ANAJOLIE’S PR NOTES

I. Chapter 1. What This Course is About

A. The Role of Judgment in Law
i. Judgement is interactive, dynamic, and probabilistic
a. Interactive: judgement requires more than thinking about what you want
b. Dynamic: you cannot stop the analysis after just one step
c. Probabilistic: exercising judgment requires dealing with uncertainty
ii. Analyzing Situations
a. A situation is an intersection of interests relative to a problem or problems
b. A problem is a difference between the way things are and the way at least one person in a
situation wants them to be
c. Problems are solved by moving a state of affairs closer to the way you want things to be
d. Strategy space is the set of choices available to solve a problem
e. Strategy spaces are interdependent: The options you have depend in part on the options
others have, and their options depend in part on you. You must choose your actions given
what they are likely to do, and what they are likely to do depends in part on what they
think you are likely to do.
f. Anyone likely to be affected by the problem or a possible solution to it is part of the
satiation.
iii. Perception, Categorization, and Judgment
a. Perception: You make decisions based on your perceptions, so it is a good place to start
in thinking about judgment.
b. Categorization: Help predict the behavior or properties of a person or thing and thereby
guide your own actions toward that person or thing. The predictive function of categories
help explain what it means for a characteristic of a person or thing to be salient.
c. Judgment: Judgment depends largely on perception and perception involves
categorization.
d. Categorization in turn requires you to (i) identify what it is that you are doing—what
your purpose is; (ii) observe people and things with that purpose in mind; (iii) identify
characteristics salient to that purpose (meaning characteristics that will predict properties
or behavior relevant to that purpose); (iv) based on this conception of salience as
prediction, choose a category for the person or thing in question; and (v) check your
choice of category against further observation to determine whether the behavior
predicted by that choice fits the behavior your observe. If it does, that fact will reinforce
your initial choice.

B. Where Laws Governing Lawyers Come From

i. General Legal Rules
a. Lawyers are not above the law
ii. Your Client
a. You represent client and the main person to whom you owe duties
 Duty of loyalty requires you to place your client’s interest ahead of your own
(withing the bounds of the law).
 The duty of care requires that you perform your work competently.
 The duty of confidentiality requires that you not disclose to others or use for your
own benefit (or to the client’s detriment) confidentiality information you learn while
representing a client (related but distinct from attorney-client privilege).
iii. Related Parties
a. Are persons your client deals with and whom you encounter while representing your
client.
  I.e., trustees of a trust, beneficiaries of a will you draft
b. Legal rules vary with the facts of particular cases, but you can owe duties to persons you
do not actually represent as clients, and those duties can lead to liability or professional
discipline.
iv. Rules of Professional Conduct
a. Rules are based on the duties of loyalty, care, and confidentiality.
b. Differ from duties: violation of the rules creates a basis for administrative discipline of
lawyers…
 Reprimand
 Suspension of practice
 Disbarment
v. Government Institutions
a. Some agencies claim the right to discipline lawyers or take other action based on acts by
lawyers that affect the agency’s work. Lawyers can be fined or prevented from practicing
before the agency in the future
 I.e., Securities and Exchange Commission, Patent and Trademark Office

C. Six Rules of Survival

i. Never create a duty you don’t want to create
ii. Always be prepared to walk away
iii. Assume everything you do or say will become publicly known
iv. Never mistake the client’s problem for your own
v. Never do as a lawyer anything you find repugnant as a person
vi. If you mess up, fess up

II. Chapter 2. Duties Lawyers Owe Clients

A. The Duty of Loyalty
i. Restatement § 16(3)
ii. All lawyers are fiduciaries (they owe clients fiduciary duties)
a. A fiduciary duty is the duty of an agent to treat his principal with the utmost candor,
rectitude, care, loyalty, and good faith
b. Fiduciary duties are related to agency law (lawyers are agents of their client)
c. Often said to expire at the end of a representation
B. The Duty of Care
i. Restatement §§ 16(2), 52(1)
ii. Care is judged by the prevailing standards of professional competence in the relevant field of
law and geographic region.
iii. Not a fiduciary duty  
C. The Duty of Confidentiality
i. Restatement §§ 59-60
ii. Applies all the time
iii. Forbids lawyers from using client info for the lawyer’s own benefit or to the client’s detriment
as well as from disclosing such info.
a. Not absolute – may reveal otherwise privileged info to protect a superior interest of the
agent or a third party.
D. Overview of the Implications of Loyalty, Care & Confidentiality
i. Agency law reduces the cost of contracting for legal services by supplying default rules
governing relations between client and lawyer
a. Fiduciary rules protect the client from overreaching or opportunist behavior by the lawyer
b. Utilitarian: the law of agency generally imputes to the client the consequences of a
lawyer’s acts or omissions
 ii. United States v. 7108 West Grand Avenue (1997)
a. Q: whether their former attorney’s gross negligence in representing their interests entitled
them to another opportunity to litigate
b. A: No, malpractice does not justify prolonging litigation against the original adversary.
c. Lawyers are agents, clients are principals, lawyers’ actions affect client rights, and
lawyers are, in general, responsible for breaches of duty that lead to adverse effects.
iii. Tante v. Herring
a. Social security benefits for Mrs. Herring, won. Later, Herrings brought an action against
Tante for legal malpractice, breach of fiduciary duty and breach of contract for his affair
with Mrs. Herring.
b. Herring’s expert did not set forth a negligent act (basis for a claim of legal malpractice)
c. There is a claim against Tante for breach of fiduciary duty
iv. Overlapping Causes of Action
a. Disciplinary rules such as Model Rules 1.7 and 1.9 forbid conflicts of interest.
 Such rules are based on the risk of harm to clients, however, not actual harm
b. Generally, the existence of a confidential relationship is a question of fact for the jury or
the trial court.
 Generally, the existence of a confidential relationship is a question of fact for the
jury or the trial court. Where a legally recognized fiduciary relationship exists,
however, the law infers a confidential relationship, i.e., it becomes a question of law
for the court. If the fact finder determines that a confidential relationship exists or
the court determines as a matter of law that a fiduciary relationship exists, it is
presumed that the one in whom trust and confidence is reposed has exerted undue
influence. 
c. Model Rule of Professional Conduct 1.8(j) provides that a lawyer “shall not have sexual
relations with a client unless a consensual sexual relationship existed between them when
the lawyer-client relationship commenced.”
E. Overview of How Duties are Formed
i. Main points
a. All lawyers owe fiduciary duties to clients
b. Agency is one type of fiduciary relationships
c. Most lawyers are agents and are bounds by agency law
d. The true fiduciary duty is the duty of loyalty. It requires to put the interests of their clients
first – ahead of the lawyer’s personal interests
e. The duty of case requires lawyers to act carefully as defined by the standards of practice
for the relevant subject matter and geographic area
f. When lawyers fail to act carefully the law may hold the client responsible for the
lawyer’s misconduct, leaving the client to settle up with the lawyer
g. The duty of confidentiality requires lawyers not to use confidential client information for
their own personal benefit or to the likely detriment of the client, and not to disclose
confidential information without the client’s consent.
h. Confidential client information is information relating to a representative that is not
generally known.
i. Lawyers may satisfy one duty, such as the duty of care, while breaching another, such as
the duty of loyalty.
j. Fiduciary duties create their own cases of action (breach of fiduciary duty) and may
affect elements of other causes of action, such as misrepresentation (by creating a duty to
disclose)
k. You owe a duty of confidentiality when and to the extent you accept confidential
information under circumstances that would justify a reasonable person on believing that
you agreed to keep the information confidential.
 l. You owe a duty of care when and to the extent you do or say things that would justify a
reasonable person on believing that you agreed to advise them with respect to their
interests.
m. The law presumes lawyers are the sophisticated, powerful half of lawyer-client
relationships; fiduciary duties reflect this presumption.
n. The strength of the presumption will vary according to context; lawyer may rebut this
presumption with respect to certain aspects of certain matters, but the fiduciary duties
never go away and may not vary with client sophistication.

III. Chapter 3. Division of Authority Between Lawyer and Client

A. Authority, Apparent Authority, and Inherent Authority
i. Restatement §§ 14, 26-30
ii. Authority is created by the principal’s consent that the agent act on his/her behalf.
a. Authority is based on communications between the client and the lawyer, in which the
client grants authority to the lawyer.
iii. Apparent Authority: is the power held by an agent or other actor to affect a principal’s legal
relations with third parties when a third party reasonably believes the actor has authority to act
on behalf of the principal and that belief is traceable to the principal’s manifestations.
a. Apparent authority is created by a principal’s “manifestations” to third persons with
whom the lawyer might deal.
B. Client Calls
i. Model Rules of Professional Conduct 1.2(a), 1.4, 1.8(g), Restatement §§ 19-23, Cal. R. Prof’l
Conduct 1.4; 1.4.1
ii. Authority to Settle Civil Matters
a. In Re Grievance Proceeding (2001)
 Rule: Must have client’s Actual or Apparent Authority regarding settlement
negotiations. Attorney can’t add a provision like this to the fee agreement.
(NOT how court ruled
 Holding: Court declined to discipline attorney even though it found he violated
a disciplinary rule. (No harm no foul.) (NOT typical ruling on this issue.
outlier)
 Facts: Attorney added a provision into contract that he doesn’t need to get client
permission to accept or deny settlement offer. Client sues.
iii. Apparent Authority
a. Apparent authority is the power held back by an agent or other actor to affect a
principal’s legal relations with third parties when a third party reasonably believes
the actor has authority to act on behalf of the principal and that belief is traceable to
the principal’s manifestations.
b. Louis Fennell v. TLB Kent Company
 Rule: Under Agency Authority, a client may avoid enforcement of a settlement
agreement because the attorney accepted without the client’s consent. Hiring a
lawyer does not, by itself, give rise to Apparent Authority to settle a claim.
 Facts: Civil suit involving Fennel & TLB. Fennell’s attorney & OC settled case
for $10k. Trial court dismissed case after approving settlement. Court gave π 60
days to restore case. 60 days passed and client expressed disapproval to
attorney multiple times. Trial court refused to reinstate case (denied π request)
because attorney had Apparent Authority to settle case.
 Holding: Fennell made no manifestations to OC that his attorney was authorized
to settle case. Therefore, there was no Apparent Authority and no Actual
Authority (never established). So, his attorney did not have authority to accept
settlement without Fennell’s consent. Trial court erred.
  Rationale: While slightly more burdensome to court calendars sometimes,
alternative is unacceptable. A client shouldn’t be required to either instill all or
no settlement discussions in their attorney.
C. Lawyer Calls
i. Criminal Matters
a. Arko v. Colorado
 Facts: 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
 Key Takeaway: When confronted w/ these situations (client call vs atty call), look
for analogous cases to see whose call the court considers it
ii. Civil Litigation
a. Disciplinary Rules and the Efficient Conduct of Litigation
 MRPC 3.1-3.4
D. Unbundling
i. Cal. Rules of Court 3.35-3.37; 5.70-5.71
E. Main Points of Chp 3
i. Fiduciary duties and disciplinary rules give clients final authority over some things and lawyers
final authority over others. In general clients control the ends of representation and lawyers
control some of the means, subject in some cases to lawful client instructions.
ii. Where the law does not allocate authority the lawyer and client may do so either through
implication from the facts of the job at hand or by agreement.
iii. Lawyers and clients may not by contract alter authority allocated by law; attempts to do so look
suspicious and may violate Model Rule 1.2.
iv. The keys to understanding legal (mandatory) allocation of authority are the purposes and goals
of representation and third-party costs.
v. All else being equal, the more a decision affects the client’s ultimate goal in the representation,
such as settlement or a plea, the more likely it is that the decision is the client’s to make.
vi. All else being equal, the more a decision affects the client’s ultimate goal in the representation,
such as settlement or a plea, the more likely it is that the decision is the client’s to make.
vii. Clients therefore have more control over non-litigation matters than litigation matters, because
decisions outside litigation impose fewer non-avoidable costs on third parties.
viii. Lawyers may limit the scope of a representation, taking on responsibility only for some subset
of issues or tasks, so long as the limitation is reasonable and the client gives informed consent.
Limited representation may increase the risk of violating a Model Rule provision; some
jurisdiction are adopting special rules pertaining to limited representation.

IV. Chapter 4. The Duty of Confidentiality

A. The Duty Described
B. Exceptions to the Duty
C. Confidentiality and Conflicts of Interest

V. Chapter 5. Attorney-Client Privilege

A. Elements
B. Entities and Privilege
C. Intra-Firm Communications and Privilege
D. Exceptions to the Privilege
E. Waiver
F. “Common Interest” Exceptions to Waiver
VI. Chapter 6. The Work Product Doctrine
VII. Chapter 7. Requirements of and Relating to the Duty of Care
VIII. Chapter 8. Liability to Non-Clients
IX. Chapter 9. Assuming Duties
X. Chapter 10. Terminating Duties
XI. Chapter 11. Conflicts of Interest
XII. Chapter 12. Relations with Third Parties on Behalf of Clients
XIII. Chapter 13. Relations with Your Firm
XIV. Chapter 14. Some Economics of Practice
XV. Chapter 15. Relations with Other Lawyers
XVI. Chapter 16. Ethics in Advocacy
XVII. Chapter 17. Problems for Business Lawyers
XVIII. Chapter 18. Issues Confronting Government Lawyers
XIX. Chapter 19. Judicial Ethics