is probably still inadvertent disclosure and you should not read it, and
notify opposing counsel
2. In other jurisdictions, when you turn something over, it's presumed you
know there is metadata within the document
d. Waiver via Deliberate Disclosure
i. Public Disclosure
ii. Waiver of the privilege includes actual disclosed communications, undisclosed
portion of disclosed communications, and communications on the same subject
matter of the disclosed documents.
1. Implied waiver: Client may by his action impliedly waive the privilege or
consent to disclose
2. Fairness doctrine (“waiver by implication”) : Disclosure of a portion of the
privileged conversation entitles an adversary to discovery of matters
discussed in the remainder of the conversation
3. Subject matter waiver:
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a. Client’s offer of his/his attorney’s testimony as to a specific

communication to the attorney waives all other communications
to the attorney on the same matter
b. Policy: Can’t selectively use privilege as both sword and shield
4. Limit – Public Disclosures
a. Rule: Disclosures made public rather than in court (even if
selective) create no risk of legal prejudice until put at issue in
litigation by the privilege-holder
b. Rationale: Privilege only applies when the rules of evidence apply
and the rules of evidence don’t apply outside the courtroom.
iii. In re: Von Bulow
1. RULE: Public disclosure only waives the communications that are
actually disclosed; it does not open the door to ALL information
that’s related to the case.
2. F: Von Bulow accused of trying to kill his wife by injecting her with
insulin; charged and winds up getting acquitted in Criminal Matter after
experts said there is no insulin injection site and she actually just OD'd;
but next of kin sues him in civil court and, during that case, his Criminal
Defense attorney wrote a book about Von Bulow's case, disclosing a
bunch of confidential information; he and Von Bulow even promoted it
together; Plaintiff moved to compel discovery for A-C privileged material
that was related to the book.
a. Trial Court thought he did waive a lot, so appeal
3. If your next of kin, what are your concerns?
a. Pissed off he is making money off of tragedy
b. Could prejudice court of public opinion w/ selective bits of case
i. He is hand-picking the facts that are good for public
consumption
4. Appellate Court Questions
a. Did Von Bulow waive the A-C privilege?
i. Yes, to a certain extent. Definitely to what is published
b. If he does waive it, does he only waive portions of conversations
discussed in book, or is it ALL conversations regarding the case
and subject matter?
i. Trial Court held ALL matters within four conversations
was waived, regardless of if it was published in the book.
c. But Appellate disagrees based on the fairness Doctrine
i. Can't put two or three matters out there and walk away
1. AC privilege rule says you can't be selective
ii. But it doesn't apply in this circumstance because it is
extra-judicial, not made within the context of a witness on
the stand
1. AC privilege is a rule of evidence that applies in
court and protects you from having to talk
2. Therefore, conversations are protected
d. What about related conversations outside the book but related to
the subject matter.
i. No; we aren't getting into the rest of the conversation, so
we're definitely not going through all conversations or
what Von Bulow said to other attorneys
e. Held the stuff inside the book is waived, BUT NOTHING ELSE
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i. But this is limited to extra-judicial context

5. Do you buy drawing the line at extra-judicial conversations?
a. Yes: he disclosed information, but it's kind of stupid if that means
EVERYTHING is now open to investigation.
b. No: he only leaked a half-truth, and in the judicial system the
half-truths might pollute the jury pool from which the civil suit
will draw people.
i. Would have to find people who never heard of the case,
which is going to be a pain in the ass, especially within
this jurisdiction
iv. Selective v. Partial Waiver
1. Selective waiver: Permits a client who has disclosed privilege
communications to a third party to continue asserting the privilege against
other third parties
a. Usually the gov’t, and you tell them a piece of what is taking
place, but you still want to protect it from OTHER third parties
b. Most jurisdictions do not allow this
2. Partial waiver: Permits a client who has disclosed a portion of privileged
communications to continue asserting the privilege as to the remaining
portions of the same communications.
a. Again, not allowed in most jurisdictions.
3. So, once you open the door (selective or partial waiver) typically can no
longer withhold.
e. Joint Defense vs. “Common Interest” Doctrine Exception
i. Context: Sometimes two or more parties to an action will want to cooperate but
are unwilling or unable to be represented by the same lawyer
ii. Joint Defense: Where 1 lawyer reps more than 1 client at the same time & clients
agree to share info; lawyer must share w/ each client info material to joint rep.
1. Joint Defense Agreement (JDA) : Applies when several parties have a
common legal interest & its purpose is to create an exception to the rule
that disclosure of confidential info communications waives the A-C
privilege w/ respect to the communications.
iii. Common Interest Doctrine: Does not entail full representation of all, rather there
is a common interest on a side in the litigation, so can share some info.
1. Prevents a disclosure made w/in its parameters from counting as waiver of
the A-C privilege
2. BUT it doesn’t create a presumptive obligation to share info w/ other
parties having a common legal interest
3. Rule: There is no Duty of Loyalty or Confidentiality for D parties to a
JDA and this waiver needs to be apparent when a D signs the agreement
4. Policy: Fairness allows Ds to get benefits of sharing info, but info that
was shared can be used on the back-end to cross-examine Ds
iv. United States v. Stepney
1. RULE: JDA needs to identify to Ds whose communications within the
agreement are protected; there is an ABA model agreement for this.
a. However, if they take a deal, those communications CAN BE
USED AGAINST THEM ON THE STAND!
2. F: 30 young men convicted of street gang activity; gigantic conspiracy/
drug type case; gov’t has multiple prosecutors working on this case, while
35
defense counsel has to focus on their specific D; reasons why the Ds

would want to join together, so counsel wants to submit JDA
a. JDAs are a way to share research, discovery, & all sorts of things
i. Won't share thoughts on research, but helps compile
everything together
ii. Criminal defense lawyer’s most valuable asset is knowing
client’s secrets b/c client can’t be compelled to testify.
JDA allows sharing of those secrets to help parties defend
their case
b. Why would we not want other side to know there’s an agreement?
i. Once you start to see how things line up and joint defense
strategy, it makes it easier to take down defense
c. So courts do an in-camera review of the agreement
i. Affects 6th Am. Rt to counsel. If they don't have counsel/
it’s conflicted, Ds have good case for reversal on appeal
ii. Also, want to conserve judicial resources from people
bailing b/c of sudden conflicts on the eve of trial if
someone rolls over or court is trying cases that will come
back on appeal
3. From the agreement they came up with, they implied to the clients a duty
of confidentiality AND duty of loyalty between everyone involved.
a. But that is not an accurate statement of the law; no duty of loyalty
is owed by attorneys to co-defendants they do not represent
i. Otherwise they can't cross or call these witnesses during
trial
4. Court says lay this out according to the ABA Model Agreement
a. Needs to identify to defendants that communications within the
agreement are protected
i. However, if they take a deal, those communications CAN
BE USED AGAINST THEM ON THE STAND!
ii. We’re ok with this b/c they have their own, individual
lawyer, and if they are going to meet with everyone else,
that lawyer won't share everything with the other counsel
1. Just pick and choose what you share, and never
let your client meet with the other lawyers
5. Is there a Joint Defense Privilege?
a. NOOOOO - you just have an expectation of confidentiality that
the courts recognize to the point where communications disclosed
in joint-defense agreement are not subject to waiver
6. Does a prosecutor need to worry about improper disclosures from other,
joint-defense clients?
a. Judge isn't the only person having to ensure D's right to counsel is
protected; prosecutor also has to give a crap
i. Ethical obligation to ensure D's are properly represented
ii. If they don't follow through, it'll get flipped on appeal
b. Concerned about what was disclosed that can kill your case
c. And, finally, you're making deals so they actually disclose
information with respect to his involvement
i. But what happens if the snitch is sharing info as to what
another defense atty told his atty, and then his atty told
him; that can taint prosecutor and kick him off the case
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ii. Have to ask question in a way that doesn't illicit extra

information
1. What did YOU see; what did YOU hear
2. If client waives privilege, can only discuss
confidential info client has waived
Work Product Doctrine
I. Overview
a. Purpose: Anti-Free rider provision meant to allow people to do work that is protected as
confidential b/c atty wouldn't want to do the work if someone can just jump in and see it
b. Focus: Protecting the lawyer’s mental impressions—NOT the client’s impressions
c. PRIVILEGE HELD BY ATTORNEY (unlike A-C privilege)
II. Scope of the Doctrine
a. Because CA and Federal law differ, you should try to anticipate where (CA or federal
court) your work product will be litigated (usually protected in both but not always so it’s
worth thinking about)
b. CA - Work Product applies to EVERYTHING you produce for a client in CA
i. Litigation, transactional, etc., i.e., not limited to litigation
ii. No crime-fraud exception to work product doctrine in civil cases
c. FEDERAL – Under federal Law, only work prepared "in anticipation of litigation"
i. And federal judges always use the federal rule, even in CA
d. Opinion Work Product: Opinion Work Product is essentially the attorney's mental
impression, views, or opinions on a matter
i. Talking to a third-party you do not represent; your communications are not
privileged, but if you're writing shit down that says "he looks shady," that is
opinion and subject to protection
ii. Absolute Protection most of the time
1. Unless you're in CA, in which case it is ALWAYS protected
2. In Federal Court, it's extremely heightened, and almost impossible to get
e. Fact Work Product: Work product that does not involve the attorney's mental impressions
i. Same scenario, but you're just writing down the statement verbatim.
ii. Some ways you can get this, but it's still super difficult
1. Substantial need and cannot get the information any other way
iii. Cannot be invoked by client; just stops opposing counsel from sending a subpoena
demanding your stuff
1. What you've written down is protected, not the facts themselves.
2. However, if the third party is dead now, they can't talk to him
f. Rule: When relevant & non-privileged facts remain hidden in an attorney’s file, & where
production of those facts is essential to prepare one’s own case, discovery may be
permitted where witnesses are no longer available/can only be reached w/ difficulty
g. Tricky: Audio recordings – Audio recording does not focus on what the lawyer thought
was important, BUT the lawyer asked the questions for a reason b/c the audio was
prompted by the lawyer’s mental impressions via questions
III. Waiver
a. Waived if it is put at issue; OR
i. Sue attorney for malpractice. Now it's at issue, and he can't keep the work out.
b. Waived if disclosed to a testifying expert
i. When you have an expert, and you are trying to get them up to speed with what is
going on with your client, you have to give them stuff to do this
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1. If you give them information protected by work product doctrine, it must

be put into the expert folder that is turned over to the other side when they
are deposed
ii. Always assume everything you give the expert is going to be given to the other
side
1. Similarly, make sure you always ask for an expert’s information relied
upon during deposition, so you get that file
IV. Exceptions
a. Crime Fraud Exception General Rule: If lawyer is suspected of knowing participation in a
client’s criminal or fraudulent conduct
i. States are inconsistent on this because it is the lawyer who holds the WPP
ii. Some cases hold its WPP unless the lawyer knew of the activity
iii. But still, could maybe discover by arguing that is “fact” work product and not
“opinion”
iv. But, this is talking about work product created before the criminal act, not after
the fact – it is only WP created in which we think the crime/fraud was advanced
b. California CCP § 2018
i. Civil Cases: crime or fraud does not take away work product protection
ii. Government investigation of client’s crime/fraud: can pierce work product if L is
suspected of knowing participation
c. Federal FRCP 26(b)(3)
i. Federal courts are split on the crime-fraud exception
ii. Some courts say cannot pierce WP protection even if client commits crime/fraud
unless the L knew about activity because L holds privilege
V. Origins of the Work Product Doctrine
a. Hickman v. Taylor
i. RULE: Production of material will be compelled only upon a showing of (1)
SUBSTANTIAL NEED and that (2) the party is unable, without undue
hardship, to obtain the equivalent of materials by other means.
ii. F: Attorney retained by tug boat owners after an accident; goes to take depositions
of surviving tug boat passengers thinking they will be sued soon; a year later,
there is a discovery dispute related to an upcoming trial and the opposing counsel
ask for statements if any were given in the deposition; attorney refused, citing
work product
iii. Court originally said this isn't privileged information, but SCOTUS reversed
1. Court said there was a public hearing on this matter, so witness statements
are available
2. Court also focused heavily on the fact that, if we don't protect this
doctrine, it'll become a game as to which attorney can memorize things
the best, since they won't write anything down anymore
b. Upjohn v. US
i. RULE: Court must protect against the mental impressions and legal
conclusions of L. Any effort to obtain L’s mental impressions requires a far
stronger showing.
ii. F: Pharmaceutical manufacturer; independent accountants find some questionable
payments on the books likely made to get foreign contracts; they tell general
counsel, and there's an internal investigation into whether these payments were
improper; Upjohn voluntarily submits preliminary reports disclosing questionable
payments to the SEC; IRS starts its investigation and demands the documents
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from the internal investigation since Upjohn told its constituents not to talk to the
IRS; IRS subpoenaed, saying it is now too hard to get and they should have the
internal investigation reports
1. Upjohn refused to hand anything over, saying it is opinion work product
iii. Court agreed with Upjohn, and said the problem is you're focusing on first aspect
of FRCP about unavailability of evidence
1. And not dealing with the fact that this is OPINION work product and
cannot be overcome just by showing substantial need
a. Has to be one heck of a set of facts to overcome this
b. Oral recording made this case special
i. Don’t record everything b/c you may have to turn some
of it over
iv. Case Questions
1. If an investigator is recording an interview verbatim, is this opinion or fact
work product?
a. Depends on what you ask. If you just say tell me what happened,
that's like a transcript.
b. But if you're sitting there having a discussion, it may be opinion
work product
i. So set up an audio recording with your mental
impressions at the very beginning
2. What if the guy is dead?
a. Might get an in-camera review in Federal Court, but not in State
VI. Prepared in Anticipation of Litigation
a. Jurisdictional Variations
i. Rule: “primarily or exclusively to assist in litigation” (higher standard to meet
WPP protection)
1. WPP applies when docs are prepared “primarily or exclusively to assist in
litigation” = a formulation that would potentially exclude docs if their
primary purpose was to assist in the making of a business decision
ii. Federal Rule: “In anticipation of litigation” (lower standard to meet WPP
protection)
1. Rule: WPP applies when docs are prepared “because of” existing or
expected litigation = a formulation that would include docs that do not
have the purpose to “assist in” litigation
2. Rule: Docs deemed to be prepared “in anticipation of litigation” (and thus
w/in the scope of the rule) if in light of the nature of the doc & the factual
situation in the particular case, the doc can fairly be said to have been
prepared or obtained because of the prospect of litigation
3. Limit: Withhold protection of docs prepared in the ordinary course of
business or docs that would have been created in essentially similar form
irrespective of litigation
4. Steps:
a. Step 1 – Rule: Document is prepared because of litigation/the
prospect of litigation
b. Step 2 – Exception: Adequate showing of substantial need for doc
& inability to obtains its contents elsewhere w/o undue hardship
b. U.S. v. Adlman
i. RULE: Memos and documents that are prepared in anticipation of litigation
are protected; though if the memo would be prepared regardless, it may not
be protected.
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ii. F: Sequa, defendant, going to merge in a fairly novel way; bring in an outside firm
that knows a lot about merger and taxes; prepared extensive memo laying out all
that will happen if the merger happens, and exposes all vulnerabilities therein; IRS
sues and wants that memo from Adlman; he refuses, saying AC and work product
privilege apply
1. Case doesn't go into a lot of detail re: why this is not attorney-client
2. But focuses well on attorney work product
v. Is the fact we know litigation is likely ENOUGH to meet that prong, or do we
have to wait until someone sues us?
1. Fed Rules is anticipation of litigation means making decisions, and using
work-product to assist us in making those decisions.
a. These people would never have been involved unless litigation
was eminent
b. And once you start looking at potential ramifications of litigation,
WP rule kicks in and some documents are protected
2. This is also one of the largest tax-returns in history, and they have to
notify congress about this deal, so of course litigation is incoming
3. IRS audits them every, single year
vi. Remands to find whether…
1. Memo would be prepared in any other event
a. Keep the judgement
2. Memo would not have been prepared but for Sequas' anticipation of
litigation
a. Overturn as this is work-product
vii. Policy
1. IRS wants to be a free-rider, and WP doctrine exists to stop free-riding
viii. Circuit split
1. Some say "we are actively in litigation, or imminent"
2. Others say "because of litigation" suffices
a. Intuitively that makes sense, but where do you draw the line?
i. Just transactional work to sell a hotel doesn't seem like
litigation is coming; OR you can argue this happens when
we do one of these deals, so maybe it is b/c of lit.
ii. Very fact-specific analysis re: why it is reasonable or
unreasonable to anticipate litigation
1. If the guy buying the hotel always sues everyone
he buys hotels from, awesome, but if it's just a
simple transaction, you may not be able to claim.
40
Duty of Care
I. Overview
a. Standard of Care:
i. Requiring lawyers to act
1. Competently; AND
a. MR 1.1 - Competence: A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation
2. Diligently
a. MR 1.3 - Diligence: A lawyer shall act with reasonable
diligence and promptness in representing a client.
ii. Must also act with reasonable care, which is slightly squishy
1. Differences of reasonability with how a case goes in LA and goes in
Nebraska
2. Not a competent FIRST YEAR attorney - it's a competent attorney under
similar circumstances (meaning working on that type of matter in the
relevant jurisdiction)
a. First day you show up as an attorney, you're at that standard
b. Limiting Scope
i. You can limit the scope of representation if the limitation is reasonable under the
circumstances and the client gives informed consent (MR 1.2(c), see Nichols)
ii. You are responsible for ensuring client knows he might have cause of action if
you’re going to limit the scope
iii. Clients come to you thinking you’ll spot all relevant issues/claims
c. Communication
i. MR. 1.4 – Communication with Clients: You must keep clients reasonably
informed and explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation
ii. You have a duty to fess up if you mess up
d. Common Situations
i. Missing deadlines and hearing dates
ii. Failure to investigate facts or line up experts
iii. Substance abuse
iv. High-volume, low-margin model
v. Taking on work in areas in which you know little about
e. Note – Lawyer Inexperience
i. If you are inexperienced, you are going to have to ask for help. As a junior,
satisfying your duty of care means you’ll have to consult with senior lawyers
1. Hard work – keep researching until you notice overlaps and similar
references
2. Framing – frame your questions in terms that make you look like an eager
learner
a. Provide a senior attorney with an opportunity to teach and mentor
you
b. Get a work precedent and study it – from there, ask questions
II. Civil Legal Malpractice
a. Introduction.  alleging malpractice must do the following:
i. Elements for legal malpractice:
41
1. Duty: Lawyer hired by client OR client believes lawyer represents

him/her
2. Breach: Failure of attorney to provide reasonably competent
representation
3. Causation: Attorney’s action/inaction was actual/proximate (but for)
cause of the harm suffered
4. Damages: Non-satisfactory result under agreement for legal services
a. Remedy: Money
ii. Duty & Breach:
1. Duty is your enemy: NEVER create a duty you do not want to create
2. Dangerous assumption: Passively assuming someone is supervising you is
a failure in the standard of care
3. Sophisticated party: Between a lay client and a lawyer, the lawyer is more
qualified to recognize and analyze the client’s legal needs
4. Foreseeability: Foreseeability of harm (though not determinative) has
become the chief factor in duty analysis
iii. Causation & Damage: In litigation or transactional malpractice, P must show that
but for the alleged malpractice, it is more likely than not P would have obtained a
more favorable result.
iv. Causation is your friend.
1. “Your case was so bad that it would not have mattered if I did a good job”
v. Note – Duty of Care
1. I’m going to choose risks
2. Having chosen the risk, I’m going to think strategically about how to
manage this risk
3. AND, do it in a way that makes me and my boss look good
vi. Note – Breach
1. You may have duties without knowing it
2. If you try to represent clients only certain claims, you must inform them
that there are other claims- clients do not know these things
3. BUT, you only have a duty about the issues arising from the facts given to
you
vii. Note – The Model Rules as a Cause of Action
1. The model rules are relevant to a cause of action but they are not the cause
of action themselves!
2. Disciplinary rules define scope and content
3. In general, you can get jury instructions that involve the model rules as a
basis or indicator of how much the attorney violated the duty of care
b. Relevant Model Rules of Professional Conduct
i. MR 1.1 – A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation
ii. MR 1.2(c) – A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent
iii. MR 1.3 – A lawyer shall act with reasonable diligence and promptness in
representing a client
iv. MR 1.4(a) – A lawyer shall:
1. (1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule 1.0(e),
is required by these Rules;
42
2. (2) reasonably consult with the client about the means by which the
client’s objectives are to be accomplished;
3. (3) Keep the client reasonably informed about the status of the matter;
4. (4) promptly comply with reasonable requests for information; and
5. (5) consult with the client about any relevant limitation on the lawyer’s
conduct when the lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other law
v. MR 1.4(b) – A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation
c. CRPC 1.1 – like MR 1.1
i. (a) A member shall not intentionally, recklessly, with gross negligence, or
repeatedly fail to perform legal services with competence
ii. (b) For purposes of this rule, “competence” in any legal service shall mean to
apply the (i) learning and skill, and (ii) mental, emotional, and physical ability
reasonably necessary for the performance of such service
iii. (c) If a lawyer does not have sufficient learning and skill when the legal service is
undertaken, the member may provide competent representation by (i) associating
with or, where appropriate, professionally consulting another lawyer whom the
lawyer reasonably believes* to be competent, (ii) acquiring sufficient learning and
skill before performance is required, or (iii) referring the matter to another lawyer
whom the lawyer reasonably believes* to be competent.
iv. (d) In an emergency a lawyer may give advice or assistance in a matter in which
the lawyer does not have the skill ordinarily required if referral to, or association
or consultation with, another lawyer would be impractical. Assistance in an
emergency must be limited to that reasonably* necessary in the circumstances.
d. CRPC 1.40 – like MR 1.4
i. A member shall keep a client reasonably informed about significant developments
relating to the employment or representation, including promptly complying with
reasonable requests for info & copies of significant documents when necessary to
keep the client so informed.
e. Beverly Hills Concepts v. Schatz & Schatz
i. RULE: Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation –
must actively seek competence!
ii. F: Company in MA/CT sells women's fitness equipment and plans to run a
women's gym; go to franchise, and a trademark problem arises in CA; they hit up
Shatz, a law firm; company tells them they recently filed a trademark in DC for
Beverly Hills Conception, and firm mistakenly thought that meant she filed and
received a federally registered trademark.
1. If she did, the firm wouldn't have to register a business opportunity in
Connecticut;
2. Also tell them they are experts and awesome, but wind up passing the
problem off to a first-year associate;
3. The lawyer visits the headquarters, sees how things are done, but fails to
let them know they are violating the law by not registering with
Connecticut commissioner; tells them it's just a grey area
iii. The firm takes a look and realizes they messed up; calls a Washington attorney
and find out they never got trademark registered; no one tells the plaintiff
1. Connecticut tells them they are violating the law, files cease & desist, and
the company sues the old firm for legal malpractice
43
iv. One major problem involves the junior attorney, who didn’t even ask the partner
to explain whether or not the company violated the law by not filing in
Connecticut prior to them holding a trademark;
1. Also did not even research if holding and filing to register a trademark is
the same
2. Not a defense to say "I'm new"; there were other people who should've
seen this and they get punished too
v. Another problem is they did not roger up to the client; they just wait for the train-
wreck to happen
1. So don't just wait and see
vi. What should the attorney have done?
1. Actually do legal research to figure out on your own, then find the big
question to directly ask the partners, rather than just CC'ing the
supervising attorney.
2. Attorney has a duty to make sure they are right
f. Nichols v. Keller
i. RULE: Attorney must inform the client of the limitations of representation
and of possible need to seek other counsel.
ii. F: Nichols is a union boiler-maker; gets hit in the head with a chunk of steel; goes
in to talk to Fulfer about accident. Sign agreement with Fulfer, who brings in
Keller, who does workers comp law, to handle the WC claim; BUT they don't tell
him about any possible third-party claims, and P signs agreement; winds up seeing
another attorney who points out Fulfer & Keller didn’t tell him about additional
claims since the steel got dropped by the worker of another company; now it's too
late to file that suit.
1. Worker's comp law is done by volume, and people who specialize in work
comp don't have a lot of experience outside work comp, BUT they should
know 3rd party claim probably offers more $$ to client
a. Work Comp system is no-fault, and caps damages
b. But if it turns out they could file normal suit, they can get a ton
more cash
iii. Attorneys argue they shouldn't have to tell him about third-party claims, just
claims in their purview
1. Trial court grants SJ for attorneys since they did what they contracted for
iv. But on appeal, court says that's not enough
1. Court looked at foreseeability of potential problems.
2. As the sophisticated party in this exchange, an attorney’s obligation to
spot issues goes beyond just the work comp case, and at the very least
advise him on the other claims, even if you don't take the case
3. So if you spot other claims you won’t handle, draft a retainer agreement
that states scope of rep, i.e., what you are, and what you are not, taking
over as a lawyer
a. And add a CYA letter that says as we talked about, you have a
possible case on this issue, so go talk to some other attorney
within x days to meet the SoL
4. Analysis does change if the plaintiff is more sophisticated
a. But a union guy won't know work comp doesn't apply to a third-
party's negligence
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III. Causation and Damages

a. Overview
i. Rule. A malpractice  must show that, but for the lawyer’s negligence, the 
would have been better off
1. This usually ends up requiring a trial within a trial:  has to show he more
likely than not would have prevailed in the underlying matter had the
lawyer not been negligent
ii. Context.
1. Litigation – can have a mini trial
2. Transactions – will have to get testimony and show documents that prove
that, had the deal been done differently, it would have been a better deal
a. Basically, have to get the other side to say that they would have
been ok with paying more
b. Viner v. Sweet
i. RULE: But for the malpractice alleged, it must be more likely than not that
the clients would have obtained a more favorable verdict.
ii. F: Clients hire attorneys to help negotiate the sale of an audiobook business; attys
led them to believe the sale had a bunch of provisions it did not have; after the
sale, they realize they got hosed, and are now subject to a bunch of arbitration
provisions; they sue Sweet; gets appealed up to Supreme Court.
1. First, these are sophisticated business attorneys who know what they are
doing; they are not dopes, and yet there is still a disconnect between the
attorney and the Sweets
a. Sweets negotiated a deal, apparently, and only hired the attorney
to paper up the deal
iii. So what is the standard for a transaction issue?
1. But for the alleged malpractice, it was more likely than not that the clients
would have obtained a more favorable result in the transaction.
a. Tough standard to meet, but that is the standard.
b. Substantial factors would only apply in limited circumstances if
there were multiple mess-ups
iv. Case Questions
1. What did Sweet not do that they should have done?
a. Did not include four or five things within the contract that Viner
wanted
2. Was Viner harmed?
a. Yeah; had fewer rights under the contract, & didn't get full terms
3. Did P show causation?
a. Nope; there is a but for standard that is tough
b. Tough to show that somehow the attorney got them worse results
than a reasonable attorney could have
i. Needed to be able to prove the deal they would have
gotten, and could not do that satisfactorily
c. Court recognized it’s a tough standard, but you can rely on
inferences and what not since this is tough to prove.
i. Court doesn’t want to open up speculation on what else
could have happened with different terms/amounts
discussed during negotiations and what party thinks it
could have gotten in the deal
c. Problem 7-1: Malpractice suit; attorney blows the statute of limitations; P wants to show D
would have settled but-for the malpractice of attorney in blowing that SoL
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i. But-for the attorney's malpractice, would P have won?

1. Attacking a risk-averse defendant is too speculative; settling is not
admitting guilt
2. And you have to show you would've actually won at trial but-for the
attorney's failure to file within the statute of limitations
IV. Statute of Limitations and Tolling
a. CA SoL for malpractice requires P to bring claim w/in 1-year after P discovers or should
have discovered the facts constituting malpractice, unless attorney is concealing facts.
b. CA SoL for recovery of legal fees requires P to bring claim w/in 2 years
i. So if you wait a year to sue for fees, they cannot sue you back for malpractice
ii. Always wait a year, and then sue for your fees
1. Doesn't mean they are foreclosed; can bring it up as an offset in defense
2. But court won't force you to pay anything more
c. Tolling the SoL: Continuous representation tolls the limitation period
i. Tolled for as long as you represent the client, and accrues when client finds out
about the malpractice or day you commit malpractice
ii. If you screwed up, and you can actually fix the problem, you can certainly try
V. Criminal Malpractice (liability, not discipline)
a. A lot harder to sue Defense counsel for malpractice
i. “Actual Innocence Rule”: A criminal defendant cannot bring a malpractice suit
against his lawyer UNLESS D proves (1) the lawyer failed to meet minimum
standards of professional competence, AND (2) that D was actually innocent of
the crime alleged (so you have a mini-trial w/in malpractice trial)
1. Policy: A mix of moral judgement and the idea that criminal defendants
have nothing but time and want to sue everybody for everything.
2. Unseemly that person committed crime can then make money by suing for
malpractice so can’t get $
3. Plus, they have an ineffective assistance of counsel claim they can go after
if they really want to on appeal so there’s alternative form of relief even
though the relief is different (retrial vs damages in civil case)
a. Remedy: No money but brings them out of jail (liberty!)
ii. That bars the vast majority of Defendants
b. Winniczek v. Nagelberg
i. RULE: Plaintiff must plead he was innocent of the crime charged in order to
assert a claim for malpractice; not just that he would’ve been acquitted.
ii. F: P facing federal crimes in relation to helping people get commercial driver
licenses; hires an attorney, but then talks to Nagelberg who says he should fire the
old attorney and Nagelberg will take the case for $175k; after he is retained, he
tells the P he won't take the case to trial since he made statements that killed his
defenses; no choice but to plead guilty; sues for legal malpractice, breach of
fiduciary duty, and breach of K.
1. Court says it is barred since innocence rule is not met; but allows breach
of contract to make Nagelberg pay
iii. So he was guilty, but could still get the money under the other possible options,
however that doesn't always save the day
c. Exception.
i. Unlawful Penalty Exception – Attorney Not Catching Mistake
1. Court found L liable for not realizing that the maximum sentence for
client’s crime was 1 year, but client received 2.5 years. Client sued for
extra time he served, court allowed lawsuit (Powell)
d. SOL – 2 years
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VI. Ineffective Assistance of Counsel

a. General Rule: Constitutional right to counsel requires lawyers who meet a certain
minimum level of competence, judge in part by:
i. (1) Prevailing professional standards or norms within defense bar; AND
1. Objective - what would reasonable counsel have done in a similar
situation
ii. (2) Whether the lawyer’s conduct affected the result of the proceeding
1. Is there a reasonable probability that, without counsel's errors, the
proceeding would have been different?
b. Only applies to criminal cases
i. Only constitutionally guaranteed a lawyer for criminal cases
ii. So, for civil cases, have to sue for malpractice
c. 6th Amendment Right to Counsel
i. The benchmark or judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result
d. Ultimate focus: Fundamental fairness of the proceeding whose result is being challenged
e. Need to balance right to access constitutional rights with idea just because someone is
found guilty, doesn't mean it was their lawyers’ fault
i. Lawyer can be shitty, and it may not matter; if the lawyer is bad at cross
examining one eye witness, but there are six eye witnesses, the client is going way
ii. IAC finding can impact discipline, but lawyer will still get a chance to explain
away what happened (have 200 cases and didn’t have time to run down this lead)
f. Strickland Test
i. Prong 1 – Performance: D must show that counsel’s performance was deficient
1. Proof: Requires showing that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed by the 6 th Amendment
2. Standard – Objective: D must show lawyer’s representation fell below an
objective standard of reasonableness under prevailing professional means
3. Presumption in favor of the lawyer: D must overcome the presumption
that the challenged action “might be considered sound trial strategy”
ii. Prong 2 – Prejudice: D must show deficient performance prejudiced D’s defense
1. Proof: Requires showing counsel’s errors were so serious as to deprive D
of a fair trial
2. Standard: Totality of the circumstances
3. Test – but for: D must show that but for counsel’s unprofessional errors,
the result of the proceeding would have been different, which is not quite
“more likely than not” but it has to be a reasonable chance.
iii. Alternate/Easy Prong – Actual (active) Conflict Affecting Performance
1. Rule: If there is an actual (active) conflict affecting performance, then the
presumption in favor of the lawyer is rebutted
a. Ex: Denial of counsel or state performance
g. Damages
i. If you did something bad, but the court said you didn't do something so bad that
the plaintiff prevails on IAC, you can still get hit with bar sanctions
ii. But with an IAC claim, the main damages is "liberty" - you get out and could have
a re-trial
h. Client must prove IAC in order to get out of jail and have a re-trial
i. SoL is time of standard appeal
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i. Strickland v. Washington
i. RULE:  must show that counsel’s performance was deficient – conduct
outside range of reasonableness; AND  must show that counsel’s deficient
performance prejudiced the 
ii. F: Washington caught doing a bunch of awful crimes; during pre-trial motions,
Washington kept confessing; Counsel said we should go for a jury trial,
Washington said no I want to confess, and he does; Washington also demands a
bench sentencing; attorney didn't look for character witnesses or into
psychological problems, just relied on confession and client's "remorse;"
Washington sentenced to death.
1. This case brought on Habeas Appeal, claiming IAC
iii. Can imagine being this attorney, and assume client doesn't want your help at all
1. Not completely asleep at the switch; he just had to prioritize what to do
with other cases and the client wasn't taking his advice
a. But it is a capital case so should be relatively high on priorities
iv. IAC based on following claims
1. Failure to ask for continuance to prepare for sentencing
a. But judge was super sympathetic before, and attorney doesn't
want to give DA more time to gin up the death sentence
2. No psychiatric report
a. But maybe the guy was sane, and the psych report wasn't going to
help out and DA could bring in its own expert
3. No character witnesses
a. But opening the door to character evidence allows DA to bring in
people to counter character
4. No pre-sentence hearing report
a. But he more or less lied during the pre-sentence hearing about
prior convictions so that could have then been brought in
5. No meaningful argument to judge
a. That's just a matter of conjecture
6. No cross of medical experts, or examine of medical reports
a. But you don't want to spend a lot of time talking to medical
experts discussing the gory details of the client's crime
v. IAC defers to defense counsel having a lot of facts the court does not; no need to
be a Monday morning quarter back
1. There are good, tactical reasons for everything that he did, and the court
needs to be deferential
vi. Benchmark is whether counsel's conduct so fundamentally undermined the
adversarial process, that it cannot be said the trial reached a just result.
1. Here, the trial was done properly, even if there are some problems
2. Have to prove conduct was deficient, and materially prejudiced the
defense. Hard to materially prejudice with all the evidence here.
vii. Marshall, who had some trial experience, didn't dig this standard
1. Thinks it gives lower courts carte-blanche to find conduct reasonable
2. And it's a bitch to figure out whether or not IAC occurred
a. If the guy is incompetent, the pieces you need to use to show he
effected the outcome are not there.
b. Record is devoid of these issues, and evidence is too one-sided
against the D.
3. But Majority's concern is did we get the right person; whereas Marshall
cares more about there being a fair process/fight
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j. Rompilla v. Beard
i. RULE: Trial tactics are harder to attack; failure to investigate is easier to get
something overturned on
ii. F: Court is finding counsel ineffective in penalty phase of murder case for failure
to investigate evidence into client's childhood.
1. But record shows he does interview people from client's childhood,
though didn't get into weeds of the client's investigation file
iii. Not ineffective due to strategic choice; it was inattention to detail that caused the
attorney to do the thing he did
1. Not a trial tactic so we don't ask whether a reasonable atty’s failure to
investigate; instead ask whether reasonable atty would investigate
VII. Special Obligations of Prosecutors
a. Prosecutors have special obligations to assure that D is accorded procedural justice, that
guilt is decided upon the basis of sufficient evidence, and that special precautions are
taken to prevent & to rectify the conviction of innocent persons.
i. Policy: Prosecutor has dual obligation to strike hard blows but to refrain from
striking foul ones; to use legitimate means to attempt to secure a conviction
without employing improper methods to do so.
b. Basically, get away with a lot less than Defense does, and can get hit with bar sanctions.
c. MR 3.8 – Special Responsibilities of a Prosecutor states Prosecutor…
i. (a) Can't bring a charge that is not supported by the probable cause;
ii. (b) Must make reasonable efforts to assure that the accused has been advised of
his right to & procedure for obtaining counsel, and has been given reasonable
opportunity to obtain counsel;
iii. (c) Can’t seek to obtain a waiver of pre-trial rights from unrepresented D;
iv. (d), (g) Must make a timely disclosure to other side of all info that mitigates guilt
& new, credible, material evidence that will help D, but they don't know about;
v. (f) Can’t try case in the court of public opinion, so no extra-judicial statements.
vi. (h) Remedy the conviction if he finds that D has been convicted of an offense he
didn't commit;
d. US v. Lopez-Avila
i. F: Woman caught trying to smuggle drugs across border; initially pled guilty, and
MJ asked her whether anyone threatened you or forced you to plead guilty; a
month later, she says she was forced into smuggling the drugs, and counsel tried
to withdraw guilty plea; goes to trial, and AUSA tries to impeach the witness, and
reminds D that MJ asked if anyone threatened her, & she said no; she admits to
lying; defense asks for a transcript of the plea hearing & realizes AUSA misstated
MJ’s question.
1. Defense picked up on the problem and demonstrates there is a problem to
the judge, and asks for a mistrial
a. Gets mistrial, then asks for dismissal on double jeopardy grounds
ii. Court denies the double jeopardy, and says prosecutor was providing evidence to
convict the defendant, rather than just present evidence that supports guilt
1. Can't get DJ when there is a mistrial just for bad faith conduct or
harassment from the prosecutor
2. Could maybe get away with this in civil, but not criminal
iii. But mistrial is appropriate since prosecutors are held to a higher standard
iv. Court denies mistrial and double jeopardy, since the prosecutor was just being
cute, but still crapped all over the federal prosecutor
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e. Closing Arguments
i. Variety of ways you can create prejudicial error
1. Misstating or mischaracterizing evidence; referring to things not in
evidence; misstating the law; attacking credibility or casting dispersions
on defense counsel; intimidating witnesses; referring to prior convictions;
implying person will continue committing crimes; present a personal
opinion; inflaming the passions of the jury (put yourself in their shoes)
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Liability to Non-Clients
I. Introduction
a. You can be liable to people other than your Clients.
i. Violate a general legal rule, such as committing fraud
ii. Invite reliance by a 3rd party
iii. Intended beneficiaries of the lawyer’s work for a client
iv. Represent a fiduciary who is harming or has harmed his or her beneficiaries by a
crime or fraud in which your services were involved
1. When a lawyer does work for a client who is a fiduciary, the lawyer owes
a duty to the beneficiary requiring the lawyer to refrain from engaging in
acts that assist the client in breaching the client’s fiduciary duties
v. Have a duty imposed by law, as with Biakonja factors (see Meighan case)
b. You do NOT owe a duty of care to opposing clients
II. Basic Concerns
a. May be liable if you invite a third party to rely on you and then frustrate that reliance, or
b. May be hired by a client to confer some benefit on a third person, who in some
jurisdictions may sue you to enforce obligations you owe to the client
c. If you represent someone who owes a fiduciary duty to a third party, such as a guardian
who owes such a duty to a ward, and your client harms the third party by committing a
crime or fraud that in some way relates to your representation (In some jurisdictions it
passes through)
III. Duty Imposed by Law
a. See below for 6/7 Factors to consider for whether a lawyer owes a duty to a non-client
i. Factors basically ask: Who is in the best position to know about the claim?
ii. Intended reliance: Professional liability is not limited to privity of K, but the
presence or absence of a client’s intent that the plaintiff benefitted from or relied
upon the lawyer’s services is particularly significant in the determination.
iii. If a lawyer chooses not to take a case, the lawyer must :
1. (1) Tell prospective client that lawyer will not take the case, AND
2. (2) Suggest that the client see someone else b/c there might be SoL
(UNLESS prospective client is adverse from current client – then raising
issue about SoL would violate duty so just say I can’t rep you, go find
another atty)
3. (3) Memorialize the conversation in writing.
iv. Legal services for family:
1. Family relationship is no defense to misconduct
2. Lawyer must treat family the same as regular people who come to lawyer
b. Meighan v. Shore
i. RULE: Six Factors for Foreseeability of Harm + extra consideration
1. Extent to which transaction was intended to affect person suing
attorney
2. Foreseeability of harm to plaintiff
3. Degree of certainty plaintiff suffered injury
4. Closeness of connection between D's conduct and injury suffered
5. Policy of preventing future harm
6. (Moral blame attached to D's conduct) – extra?
7. Whether recognition of liability under circumstances would impose
an undue burden on the profession
ii. F: Husband gets chest pains and goes to ER; sent home since hospital said he
wasn’t suffering a heart attack; turned out, he was having a heart attack and delay
51
in treatment made condition much worse. Couple wants to sue for malpractice,
and wife made appointment with respondents, attorney and firm; atty says we'll
represent the husband, but didn't take on the wife as client
1. As it turns out, wife had a right sue for loss of consortium upon which she
could sue, but when she figures that out, the SoL kicked in and she
couldn't sue anymore
2. She sued attorneys for negligence, and they responded there was no
privity of K b/c she was not client and atty told her he wasn’t representing
her
a. You need privity to have standing to sue, but Court says no that's
bullshit
iii. So does attorney owe any duty to the wife, even though he told the wife he wasn’t
taking on her case?
1. Yes; duty had a duty to inform appellant AND her husband about their
rights, even though she is not a client.
2. Attorney should've seen the potential loss of consortium case, and advised
the wife
a. Not enough to tell her he isn't taking her as a client since a normal
person does not know about loss of consortium so him telling her
he wouldn’t represent her wouldn’t raise any red flags
b. Reasonable to think that she, sitting in your office, would expect
you to advise her about any possible claims – atty is more
knowledgeable and sophisticated party
i. And even if you don't do consortium claims, you should
still point out a possible cause of action and tell them to
find an attorney that deals with it (don’t forget to
memorialize it in writing)
ii. Low burden on atty to prevent this from happening
c. Greycas v. Proud
i. F: Attorney asked by brother-in-law to write opinion letter to show lender the
farm equipment he was putting up as collateral was not encumbered by any liens;
lawyer doesn't actually check, and writes the letter; brother-in-law, as it turns out,
was going broke and there were liens, winds up killing himself after going
bankrupt; bank went after Attorney.
1. Watch out for family members; they’re going to ask you for legal advice.
a. Probably why the attorney didn't actually investigate whether
there were any liens against the property. Trust but verify!
ii. Anyway, what duty does the attorney owe the bank?
1. He wrote the letter with the intention that the bank would reasonably rely
on it, and therefore committed fraud in not researching anything
IV. Misrepresentation
a. MR 4.1 - Attorney cannot, in the course of representing a client, knowingly make a false
statement of material fact or law or fail to disclose a material fact when disclosure is
needed to avoid assisting criminal or fraudulent conduct.
b. MR 8.3(c) – Misconduct: A lawyer shall not engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.
c. Fraud Elements
i. (1) Misrepresentation
ii. (2) Knowledge of falsity;
iii. (3) Intent to defraud
iv. (4) Justifiable/reasonable reliance; and
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v. (5) Resulting damage
d. Cicone v. URS Corporation

i. RULE: Opposing L does not really owe the other side a duty, just cannot lie
or do illegal stuff because he is a lawyer.
ii. F: URS offers to buy Advance/Lucas for $3.5 Mill; Advance only warrants a part
of the books, and says they won't vouch for the accuracy of the rest; Cicone,
Advance's attorney, tells the other party this, but they don't care; final purchase
agreement says URS warranted its books, despite what they said before; after it
turns out the books aren't right, they sue Advance for fraudulent misrepresentation
and Advance sues Cicone for malpractice
1. Cicone counter-claims against Canady, URS's attorney, saying when
Canady replied the buyer understood the books weren't warranted, that
meant he accepted they were accurate to the best of Advance's knowledge
and saying that was a fraudulent misrepresentation
iii. Court allows claim against URS and Attorney since the assent that URS
understood is a statement of fact; needs to figure out whether Cicone relied on the
misstatements
1. Doesn't determine on the merits
iv. Would warranting they were accurate "to the best of their knowledge" have
avoided litigation?
1. No, that wouldn't solve anything. They will just accuse you of knowing
when you signed off on the deal
v. What is the standard for distinguishing factual statements from other statements?
1. Usually comes down to whether the statement is provable, i.e. a statement
of fact. If not, it’s an opinion.
vi. When is silence actionable, and when is it not actionable?
1. Assume you overhear a Plaintiff in a slip and fall say they believed some
operative fact, and thus are underestimating the possible price of their
case. Do you, as defense counsel, have to say something?
a. Nah; you only have to say something when failing to talk assists
criminal or fraudulent conduct
b. Generally speaking, you don’t have an obligation to speak (unless
you there’s some fiduciary duty). If you do speak though, better
be truthful.
i. But, only talk if there was a reasonable inference or some
reliance on your info b/c otherwise you might get sued by
client for costing them more money or case
e. Statement of Fact v. Statement of Opinion
i. Third-Parties rely on, and attorneys could be liable for, statements of fact
1. But not statements of opinion
ii. The Opinion Letter in Greycas
1. Mixed; underlying the opinion are statements of fact, and a factual basis
upon which creditor relies.
iii. "With respect judge, the whole thing is the bus driver's fault; $8 Million is more
than generous."
1. Statement of Opinion; you're giving your opinion re: fault and how much
client will accept
iv. "$8 Million is our best offer, and if you don't want that, take your chance with the
jury"
1. Statement of opinion; you're giving a statement re: your position.
53
a. Unreasonable to rely on a statement just saying this is our best

offer
v. "With respect judge, these people are already getting a lot of money from bus
company and the city. We cannot, and will not, go any higher."
1. Can go either way; there is a difference between saying we will not, and
can not, go any higher; but still a statement of opinion b/c that is what is
said in these types of discussions
vi. "We are having trouble funding the $8 Million, and you cannot get blood from a
stone."
1. Close, but more of a Statement of Fact; seems like you are messaging a
factual inability to pay, and implies the insurance policy will not go any
higher.
V. Secondary Liability: Aiding & Abetting and Conspiracy
a. MR 1.2(d): Forbids you from counseling a client to commit a crime or fraud or from
assisting the client in doing so; allows you to discuss the consequences of a client’s plans
or assist the client in determining what the law is
b. What are you selling?
i. Important for you to understand what you're selling as an attorney
1. That determines how you are going to be viewed
2. If you are selling legal services, or legal advice, that changes re: for what
you may be sued
ii. Advice is downsides and liability
1. Services is potentially committing a crime for the client.
c. General Rule: Lawyers aren’t liable for advising clients on what the law is or what they
may/may not do under the law so lawyer can tell client the legal ramifications of an illegal
course of action, BUT lawyer cannot help advance that illegal course of action
d. Hypos:
i. Client comes to you and says he is going to breach, if I do what' will happen; can
you answer his question?
1. Yeah - can't say you should breach, just going through consequences
ii. I'm thinking about running drugs across Mexico; what's the potential exposure?
1. Yeah - he just wants advice, no need to turn him in.
iii. I want to file this claim for social security that is bogus, can you help me out?
1. No - he is using your services to effectuate your fraud
a. Versus just what the potential downsides are
e. Reynolds v. Schrock
i. RULE: A lawyer may not be held jointly liable with a client for the client’s
breach of fiduciary duty UNLESS the 3rd party shows that the lawyer was
acting outside the scope of the AC relationship
1. Burden on P to show that the lawyer was acting outside the scope.
2. Policy: Lawyers can’t adequately serve their clients when their own self-
interest pulls in the opposite direction
ii. F: Patient sues doctor over land they held jointly, and for having sex with the
patient; had bought two parcels of land together; case settles, and as part of it,
patient got the big parcel, and the second parcel will be sold; if the second sells for
less than $500k, she'd pay the difference; agrees to take out a lien on the first to
make sure she can pay the difference.
1. Turned out, an attorney told her nothing in the agreement said she had to
keep the first property, and she could sell it so patient has no interests;
also tells her not to sell the second parcel
54
2. Doctor sues both, settles with patient, attorney remains for aiding and
abetting fiduciary duties
a. Can't normally do this kind of stuff, so this probably violates
covenant of good faith and fair dealing, but no one picks up on
that issue
b. But that isn't the issue here.
iii. Basically, does AC privilege apply? If so, he is liable for third party liability.
1. At a certain point, lawyers cross the line from aggressive lawyering into
doing the client's course of action.
2. A lot of what the client did was probably upon lawyer's advice
a. And lawyer saw a lot of shitty lawyering in the settlement
agreement, and fails to protect the original lawyer's client
3. What did the lawyer do?
a. Reviewing agreement & giving advice that you can sell the larger
piece of property because the settlement agreement doesn't
adequately protect it, and it'll get rid of the lien.
i. That’s lawyering
b. Calling the escrow agent to tell him not to say anything
i. Nothing illegal about this; didn't threaten the dude.
ii. Just said hey, don't tell anyone
c. Encouraging client not to sell second parcel
i. Just assisting the client do what they want
d. Finally, he was being paid a large amount of money for reviewing
a contract and giving legal advice, i.e. lawyer stuff
iv. We normally expect a lawyer to do these sorts of things, so therefore it is
protected communication and a second party cannot get it.
1. Limit: Rule protects lawyer only for actions of the kind that permissibly
may be taken by lawyers in the course of representing their clients
f. United States v. Sarantos
i. RULE: Can be liable for deliberate ignorance – disregard for the truth will
make you liable as if you knew the facts. We do not want lawyers
circumventing criminal sanctions by just closing their eyes to the obvious risk
that they are doing bad things
ii. F: Sarantos is working with Markis, a marriage broker for Greek guys who want
visas, and knows Makris is helping people violate immigration law through false
marriages; Sarantos would prepare a visa application and divorce papers at the
same time in Sarantos' office and knew women were getting a fee to marry Greek
guys (and sometimes they needed translator for couples). Charged with aiding &
abetting others to make false statements to INS and conspiring to defraud INS.
1. His defense is basically who am I to judge; I just facilitate the
immigration aspect of this all.
2. I do not have actual knowledge that this is a scam, so therefore I cannot be
criminally liable
iii. Court goes through a variety of different aspects to this deal, and says you were
deliberately indifferent and may be liable
1. Disregard for the truth will make you just as liable if you knew the facts
2. Can't circumvent criminal sanctions by closing your eyes to the obvious
risk that they are doing bad shit
a. Cannot just stick your head in the sand and pretend you don't
know
iv. Here, he never asked questions despite obvious illegality
55
1. You have to ask questions and probe when people come into your practice
and it looks shady
a. Some big company is going to be talking about shit that is clearly
illegal, and you'll be sitting there not wanting any more
information
b. Or you'll have a client clearly hiding money, but telling you he
has no free flow of cash
g. Deliberate Ignorance aka "Ethics Ostrich"
i. If you are representing a client who is using your services to engage in criminal
conduct, you must withdraw
1. Cannot ignore red flags and pretend you don't realize criminal conduct s
occurring. At some point, need to follow up.
ii. If reasonable lawyers would have acquired knowledge in follow up, you could be
responsible for not investigating and taking steps to protect yourself
1. Difficult to figure out when a situation is just weird vs. when it's criminal
VI. Advising or Assisting Clients in Unlawful Activity
a. MR 1.2(d): A lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel or
assist a client to make a good faith effort to determine the validity, scope, meaning or
application of the law
i. In representing a client, a lawyer shall exercise independent professional judgment
and render candid advice.
ii. In rendering advice, a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors that may be relevant to the
client’s situation.
b. MR 8.4(d) – Misconduct
i. L may not engage in conduct prejudicial to the administration of justice
ii. Comment 4
1. Lawyer may refuse to comply with an obligation imposed by law on the
good faith belief that no valid obligation exists
c. Factors for an appropriate sanction for misconduct
i. Duty violated;
ii. Lawyer’s mental state;
iii. Injury caused by the misconduct;
iv. Factors in aggregation; AND
v. Factors in mitigation
d. In re Scionti
i. RULE: Court considers the duty violated, L’s mental state, actual/potential
injury & factors in aggravation or mitigation.
ii. F: Client alleges mother was molesting son; lawyer told client to keep the kid,
even though he did not have custody; Court issues order to return son' Court
denied ex parte order to allow dad to keep son.
1. Timeline is a bit fishy; he lost custody June 1990 and only got weekends,
suddenly she was charged in December 1990 with molestation, all charges
were dropped in November 1991.
a. But it wasn't until November 1991 he decided now he can't hand
the little kid over
iii. Lawyer was liable; knew that interference with a custody agreement is a legal
violation and advised it anyway.
1. But the issue was what sanctions to slap him with
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iv. Here, L made a reasonable violation of the rules, so a public reprimand is all he
should get
1. Lawyer can refuse to comply with obligation imposed by law on a good
faith belief, but he cannot just get away with it
2. Considers the duty violation, lawyers mental state, and actual/potential
injury and factors in aggravation or mitigation
v. Court is primarily concerned about their orders being followed
1. Can't allow individual litigants decide which orders they want to follow,
and which ones they will not follow
2. Dissent says father got hit with 90 days in jail after following L’s advice
so that means the attorney should've been hit even harder
vi. Right answer is to say follow the court order, and these are the repercussions if
you do not follow the court order
1. Advice may be unsatisfying, but you cannot just say what the law is - you
have to decide and say follow the order.
2. Don’t say “if I was in your shoes, I’d violate the law” because it’s hard to
argue that isn’t advising them to break the law.
e. Problem 8-8
i. Filed suit legitimately; sought damages, including medical expenses; situation
changes and now medical expenses aren't allowed; can you now settle the claim,
including reimbursements for medical expenses, or you have to tell the D the
medical expenses were removed?
1. Have to tell the D - you are withholding relevant, material facts. If P never
incurred medical expenses, you cannot sue for those out-of-pocket
expenses.
f. Problem 8-9
i. Client has an apartment; pipes are screwed up, wires exposed, and she doesn't pay
rent; wants to know what to do if there is potential eviction. Can you advise the
client?
1. Can tell them the apartment was close to breaching implied warranty, and
can tell them these things must happen for implied warranty breach is
sustained
2. Can say chip away at the pipes to see the extent of the damages
a. This is close b/c it’s possible they aren't just checking the
corrosion; they are messing with the pipes to make it worse. But if
you advise them to only check that is ok.
3. There’s a line you can cross that goes too far though.
a. Can't say go home and run a lot of water in the hopes they will
give way and flood the apartment, establishing the defense.
i. Purpose, in this context, is to purposefully burst the pipes
b. Can’t place bits of cheese behind exposed wires in the hopes rats
chew threw them; or buy a pet rat and let it loose
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Assuming Duties
I. MR 1.18 – Duties to Prospective Clients
a. Before Representation (prospective clients)
i. A lawyer owes a duty of confidentiality where the lawyer accepts confidential info
in circumstances justifying the client in believing that the lawyer will keep the
info confidential.
ii. MR 1.18(a) – Prospective Clients. Person who consults with a lawyer about the
possibility of forming an AC relationship with respect to a matter
1. Does not require that the relationship actually be formed
b. Duty of Confidentiality
i. Even when no AC relationship ensues, a lawyer who has learned information from
a prospective client shall not use or reveal that information, except as MR 1.9
would permit with respect to information of a former client
c. Conflict of Interest
i. MR 1.18(c): A lawyer subject to paragraph (b) shall not represent a client with
interests materially adverse to those of a prospective client in the same or a
substantially related matter if the lawyer received information from the
prospective client that could be significantly harmful to that person in the matter,
except as provided in paragraph (d). If a lawyer is disqualified from representation
under this paragraph, no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in such a manner, except as
provided in paragraph (d)
d. Policy:
i. Potential clients must be able to tell their lawyers their private business w/o fear of
disclosure in order for their lawyer to obtain honest accounts on which they may
base sound advice and skillful advocacy
ii. If people could not safely bring their problems to lawyers unless the lawyer was
already obtained, the ability of people to seek remedies would be chilled
e. Disqualifying Information
i. When the lawyer has received disqualifying information as defined in paragraph
(c), representation is permissible if:
1. Both the affected client and the prospective client have given informed
consent, confirmed in writing; or
2. The lawyer who received the information took reasonable measures to
avoid exposure to more disqualifying information than was reasonably
necessary to determine whether to represent the prospective client; and
a. The disqualified lawyer is timely screened from any participation
in the matter and is apportioned no part of the fee therefrom; and
b. Written notice is promptly given to the prospective client
f. MR 1.7 – During Representation – Conflict of interest: Current Clients
g. MR 1.9 – After Representation – Subsequent conflicts of interest
II. Accepting Representation
a. Lawyers assume duties to clients through acts that give clients reason to believe the lawyer
agreed to assume those duties
i. Duties do not rest on formal contracts
ii. L can assume all duties a L owes to a client by agreeing to represent the client
iii. L can assume some duties without assuming others
b. No consideration required—all the AC relationship requires is assent
c. No fees required—paying fees is not a necessary or sufficient requirement for creating a
duty
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d. Basic Rule
i. Confidentiality. A lawyer owes a duty of confidentiality when she accepts
confidential information in circumstances justifying the client in believing that she
will keep the information confidential
ii. Loyalty. If such a duty is formed, it implies a duty of loyalty pertaining to the
confidences
iii. Care. A lawyer assumes a duty of care to the extent she gives advice or
reasonably may be perceived as having done so
e. Three Initial Phases
i. Initial Client Contact
1. Resist your urge to start giving advice or asking for information
2. Find out enough to know whether you can do the work
3. Find out who is involved
4. The parties, transactions, people from whom discovery would be sought,
people from whom confidential information would be obtained
5. Do not seek confidential information
6. Tell the client you will get right back to them
ii. Conflicts Check
1. Have database of existing representations and confidences up and
running;
2. Check parties who will be adverse in new representation;
3. If clear, call back and accept representation;
4. If not, decline and perhaps refer (this way you’ll get 2 people who like
you)
iii. Representations
1. Enter in your conflicts database the new client and persons/entities about
whom you will have confidential information
III. Duty of Confidentiality
a. MR 1.18: prospective client in an initial interview: treated as a client, attorney prohibited
from revealing the info or using it except as permitted by MR 1.9 (governing subsequent
conflicts of interest)
i. (1) Rule 1.18(c) provides for disqualification only when an attorney receives from
a prospective client information that could harm the prospective client
significantly in the matter at hand.
ii. b. Rule operates in such a way that an attorney who initially interviewed A could
lose a particularly lucrative case with B as a client, because she interviewed A
(adverse to B), an interview from which she gained nothing.
b. Barton v. U.S. District Court
i. RULE: Basically, when you sit and listen to a prospective client, you assume
a duty of confidentiality
1. And once you give legal advice, you assume a duty of care
2. Depends on what the client expects, and clients likely expected their
information remain confidential, and be used to get an attorney for the
class.
ii. F: Firm doing a class action against Paxil; puts up a website with a questionnaire
asking about people who took Paxil; D wants access to the answers to ensure the
statements were consistent with what Ps said at trial.
1. But website had a disclaimer that there was NO AC relationship created
by website.
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a. Do not want liability from AC relationship, just in case the class

is not certified; otherwise they'd have 1,000 shitty cases
iii. So is the information confidential?
1. Yup; you can disclaim a duty of care while accepting the burden of
confidentiality.
iv. Cannot allow attorneys to solicit clients and offer advice, without creating a duty
1. Waiver did not waive usual duties and protections associated with AC
relationships
a. Just that there is no relationship
2. People filled out the questionnaire because they want legal advice
a. You can infer that it should be confidential based on surrounding
circumstances
3. Prospective client communication with a view towards obtaining legal
services are always covered by AC privilege.
a. This goes beyond just trying to get initial contacts; it's trying to
form a class action
v. Case Questions
1. Assume you’re a litigation associate; how do you tackle this and fight for
privilege?
a. Already drafted, but you can highlight certain facts
i. We aren't showing this to people outside of the firm and
are treating it confidentiality
b. And get declarations from people, asking them whether they
believed the form was confidential, and why they filled it out.
2. If you're the GSK associate, how do you want to get this information?
a. Company wants it for impeachment purposes, and have a
suspicion that plaintiffs were coached
i. But these statements were prior to being coached, so it'll
be truthful and not guided by another attorney
b. Hang your hat on the disclaimer, which says this isn't confidential
i. Worked at the district court level
3. How should you use disclaimers so that you can claim AC privilege,
without creating an AC relationship?
a. Have disclaimers about what this doesn't establish, and then say
give us a call or come visit us in person.
4. Did the web form actually give any legal advice?
a. Told them not to give their medical records to an outside
company; this is legal advice, however it is reasonably safe
advice.
b. But if you say, "You may have a case if Paxil gave you these
three symptoms."
i. And someone sees that and decides not to pursue an
attorney because of it, there is a potential problem.
5. Assume you run a family firm, have a website that solicits information
online, allows people to submit information. What problem may arise?
a. If someone submits information to you, that might preclude you
from representing the other spouse by giving information that
otherwise would not have
c. Confidences from Parties Related to Clients
i. Extends to all people who provide confidences to a lawyer under circumstances:
1. Justifying them in believing the lawyer will keep all of info confidential.
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a. If they bust into your door and scream information in a crowded

office, no justification for believing it is confidential.
2. Must know parties who you represent, and all non-clients to whom you
may owe a duty.
a. So even if you choose not to take someone's case, you still owe
them duty of confidentiality.
ii. Westinghouse Electric Corp. v. Kerr-McGee Corp.
1. RULE: An A/C relationship can arise when a party submits
confidential information to another party with the reasonable belief
that the latter is acting as an attorney, even if party is not a client
2. F: Westinghouse is an energy company; Kirkland & Ellis Chicago
represents it, and K&E D.C. represents API, a lobbying organization;
Westinghouse winds up in litigation with Getty, Ker-McGee, and Gulf,
which are also a part of API.
a. And they had answered some operational questions for API in a
survey.
i. Inherent in this is that the information is going to be held
in confidence, and that in turn K&E would keep it
confidential.
1. Info from G/KM/G was even anonymous for API
b. They file motion to disqualify K&E.
i. K&E invested a lot of time and money into this case, and
do not want to lose Westinghouse as a client.
ii. That would also be extraordinarily expensive, and any
new firm won’t be up to speed and isn’t given enough
time to do so.
c. Every party involved here is a sophisticated party
3. Court says law firm cannot represent both parties and, since K&E already
received that information from API, Westinghouse needs different counsel
or needs to dismiss case for G/KM/G
a. Attorney Client Privilege established between law firms and API
members because they believed the information they shared
would create a duty of confidentiality
b. GOOD TO TRACK ALL MATTERS AND ALL PARTIES
INVOLED THROUGHOUT YOUR CAREER
4. What about the argument that K&E is a big law firm and should be able to
have different branches represent conflicting clients?
a. Firm partners get money from all offices so Chicago office
partners are happy with $$ from DC office
b. Not a compelling argument; real worry that there is a possibility
some information could be shared.
c. Could call up the D.C. office and ask if they can slip you the
survey information.
i. Clients have a serious concern about this inside-dealing
ii. Maybe one client relationship is worth more than the
other – understandable client won’t like that
d. Thus, courts don't allow firms to silo that information off
5. K&E attorneys probably wouldn’t risk disclosing info, but this is a great
way for G/KM/G to get K&E off the case or get the case dismissed for
them
a. PR ftw!
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IV. Duty of Care

a. Lawyers owe a duty of care if and to the extent they advise people about their legal
matters, even if they do not accept a case
b. Practice Tip:
i. If rendering an opinion that requires expert knowledge, lawyer needs to do certain
steps to substantiate the opinion.
ii. If not rendering an opinion, lawyer needs to tell client she will not take the case
and that the denial expresses no opinion on the merits of the case.
iii. Need to assess reasonability: How would the layperson receive the conversation?
1. Also good to get what was discussed in writing in notes/denial form
iv. Togstad v. Vesley, Otto, Miller & Keefe
1. F: Husband ends up paralyzed after a medical procedure goes bad; his
friend refers the wife to Miller, an attorney (who doesn’t specialize in
medmal); Miller hears her details and doesn't take the case, and wife
thinks he said she didn't have a good case; Miller says he told her he
wasn't interested in the case; wife talks to another attorney who says she
actually has a good case, but the Sol had lapsed by then.
a. Wife sues Miller for malpractice.
b. Jury found that case was legit so next need to find that lawyer’s
negligence was but for cause of Wife losing the case, i.e., not
bringing the case in the first place or letting SoL lapse
2. Why did he meet with her, even though he doesn't specialize in Med Mal?
a. Lots of reasons - may want to do a favor for his buddy, is trying
to fish for another cause of action, or get the referral (cut of the
action or reciprocal business from medmal firm)
3. Did the firm owe a duty to notify the wife of the SoL?
a. She is not a sophisticated party.
i. Lawyer in best position to take affirmative steps
b. Even assuming he told her he was not interested in the case,
looking at it from her point of view, it may be reasonable to think
he was telling her it was a shit case.
i. Can be lots of reasons a firm doesn’t take a case (doesn’t
specialize in that law, case not worth enough, firm
doesn’t have resources to handle it, firm has legal/moral
conflict, etc.)
c. Need to be specific, explicitly say you should see other counsel,
that you are not making a value judgement (why not taking the
case is should be explained so no confusion), and that there are
SoL issues
i. Put it in writing!
ii. Most firms have a denial form that do this.
c. Flatt v. Superior Court
i. RULE: No breach of care when lawyer does not give prospective client SoL
advice that would be contrary to interests of existing client
ii. F: P meets with Flatt (attorney) to discuss a possible malpractice claim against
another attorney, Hinkle.
1. Need to be very careful since he is clearly litigious.
iii. Flatt states that plaintiff definitely has a claim against Hinkle, but she runs a
conflict check AFTER and finds out her firm represented Hinkle.
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1. Must run a conflicts check before the client arrives at the office.
iv. Lawyer tells Hinkle that she cannot represent him, and then ails to warn him to get
another attorney before SoL ran; SoL runs and he doesn't get a new attorney. He
sues.
1. Cannot say hey there is an SoL, you need to sue this guy fast
a. That is throwing your firm's other client under the bus
2. And cannot say I am just not taking your case
a. Owes duty of care to prospective client
v. Under these circumstances, no breach of care
1. Any advice to plaintiff regarding SoL is contrary to interests of the
existing clients
2. D refused to take the case, and it would have been prudent for the P to
think this suit would be barred by a SoL, and he needs other legal advice.
V. Attorney Solicitation
a. History
i. Originally, there were no rules regarding advertising
1. But by 1908, that right became extremely restricted for a few different
reasons
2. One theory is being an attorney is like being in a guild, and they wanted to
keep out people and stop them from soliciting clients
a. Got to the point where states would have zero tolerance rule for
attorney advertisements
3. But people got pissed, and wanted the right to advertise
ii. Bates v. State Bar of Arizona recognized a first amendment right in advertisement
1. Built on Virginia State Pharmacy Board, which recognized a right to
commercial speech
iii. Ohralik v. Ohio State Bar
1. There is still a restriction for in-person solicitation
a. Cannot, for example, wait outside a hospital and grab clients
iv. In Re Primus
1. F: Forcing women to get sterilized to get government benefits; ACLU
decided to sue and solicited for clients; gets reported to bar, and court
carves out space for public interest solicitation
a. Not trying to get paid; so you are able to do a bit more
v. Central Hudson Gas v. Public Service Comm'n
1. Four-part test
a. Speech must be protected
b. Substantial government interest in regulating speech
c. Regulation directly advances the government interests; AND
d. Reasonable fit between scope of regulation and scope of the
interest
2. Basically, narrowly tailored, and gov't has an interest in protecting from
fraud and undue influence
vi. Zauderer v. Office of Disciplinary Counsel
1. F: Attorney running ads targeting women that used birth control; made
statements about contingency fees; state bar got pissed.
a. Court said they cannot stop him from talking, but can make him
say more
2. After, seemed liked bars cannot restrict attorney advertising as they had
vii. Florida Bar v. Went For It
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1. In a 5-4 decision, Court ruled they may have a thirty day blackout period
between when any accident happens, and when an attorney can talk to a
victim
a. Worried about attorney taking advantage, and this feels unseemly.
b. But insurance companies love this because now they can try to
low-ball an offer before the victim knows they have a case
i. Doesn't really protect the public
b. Where we are now…
i. Lawyers cannot do in-person, live telephone or electronic contact solicitations if
making a profit is a significant motive for the solicitation
1. UNLESS soliciting another lawyer, family member, or professional
relationship; OR
2. Not seeking pecuniary gain, i.e., public interest
a. Policy: Self-interest that leads to “over-reaching” is not as much
of an issue for “public interest” as it is for “pecuniary gain”
ii. Ads are allowed but limited to fixed/static communication
1. Policy: Limited b/c in-person solicitation can exert pressure and demand
an immediate response w/o leaving a person time to compare/reflect.
iii. If attorneys run shady ads, but give all the necessary disclosures, that’s likely ok
iv. Internet ads: B/c internet communications that give recipients the time and privacy
to think things over, and which are reserved and thus available for future
inspection, they get more lenient treatment than in-person pitches so lawyers who
make approaches over internet have slightly more latitude than those who limit
themselves to traditional media.
c. Relevant Model Rules
i. MR 7.1 – Communications Concerning A Lawyer’s Services:
1. 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.
ii. MR 7.2 – Advertising - section (b)(5) slightly different for CA
1. (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may
advertise services through written, recorded, or electronic communication,
including public media
2. (b) A lawyer shall not give anything of value to a person for
recommending the lawyer’s services except that a lawyer may:
a. (1) Pay the reasonable costs of ads or communications permitted
by this rule;
b. (2) Pay the usual charges of a legal service plan or a not-for-profit
or qualified lawyer referral service. A qualified lawyer referral
service is a lawyer referral service that has been approved by an
appropriate regulatory authority;
c. (3) Pay for a law practice in accordance with Rule 1.17; and
d. (4) Refer clients to another lawyer or a non-lawyer professional
pursuant to an agreement not otherwise prohibited under these
Rules that provides for the other person to refer clients or
customers to the lawyer if
i. (i) the reciprocal referral agreement is not exclusive; and
ii. (ii) the client is informed of the existence and nature of
the agreement
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e. (5) Give nominal gifts as an expression of appreciation that are

neither intended nor reasonably expected to be a form of
compensation for recommending a lawyer’s services.
3. (c) Any communication made pursuant to this rule shall include the name
and office address of at least 1 lawyer/law firm responsible for its content
iii. MR 7.3 – Solicitation of Clients
1. (a) “Solicitation” or “solicit” denotes a communication initiated by or on
behalf of a lawyer or law firm that is directed to a specific person the
lawyer knows or reasonably should know needs legal services in a
particular matter and that offers to provide, or reasonably can be
understood as offering to provide, legal services for that matter.
2. (b) A lawyer shall not solicit professional employment by live person-to-
person contact when a significant motive for the lawyer’s doing so is the
lawyer’s or law firm’s pecuniary gain, unless the contact is with a:
a. (1) lawyer;
b. (2) person who has a family, close personal, or prior business or
professional relationship with the lawyer or law firm; or
c. person who routinely uses for business purposes the type of legal
services offered by the lawyer.
3. (c) A lawyer 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
a. (1) the target of the solicitation has made known to the lawyer a
desire not to be solicited by the lawyer; or
b. (2) the solicitation involves coercion, duress or harassment
4. (c) This Rule does not prohibit communications authorized by law or
ordered by a court or other tribunal.
5. (d) Notwithstanding the prohibitions in (a), a lawyer may participate with
a prepaid or group legal service plan operated by an organization not
owned or directed by the lawyer that uses in-person or telephone contact
to solicit memberships or subscriptions for the plan from persons who are
not known to need legal services in a particular matter covered by the
plan.
iv. CRPC 7.3(c) – Section c below not in MR

1. (c) Every written, recorded or electronic communication from a lawyer
soliciting professional employment from any person known to be in need
of legal services in a particular matter shall include the word
“Advertisement” or words of similar import on the outside envelope, if
any, and at the beginning and ending of any recorded or electronic
communication, unless the recipient of the communication is a person
specified in paragraphs (a)(1) or (a)(2), or unless it is apparent from the
context that the communication is an advertisement.
v. CRPC 7.4 – Communication of Fields of Practice & Specialization
1. (a) A lawyer shall not state that the lawyer is a certified specialist in a
particular field of law, unless:
a. (1) the lawyer is currently certified as a specialist by the Board of
Legal Specialization, or any other entity accredited by the State
Bar to designate specialists pursuant to standards adopted by the
Board of Trustees; and
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b. (2) the name of the certifying organization is clearly identified in

the communication
2. (b) Notwithstanding paragraph (a), a lawyer may communicate the fact
that the lawyer does or does not practice in particular fields of law. A
lawyer may also communicate that his or her practice specializes in, is
limited to, or is concentrated in a particular field of law, subject to the
requirements of rule 7.1.
vi. MRs very similar to CA’s law; communication is much broader than solicitation.
d. No one really polices attorney advertising
i. Main reasons are they are picking a fight the bar may lose, unleashing pandora’s
box on advertising
ii. But there’s a side-argument that they are trying to protect some level of decorum
in the profession
1. Though this argument is starting to die out as television advertisements
show, very few of which violated ethics law.
2. Law Hawk actually gets his approved by the bar.
VI. Advancing Clients Money
a. MR 1.8(e) Conflict of Interest: Current Clients
i. A lawyer shall not provide financial assistance to a client in connection with
pending or contemplated litigation, except that:
1. (1) a lawyer may advance court costs and expenses of litigation, the
repayment of which may be contingent on the outcome of the matter; and
2. (2) a lawyer representing an indigent client may pay court costs and
expenses of litigation on behalf of the client
ii. Rationale
1. Don’t want to give clients $ b/c they might choose Ls based on unsound
basis, like choosing Ls who give them $ or loan $ instead of b/c L is good
a. Prevents Cs from auctioning their case to Ls – do not want
bidding wars for cases
b. Wants to avoid:
i. Clients choosing Ls based on improper factors
ii. Conflicts of interest from dual roles as L and creditor
b. CRPC 1.8.5 – Payment of Personal or Business Expenses Incurred by or for a Client
i. After A-C relationship formed, lawyer CAN lend money to client w/ client’s
promise to repay the loan
ii. (a) A lawyer shall not directly or indirectly pay or agree to pay, guarantee, or
represent that the lawyer or lawyer's law firm will pay the personal or business
expenses of a prospective or existing client.
iii. (b) Notwithstanding paragraph (a), a lawyer may:
1. pay or agree to pay such expenses to third persons, from funds collected
or to be collected for the client as a result of the representation, with the
consent of the client; or
2. after the lawyer is retained by the client, agree to lend money to the client
based on the client's written promise to repay the loan, provided the
lawyer complies with rules 1.7(b), 1.7(c), and 1.8.1 before making the
loan or agreeing to do so; or
3. advance the costs of prosecuting or defending a claim or action, or of
otherwise protecting or promoting the client's interests, the repayment of
which may be contingent on the outcome of the matter; and
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4. pay the costs of prosecuting or defending a claim or action, or of

otherwise protecting or promoting the interests of an indigent person* in a
matter in which the lawyer represents the client.
iv. (c) “Costs” within the meaning of paragraphs (b)(3) and (b)(4) are not limited to
those costs that are taxable or recoverable under any applicable statute or rule of
court but may include any reasonable expenses of litigation, including court costs,
and reasonable expenses in preparing for litigation or in providing other legal
services to the client.
c. Oklahoma Bar Association v. Smolen

i. RULE: 1.8(e) strictly prohibits a lawyer from advancing funds to a client for
living expenses.
ii. F: Attorney working on worker's comp case for a client; client is going to have to
move to Indiana; Smolen loaned him $1,200 to help keep him in the state; wound
up bringing another attorney in to help, who snitched on Smolen.
1. Argues he did not try to prey on his client or screw him over.
iii. However, Court says you still breached the rule
1. Two main evils:
a. We don't want clients selecting lawyers based on how much
money they can front; AND
b. Conflict of interest develops that compromises the attorney's dual-
roles as a lawyer and creditor
i. Could push people to settle early so you get paid back
2. So even though Smolen wasn't a bad guy, he still violated the intent of the
rule because the claim was not over
a. And the client may tell other people what a nice dude Smolen
was.
iv. Not every state bans this
1. CA allows lawyers to advance money after an attorney is hired (Rule 4-
210).
a. Just have to put it all in writing
b. Doesn't solve the issue, but that is the law in California
v. This is a good rule for lawyers though, since younger attorneys could never
advance the money needed to bring on good cases.
1. Big companies/defendants also really like this rule since now attorneys
cannot support clients through hard times, making it more likely they will
settle.
d. Champerty and Maintenance
i. Basically, buying out someone else's lawsuit
1. Recent example in Hulk Hogan sex tape case with someone bankrolling
Hogan's attorney to take down Gawker
ii. Though originally the intent was to allow indigent clients to get funding in
litigation, it's being used by people with a monetary interest in the case.
1. And it is allowed, generally
VII. Limitations on Forming Duties
a. General Rule
i. Sometimes, attorneys lose their discretion to take a case
1. Attorney cannot take on cases that create conflicts of interest
2. Attorneys cannot decline services based on impermissible considerations,
like race or gender.
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ii. MR 1.16(a)(1) – A lawyer must decline a case if accepting it would result in a

violation of the rules or some other law.
iii. Lawyer cannot engage in conduct that is prejudicial to administration of justice
(MR 8.4(d))
b. CRPC 8.4.1 – Prohibited Discrimination, Harassment, & Retaliation
i. (a) In representing a client, or in terminating or refusing to accept the
representation of any client, a lawyer shall not:
1. unlawfully harass or unlawfully discriminate against persons* on the basis
of any protected characteristic; or
2. unlawfully retaliate against persons
ii. (b) In relation to a law firm’s operations, a lawyer shall not:
1. on the basis of any protected characteristic,
a. (i) unlawfully discriminate or knowingly* permit unlawful
discrimination;
b. (ii) unlawfully harass or knowingly* permit the unlawful
harassment of an employee, an applicant, an unpaid intern or
volunteer, or a person* providing services pursuant to a contract;
or
c. (iii) unlawfully refuse to hire or employ a person*, or refuse to
select a person* for a training program leading to employment, or
bar or discharge a person* from employment or from a training
program leading to employment, or discriminate against a person*
in compensation or in terms, conditions, or privileges of
employment; or
2. Unlawfully retaliate against persons.
iii. (c) For purposes of this rule:
1. (1) “protected characteristic” means race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender
expression, sexual orientation, age, military and veteran status, or other
category of discrimination prohibited by applicable law, whether the
category is actual or perceived;
2. (2) "knowingly permit" means a failure to advocate corrective action
where the member knows of a discriminatory policy or practice which
results in the unlawful discrimination prohibited in paragraph (B); and
3. (3) "unlawfully" and "unlawful" shall be determined by reference to
applicable state or federal statutes or decisions making unlawful
discrimination in employment and in offering goods and services to the
public.
VIII. Grounds for Refusing Representation
a. Stropnicky v. Nathanson
i. RULE: You can’t refuse to represent clients based on impermissible
categories, but you can that doesn’t fit with your mission.
ii. F: Attorney, a female, turns down a prospective client because he was a dude and
she only represents women; attorney argued she needs to identify with her clients
to feel effective, and could not do that with men; dude gets pissed and sues.
1. He wanted someone who would know how to handle a client who does
not work outside the home.
2. Her position was rooted in her reputation and focus.
iii. Court says you cannot refuse to represent clients on impermissible categories
1. Sex, race, age, etc.
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iv. But you can refuse to represent a client because the case or issue doesn't fit within
your wider "mission"
1. A domestic violence attorney who chooses to ONLY protect victims is not
bound to take on someone facing a DV charge.
a. So if this attorney says she only takes on clients who work within
the home, that would be okay.
2. But cannot say the attorney only takes on women.
a. And you have to actually meet with the client and discuss the
issue to make a valid determination.
v. Could she just say I'm not taking your case because I don't like you?
1. No; that is wrong. But she won’t get caught.
a. Alternatively, she can say she didn't take the case because the guy
was an ass, or he wasn't sympathetic, or whatever.
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Terminating Duties
I. Overview
a. Client may terminate a lawyer at will.
i. BUT the closer you get to trial, the more difficult it is to withdraw
b. Lawyer may terminate duties if:
i. Lawyer can terminate the relationship w/o material harm to the client, OR
ii. There is good cause to do so; SO LONG AS
iii. Where a tribunal’s consent to termination is necessary, the tribunal gives it. MR
1.16(c)
1. When asking court for termination: Lawyer needs to give court enough
info to understand the general nature of the problem
a. BUT the lawyer also needs to give as little info as possible
UNLESS the court asks for more info
c. MR 1.16 – Declining/Terminating Representation – Simplified
i. MR 1.16(a) – Mandatory Withdrawal: L cannot represent a C or MUST
withdraw from representation if:
1. Representation will result in violation of law or rule of professional
conduct or other law;
2. L’s physical or mental condition materially impairs the L’s ability to
represent C; OR
3. L is discharged.
ii. MR 1.16(b) – Permissive Withdrawal: L MAY withdraw from representing C if:
1. It can be done without material adverse effect on C’s interest
2. C persists in course of action involving L’s services that the L reasonably
believes is criminal or fraudulent
3. C has used L’s services to perpetrate a crime/fraud
4. C insists upon taking action that L considers repugnant
5. C fails to fulfill an obligation to L regarding the Ls services and has been
given reasonable warning that L will withdraw if obligation not fulfilled
6. Representation will create unreasonable financial or other burden
7. Other good cause exists
iii. MR 1.16(c) – L must take steps to protect client’s interests upon termination:
1. Give reasonable notice to the client
2. Allow time for employment of other counsel
3. Surrender papers/property & refund any advance payments not yet earned
4. And you need to make sure you inform them about any upcoming
deadlines, SoL issues, etc.
5. Must leave in the way that sets client up for success
6. Duty of Confidentiality survives terminations
d. Notes
i. You must make it clear to the client when you are terminating a
duty/representation!
1. Original retainer agreement should state the scope of representation
2. Use a letter of termination in writing.
ii. Keep in mind:
1. When you withdraw, you have to be clear and unambiguous to the client
2. Even still, if it is permissible and not mandatory withdrawal, courts have
wide discretion
3. AND, you still have a duty of confidentiality when submitting your
motion to the court
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iii. At all points in time you must know whether you do or do not continue to
represent a client
1. The burden of making that clear falls on you
2. To do this, you need to be able to point to a communication to prove what
you think
iv. Termination Standards.
1. Client termination: At will
a. “Unmistakable Purpose” Test: Any act of the client indicating an
unmistakable purpose to sever relations is enough to discharge
2. Attorney termination: “Clear and unambiguous” notice of intent to
withdraw
v. Risks.
1. Disqualification
2. Heightened malpractice risk from failing to do work you don’t think you
are supposed to do
II. Rules for Permissive Withdrawal
a. Rule for Difficult Clients: Relieving counsel is generally disfavored b/c it’s disruptive
i. Still, when a client desires to dictate legal strategies and then sues if those were
not followed that places the attorney in too precarious of a position b/c of a
functional conflict
1. Practice Tip 1: Choose clients w/ care
2. Practice Tip 2: Manage client’s expectations so they don’t hurt themselves
insisting on things the system is not set up to provide.
b. Hanlin v. Mitchelson
i. RULE: For the client to terminate, there is no specific formality required to
effect the discharge of the attorney. Any act of the client indicating purpose
to severe is enough (like a malpractice suit)
1. Though, if lawyer is terminating, they must give clear and
unambiguous intent to withdraw.
ii. F: Hanlin is a partner in a singing group "The Manhattans", wind up fighting and
dispute goes to arbitration; Hanlin hires Mitchelson to represent her, and agree to
pay him $25k, plus expenses, and obligating him to handle the case as fair as it
has to go; after arbitration, Hanlin is told to pay her partner $26,700, and the
business has to pay Hanlin $20,620; Hanlin wants to appeal, and writes
Mitchelson asking for a refund; Mitchelson's firm writes back to say no,
arbitration is final, but if you sue later on we can represent you; also told Hanlin
she owned them $6.5k.
1. Hanlin retains Rosenberg, who writes to Mitchelson saying you're wrong;
Mitchelson writes back and says no I'm not.
a. Sues Mitchelson for malpractice, plus damages for intimidation,
negligence, and defamation; Mitchelson counters for $6.5K
2. Hanlin then requests leave to amend for failure to comply with contract by
not confirming arbitral award within one year
a. Court denies motion to compel, denied leave to amend, and
granted SJ to Mitchelson
iii. Appellate court reverses, saying it is not clear the AC relationship was terminated;
and even if it did, a malpractice suit isn't barred.
1. Any act of client indicating an unmistakable purpose to sever relations is
enough - so by suing for malpractice, he knew his services were no longer
required.
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a. So probably no duty to affirm the arbitral award since that

deadline lapsed after the suit was enacted.
b. However, letters that just show a strained relationship, like the
ones re: the refund, does not indicate the relationship is dead
i. Can question tactics and even talk to other attorneys
2. But withdrawing attorney must give a client "clear and unambiguous"
notice of intent to withdraw, and there is no indication Mitchelson ever
provided that notice.
iv. Case Questions
1. Why did Mitchelson not want to appeal the arbitration?
a. He only got paid $25k, and it was clear she scammed the group
out of money.
2. Why did he answer her questions, instead of just ignoring her if he
believed he was not the attorney anymore?
a. He doesn't want to get sued; trying to keep the client as happy as
he can, and get the $6.5k she still owes.
b. However, this winds up being his downfall vis-a-vis the deadlines
since it looked like he was still her attorney.
3. What should he have done to avoid confusion?
a. Or sent a written letter stating unambiguous and clear withdrawal
i. Should be standard practice to just send out an end-of-
relationship letter.
4. What should Mitchelson have done when taking the client on?
a. Put the retainer agreement in writing, and state that representation
ended at arbitration.
i. Required in CA now for any efforts for which you are
compensated.
5. What is the test for client termination?
a. "Unmistakable purpose" - client has to very clearly terminate,
which becomes complicated when people yell and scream at you.
c. Whiting v. Lacara
i. RULE: You normally can’t dump a client just because he’s a dick – but if
he’s clearly unhinged, or asking you to do unethical shit, then the court might
give you a pass.
ii. F: W, a pig, says he was fired for blowing the whistle on the other pigs in his
department. Sues, claiming $10M in damages. He retained two attorneys before
suit. C fired Atty 1 and Atty 2 withdrew before trial. L lost on some issues.
Whiting turns into a nasty client and Lawyer wants to withdraw. W wants his
attorney to do unethical things
iii. L asks for permissive withdrawal
1. Client insists upon presenting claim that is not warranted under existing
law and cannot be supported by good faith argument
2. Client’s conduct has rendered it unreasonably difficult to carry out the
case
3. Client has deliberately disregarded an agreement or obligation as to
expenses or fees
iv. Issue was whether lawyer can withdraw, and Court said it was okay
1. We wouldn't allow the attorney to withdraw based on what's on the
record, but at oral argument it was obvious this dude was unhinged.
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2. L is in an impossible situation because he cannot, ethically, do what the

client is demanding, and client is adamant about suing the lawyer if he
refused
3. Normally, you cannot just bail on your client, especially when he dumped
two previous lawyers, just because he is demanding
a. But here, he is putting you in untenable place, so it is okay.
III. Withdrawal and the Duty of Confidentiality
a. Duty of Confidentiality and Withdrawal
i. Generally, you must still protect the client’s confidentiality even when seeking to
withdraw from representation
1. State in general terms and without compromising the confidentiality
2. The duty of confidentiality survives after termination of representation
and thus applies when you see to withdraw
3. Provide only enough non-confidential detail to allow the court to
understand the general nature of the grounds asserted
b. MR 1.16(b)(1)
i. Not clear whether the confidentiality exceptions in this rule expand your ability to
withdraw
c. Note.
i. Issues of judicial efficiency play an important, almost dominant, role in the
analysis!
d. California Rule of Court 3.1362
i. Requires a lawyer moving to withdraw from a case to submit a declaration stating
“in general terms and without compromising the confidentiality of the attorney-
client relationship” why the attorney filed a motion rather than by consent of the
client to withdraw.
1. Courts should require the moving attorney to do no more than provide
enough non-confidential detail to allow the court to understand the
general nature of the grounds asserted
e. MR 1.6 states that if a lawyer’s request to withdraw is based on a client’s demand that the
lawyer act unprofessionally (as in Lacara) the lawyer may be bound to keep confidential
the facts that would constitute such an explanation
IV. Voluntary Withdrawal and Contingency Fees
a. Contingency Fee: Lawyer’s payment is contingent upon winning the case and consists of a
percentage of the ultimate settlement.
b. You are allowed to withdraw because your client refuses to pay his fees
i. Hourly: Fairness and risk allocation favor the attorney
ii. Contingency: Same considerations cut to the client
c. Recovering Fees after Withdraw
i. An attorney who withdraws for ethical reasons may recover fees, but only if the
attorney shows:
1. Her withdrawal was mandatory, or if permissive, could survive the
heightened scrutiny by the trial court
2. The overwhelming and primary motivation for withdrawal was the
obligation to adhere to statute or state bar rules
3. The action was commenced in good faith
4. After counsel withdrew the client obtained some recovery
5. Counsel’s work contributed to that recovery
ii. An attorney billing hourly can withdraw for not getting paid
1. But if you're appearing before a tribunal, you can only withdraw with the
tribunal's consent.
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iii. You cannot recover a contingent fee unless you had a good reason to withdraw
1. Basic Rules:
a. You cannot recover anything if you unjustifiably withdraw
b. You can recover the value of your services if you justifiably
withdraw
c. Withdrawing to comply with a mandatory ethical rule counts as
justifiable; BUT
i. Merely permissive withdrawal is not justifiable
withdrawal
d. Withdrawal just because you think the case is meritless is not
justified
e. Withdrawal because a client rejects a settlement you
recommended is not justified
f. Where permitted, recovery is still w/in the discretion of the trial
court
2. Policy: If a lawyer on contingency leaves mid-case, a new lawyer may not
want to take the case b/c there may be a fee dispute w/ previous lawyer
3. Situation is VERY different if attorney is fired; can get fees for the work
you've done.
iv. Haines
1. RULE: The fact that a case is unprofitable doesn’t mean you can
withdraw – once you undertake to represent a client, you need to see
it to the end.
2. F: Firm represents clients in tobacco litigation; contingency fee; realized
payout would be exceeded by its costs; moved to withdraw since it was
too expensive.
3. Court says when an attorney reps a client, he has an obligation to see
things through
a. And when withdrawal significantly impairs a client's ability to
find counsel or maintain the action, courts have refused
withdrawal permission
i. Can be a pain to find a new attorney on contingency after
being dropped by a previous attorney for the case not
being profitable
4. Denied motion because firm fails to specify expensive, but main issue is
reliance
a. Court is concerned about ability of client to bring and maintain
suits to vindicate their rights and be compensated, as well as their
interest in relying on representation
b. Thus it's hard to drop a case just because it is not going to be
profitable
v. Falco
1. RULE: You can only recover for unjust enrichment if you had a
justifiable cause for withdrawing; and just because a court said it was
cool, it may not be justified.
2. F: Attorney represented 4 sisters in a will contest. Attorney determines
settlement is best option because he decided the challenge has no merit.
He asked clients to accept his recommendation and at least 1 said no. He
withdrew because he thought it would be unethical to go to trial –
permissive withdrawal for fundamental disagreement. Clients later get
weaker settlement.
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a. When attorney finds out, he tries to recover his costs in quantum

meriut action
3. Court held that attorney did not have justifiable cause for withdrawing so
he cannot recover
a. Can only recover for unjust enrichment if you had justifiable
cause to withdraw
b. If you abandon a case without good cause, you’re not going to get
paid
4. Rationale: Just because court let him withdraw did not mean he had
justifiable cause
a. Clients have the right to reject a settlement
i. Also, case was not totally meritless, so the attorney was
wrong
b. BUT can have a case for unjust enrichment if clients reject a
settlement and later accept a similar settlement after you withdrew
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Conflicts of Interest
I. Relevant Model Rules
a. Current Clients – MR 1.7 & 1.8
i. MR 1.7(a) – Concurrent Conflict: Forbids you from representing a client if the
representation involves a concurrent conflict, which exists if:
1. The representation will be directly adverse to another client; OR
2. There is significant risk that the representation of a client will be
materially limited by responsibilities to another client, a former client, or a
third person or by a personal interest of the lawyer
3. 99% of time = automatic disqualification/can’t represent both clients
ii. MR 1.7(b): Permits representation if 4 conditions met:
1. (1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
2. (2) the representation is not prohibited by law;
3. (3) the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same
litigation or other proceeding before a tribunal; and
4. (4) each affected client gives informed consent, confirmed in writing
II. Overview
a. Successive Conflict - A represented Smith, now represents Jones. Smith sues Jones.
i. Conflict?
1. Depends on the matter being litigated.
a. If both of the cases relate to employment issues, then you have a
conflict.
2. Any time you learn anything useful of the old client that the new client
can use, that's a problem
ii. Biggest concern is breach of confidentiality, which survives termination of
relationship
b. Current Client Conflict - client asks A to incorporate a company for them and offers stock
options as payment.
i. If you do business with a client, must make sure client understands you do not
represent them in the transaction.
1. Good idea not to do business with a client, but if you do it is allowed as
long as you do everything right
2. And if it is not fair substantively, Court can unwind the deal even if you
do everything properly.
ii. So make sure they:
1. Know you do not act for them in the transaction
2. Advise them to get another lawyer for this specific transaction, and give
them a chance to do so
3. Be prepared to demonstrate substantive fairness of the transaction
III. Concurrent Representation
a. Concurrent Clients – When an attorney represents 2 clients at the same time who have
pending actions against one another
i. Ex: A represents Smith and Jones at the same time; eventually, one sues the other
ii. First, CANNOT represent two clients who are adverse at the same time, even if
matters are unrelated.
1. Automatic DQ is the per-se rule
a. Very hard to get past a concurrent conflict problem.
2. Worried about duty of loyalty
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a. So we don't care if matters litigated are related; now, if you

represent two people at the same time, you are disqualified
iii. However, MR 1.7(b) permits representation of concurrent clients that are not
adverse if four conditions are met:
1. Lawyer reasonably believes that the lawyer is able to provide competent
and diligent representation to each affected client;
2. Representation not prohibited by law;
3. Representation does not involve the assertion of a claim by one client
against another represented by the lawyer in the same litigation, or other
proceeding before tribunal; AND
4. Each affected client gives informed consent in writing
b. When does this check need to happen?
i. Before the client walks through the door - your paralegal or front-line staff should
do this so, if anyone is conflicted with confidential information, it is them and not
you.
ii. But should also have your own conflicts database so you have actually copies of
with whom you have a potential conflict.
1. Your conflicts follow you.
c. Practice Tip – Steps to Accept Repsentation:
i. Initial interview before conflicts check
1. Find out enough to know whether you can do the work
2. Find out who is involved
3. Don’t seek confidential info
ii. Conflict check
1. Have a database of existing representations & confidences
a. Add immediately new clients & persons/entities about whom you
will have confidential info
2. Check parties who will be adverse on new representation
3. If clear, call back & accept representation
4. If not clear, decline in writing and perhaps refer (don’t violate duty of
loyalty to current client though)
d. Which clients are current?
i. Rule: Lawyer who knowingly undertakes adverse concurrent representation may
NOT avoid DQ by withdrawing from representation of less favored client at last
minute
ii. Common-But-Not-Continuous Representation: If a lawyer represents a client
commonly, but not continuously, the court may treat the client as a current client
for conflicts purposes even if there is no matter pending for the client at the time
representation is accepted that is adverse to the common client’s interests
1. Practice Tips
a. At start of representation, ensure specific retainer agreement
b. At end of representation, send a clear termination letter after each
discrete matter
e. Truck Ins. Exchange v. Fireman's Fund
i. RULE: Under the Hot-Potato Doctrine, lawyers cannot just position
themselves to represent a more lucrative client – violates duty of loyalty.
However, this is not implicated when the conflict is thrust upon them.
ii. F: Truck is sued by Kaiser over asbestos claims; Truck sues Fireman's Fund
Insurance to indemnify themselves.
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1. Truck is forced to get rid of first counsel due to conflict, retains Crosby;
but Crosby representing Fireman's Fund Credit Union in wrongful
termination suit.
2. Crosby tries to withdraw from wrongful termination, but FFCU and FFIC
are the same company, so there is a concurrent conflict.
a. Crosby thus cannot unilaterally withdraw to avoid the conflict.
b. And FF is not going to allow Crosby to walk away with all that
information and wants to stick it to Truck.
c. Why?
i. Theoretical reason – Crosby and firm have
insider/harmful info
ii. True/cynical reason – Make Truck spend more money,
delay litigation, and knock out better counsel so Truck
has to hire crappier counsel
iii. Leads to the Hot Potato doctrine
1. Lawyers can't fire clients just so they can position themselves to represent
a more lucrative client, which otherwise would be prohibited by the
conflict rule.
a. Violates duty of loyalty.
2. EXCEPTION: Hot potato doctrine is not implicated when the conflict is
thrust upon them
a. Must happen without your knowledge or initiative, but court will
DQ the attorney from both clients.
iv. Are these cases substantially related?
1. Nope - one is asbestos, the other is wrongful termination. But with
concurrent conflict, that doesn't matter.
2. Crosby is trying to drop wrongful term before hopping to Truck to make
this look like subsequent conflict, but court doesn't buy it.
a. So Motion to Disqualify was properly granted
v. At what point did Crosby breach its duty of loyalty?
1. When it decided to withdraw from Fireman to make more money
representing Truck.
vi. Could Crosby have withdrawn prior to accepting Truck, rather than after
accepting and making the motion?
1. Makes no difference; Court is offended by motives regarding the
withdrawal.
vii. What if Crosby took their chances and pulled out from Fireman's in the vague
hope Truck picks them?
1. Again, makes no difference. Harder to prove that's why you dropped the
old client, but it still feels disloyal.
f. IBM v. Levin
i. RULE: To avoid concurrent conflicts, write an explicit letter indicating you
have moved on – must look from the client’s perspective when determining if
you still represent them.
ii. F: Attorney did a few things for IBM; closes all matters, and sues them on
Antitrust issue; IBM says you represent us, but he says the matters are all closed.
iii. Court says he didn't make it clear enough that he withdrew; doesn't matter if he
isn't on retainer anymore.
1. Minimize the danger with an explicit letter that you move on.
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IV. Directly Adverse Interests

a. Parties are directly adverse when they sit "across the table " from each other in the
negotiation room, or "across the courtroom" in litigation
i. Just being competitors in business/same market does not count; economic
adversity is not direct adversity.
b. MR 1.7 (comment 6): Simultaneous representation in unrelated matters of clients whose
interests are only economically adverse, such as representation of competing economic
enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest &
thus, may not require consent of the respective clients
c. Financial Conflicts: Whether the relationship has the potential to adversely impact the
interests of the law firm’s partnership clients
i. The fact itself of an adverse party’s membership in another organization or entity
represented by a law firm cannot and does not determine the conflict issue
ii. RATHER, the significance of that individuals’ position as a member in such an
entity must be examined.
d. North Star Hotels v. Mid-City Hotel Associates
i. F: F&B reps St. Louis Centre partners; also reps North Star Hotels, which is
adverse to Mid-City Hotel Associates; Mid-City is owned by Harry Johnson and
his wife Helen; Johnson is a partner in Pineapple Management, which in turn is a
partner in St. Louis Center Partners.
1. So F&B is repping a partner in St. Louis Center and North Star Hotels
ii. Court's biggest concern is that if F&B wins and gets a ton of money in judgement
again Mid-City, Harry is personally liable for that debt.
1. Pineapple needs Harry's assets and St. Louis Center needs Pineapple's
assets.
a. No matter what they do, F&B going to hurt one of their clients.
2. F&B must represent North Star vigorously but might be tempted to pull
punches or settle early if it hurts another of their own clients.
iii. Incredibly attenuated
1. Should sit down and figure out where the money is coming from when
performing conflicts analysis
a. Sometimes in small markets you have people with their
hand/money in a lot of real estate or business deals and that’s not
immediately apparent from the entity’s name (like Pineapple)
V. Positional Conflicts
a. Conflict arises from taking different positions on the same legal question
i. Generally, positional conflicts do not create direct adversity for purposes of MR
1.7(a).
ii. Exception in Comment 24 to MR 1.7(a)
1. When you're in front of different tribunals, at different times, on behalf of
different clients
a. Inconsistent positions that might create precedent adverse to
interest of clients elsewhere won’t create conflict
2. BUT if there is a risk that action materially limits your effectiveness in
representing another client in a different case, there is a conflict.
b. Williams v Delaware
i. F: Criminal defense attorney representing two clients on death row; needs to argue
they shouldn't give much weight to jury's advisory opinion regarding one client’s
sentence, and they should regarding another client's death sentence, all to the same
court.
1. Basically, means he has to choose a client to sandbag
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2. High stakes case – should just conflict out attorney since another lawyer
should be available (Ds probably aren’t paying for counsel, so counsel
was appointed).
a. Good for judicial efficiency and preventing inevitable appeal(s)
ii. When you have a positional conflict, it requires a lawyer's DQ if the attorney
cannot effectively argue both sides of the same legal question without
compromising the interest of one client over another
VI. Limitation of Client’s Ability to Represent Zealously
a. MR 1.7(a)(2) - There is still a conflict if a lawyer’s ability to represent a client would be
materially limited by a lawyer’s duties to another current or former client, to a 3rd party,
or by the lawyer’s personal interest.
i. Note: Need to look beyond the 2 parties directly in the one legal conflict
b. Fiandaca v. Cunningham
i. F: NHLA is representing female prisoners on constitutional issues, arguing the
state must provide facilities to women that are equal to those provided to men;
concurrently, NHLA is representing Laconia School in a different matter; to settle
the female prisoner’s lawsuit, the state offers to move the female prisoners to
Laconia School for developmentally disabled, and NHLA rejects this offer
because it was materially adverse to the Laconia school clients.
1. Then the state tries to DQ NHLA because NHLA’s representation of both
clients materially limits its duties to the other clients
ii. Attorneys have an ethical duty to prevent their loyalties to one group of clients
from coloring their representation of another group of clients
1. It should not matter whether the state did this as a tactical maneuver to get
NHLA DQ’ed since these motions are inherently tactical
a. NHLA rejected the state’s offer because it would be against
Laconia’s interest
b. Settlement offers are just as good of a reason to DQ as adverse
litigation. The settlement was adverse to the lawyer’s other
clients.
2. Question is whether NHLA’s counsel was able to represent the class
unaffected by the divided loyalties.
a. Also, we will not permit a meritorious DQ motion to be denied in
the interest of expediency, so fact they made this motion on the
eve of trial does not immediately kick it out.
3. However, not worth re-trying and allows liability finding to stand
a. The effect of the conflict is a rejection of settlement offer, but the
prison was bad, and this was going to go to trial anyway.
b. We just need new counsel to determine remedy.
iii. What can the lawyer do to get around this problem?
1. L should have specified all conflicts in his retainer and gotten clients to
waive
iv. Was the State's decision to offer the developmentally disabled school to the prison
intentional?
1. Maybe, though it wasn't the first option they forwarded.
2. If sole motivation was to mess up litigation, would need to consult PR
rules to see if any violation, like fraudulent misrepresentation happened.
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VII. Subsequent Conflicts

a. MR 1.9(a) – Duties to Former Clients: A lawyer who has formerly represented a client
in a matter shall not thereafter represent another person in the same or a substantially
related matter in which that person's interests are materially adverse to the interests of the
former client unless the former client gives informed consent, confirmed in writing.
b. Successive Conflict: When an attorney represents a client with interests that are
substantially similar to a matter the attorney handled for a former client.
c. When a lawyer opposes a former client, the rules are more concerned about duty
confidentiality than duty of loyalty
i. “Substantial relationship test" to disqualify a former attorney : Where the requisite
relationship between subjects of the prior and current representation can be
demonstrated to be substantially related, access to confidential info by the attorney
in the course of the first representation is presumed and disqualification of the
attorney’s representation of the second client is mandatory.
ii. Need to point to specific facts that will overlap
1. What material facts from a previous matter would a reasonably prudent
attorney have uncovered in the prior case?
a. Is that information at all usable in the subsequent case?
b. Limit: NOT appropriate for the court to inquire whether actual
confidences were disclosed
2. Don't just rely on the cause of action.
a. Look for overlap.
iii. Imputation based test
1. MR 1.9(b): A lawyer shall not knowingly represent a person in the same
or a substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client
a. (1) whose interests are materially adverse to that person; and
b. (2) about whom the lawyer 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.
2. What did you learn in the scope of the representation?
a. Irrebuttable presumption that you learned all the facts reasonably
related to the scope of the representation
3. What would you learn in representing the new client in the second matter
iv. If there is an overlap – there is a substantial relationship
1. Easier to get past than a concurrent conflict problem though
v. Economic adversity doesn’t really count
vi. Duties to former clients:
1. Lawyer must NOT act adversely to them in a matter substantially related
to the prior representation; OR
2. Lawyer must NOT use or disclose confidential info learned in the
representation to the disadvantage of former client unless info has become
generally known.
a. MPRE likes to test use of former client knowledge that doesn’t
hurt client, which is actually ok so long as use is not to the
disadvantage of the former client under MR 1.9(c).
vii. Balance of interests in determining disqualification
1. Party’s right to counsel of choice
2. Lawyer’s interest in representation a client
3. Financial burden on a client replacing DQ’d counsel
4. Tactical abuse
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viii.Burden is on moving party to show sufficient reason why lawyer should be DQ’d
ix. DQ orders are reviewed on appeal under abuse of discretion standard of review
x. Lawyers cannot trash their prior work product (Knight v. Ferguson CA 2007)
xi. Rule assumes L finalized first matter with client 1. If that matter is ongoing,
deemed to still be representing client 1 and concurrent conflict rules above
(loyalty test) apply
1. Characterize Matter 1. Material facts including facts that a reasonable
lawyer would have learned in cases of that type
a. Presumption that the lawyer learned information that he should
have learned, even if he didn’t actually
2. Characterize Matter 2. Same way as matter 1
a. If there is no overlap, there is no conflict under MR 1.9
b. If there is an overlap, courts typically do not evaluate the
substantive significant of the overlap
c. Typically find a conflict if L found something in Matter 1 that
would be useful to him for Matter 2
3. Courts tend not to evaluate substantive significance of overlap beyond
materiality
d. Analytica v. NPD Research, Inc.
i. RULE: Because of the duty of confidentiality, Lawyer is prohibited from
using confidential information that he obtained from a client against that
client on behalf of another one
ii. F: Malec was employee of NPD; NPD decides to transfer two shares of stock to
him as a bonus; NPD instructed Malec to get an attorney, to be paid by NPD, who
would structure the transaction.
1. Malec hired a lawyer with Schwartz & Freeman to do the work, and NPD
gave the attorney information on financial condition, sales trends, and
management.
2. Stock was issued, and eventually Malec left work.
3. Subsequently Malec's wife incorporates Analytica to compete with NPD,
and hires Schwarz & Freeman to represent them in a case involving anti-
competitive behavior and, eventually, an anti-trust suit.
4. NPD filed motion to DQ the attorney, and the attorney appealed.
iii. Duty of confidentiality drives this result.
1. Doesn't matter who S&F represented in the prior case; what matters is that
NPD gave them information.
a. And duty of confidentiality survives the termination of a
relationship.
2. Two cases:
a. One involving issuance of stock
b. The other is an antitrust suit
3. Doesn't seem related, BUT issuing stocks requires NPD open up their
books to show market share and profitability
a. Those are the same things you need to know in an antitrust suit
iv. Case Questions
1. Since the information overlaps, the duty of confidentiality is implicated.
a. S&F properly DQ'd.
2. Why does it not matter if NPD was S&F's client?
a. Because there's a duty of confidentiality problem even without
attorney-client privilege issue.
3. How are the cases related?
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a. Issuance of stock information is germane to the antitrust suit

b. Think broadly about what information is actually relevant.
4. What is the purpose of the subsequent conflict rule?
a. Prevent ultimate disclosure of confidential info
b. Don’t want client to be hesitant to share info
e. Business Conflicts vs. Legal Conflicts
i. Business conflict: People/entities competing in the market who are not on the
other side of “v” and thus not in a direct legal conflict
ii. Default rule: Mere business conflict doesn’t trigger legal conflict that warrants
DQ
iii. Exception: If the market is small, if the issue at stake is big enough part of the
business, & if the risk of misuse is high, then the BC could mature into a LC
1. Standard: Factor/case-specific to see if BC or LC, BUT the preference is
in favor of finding a BC
f. Maritrans v. Pepper, Hamilton & Scheetz
i. F: Pepper & Hamilton represents Maritrans in corporate finance and labor issues;
guy named Messina handles labor problems;
1. Counsel represented Maritrans and then went to represent other clients in
the same industry, but not in a matter directly adverse to their old client.
2. However, Maritrans still moved moved to disqualify Messina in the labor
problem
a. Claims that if their clients succeeded in lowering wages and
benefits to union workers, these clients would have lower costs
and would be able to compete more effectively with Maritrans.
ii. Court said Messina was appropriately DQ'd
1. Pepper said this was just a business conflict; they are representing a
competitor, but only because they also pay legal fees.
2. However, there are some problems with that argument.
a. Messina is doing a ton of non-legal work
i. Was Messina doing business stuff, or lawyer stuff?
1. Messina was doing a lot of business-related stuff,
but a business would be more interested in an
attorney who knows how to do both.
2. It's completely appropriate for him to do this but
can create some problems later on down the road.
b. Pepper represented the company for a long, long, long time, and
there is a super tight economic relationship between the
competitors.
i. Only two or three competitors within this industry, and
any advantage for one harms the other
ii. That is an extremely important factor; in an industry
where the competition is not that tight, representing
multiple competitors won't DQ an attorney
iii. Case Questions
1. What factors significantly limit the scope of this case?
a. Super close industry
b. And it only involves a labor dispute
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VIII. Conflicts in Criminal Cases

a. A prosecutor can raise a conflict of interest on the part of defense counsel
b. Active conflict that adversely affects representation is a ground for finding counsel
ineffective under Strickland
c. Rule: Right to counsel is qualified (not absolute) b/c D does NOT have the right to counsel
of choice, just the right to conflict-free counsel
i. Plenty of criminal attorneys out there to represent Ds so shouldn’t be hard to find
new counsel (especially true if D given counsel from PD
d. Wheat v. United States
i. F: Iredale represents Gomez-Barajas and Bravo; wheat implicated in Drug
smuggling case with same co-defendants; Gomez was tried and acquitted, but to
avoid a second trial on other charges, he pleads guilty to other offenses; Bravo
pleads guilty; Wheat moves to bring on Iredale as his counsel right before trial
commences
1. Prosecutor concerned about whether the attorney will be conflicted
a. USDC has not yet accepted the plea deal with defendant one
b. Attorney's representation of D2 directly affects his ability to act as
an attorney for D1
i. Gomez may be called to testify against Wheat, allowing
attorney to cross-examine his own prior client.
1. Or he won't, and that hurts Wheat
c. Wheat wants to waive the conflict
ii. Supreme Court focuses on
1. Parade of horrible things that can happen
2. Judge's duty to ensure counsel of choice is respected
3. The conflict waiver
a. Not going to rule on whether or not they are dispositive, but it's
within the court's discretion as to whether or not to accept this
conflict waiver.
b. Need to afford substantial latitude to allow them to deal with the
shadiest attorneys
iii. Could prosecutor ethically move to remove Iredale since he won before?
1. No, not really; sort of ruins the whole idea of our adversarial system.
2. Courts should prefer client's counsel of choice.
e. Conflicts of Interest and the Strickland Test [605]
i. Cuyler v. Sullivan: trial courts are not obliged to inquire whether counsel jointly
representing defendants has a conflict of interest.
1. Courts will not presume prejudice when a defendant asserts a conflict,
except in the presumably rare case where the defendant raises the issue
and the court refuses to consider it.
ii. Strickland standard: in order to establish a violation of the 6th Am, a defendant
who raised no objection at trial must demonstrate that an actual conflict of interest
adversely affected his lawyer’s performance. SHOULD UPDATE with
objectively reasonable and adequateness was reasonably probability.
iii. Mickens v. Taylor: Sullivan standard applies to “active” (concurrent) cases.
1. Lawyer had been representing X and Y, then X (allegedly) kills Y,
question is whether it is a conflict for attorney to keep representing X.
2. Court held: X would have to establish that the conflict of interest
adversely affected his counsel’s performance.
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IX. Imputation of Knowledge and Screening

a. Relevant Model Rules
i. MR 1.10(a) – When lawyer’s work in a firm, none of them can represent a client
that any one of them would be prohibited from representing under MR 1.7/1.9
1. If A leaves firm X for firm Y, there is a presumed taint to firm Y such that
no one at firm Y can be adverse to one of A’s former clients in a matter
substantially related to A’s representation
a. Rebuttable by appropriate screening
ii. MR 1.10(b)
1. If A leaves firm X, it depends on whether any attorneys remaining at firm
X have any material knowledge regarding the matters of A’s clients
a. If yes – then A’s knowledge is imputed to firm X
b. If no – then MR 1.10(b) says that firm X can accept matters
adverse to A’s former clients even where those matters are
substantially related to A’s work for his clients while at firm X
iii. MR 1.9(b):
1. If B leaves firm X for firm Z, B no longer presumed to have knowledge of
X’s matters
a. All B needs to do is submit an affidavit stating he acquired no
knowledge
i. "B never worked on the matter with A at firm X"
iv. Always keep track of your conflicts and screening
1. Otherwise you'll make the new firm pissed if they get bounced because of
one of your conflicts
b. Imputation from Firm to Lawyer
i. Imputed knowledge doctrine: Knowledge by any member of a law firm is
knowledge by all of the attorneys in the firm, partners as well as associates
1. Effect: Once the lawyer is shown to have had probable access to former
client confidence, the court will impute such knowledge to the entire firm,
prohibiting all members of the firm from participating in the case.
ii. Rule: DQ should not be ordered where there’s no reasonable probability the firm-
switching lawyer had access to confidential info (related to current representation)
while at the at old firm
iii. Burden: Lawyer whose DQ is sought carries burden of affirmatively showing he
had no exposure to confidential info relevant to current action at former firm.
iv. Adams v. Aerojet-General Corp.
1. Factors to consider
a. Relationship between attorney and former client's
representation
b. The amount of time spent by attorney working on behalf of
former client
c. Attorney's possible exposure to formulation of strategy in
matters relating to the current dispute
d. Whether the attorney was within the same branch office
e. Whether duties may have placed him in a position wherein he
would have been exposed to matters relevant to corporate
dispute
2. F: Hackard was a named partner at a firm repping Aerojet on
evironmental matters; billing records show he never worked on Aerojet
matters, and he states he never discussed the case with any attorneys.
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a. Hackard leaves the firm and starts his own practice, repping a
plaintiff against Aerojet.
i. Looks like he figured out where the problems are and
now is coming after us.
b. Aerojet moves to DQ Hackard claiming he was representing P in
a position adverse to a former client
i. Trial court agreed, determined imputed knowledge and a
substantial relationship; automatically DQ'd.
3. Appeals reversed; not saying Hackard is not conflicted, but the trial court
needs to analyze whether Hackard got information
a. DQ was inappropriate, as there is reasonable probability that this
attorney had no access to confidential information while at his
former firm
i. Court must determine whether the confidential
information material to current representation would
normally have been imparted to attorney
b. Auto DQ cannot be the rule - must inquire whether attorney
would be reasonably likely to have obtained confidential
information
i. Can demonstrate with…
1. Affidavits; billing; discovery; e-mails; common
sense matters
4. Does it actually seem believable he never dealt with Aerojet?
a. No - not really. He is a named partner and this is a primary client;
inevitable he heard about things.
b. Further, he is suing regarding the exact subject matter the old firm
repped Aerojet on.
i. This is what the dissent really digs into; concern is the
court is now putting it on Aerojet to prove this guy does
not have information, rather than on the attorney
c. Screening Process
i. MR 1.10(a)(2): A firm that has acquired a new lawyer can rebut presumption of
shared confidences by implementing an effective screen
1. Lawyer can’t receive any part of fee from the matter creating the conflict;
2. Former client must be notified & given description of screening
procedures along with affirmations that procedures were followed; and
3. Screening firm must respond promptly to queries from former client and
update its affirmations of compliance at reasonable intervals
ii. Elements of an effective screen:
1. The screen must be timely imposed (critical)
a. A firm must impose screening measures when the conflict first
arises
b. Screening should be implemented before undertaking the
challenged representation or hiring the tainted individual
2. It is not sufficient to simply produce declarations stating that confidential
information was not conveyed or that the disqualified attorney did not
work on the case
a. An effective wall involves the imposition of preventive measures
to guarantee that information will not be conveyed
iii. Building a good ethical wall
1. Do something affirmatively that show preventative measures are taken
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a. Memo to attorney AND everyone else at the firm

2. Include violations for harming the screen and sanctions that is covered in
that memo
3. Geographic, physical, departmental, & electronic restrictions imposed
4. Established rules and procedures that prevent access to confidential
information and files
5. Procedures preventing a disqualified attorney from sharing in the profits
from the representation
6. Effective continuing legal education in professional responsibility
a. Firm regularly does CLE and everyone knows not to talk to
tainted attorneys
7. DQ’ed attorney has no supervisory powers of the other attorneys involved
8. Notice to the former client
a. Ensures ex-client is aware of the issue, and you are taking steps to
deal with it
b. Further, if the former client knows the attorney is doing X, Y, and
Z, it's less likely the client will sue
9. Note: Not all elements necessarily need to be met; varies case-by-case
iv. Policy for allowing ethical screens
1. Changing realties in practice of law which undermine the rational for an
automatic rule of vicarious DQs
2. Favorable experience with ethical walls in other circumstances
3. An understanding of policy considerations which supports the recognition
of ethical walls in the proper cases
v. Kirk v. First American Title
1. F: Class action suit; four years after litigation begins, attorneys who
repped First American Title and affiliates moed to another firm; the
attorney at their new firm, Cohen, previously had a phone call with the
plaintiff's counsel in 2007 when they explored the possibility of retaining
him as a consultant.
a. Once the firm found out, the ethics counsel then called Cohen,
figured out there is a problem, and sends out a memo that night
i. The memo said Cohen cannot talk to anyone, and no one
can talk to him about class action information
b. Plaintiffs move to DQ FAT's firm, since finding new counsel
would cost FAT a lot of money, and it'll push them to settle
i. Court feels like Cohen was given confidential information
in the prospective interview, so could not participate in
the class action.
ii. Then found that Cohen tainted the ENTIRE firm, so it
cannot represent AT, and their ethical wall did not work
1. Creates an automatic disqualification
2. Appellate court reverses
a. Changes in the practice of law mean people move firms a lot
more than they used to.
b. California has a solid history of dealing with ethical walls,
especially with government attorneys going into private practice
i. Can be screened out from certain matters
c. There is thus a rebuttable presumption that attorney's knowledge
of client confidences was shared with others
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i. Can be refuted with evidence firm adequately screened

attorney away, and evidence didn't support finding that
the firm's ethical screening wall as breached.
d. Best way to balance interests of clients of both sides
i. Clients want to know their confidence is protected, while
attorneys need to be able to move around
e. However, when an attorney switches from one side to another in a
continuing case, it's probably impossible to screen then
i. So can DQ on that.
3. Case Questions
a. What can be rebutted?
i. Imputed Knowledge
b. When does DQ remain automatic?
i. When an attorney switches sides
c. Does firm have to employ all measures?
i. No; you don't have to do all of them, but it's a good idea
to do all of them.
X. Client Consent and Waiver
a. Overview
i. MR 1.7(b)(4) & 1.9(a): Clients may consent to allow lawyer, or former lawyer, to
undertake matters they would otherwise be barred from taking so long as consent:
1. Informed AND
a. MR 1.0(e) – Informed Consent: denotes the agreement by a
person to a proposed course of conduct after the lawyer has
communicated adequate information and explanation about the
material risks of and reasonably available alternatives to the
proposed course of conduct
2. In writing.
a. Pretty straight forward
ii. Another Definition of Informed Consent
1. Attorneys who undertake to represent parties with divergent interests owe
the highest duty to each to make a full disclosure of all facts and
circumstances;
a. Which are necessary to enable the parties to make a fully
informed decision regarding the subject matter of the litigation;
b. Including areas of potential conflict and the possibility, and
desirability, of seeking independent legal advice
iii. MR 1.7(b) - Client can provide consent to concurrent conflicts ONLY IF attorney
reasonably believes he can faithfully fulfill his duty to both clients
1. MR 1.7(b)(3) - Exception: Cannot represent both parties in same
litigation, regardless of if they want to give consent.
b. Conflict Letters
i. The method by which you get informed consent in writing
1. You'll have a verbal conversation about conflicts, but you will
memorialize that in a detailed letter or e-mail.
ii. You're effectively writing this letter to both your client and the court
1. Eventually they'll want to see you explained everything in extreme detail
a. Expect everything you write will eventually appear in front of the
court or the state bar
iii. Contents of the Letter
1. Legal document in a language the client should understand
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2. Define what a conflict is, in short declarative statements.

a. Even when dealing with a sophisticated person
3. Don't hide the ball
a. If there is a real conflict, you need to make that as explicit as
humanly possible
b. Disclose all of the information you can
4. Don’t minimize disadvantages to consenting
5. Recommend that the plaintiff should seek outside counsel before signing
the letter, and give them an opportunity to do so.
a. Don't trust me - seek outside counsel.
c. Klemm v. Superior Court
i. RULE: Potential for conflict is not enough to bounce concurrent litigation in
the same action; there must be ACTUAL conflict.
ii. F: Klemms have two kids, agree to very congenial divorce with joint custody;
want the same attorney, who is willing to represent the clients; however, an issue
arises when Judge suggests Dale should pay child support to Gail; Gail opposes it.
1. Once the judge starts asking question, confusion begins to reign.
a. So if you're doing something weird, make sure client can answer
inevitable questions.
2. Further, the fact husband is paying the wife shows he is making more than
the wife, raising concern he may be paying attorney.
a. Judge DQ'd the attorney who appealed the issue
iii. Held: Potential for conflict is not enough to bounce concurrent litigation in the
same action; there must be ACTUAL conflict. Thus, since there is no actual
conflict here, she can represent both client.
1. There cannot be any actual conflicts however, and attorney can only
represent the clients on matters to which they agree.
iv. Why did the wife fight the child support order?
1. The money is probably going to the county, rather than to the wife
2. Or this was a bargaining chip between parties
a. Potential collusion to avoid having to pay into county system
v. Why is this a bad idea?
1. You never know when a conflict may arise, DQ'ing the attorney
2. And, down the line, you can get sued for malpractice for not adequately
representing the party that got the short end of the stick
a. Someone is going to be unhappy at some point (yay family law!)
and then try to appeal
3. So just because you can do something, does not mean you should
XI. Transactions with Clients
a. MR 1.8(a) - Cannot do a deal with a client, or acquire knowingly acquire an ownership,
possessory, security or other pecuniary interest adverse to client, UNLESS
i. Transaction and terms on which interest is acquired are fair and fully disclosed in
writing in a manner that can be reasonably understood by the client
ii. Client advised in writing he or she may wish to consult an independent lawyer
regarding transaction; AND
iii. Client consents in a signed writing that sets forth essential terms of transaction
and lawyer's role in it, including whether lawyer represents lawyer in transaction
1. Applies even if business is unrelated to subject of representation
2. Further, MR 1.8(c) says cannot solicit gift from a client, or from
preparing document of gift/will, unless the client is family
b. As a general matter, not a great idea
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i. Thing you can do but should not do.

ii. However, tends to come up a lot with younger attorneys
1. Taking something on and taking a piece of the deal might seem nice, but
it's just a bad idea.
c. Prima facie case: When a party seeking legal advice consults an attorney & secures that
advice, the relation of attorney & client is established
d. Presumption: Such transactions are always scrutinized by courts with zealous care, and are
set aside at the mere instance of the client, UNLESS the attorney can show by extrinsic
evidence that his client acted with full knowledge of all the facts connected with such
transaction, and fully understood their effect
e. Burden: Burden of proof is always upon the attorney to show that the dealing was fair and
just, and that the client was fully advised
f. Beery v. State Bar
i. F: Coss is paralyzed and Beery reps him in a PI case, winning big; Coss asks
Beery to draft up a will, which Beery doesn't want to do, but Beery does help
incorporate a business for Coss; Coss then asks Beery to help him invest the
money, wanting a high rate of return; Beery suggests he invest in Beery's satellite
company and guarantees investment; as it turns out, the company is a dud and
fails.
1. CA charged attorney for entering a business relationship with client
ii. Three main issues
1. Corporation Representation/Personal Injury Representation
a. Both parties know, and agree, he represented client at this point
and helped him set up a business
2. Will
a. Barry believes the representation ends here, when he refused to
draft the will
3. Satellite Company
a. The Court, and the client, believe that Beery represented him in
all three matters
iii. Court holds Beery took advantage of Coss
1. Did not fully inform him of the conflicts or problems with the transaction.
2. And this transaction was not fair; Coss is left holding the bag.
iv. Muth Questions
1. First, is client sophisticated?
a. No; he was a manual laborer with no experience in finances or
investment. He just had a lot of money and wanted to invest in it.
b. Courts do heavily consider this factor, especially when it comes to
protecting an innocent person
2. With respect to the will and PI/Corporation representation, the firm should
have done?
a. Send termination letter to the client thanking him for choosing the
firm, and clarify they are not going to handle the will.
i. Can even be an email
b. Beery believes he represented the client in three, separate
transactions, but the court disagrees
i. It's all part of this same representation
3. What did Beery not disclose that would've been helpful?
a. Beery was principal in the satellite company, and that the
company entered into its first contract three months prior the
soliciting the investment
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b. Further, the company could not successfully solicit any traditional

lenders
c. Finally, needed to tell him he had a right to discuss all of this with
other counsel
4. What about fact Beery personally guarantees the loan of $35k?
a. Doesn’t help anything; he didn't have the money to pay the loan,
and actually tried to leverage it into inducing Coss to provide the
loan.
v. Case Questions
1. What problem does this share with Mitchelson?
a. No termination letter; make it clear who is your client and any
given moment.
2. What standard governs advice given to client in lawyer-client
transactions?
a. Fairness; are the terms fair?
b. Even if you disclose everything and the deal isn't fair, you can
still get hit
3. What right does client presumptively have in regards to these
transactions?
a. Right to consult independent counsel
b. Right to refuse the deal
c. Right to set aside the transaction unless the attorney can (a)
demonstrate that informed consent was given; & (b) deal is fair.
i. Need both prongs
4. What must lawyer do to rebut presumption of undue influence?
a. Show the client is fully informed with a letter outlining the terms
of the deal and all the client's rights.
b. And that the deal is fair.
i. There is a market for this, and this is what people are
paying; OR, if there is no market
ii. Find an expert to say that this deal was fair
1. Turns into a battle of the experts, which can make
it costly, but that's why you should avoid these
sorts of transactions
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Relations with Third-Parties on Behalf of Clients

I. Represented Persons
a. MR 4.2 – Communication with a Represented Person
i. Individual Person:
1. When you represent a client in a matter, you may not contact a person
represented by counsel with respect to the matter UNLESS you have
permission of that person’s lawyer
a. Note: Applies even if the person consents/initiates contact
ii. Corporation:
1. When you represent an entity, some of the individual persons are
represented by the attorney
2. You cannot speak with constituents of the organization who supervise,
direct, or regularly consult w/ organization’s lawyer concerning the matter
b. MR 3.4(f)
i. You may not request any person to decline voluntarily to provide information to a
party UNLESS that person is your client, relative, employee or other agent of your
client
ii. You cannot tell former employees not to talk
c. Snider v. Superior Court (CA)
i. Facts:
1. Quantum sued former employee for unfair competition/misappropriation
of trade secrets for starting his own company after leaving
2. Snider’s attorney contacted 2 Quantum employees to discuss the case
a. Why talk to employees without notifying opposing counsel?
i. Reach employee early before foreclosed to only formal
discovery where employees get coached
ii. Don’t want to tip off opposing counsel on relevant
witnesses so opposing counsel can just go to employee
and say refer counsel to me if they approach you
b. Issue is whether the 2 were “managing agents”
c. Arguments for:
i. Janikas managed some employees and had some
influence on policy even if not ultimately deciding
corporate policy
ii. Lewis – Managed 19 employees, which was half the
company
d. Arguments against:
i. Company had 2 directors and only 40 employees
ii. They were both supervisors but did not set policy
3. Quantum filed a motion to disqualify Larabee based on improper contacts
with a represented party
ii. Holding:
1. No disqualification
a. Upjohn & the “Control Group” test: A represented party means
members of the control group, corporate managing-speaking
agents or employees whose actions or omissions could be binding
on or imputed to the organization
b. CRPC 4.2 Managing-speaking agent test:
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i. A party is represented only if the employee has authority

to speak on the employer’s behalf, such as high-ranking
executives and spokespersons
ii. A managing agent is an employee who exercises
substantial discretionary authority over significant
aspects of a corporation’s business (like decisions that
ultimately determine corporate policy) and is more
than a mere supervisory employee
iii. Larabee and Lewis (via no dec.) did not have actual
knowledge that they were employees in the control group
– managing-speaking agents
c. Employees did not have knowledge of subject matter of litigation
that could be imputed company
i. No evidence that either had authority to speak on dispute
or subject matter of litigation
1. There was “what’s the ‘real reason’ for lawsuit”
question to Janikas, but Larabee got lucky b/c
didn’t get any info so no harm no foul there
2. Neither employee fits this description
a. No communication with a represented party
b. No actual knowledge – no violation
d. Notes:
i. MR 4.2 does not prohibit contact with former employees; it follows that you may
interview former employees without asking permission from counsel for the entity
ii. MR 4.4 requires that counsel not use methods of obtaining evidence that violate
the legal rights of third persons
iii. Managing-Speaking Agent Test Policy: Best balances competing policies of
protecting the organizational client from overreaching by opposing counsel
through direct contact with its employees and agents, and the adverse attorney’s
need for info in the organization’s exclusive possession that may be too expensive
or impractical to obtain through formal discovery
e. Practice Points:
i. To avoid potential violations of the AC privilege:
1. An attorney contacting an employee of a represented organization should
question the employee at the beginning of the conversation, before
discussing substantive matters, about:
a. The employee's status at the organization,
b. Whether the employee is represented by counsel; and
c. Whether the employee has spoken to the organization's counsel
concerning the matter at issue
ii. If you don't want opposing counsel talking to your people because you consider
them part of the control group, send a letter to opposing counsel saying that these
people shouldn't be spoken to
iii. Going through regular channels of discovery can tip off entity's opposing counsel.
1. Then it'll be hard to get anything good out of the people b/c they'll be
prepped for a deposition.
iv. Don’t list people on disclosures/witness list if you haven’t talked to them yet
v. To avoid Lewis issues, write a declaration for someone (protected by atty work
product priv then) or at least explain what you expect to be in declaration
vi. Can client contact other side (no attorneys)?
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1. Yes they can, but if scripted by atty, then no (only prep is allowed – fine
line that is similar to prep vs coaching in depos)
II. No-Contact Rule & Undercover Investigations

a. MR 8.4(a) prohibits lawyers from using 3rd parties (paralegals, investigators) to do things
that the lawyers cannot do themselves
i. Combine with MR 4.1 (prohibition on materially false statements)
ii. Combine with MR 4.2 (forbidding conduct with represented parties without the
permission of the relevant lawyer)
b. Permissible:
i. Civil rights – “testers”
1. Lawyers may employ testers to see if a potential defendant does in fact
discriminate on an impermissible basis
ii. IP cases in which investigators may purchase “knockoff” goods to establish the
basis for an infringement claim
iii. Government lawyers who work with undercover law enforcement to gather
evidence of crimes
III. No-Contact Rule & Class Actions
a. Before class certification: Potential class members are not represented until the class is
certified so opposing counsel can talk to them
b. Post-certification  each member of the class is represented
IV. Unbundling
a. Rule: Person who is represented by attorney for one minor purpose is considered
“unrepresented for purposes of MR 4.2 UNLESS the lawyer who wants to communicate
with that party has knowledge to the contrary.
V. Extension of Liability
a. Relevant Model Rules
i. MR 8.5(a)
1. A lawyer may be disciplined by his or her licensing jurisdiction for
conduct occurring outside that jurisdiction
2. A lawyer offering services in a jurisdiction may be disciplined by that
jurisdiction even if the lawyer is not licensed there
ii. MR 8.5(b)(1)
1. For conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits govern
iii. MR 8.5(b)(2)
1. Provides a choice of law provision for other cases
2. It states that the rules of the jurisdiction in which conduct occurs govern
that conduct unless the predominant effect of the conduct is felt in a
different jurisdiction, in which that jurisdiction applies
b. In Re Howes
i. F: Howes is prosecuting a guy for murder in DC; D is represented by a PD;
Howes gets a call from D wanting to tell the detective a story; goes to supervisor,
and supervisor says don't ask questions but listen to him; defender is pissed off.
1. Two problems are (1) problem with D calling the prosecutor w/o
prosecutor knowing; and (2) prosecutor agreeing to take the call.
a. Also, third party issue with telling detective to keep taking calls
and then relaying that info to prosecutor
2. Key point is prosecutor is on notice that D is represented by counsel.
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ii. Howes argues that all he did was listen, and the fact D called was the public
defender's problem.
1. However, the rule exists to protect laypeople from being dumb and doing
stuff like this
iii. Also argues he did not go rogue and brought it up the chain of command.
1. Supervisor was primarily concerned with the constitutionality and
admissibility of evidence.
iv. And argues what he did was constitutional
1. True, but this is PR ethics issue, not constitutional issue
v. They have a hearing on this, but the trial judge doesn't tell the prosecutor to stop
listening to the calls. Just tells defense counsel to control his client and laughs.
vi. Does the argument that all he is doing is listening seem compelling?
1. No; listening to the client sends a message back implying that you are
listening or considering what he is saying.
2. Further, he was solely concerned with admissibility; not whether he is
allowed to take this call. Should've been looking at himself as a lawyer,
and not just a prosecutor. Sucks for him that supervisor didn’t do that.
vii. What should the prosecutor have done?
1. Don't know who he was calling, so picking up isn't a problem; but you
need to say I can't talk to you, hang up, and notify the public defender.
viii. What if he says I did it and I want to talk deal?
1. Still represented, still has counsel, so you still shouldn't talk to him.
ix. What does the trial court in DC rule?
1. The evidence is admissible - not saying what he did precluded that
evidence from actually coming in.
2. But NM bar gets referred the ethical issue & dings him on a few problems
a. Reliance of advice of supervisors
b. Communication unauthorized by law
x. How does New Mexico court treat reliance on advice of supervisor argument?
1. Prosecutor didn't question the ethical problem - it was the admissibility.
So ask about both.
2. Further, you need to be cognizant of your own ethical obligations. Ethical
requirements do not go away just because you are new.
a. Though under Model Rules, if supervisor gives an opinion as to
ethical choice, and its with respect to reasonable outcome, might
get protected.
b. But you must actually ask the question about ethics, and this has
to be a close-call; here, it plain out said don't talk to represented
parties.
3. What if the partner is insistent that this isn't an ethical problem?
a. Summarize the problem in an e-mail and confirm this is what they
want you to do.
VI. Unrepresented Persons
a. MR 4.3 - When a lawyer deals with an unrepresented person on behalf of a client, the
lawyer may not state or imply that he/she is disinterested
i. Cannot just make yourself seem disinterested
ii. If you know or reasonably should know that the person misunderstands who you
represent, and what you are doing, you must correct it.
iii. If you know, or reasonably should know, the person's interests conflicts with your
client, you cannot give them legal advice EXCEPT to tell them to consult their
own lawyer
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b. MR 4.3 comment: An unrepresented person, particularly one not experienced in dealing

with legal matters, might assume that a lawyer is disinterested in loyalties or is a
disinterested authority on the law even when the lawyer represents a client. During the
course of a lawyer’s representation of a client, the lawyer should not give advice to an
unsophisticated person other than the advice to obtain counsel.
c. Hopkins v. Troutner
i. RULE: Courts treat negotiations between Attorneys and Pro-Se Plaintiffs
differently than negotiations between attorneys.
ii. F: IIED and sexual assault case; representatives of defendant contacted P and gave
him the D counsel's phone number; engaged in negotiations to settle the case; P
agreed to settle, but asks D's attorney what the case was worth, gives opinion of
~$3k-4k; P demands $6 k, D then offers $5,500; P accepts; new attorney jumps in
and immediately files to unwind.
1. Basically, he wants to undo the deal after finding out a lot of other
plaintiffs got more and getting new counsel.
iii. Trial judge permits the unwinding of the deal based on the fact the attorney
overreached.
1. Here, D’s counsel advised P as to how much the case was worth and not
max amount D was willing to settle for.
a. Dissent would argue there was no reliance, since P negotiated
something higher than the $4k mark.
i. BUT is $3k-4k a reasonable amount for settling?
Probably not.
ii. Also, P was sympathetic person so that could have
impacted decision
b. Also, the “advice” wording is almost interchangeable with what
would have been proper
2. This constitutes legal advice upon which D should expect P to rely.
a. Dissent claims this wasn't legal advice; it was part of negotiations.
b. This would've been fine if it was two attorneys, he is representing
himself, so why treat them differently?
iv. But majority wins the day; so what should Defense have done?
1. Qualify whatever advice you are giving as to your client's position.
a. Must be very thoughtful with everything you say.
2. Then follow up in writing with what you said so there is no argument over
what you are saying.
v. Note, though, that not every single court will treat Pro-Se litigants like this.
1. In CA, however, judges treat pro-se litigants with kid gloves. And this is a
very sympathetic plaintiff.
VII. Embarrassing or Burdening Others
a. Idaho State Bar v. Warrick
i. RULE: Under MR 4.4(a), in representing a client, a lawyer shouldn’t use
methods that have no other purpose other than to embarrass, delay, or
burden a third-person.
ii. F: County prosecutor bringing case against drug-dealer; goes to the jail and
running through the case with the cops; on the whiteboard under guy's name he
writes scumbag and waste of sperm; prisoner winds up seeing it and files ethics
violation; attorney argues he didn't violate the rule because the drug-dealer wasn't
a client but admits writing the derogatory words.
1. Prosecutor suspends practice for 30 days and has to re-take the MPRE.
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iii. Purpose wants to embarrass or induce bias against the drug-dealer, and
prosecutors are held to a higher standard.
1. Cannot mock the other side; even though he probably just wanted to
create rapport with the cops, there is still a line and he crossed it.
2. Plus there is no value in this statement; different than writing armed and
dangerous to warn the public.
Relationship with your firm
I. Agency Law
a. Standard Agency-Principal relationship between you and the firm, and you and the client.
b. Fiduciary Relationship of Duty of Care, Loyalty, and Good Faith.
II. Soliciting Former Clients
a. Rule: A lawyer leaving a firm cannot tortuously interfere w/ a firm’s continuing business
b. After termination: Lawyer still has obligation to ensure a successful transition of counsel
c. Reeves v. Hanlon
i. RULE: Don’t be a dick. Attorneys engaged in unlawful and unethical
conduct by mounting a deliberate campaign to disrupt ’s business and
attorneys have obligation to firm and clients
ii. F: Hanlon and Greene leaves Reeves to form their own law firm; took all of their
stuff with them, deleted computer files/data, and wound up screwing over Reeves;
then contacted clients directly to solicit them away from Reeves; Reeves lost
clients, employees, and important information, so they sue H &G.
1. Intent was clearly to cripple the firm and bring as many clients as
possible.
2. But they also harmed clients and the way they went about doing things
was too far.
a. Issue on appeal revolved around inducing employees to come
with them to the new firm; and that creates an odd issue as to
whether soliciting employees is illegal.
iii. At appeal, the main issue was whether there could be intentional interference in an
at-will employment contract; then who has the burden of proving interference.
1. Soliciting at-will employees, by itself, is perfectly fine; so they could just
offer them a new job.
2. Burden is thus on Plaintiff to show D engaged in an independently
wrongful act, which will then lead to liability for intentional interference
iv. Plaintiff was able to show this - the purpose of interference was not just to fill
desks; H&G were attempting to deliberately disrupt Reeves' business.
1. They planned this for months; specifically solicited clients; stole trade
secrets and client lists; and misrepresented themselves to clients, many of
whom did not speak English.
2. Really, really awful conduct leads to liability
d. So as you leave the firm, do a few things….
i. Bring your legal assistant with you and a few associates.
ii. Further, you can bring your book of business to the new firm.
1. There is a tension between direct solicitation and just informing people
you are leaving.
2. A general announcement letter is typically permitted since it is a
notification, and not a solicitation.
a. Few people just do this; there is something in between by putting
out feelers and discussing hypotheticals with clients.
3. Very blurry line as to what you can do to induce the other client.
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iii. As time has gone on, this is becoming more of an issue as, before, no one would
leave a white-shoe firm.
1. Now, if they're mad about who you are taking, they'll hit you for trade
secret theft.
III. Superior-Subordinate Relations

a. MR 5.1 – Supervising Lawyers
i. MR 5.1(a): Requires managing attorney to take reasonable steps in ensuring firm's
lawyers adhere to the rules
ii. MR 5.1(b): Supervising attorney must do same as in 5.1(a) for the junior
attorneys they directly supervise
iii. MR 5.1(c): Supervising attorneys are liable for junior attorney's actions in as
much as the supervising attorney knows about it, learns about it, and doesn't do
anything to stop it.
1. Basically, respondeat superior
b. MR 5.2 – Junior Lawyers
i. MR 5.2(a): Junior attorneys have to follow the rules despite being junior
ii. MR 5.2(b): Partial exception for actions made while following the advice of a
supervising attorney when that advice was reasonable, and it was a close call
1. CA also has this rule now in new rules
2. Figuring out whether something was reasonable, or a close call, is tricky
a. Means different things to a junior attorney new to the law, and a
judge who has been around a bit.
3. When there are two competing duties, though, there is no right answer and
the court is more likely to say they did their best
c. Senior Lawyers Suing Junior Lawyers
i. Rule: Supervising attorneys may sue subordinate attorneys for their negligence in
representing the client
ii. Rationale: In addition to duties owed to clients/3rd parties, lawyers have duties to
their employer
d. Kramer v. Nowak
i. RULE: Your firm can sue you if you do awful, terrible work – you are its
agent, and owe it a duty of care.
ii. F: Lightning Lube sues Witco; represented by Kramer and winds $11.5 Mill; then
sues Kramer for Malpractice in failing to recover $4M more, and recovers
~$400k; Kramer sues Nowak, his former associate, and says the poor calculation
was the associate's fault who improperly calculated pre-judgement interest;
1. Odd that the junior attorney was getting paid by the client, and not the
attorney, and the fact he was working directly in the client's office.
a. Probably should've jumped ship since this indicates Kramer is
doing fishy stuff.
2. Not that common occurrence for 2 main reasons:
a. Most firms have legal malpractice insurance
b. Uncommon to sue your own people within the firm
iii. Court finds he is an employee, but why is it important to distinguish between
employee and IC?
1. Matters who will pay; Nowak thought if he was an employee he was
immune, though that isn't true.
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2. However, his boss would have to indemnify him, and Kramer thinks he's
able to get money without paying his legal fees because Nowak is an
independent contractor.
iv. Suits between supervising and associate attorneys are permitted for three reasons :
1. No conflict arises between associates' dual duties to their clients and their
employees.
2. Unnecessary conflicts between associates and partners would arise if
associates owed their supervisors no duties.
3. Imposing liability on associates to partners for associate's negligence is
the necessary collar to the liability of partners to clients for an associate's
negligence.
v. Thus, know this is another source of liability; you can be sued by the senior
attorney if you do awful, terrible work.
e. MR 5.3 – Non-Lawyer Employee Assistance
i. Lawyer must ensure non-lawyer’s conduct meets the professional obligations of
the lawyer
ii. Lawyer responsible for non-lawyer if:
1. Lawyer orders/ratifies non-lawyer’s conduct; OR
2. Lawyer has managerial/supervisory authority AND knows at the time
BUT fails to take remedial action
f. Matter of Howes
i. Walked through this case on Tuesday, but key point is whether there is an ethical
question into Howes' duties and what he chose to do.
1. Courts aren't going to agree with you that there is any confusion as to
what you should do ethically
ii. Also tries to hide behind supervisor's opinion, but again that fails since he is
talking about admissibility, not ethics
1. If the Court decides it isn't a close call, they'll drill into you
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Economics in Practice
I. Fees
a. Messing up with client's money is the quickest way to get disbarred SO DON’T
COMINGLE FUNDS.
b. MR. 1.15(a) - Must hold client property in your possession separate from your own
property
i. And they mean this - your money in one hand, and the client's money in the trust
account.
ii. Clearly delineate which bit of the trust account goes to what client
c. MR 1.15(b) - You cannot deposit your own money in the trust account, or comingle funds
i. If you bounce a check in IELTA account, the bar usually gets notified in most
states
d. MR 1.15(c) - All advance payments for fees MUST be put into the trust account, and you
can only take it out once you earn it.
i. And once you do earn it, you have to take it out immediately
e. MR 1.15(d) – When a lawyer receives money, the lawyer must promptly notify the client
and any third person who has an interest in the money and deliver the client/third person
any money/property they are “entitled to receive”
f. MR 1.15(e) – If there is a dispute about who is entitled to what, the lawyer must distribute
any portion of the money that is not in dispute and segregate the property as to which there
is a dispute, generally by keeping it in the lawyer’s trust account
II. Retainers
a. Three types of retainers
i. Classic or True Retainer (very rare) - When the client pays you money to just be
available to represent them
1. Purpose of payment is to secure availability over time, but no work is
required
a. Just means the attorney will promise to take your case, but you
have to pay for any work done subsequently.
b. The retainer does not cover all of the fees
c. Entitlement to the fee exists whether or not services rendered
2. Money belongs to the lawyer upon receipt
3. Can be deposited into firm, or lawyer's, account
ii. Security Retainers (much more common)
1. Purpose is to provide lawyer assurance that money will be there when the
money is earned.
a. Retainer is held to secure payment for future services the
attorneys are expected to render, so the more of a credit risk the
client is, the more you can force them to pay up front.
b. When you over-run the amount in retainer, you can ask for some
more money.
2. Belongs to the client, and the lawyer cannot take it until it is earned.
3. Deposit it into the trust account until you earn it.
a. And any unearned funds are returned to the client
iii. Advance Payment (another rare one)
1. Purpose is to pay the lawyer up front for work to be performed later
a. Can be a flat or partial fee
b. Primary difference is that the intent is to pass the ownership of the
funds to the attorney at the time of payment, rather than time the
work is done
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i. In other words, it's the attorney's the minute it is handed

over
2. Belongs to the lawyer, but in some states, this is illegal.
a. In CA, the issue is an open question.
3. As a matter of course, deposit it into the trust account
a. Technically not required, but it's advisable to leave it in the trust
until the work is performed.
b. Otherwise you're going to be the test case as to whether advance
payment is allowed.
b. If the client gives you property to safeguard, you have to safeguard it as though it is
money
i. Open up a safety deposit box and put that stuff there; or into a safe in a locked
room.
ii. If they ask for it back, you MUST return it promptly, regardless of if they owe you
money
1. Unless it was handed over as collateral in a retainer agreement; must be
contracted.
c. Client Trust Accounts
i. Lawyer must establish a trust account for client and cannot commingle firm funds
ii. Lawyer cannot take funds out before they’re earned
iii. When funds are earned, the lawyer needs to take the funds immediately
d. What happens to the interest earned in the trust account?
i. Trust accounts are usually set up as "Interest on Lawyer’s Trust Account"
(IOLTA), which is a special account the bar sets up for use as a lawyer trust
account
1. IOLTA takes all of the interest earned and hands it to the bar (unless it’s a
lot and then it goes to the client)
2. The Bar gets very mad if you take too much money out of the trust
account and they don't get their cut.
e. Dispute Hypos:
i. Big ol' settlement; you think you should get 30%, they think you should only get
20%. What do you do?
1. Take the amount that is not up for dispute (70%) and give it to the client.
Take the 20% that is not up for dispute either and put it into your own
account.
a. Then fight over the 10% remaining.
ii. What if someone comes out of the woods and says client owes them money?
1. Figure out if it is frivolous. If it is, just pay out to client.
2. But if it isn't, you have to keep whatever money is disputed in the trust
account.
f. In re: Sather
i. F: Attorney gets $20k flat fee as an advance for filing a civil rights suit; lawyer
declares bankruptcy, so now all creditors have interest in the firm's accounts;
lawyer stuck the money in his own account, and not the IELTA account
ii. Court says this is exactly why we have to put money into the IELTA account
1. Cannot have “non-refundable” language in advanced fee
a. Problematic b/c it is refundable if you don’t do the work and also
it makes the client feel like they cannot leave attorney for new
representation.
2. Also, cannot write a retainer that says "earned on receipt."
a. Need to explain basis for how/why fee was earned.
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III. "Premature Withdrawals"

a. You cannot get money out of the trust account until you actually earn it, regardless of
mitigating factors.
i. Bar associations don't like it when you steal from clients, regardless of the
circumstances and if you'd earn that money eventually.
1. Disbarment is bad
ii. Policy: Overriding need to preserve the public confidence in the integrity and
trustworthiness of lawyers
b. Matter of Warhaftig
i. RULE: Even if you don’t misappropriate funds, withdrawing money before
you earn it is theft and they’ll disbar your unethical ass.
ii. F: Attorney has real estate practice; used a trust account from which he withdrew
advance fees in anticipation of real estate closing; ethics office does a random
audit, and accountant recommended putting the money back into the account.
1. Tries to justify this by saying his wife had cancer and had lots of medical
bills, and that he was willing to pay it back.
a. No clients were out of money.
iii. Disciplinary Review Board finds he did not misappropriate the funds
1. Dude said sorry; no one was actually injured; and he withdrew small
amounts of money in connection to account he would've earned anyway.
2. Publicly reprimanded
iv. Bar appealed that decision, and NJ SC overrules - subjective intent, good
character, and lack of loss is all irrelevant
1. No mitigating factors; the purpose of these rules is to maintain trust in the
legal profession, which is paramount b/c so many representations and
parts of practicing are based on trust and integrity
2. Rule in Jersey is if you misuse funds, you get disbarred.
IV. Reasonability of Fees
a. MR 1.5 – Fees
i. MR 1.5(a): Attorneys may not charge, or collect, unreasonable fees
1. See Fordham below for out eight factors to assess reasonability
ii. MR 1.5(b) Scope of representation and basis for fee must be
1. Communicated to the Client
2. An outline of your obligations
3. Should be in writing
a. CA BPC 6148: If the fees will foreseeably be over $1,000, save
for a few exceptions, it must be in writing
iii. MR 1.5(c) and (d)
1. Contingent fees are allowed in all matters but divorce and criminal
matters
a. Doesn't like contingency there b/c we don't want lawyers
unwilling to settle cases in family and criminal matters
2. Must put a fee arrangement in writing, signed by the client, and inform the
client re: how costs will be dealt with, i.e., do costs come out before/after
% of fee calculated
3. Note: Contingency fees must still be reasonable
b. In the Matter of Fordham
i. RULE: You cannot charge the client money for time it takes you to learn the
damn law.
ii. F: Attorney hired to represent client in a DUI; father meets Fordham while doing
work on Fordham's house; attorney says he doesn't do criminal but he's willing to
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learn; lawyer gets the acquittal but charges $50k, which is based on hours spent
learning about DUI cases and on the case; normally these cases run $3-10k.
1. Fact the dad is paying for defense throws loyalty issues into the mix, so be
aware of that.
2. No one is accusing Fordham of churning the file - it may legitimately
have taken this long for him to learn all of this.
a. BUT that bill shocks the conscience
b. AND DUI cases are not rare and happen all the time and there are
lots of lawyers who do this
iii. What does the dad do after getting the bills?
1. He objects that they are too high, but he pays them.
iv. Factors the court will consider:
1. Time and labor required; novelty and difficulty of case; skill needed to
perform legal service
2. Likelihood, if apparent to client, the acceptance of particular employment
will preclude other employment by the lawyer
a. Basically, client should understand attorney could get the money
elsewhere, and he is paying for the attorney's full attention
3. Fee customarily charged in the locality for similar legal services
a. Will require expert for this to testify about going rates based on
some research/knowledge
4. Amount involved, and the results obtained
5. Time limitations imposed by client, or by circumstances
6. Nature and length of the professional relationship with the client
7. Experience, reputation, and ability of the lawyer or lawyers performing
the services
8. Whether the fee is fixed or contingent
v. As it turns out, this is a surprisingly close case
1. Fordham was pretty damn successful at the lower level
a. But one of the experts said the highest fee they've ever heard was
$15k, and that really hurt him
i. Fees vary, based on region, based on difficulty of case,
etc. Here, experts looked at that and determined fee was
still excessive b/c Fordham can’t point to his experience,
reputation, etc. as solid justification for being most
expensive DUI attorney ever
2. Court decided to publicly reprimand the lawyer
vi. What about the fact client went in knowing that he never handled this case?
1. Court said he didn't understand the implications of needing to learn the
law, and how long that would actually take.
a. Court also doesn't like the idea of an attorney charging to learn
the law; otherwise an inexperienced lawyer could charge three to
four times more than an experienced lawyer.
b. Basically, subsidizes the inexperienced lawyer's inability to do
routine tasks.
vii. What makes a lawyer different than a person, say, building your house?
1. Different fiduciary duties
a. Guy building your house has no fiduciary duty to not screw you
over.
2. Lawyers, on the other hand, have a higher obligation
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a. Duty of Care means competent representation, and charging what

a reasonably competent attorney would charge for that type of
work
i. For Junior associate, it’s good to be aware of what client
is being bllled for.
1. But JA should ask to find out how long
something should take to know if it’s reasonable.
viii. As a general matter, you can charge more money than other lawyers and be okay
1. But you cannot bill for learning the law; while unfortunate, that's just the
way things work.
a. Basic legal research into ROUTINE matters shouldn't be billed
i. Ex. You are a new attorney compounding interrogatories,
the first thing you do is read through the Rutter Guide;
it'll take two hours to read through the basics; even
though it is necessary, you cannot bill those hours.
1. BUT if you wanted to look into something
novel/interesting/controversial, you can bill for
research
b. The more unusual, the better off you are.
2. Good away around this is volunteering for cases pro bono
a. Or get hired by a big firm with a partner who just writes off your
basic research.
V. Unauthorized Practice of Law
a. Practice of Law: Applying law to the facts and making a recommendation
i. The exercise of judgment in the proper drafting of legal instruments, or even the
selecting of the proper form of instrument, necessarily affects important legal
rights, and thus, is the practice of law
ii. Note: Different states have carve-out exceptions for things that look like the
unauthorized practice of law
b. Unauthorized Practice of Law Committee v. Parsons Technology, Inc.
i. RULE: Advising someone as to which forms to fill out is practice of law –
telling them how to fill out a blank form is not.
ii. F: P sued the maker of Quicken Family Lawyer, which interviews users to
determine which of about 100 legal forms would be right for the user; basically,
allowed users to handle a variety of very simple legal tasks, like filing for divorce;
at launch it included a disclaimer to talk to a lawyer, but nothing after that.
1. P argues that this interactive software amounts to unauthorized practice of
the law
2. D responds that this is just providing legal forms, and that isn't the
practice of law since there is no client - it is software-user oriented.
iii. Court sided with the Committee; advising someone as to which legal forms should
be filled out could constitute the practice of law w/o a license
1. And this program, which did everything but say it is a lawyer, violated
unlawful practice rules.
a. Literally picked out the form the user needs, so the lack of a client
does not matter
b. At the most basic level, taking facts and making
recommendations is the practice of law
2. Whereas, if it just told people how to fill out a blank form, that would be a
different story
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iv. Why do you think some states passed legislation that actually allowed these
programs?
1. It protects the consumers - can just pay a bit for a program that allows
people to protect themselves without paying a bunch of money.
a. That is why we now have LegalZoom, MyCorporation, Etc.
v. Takeaways
1. These programs are expanding, which makes it harder for junior
associates to get practical training.
2. As much as doc review sucks, predictive programming has killed that
element of early practice.
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Ethics in Advocacy
I. Relations with Other Lawyers
a. MR 8.3(a) – Reporting Professional Misconduct
i. A lawyer who knows that another lawyer has committed a violation of the Rules
of Professional Conduct that raises a substantial question as to that lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the
appropriate professional authority.
1. Rat rule: Attorneys in model rule jurisdictions have an affirmative duty to
snitch on other attorneys
2. However, make sure you really, really, really thought this through since
they may throw an ethics violation back at you as a defense.
a. Also, you cannot threaten bar complaints in the course of a civil
dispute - it amounts to blackmail
3. CA did not adopt this rule, so CA lawyers have no ethical duty to report
the misconduct of other lawyers, BUT lawyers may report misconduct
4. Exception to MR 8.3: Reporting misconduct is NOT required where it
would violate a duty of confidentiality to a client under MR 1.6
b. In Re: Riehlmann
i. RULE: In some states (not CA), you have to be a little snitch-ass bitch when
you hear about attorney misconduct.
1. Model Rule jurisdictions distinguish obligation by size of misconduct,
and in Louisiana you have to report it all the time.
ii. F: Deegan on death bed, tells Riehlmann that there is exculpatory evidence on a
guy he sent to death row; Respondent does nothing to remedy the situation and
states this was for personal reasons b/c his life was falling apart at the time
(divorce, kid had surgery, best friend dying); Deegan died 2 months later and five
years go by from when Deegan dies and, as it turns out, the counsel for the guy set
for execution finds blood evidence that proves he didn't do it; attorney comes
forward and says yeah that's right, the old DA did tell me he hid that.
iii. Louisiana Rule says if you know of attorney misconduct, you must report it.
1. Different than MR 8.3, which distinguishes obligation by size of
misconduct
a. Also, MR 8.3 does not trump Model Rule 1.6 about
confidentiality so you could need client’s consent for disclosure
(not at issue here b/c Riehlman didn’t rep Deegan)
2. Issues:
a. Does knowledge of misconduct have to be substantiated?
i. If reasonable attorney more likely than not to think it’s
misconduct, then it’s misconduct. May require some
follow-up investigation, inquiry for clarification
b. Timeliness in reporting?
i. Should report promptly to minimize further violations
c. Appropriate authority
iv. However, since he is in Louisiana, he is hosed
1. Extenuating circumstances come in, so all he gets is a public reprimand
v. CA 6090.5 prohibits attorneys from conditioning settlement on not reporting
1. Like Himmel case. This creates issue with duty of care b/c maybe you
could get client a better deal for not reporting. Oh well, can’t do that.
c. Bringing in Outside Counsel
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i. Rule: When a lawyer hires another lawyer to help formerly discharge her
obligations to a client, the second lawyer is a sub-agent of the first.
1. The former lawyer is liable to the client for errors based on the sub-
agent’s advice
2. The sub-agent may then be liable to the former lawyer for the sub-agent’s
own mistakes
ii. Happens a lot when a new issue suddenly pops up needing someone with a level
of expertise you don't have
1. Know that when something goes wrong, both will point to each other and
say they did it
2. However, if you bring in the outside counsel, you have an obligation to
make sure they do their job
iii. Whalen v. Degraff, Foy, Conway, Holt-Harris & Mealey
1. RULE: When you bring in outside counsel, you are responsible for
them – duty of care indicates active supervision.
2. F: P hires D to sue Julius; they win $1.2 Mill; Julius dies, and now firm
has to figure out how to enforce the judgement; hire a Florida lawyer to
lay a claim against estate; Florida lawyer blows deadline to file the claim
and now the judgement is gone.
a. P decides to sue the defendant since they had no attorney-client
relationship with the Florida firm
3. D argues that its firm didn't fail; the Florida firm did
a. But D's firm had an obligation to supervise the firm that they
hired; imputes liability onto the D firm.
i. Clear that firm, not P, hired other firm here
4. Thus, always keep track of what outside counsel is up to; you're
responsible for their slip-ups.
II. Scope of Legitimate Demand
a. Demand letters
i. Rule: Lawyers cannot threaten to present criminal, administrative, or disciplinary
charges to obtain an advantage in a civil dispute
1. No 1st Am. Protection b/c extortion is not a constitutionally protected form
of speech
b. Flatley v. Mauro
i. RULE: Lawyers may make demands. However, wrongful, unfounded threats
in order to obtain property using processes collateral to the judiciary, like
threatening to ruin someone, turns it into extortion.
ii. F: Mauro represents a client desiring to sue Flatley, the LORD OF THE DANCE!;
Mauro represents a client, who claims Flatley raped her; Mauro sends a letter and
calls him effectively demanding seven figures, and asserting if they aren't paid off,
they’ll go public; Flatley filed a motion to strike the complaint as a
shakedown/SLAPP suit; trial court denies, so Lord of the Dance appeals.
1. The client had a history of shaking down famous men for money, so that
colors the way in which the court treats the issue.
iii. Lawyers can send aggressive demand letters, so why does this letter seem
different?
1. The 51-page demand letter is rather robust
a. Has the complaint, which is completely legitimate, along with
attorney's CV and newspaper clippings talking about how great
the attorney is. Extra stuff is weird, but it’s permissible.
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b. But the actual letter reads very unprofessionally; almost like a

threat. Also followed up letter with phone calls that also involved
threats.
i. Gets into trouble b/c threatening to go on morning show
and hurt fan base.
c. Also threatened auxiliary things, like IRS dodging, and threatens
that the suit will open him up to scrutiny from tax and
immigration authorities
2. Finally, it amounted to criminal extortion because…
a. The "victim's" claims were fairly frivolous, and they were
effectively threatening to air the dirty laundry EVERY DAMN
TIME he showed up somewhere
i. Perfectly fine to say if you don't pay me, I will sue you.
ii. Not okay to say if you don't pay, I'm going to every
theater within which you dance with a big ol' sign saying
"Flatley Rapes."
b. Defendant's counsel just went too far.
i. When you start threatening to disclose other things, or
report people to the authorities, you cross the line
1. Actually a bar rule that says you cannot threaten
criminal action to get a leg up in civil disputes
3. Is it okay to acknowledge collateral effects of lawsuit?
a. Yes; it's closer to the line, but as long as it is true that, say, a lot of
press will cover this accusation, you can probably get off as just
being aggressive.
c. SLAPP Issues
i. Always be very, very careful taking cases regarding defamation
1. If this speech is protected, you can and will get hit with attorney's fees.
ii. Here, their speech was very clearly not protected
1. Defendant lawyer claims the letter and calls were protected by free
speech, but that doesn’t work because extortion doesn't get any first
amendment protections
iii. SLAPP exists to ensure legitimate, protected speech is not chilled
d. Sussman Squib
i. F: Bank failing; ties to Israel; bunch of high-end attorneys threaten to sue high-
ranking officials in the Israeli government; lots of veiled threats about foreign
investment in Israel.
1. Originally lawyer got hit with frivolous lawsuit fine
ii. It was overturned; this demand letter serves legitimate purposes, especially when
the case has merits.
1. So what distinguished this from Flatley?
a. Cynically, it's the caliber of attorney involved.
b. Further, the end purpose was actually to settle the case, and not to
embarrass them in public in order to get money
III. Candor Towards Tribunal
a. MR 3.3(a) – Attorneys cannot knowingly (1) make a false statement of fact or law or fail
to correct a false statement of material fact or law previously made to the tribunal; (2) fail
to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or (3) offer evidence that the lawyer knows to be false.
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i. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the lawyer shall
take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
ii. A lawyer may refuse to offer evidence, other than the testimony of a defendant in
a criminal matter, that the lawyer reasonably believes is false.
iii. MR 3.3(c) - The duties stated above continue to the conclusion of the proceeding
(i.e., until appeal judgment is final/time to appeal expires), and apply even if
compliance requires disclosure of information otherwise protected by MR 1.6
iv. Colorado v. Casey
1. F: Kids at a party; one of the kids used a friend's ID when she was cited
for trespass and underage drinking; attorney is hired to represent the
minor; a criminal summons is put out in the friend's name, and attorney
falsely represented that he represented the friend, and not the minor;
charges were eventually dismissed.
a. Friend asks minor's attorney about the charges, and the attorney
told her she needed to contact her own damn attorney
i. She does, and the new attorney reports everything to the
Bar
b. Weird set of facts, but this does happen
i. Minor's dad was friends with the firm's partner, so it
probably got randomly stuck with the junior attorney who
was under pressure to make it go away.
1. Didn't want to admit his client lied to the cops,
and that makes it much more difficult to settle the
case.
ii. But the charge stuck under the friend's name, and not the
minor's, so clearly it would not just disappear.
2. Old attorney says hey now, I was under supervision and they gave me this
case - that's their fault.
a. Court nixes this because it doesn't seem clear the old attorney told
the supervisor he was representing the minor and pretending she
was the friend
3. He does admit his conduct violated the rules, but tries to argue the
punishment was too severe
a. Court disagrees; misconduct is serious enough to warrant a
suspension, and the confusion requires he re-take the MPRE.
4. What should attorney have done?
a. Disclose the client's name; but if the client says you cannot do
that, it requires the attorney to withdraw since he is being asked to
commit fraud.
IV. Conduct During Discovery
a. MR 3.4(a): Handling evidence: A lawyer may not obstruct another party's access to
evidence, may not alter, conceal, or destroy material having potential value as evidence,
and may not encourage others to obstruct to do those things either.
i. Rule: Whenever defense counsel removes or alters evidence, the A-C privilege
does NOT bar revelation of the original location/condition of the evidence in
question. Note: Decision to remove evidence is a tactical choice
1. If counsel/investigator leaves the evidence where he discovers it, his
observations derived from privileged communications are privileged
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2. BUT if counsel chooses to remove evidence to examine or test it, the

original location/condition of the evidence loses privilege proetction
ii. People v. Meredith
1. F: Appellants are convicted of first-degree murder and robbery; one of the
convictions rested on a theory that the appellants conspired; theory rested
on location of where the victim's wallet was found, partially burned,
behind one of the defendant's houses; one of the defendants tell defense
counsel that he tried to burn the wallet.
a. Defense lawyer sent his investigator to see if the wallet was still
there, which is fine, but the investigator wound up picking the
wallet up and handed it over.
i. The latter behavior is where the problems came up.
b. Investigator was not trying to hide anything, and Defense counsel
handed the wallet right over to the DA
2. Are the communications from client to attorney to investigator privileged?
a. Yes - still fall under it.
3. Would observations the investigator made as a result of privileged
communication still privileged?
a. Yes - he's only there because of the A-C communication.
4. But what happens when he picks up the wallet?
a. That ruins everything - doesn't matter why he picked up the
wallet; once he picked it up, he has to turn it over and answer any
questions the State has about its location or original condition.
5. If you, as a defense attorney, discover a gun used by your client after your
client tells you where the gun is, do you have to tell the DA?
a. Nope; he has equal access to discover the gun, and you don't have
to disclose shit. Just ignore it and leave it be.
b. However, if you remove it or get it tested, you have to turn over
the evidence in order to provide equal access, and not obstruct
their access.
i. Must do it within a "reasonable" amount of time.
6. What if the client shows up in your office with a bag of surprises, do you
have to tell the DA?
a. Not unless you take possession of it - so tell him to bug off.
b. MR 3.4(d): You may not make frivolous discovery requests, or fail to make reasonably
diligent efforts to comply with a properly propounded request
i. Rule: Counsel for the witness may (1) stop the deposition & (2) contact the court
for a protective order, but must NOT instruct the witness to remain silent
1. Problems
a. Need to show the court a record to get a protective order, so need
to let the client take enough abuse to get the record (and at that
point, opposing counsel may be done)
b. Expensive to bring the discovery motion
ii. Redwood v. Dobson
1. RULE: Under FRCP 30(d), an attorney CANNOT instruct a witness
not to answer a question unless there are grounds for privilege.
However, they can halt the depo and apply for a protective order.
2. F: Welch previously represented Redwood in a criminal prosecution for
battery; Redwood is convicted, and wants Welch to sign an affidavit
saying he supplied IAC; Welch refuses, and Redwood calls him a bunch
of racial slurs, and they end up fighting; Redwood tries to sue for battery,
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and Welch counters with defamation; winds up devolving into this big,
angry conspiracy case involving a bunch of people.
a. During a deposition, the attorneys wind up getting into a shouting
match; one attorney tells his client not to answer any more
questions.
3. What was the issue?
a. During a Depo, you cannot instruct client not to answer unless
there is a privilege problem.
b. You can, however, halt the deposition and file for a protective
order under FRCP 30, though that requires you to absorb costs
and it's hard to know when the Depo crosses the line.
4. But if you're pissed off at a line of questioning, stop the depo and just
force the other party to go to court and file a motion to compel.
a. Then they have to defend their desire to ask whatever stupid
question de-railed the depo.
c. Depositions
i. Problem 16-7: Arguments between Attorneys
1. Two attorneys arguing during deposition; one won't let the other attorney
ask any questions. Why is he doing this?
a. To put him off his game - it's unethical as these are not valid
bases to instruct client not to answer.
2. What should you, as the attorney being shut down, do?
a. Remain calm, and ask if they are objecting on the basis of
privilege. If they say no, ask the question again.
i. Otherwise, ask the reporter to certify the record and file a
motion to compel.
3. Preserve the record for the judge so you seem reasonable.
a. That isn’t a proper basis; are you following your attorney's
instructions?; okay fine, certify and file.
ii. What if your client starts fighting back?
1. Try to keep him on track; while you can certainly sit back and enjoy the
fight, you don't want your client to look unreasonable.
d. Qualcomm v. Broadcom Corp.
i. RULE: You’ll get sanctioned if you don’t provide discovery. And when you
accept responsibility for it, you are responsible.
ii. F: Qualcomm and Broadcom litigation over patent disputes; get wrung up in
discovery disputes; lots of big attorneys got hit with sanctions.
1. Dangerous place for junior associates
iii. Discovery can get ugly when a party requests documents, and the other party says
there are none.
1. Issue is who is hiding the documents - outside counsel, in-house counsel,
the client itself, etc.
iv. When you accept responsibility for discovery, you are responsible for it
1. So make sure you know you have the authority to actually conduct the
discovery search; don't just sign off when you're told there are none.
V. Introducing Perjurious Testimony
a. MR Rule 3.3(a) – Prohibits a lawyer from offering testimony you know is false, and
requires you take reasonable steps to remedy/correct testimony you learn is false
i. Can trump MR 1.6, and remediation continues as long as the matter is pending
ii. Civil cases: Lawyer may refuse to offer false evidence supplied by non-criminal D
b. Narrative Approach for Criminal Defendants
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i. Process: Lawyer calls the D (the lawyer knows wants to commit perjury) to
witness stand BUT does not engage in the usual Q&A exchange. Instead the
attorney permits D to testify in a free narrative manner.
1. In closing argument, attorney cannot rely on any of D’s false testimony
ii. Problem: Attorney participates in committing a fraud on the court and may
possibly communicate to the jury that D is committing perjury (jurors are dumb
though so they may not know what’s happening with narrative approach)
c. People v. Johnson
i. RULE: You cannot comply with the defendant’s desire to perjure himself,
but you shouldn’t stand in his way of speaking on his own behalf either.
1. Just get him up on the stand, ask him his name, and say tell me your
story.
2. Then rely on nothing he said during closing.
ii. F: Prosecution completes case in chief; Defendant's attorney requested in-camera
hearing, discloses ethical conflict in D's testimony; attorney informed court that he
refused to call D, despite D's confirming he desired to testify; court denied D the
right to testify.
1. On appeal, held the trial court erred but it was harmless error b/c there
was a ton of evidence against so even without his testimony, it was clear
D committed the crime and would be convicted.
iii. Court provides options
1. Comply with the defendant's desire to perjure himself
a. Never okay
2. Persuade client never to commit perjury
a. Always the proper first step, though they don't have to listen to
you.
3. Withdraw from representation
a. But that won't stop the client from wanting to perjure himself and
then you’re in same place unless attorney allows client to lie or
attorney isn’t aware client plans to lie
4. Disclose the perjury to the court
a. Defendant can always change his mind and decide not to perjure
himself on the stand
b. Also a violation of duty of confidentiality
5. Narrative approach
a. Holds that the best course of action is to allow them to testify in a
narrative matter and, during closing, don't rely on any of the false
testimony obligations.
6. Allows defendant to tell his story, and maintains your ethical refusal to
permit D to testify
a. Violates their constitutional right to testify
iv. Proper (least bad option) Narrative Approach
1. Don't assist the defendant beyond what is your name, and don't rely on it
during closing.
a. Problem is this makes it hard to get to the truthful aspect of the
jury's job, but that's a them problem.
b. Just ask D to tell what happened and then D takes it from there.
d. Jurisdictional approaches
i. Burden of Proof
1. Actual knowledge = Client has to tell you that he is going to lie on the
stand
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2. Beyond Reasonable Doubt

ii. CA Rules on Candor Toward the Tribunal
1. CRPC 3.3(a)(3): A lawyer shall not:
a. offer evidence that the lawyer knows* to be false. If a lawyer, the
lawyer’s client, or a witness called by the lawyer, has offered
material evidence, and the lawyer comes to know* of its falsity,
the lawyer shall take reasonable* remedial measures, including, if
necessary, disclosure to the tribunal,* unless disclosure is
prohibited by Business and Professions Code section 6068,
subdivision (e) and rule 1.6. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal
matter, that the lawyer reasonably believes* is false.
2. CRPC 3.3(b)
a. A lawyer who represents a client in a proceeding before a
tribunal* 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 to the extent permitted by Business and Professions
Code section 6068, subdivision (e) and rule 1.6Cannot put false
evidence in front of the judge, but if you accidently do it, there is
no requirement to remedy.
3. Alternatively, if you wind up having actual knowledge, you can't tell the
judge
a. CA protects confidentiality.
b. Means you should structure things differently when handling
criminal case in CA.
i. Don’t want to know whether client did it b/c this boxes
you in and limits what you can do
1. Can’t say “my client is innocent” during closing
2. Can say “government hasn’t met its burden, etc.”
e. Problem 16-11
i. Client wants to testify that the reason his alley is in this place where he is accused
of sexually assaulting someone is because he had sex with his girlfriend the night
before. Can you allow him to testify?
1. Should first try to talk him out of it if it lie and point out what will happen
if he tells that story (prosecution will put his gf on stand and she may not
be good witness since he’s accused of sexual assault)
2. Depends on the jurisdiction. There is no actual knowledge, but maybe
beyond reasonable doubt.
3. That implicates the approach you have to take, if any
a. Most defense counsel will just tell him not to take the stand and,
if he does, you do the narrative.
f. How do you figure out if you can put him on the stand without acquiring actual knowledge
and precludes options down the road?
i. What are you being accused of?
ii. What are people going to say you did?
VI. Obligations to Correct
a. MR 3.3, Comment 10
i. When you learn you got false testimony, you should talk to client confidentially,
urge they correct it, and advise them of your duty to correct it immediately
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1. If they don't cooperate, you have to tell the tribunal, even if doing so
requires you break your duty of confidentiality (unless you’re in CA)
b. Idaho State Bar v. Warrick
i. RULE: Don’t wait to correct – do it immediately.
ii. F: Attorney puts on witness and guy testifies he does not have a deal; then witness
gets arrested and has to tell that same judge he did have a deal; DA has to admit
that the deal was being worked on for over a month; mistrial granted after attorney
goes to the jail to testify and go over the details of the deal.
1. How should this have been handled?
a. Warrick should have immediately corrected the record or at least
right after trial took break for lunch; while awful for the witness,
that's just the risk you run.
2. By waiting, it made it seem like he was waiting to get away with it.
3. Witness wasn’t his client so no duty owed to witness
VII. Strickland Standard/Ineffective Assistance of Counsel
a. Duty of loyalty is trumped by duty of candor to the court
b. So, it is not ineffective assistance of counsel when you refuse to push perjurious testimony
onto the court.
i. Yeah you have these duties to your client, but also have duty to the process and
those can trump.
ii. Nix v. Whiteside – SCOTUS said that despite duty of loyalty to client, there’s no
IAC claim for preventing client from perjuring themselves on the stand
c. US v. Williams
i. RULE: You owe duties to your client, but your duties to due process and
judicial integrity can tump that duty.
ii. F: Attorney repping CORVET Williams, accused of Bank Robbery; puts 'legal
mail' onto the envelope; in it, he asks attorney to forward another envelope to his
cousin; the letter says that he needs his cousin to provide an alibi
1. Lawyer withdraws, hands over the letter, and offers testify against Corvet.
iii. Court says attorney did the right thing
1. Would be ineffectual for attorney to try and persuade him not to perjure
himself because he had already taken steps to implement his plan and
would have just done something else that lawyer couldn’t prevent like
telling visiting family member to help with alibi
iv. Dissent says this was kind of messed up
1. He is denied effective assistance of counsel when he breaches his duty of
loyalty and confidentiality
2. Could try to talk him out of grabbing the alibi.
a. Then if he's mad about the answer after asking the client, he could
withdraw
b. Probably would've been the better course of action
3. Could also just toss the letter.
4. If you pass it along, you might have crime fraud issue for facilitating
communication
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Judicial Ethics
I. ABA Model Code of Judicial Conduct
a. General jurisdictional concepts (like due process) apply to all judges
b. In theory should apply to all judges, but jurisdiction has to actually adopt the code.
c. Canons
i. Only state aspirations/goals and provide interpretive text
ii. Judges who violate these, don't get in trouble
iii. Canon 1: Requires judges to uphold and promote the independence, integrity, and
impartiality of the judiciary and avoid both impropriety and the appearance of
impropriety
1. JC 1.1: Judges must comply with the law, including the code
2. JC 1.2: Judge may be disciplined for conduct creating an appearance of
impropriety. Judges must act at all times in a manner that promotes public
confidence in the independence, integrity, and impartiality of the judiciary
a. Conduct that creates an appearance of impropriety depends on
whether the conduct would create in reasonable minds a
perception that the judge violated this Code or engage in other
conduct that reflects adversely on the judge’s honesty,
impartiality, temperament, or fitness to serve as a judge.
3. JC 1.3: Judges cannot use, or allow others to use, the prestige of the
judicial office to advance personal or economic interests of the judge or
others
iv. Canon 2: Requires judge to perform their work impartially, competently, &
diligently
1. JC 2.1: Judicial work must come before judge’s other activities
2. JC 2.2: Judges must uphold and apply the law and do their work fairly and
impartially
3. JC 2.3: Judges must do their work free from bias or prejudice.
Specifically, in the performance of judicial duties, judges may not by
words or conduct manifest bias or prejudice or engage in harassment on
the basis of several characteristics
4. JC 2.4: Judges must 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 the idea that any
person or group is in a position to influence the judge
5. JC 2.5: Enforces requirements of Canon 2 and requires judges to
cooperate with each other in their work
6. JC 2.7: If Code or other law does not require recusal, then the judge must
hear and decide any matter he is assigned
d. Rules
i. Judges can get in trouble for violating these
ii. ABA Model Code of Judicial Conduct (applies to all judges)
iii. Code of Conduct for U.S Judges (applies to federal judges)
iv. Individual state codes of conduct (applies to state judges)
e. Variations
i. Military Code of Conduct
ii. Administrative Law Judges
iii. Federal Judges vs. State Judges
II. Impartiality and Independence
a. Underpin all of these rules
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i. Avoid impropriety AND appearance of impropriety

ii.
iii. Consider both whether that actually is bias, and then whether there is the
appearance of bias
1. Judges are hesitant to find another judge is biased
iv. There are objective standards that require recusal when the probability of actual
bias on the part of the judge or decision-maker is too high to be constitutionally
tolerable
v. There is a serious risk of actual bias (based on objective and reasonable
perceptions) when a person with a personal stake in a particular case had a
significant and disproportionate influence in placing the judge on the case by
raising funds or directing the judge’s election campaign when the case was
pending/imminent
b. Caperton v. A.T. Masey Coal Co
i. RULE: When it reasonably looks like the participation of a judge threatens
due process, the judge should recuse herself.
ii. F: Company slapped with a huge $50 Million judgment; company made a huge
campaign donation to state's supreme court campaign hoping to buy a swing vote;
CEO makes a $1,000 direct campaign, and then gives millions to a PAC trying to
elect the judge.
1. Winds up donating $3 Mill in total; over one million more than any other
campaign or candidate combined.
iii. As it turns out, Justice Benjamin is elected and winds up overturning the verdict.
1. Prior to the hearing, Caperton requested his recusal and the motion was
denied.
iv. Court narrowly holds that failure to recuse himself gives appearance of bias
1. Doesn't have to be actual bias; just whether it reasonably looks like his
participation probably threatened due process.
2. That risk of bias exists whenever judge has direct, personal, substantial, or
pecuniary interest
v. Dissent
1. Extreme facts make bad law; we are worried about what this sets as far as
precedent is concerned.
III. Prohibitions on Political Activity (see chart on pages 1124-25)
a. Judges often engage in robust campaigns at the state level, so there is a tension when a
judge has to promise to be hard on crime in order to get elected.
b. Canon 4 – Judge or candidate for judicial office cannot engage in political or campaign
activity at odds with the independence, integrity, or impartiality of the judiciary
i. Lots of rules and exceptions to this one (page 1124).
IV. Recusal
a. Required to recuse if impartiality might be questioned, or appearance of impartiality
b. Under the federal rules there are specific examples
i. Worked on case as federal attorney; close family member with financial interest,
etc.
ii. But for the most part, it's left to the judge to decide whether there is a problem
with impartiality.
V. Expression of Bias
a. Model Code 2.3 - Must perform work free of bias
i. 2.3(b) - Cannot manifest bias via words or conduct
ii. 2.3 (c) - Cannot allow lawyers before them to act with bias or confirming bias
b. Mejia v. United States
116
i. RULE: When the judge expresses a bias, in favor or against a party, that is
grounds to reversal and remand.
ii. F: Dude from El Salvador, accused of sexual assault and ultimately found guilty
largely on testimony of child accuser; before sentencing judge winds up going on
this extended rant about Salvadorian culture and people; defense accuses her of
bias and appeal it up.
1. Find appearance of bias so they reverse and remand for a new trial.
iii. Judge put this on the record, showing she doesn't understand that she is biased
1. Maybe his culture led him to believe he could do that - how terrible for
him!
a. Clearly bias, but she's probably just ignorant.
2. And bias that favors a litigant is still bias
iv. Court found there was appearance of bias and remanded for new trial with new
judge
c. Hypo: Judge writes to a paper against gay marriage in their personal capacity; is that
okay?
i. Sure - judge doesn't give up their constitutional rights.
ii. With that said, it's problematic if they are about to hear a case tried by a gay
person.
ix.
117
Model Practice Questions and Answers

1. Focus on the call of the question - "Can you disclose the confidential information to the buyer?"
o C. Yes, even if divulging the information results in harm to the buyer.
 Okay in this context because the answer turns on Model Penal Rule 1.6(b); you do
not have to wait until you are actually sued.
o Answer is different in a California jurisdiction; you have to wait until you are sued.
2. You represent a client in a dog bite case; you say it'll probably settle for $50k; defendant counsel
offers to settle for $50k and you say no; goes to trial and client gets $55k. Are you liable for
malpractice?
o Call of the question relates to malpractice liability, so you have to meet the elements for
tort damages/civil liability
 That requires actual damages
o Answer is thus C. Because the trial court awarded more than the $50k.
 However, you're still subject to disciplinary action for not keeping client appraised
of settlement offers.
3. Supervising paralegal properly question
o Subject to civil liabilities but not disciplinary liability, unless you failed to supervise the
paralegal properly.
o Model Rule 5.3
4. Woman comes in; husband is an abusive alcoholic and she thinks she wants to get divorced; needs
an attorney; has three kids and no money; you feel bad and are willing to do a contingency fee
based on 10% of alimony and child support received; was your conduct reasonable?
o A is obviously a problem; C states "whatever the client chooses" shows it is wrong since
they can't choose if you're sued; so left with B and D.
o Model Rule 1.5(d)(1) directly on point for B; you cannot derive a contingency fee based
on alimony or child support.
 Alimony and child support are supposed to be for the kid/her benefit.
 Further, the only way you'll get this is IF THE DIVORCE HAPPENS
 And we don't want to create a situation where the attorney has an active
interest in destroying the family; they may decide not to get divorced, and
we want to support that.
5. You rep a client in a dog bite case; get a settlement for $100k; agreement says you get to keep
25%; client comes to you and says hey I talked to a law student and they said this case is worth
$500k and you shouldn't get your cut; one week later you get a check from the insurance company
for $100k; what must you do?
o Send the client $75k, i.e. the amount not in dispute, and the rest must be placed in your
client trust account
6. You are an attorney; your friend owns a funeral home; he isn't an attorney; proposes you and he
enter into a partnership where he handles the funeral stuff, and you handle the legal stuff; wants to
split profits 50/0; are you subject to discipline?
o Yes; because you and your friend are partners in the business and splitting fees 50/50
o Model Rule 5.4(b)
 A lawyer shall not form a partnership with a non-lawyer if any part of the
partnership consists of practicing of law
7. You represent a woman going through divorce; she stops by one day and asks you to hold a
$20,000 necklace since she's worried her spouse might steal it and sell it with other shit from the
house; you say sure and throw it in your unlocked desk and leave; you come back the next day and
it's gone; are you subject to civil liability to the client for mishandling the jewelry?
118
o Note: CIVIL LIABILITY, not disciplinary action

 Always focus on that first
o D; Yes, because you mishandled the jewelry and are therefore liable to your client for
breach of your fiduciary duties or other possible civil causes of action
8. You are an attorney specializing in child advocacy; as a specialist in child advocacy, you donate
and work with a lot of child advocacy groups; as a result, they refer clients to you; eventually, one
asks you for some help making a non-profit; you say you'll do it for free since you give me so
many referrals; did the attorney commit any misconduct?
o Yes - you cannot give something of value in return for client referrals
9. Friends with a judge running for re-election; you are friends with the judge, so give $100 to the
campaign; go out to lunch and judge says she might lose to hot-shot defense attorney; you decide
to make a campaign committee; you solicit donations from other attorneys to donate; you take out
a newspaper advertisement with names of attorneys who practice in front of the judge, and
supporting the judge. What, if anything did the judge do wrong?
o Nothing; you can do all of those things, as it turns out. No ABA model rule says you
cannot do any of those options.
10. You are a civil litigator and represent a hospital; another's client that alleges his employment was
illegally terminated based on his race; hear that attorney is talking to employees at the hospital;
hurry over to hospital, meet with each employee, say if plaintiff's counsel talks to you, refer him to
me. Subject to discipline?
o C. No - you can tell employees of your client not to speak directly with opposing counsel
and refer opposing counsel to you
 MR 3.4(F)
119

PR (Muth) Spring 2019 Outline

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Professional Responsibility (Muth) – Spring 2019

III. Causation and Damages.............................................................................................45

Relationship with your firm...........................................................................................................97

Sources of Ethics and Rules

Duties Lawyers Owe to Clients

III. Implications of Duties of Loyalty, Care, and Confidentiality

i. One of her main theories is that John has status as a fiduciary,

Division of Authority Between Attorney and Client (MR 1.2)

II. Client Decisions

i. Brewington, the attorney, decides to write a letter to the court as

Duty of Confidentiality (MR 1.6)

iv. Picking out specific apps qualifies as a communication

d. Takeaway: So E&T can’t take on Welch’s business clients

V. Confidentiality with Multiple Clients (MR 1.6(b))

b. CA B&P § 6068(e): (1) To maintain inviolate the confidence, and

VI. Entity Representation (Model Rule 1.13)

a. But when you are dealing with an unsophisticated party, you

iii. California Rule – No self-defense exception unless in defense of misconduct

b. So in these situations is probably better to go the formal route that

under attorney-client privilege, as well as where to find the children;

iii. Radack v. United States

1. P: Criminal Law attorney; reps a client accused of money laundering;

ii. Antitrust attorney hires an economist to determine if client has market-power in a

of the committee; parties have a discovery dispute when D refused to

much CCing is going on. So that may help client

b. Matters in prior and current representation are substantially

1. D.C. Circuit - Sealed Case (enough evidence to establish the elements of

c. Beneficiary of Fiduciary Relations Exception

IX. Waiver of Privilege

a. No; you only disqualify when the damage is irreversible (don’t

a. Client’s offer of his/his attorney’s testimony as to a specific

i. But this is limited to extra-judicial context

defense counsel has to focus on their specific D; reasons why the Ds

ii. Have to ask question in a way that doesn't illicit extra

1. If you give them information protected by work product doctrine, it must

1. Duty: Lawyer hired by client OR client believes lawyer represents

III. Causation and Damages

i. But-for the attorney's malpractice, would P have won?

VI. Ineffective Assistance of Counsel

v. (5) Resulting damage

d. Cicone v. URS Corporation

a. Unreasonable to rely on a statement just saying this is our best

a. Do not want liability from AC relationship, just in case the class

a. If they bust into your door and scream information in a crowded

IV. Duty of Care

e. (5) Give nominal gifts as an expression of appreciation that are

iv. CRPC 7.3(c) – Section c below not in MR

b. (2) the name of the certifying organization is clearly identified in

4. pay the costs of prosecuting or defending a claim or action, or of

c. Oklahoma Bar Association v. Smolen

ii. MR 1.16(a)(1) – A lawyer must decline a case if accepting it would result in a

a. So probably no duty to affirm the arbitral award since that

2. L is in an impossible situation because he cannot, ethically, do what the

a. When attorney finds out, he tries to recover his costs in quantum

a. So we don't care if matters litigated are related; now, if you

IV. Directly Adverse Interests

VII. Subsequent Conflicts

a. Issuance of stock information is germane to the antitrust suit

VIII. Conflicts in Criminal Cases

IX. Imputation of Knowledge and Screening

a. Memo to attorney AND everyone else at the firm

i. Can be refuted with evidence firm adequately screened

2. Define what a conflict is, in short declarative statements.

i. Thing you can do but should not do.