I.

Regulating Law Practice

There are many institutions that regulate lawyers and their conduct:

o Highest Court in each State (most important)

 Two ways this power has developed:
 Some states include it in their constitutions
 Have the inherent power to regulate lawyers: if another branch gets involved in
legal regulation and the judiciary takes the position that that other branch has
acted improperly, the court will invalidate that law

 What role does the judiciary play in regulating lawyers?

 Adopt codes of ethics/disciplinary rules

o Different committees will create the rules, but ultimately the highest
state court will adopt them
 In 2009 the NY Appellate Division adopted the new Model Rules
of Professional Conduct, but NOTHING ELSE
 Did not adopt the preamble, the scope, or the comments
o Supervises the body that disciplines attorneys
 Adopt Court rules
 License Lawyers
o Establishes standards and procedures for admission of attorneys
 Impose disciplinary sanctions on lawyers
 Oversees admission
o Appoints members of the body that determines admissibility of new
lawyers
 Renders decisions in disqualification/malpractice cases
o Many lawyers look to decisions of the highest court in their state in
order to shape the way they behave because they are afraid of
malpractice claims
o State Bar Associations
 States’ highest courts delegate some functions to bar associations. Membership in the
state bar association is mandatory in states; these are called integrated or unified bars.
If one does not join the Bar Association in an integrated state, they are not permitted to
practice law in that state.
 Administer bar exams
 Some run disciplinary agencies
 Advisory ethics committees write opinions interpreting ethical rules
o American Bar Association
 Membership is voluntary; most important role is the accreditation of law schools
 Private nongovernmental organization that produces model ethical rules and ethics
opinions
 ABA Model Rules of Professional Conduct

o Federal Courts
 Just because you are admitted to practice in one state does not mean that you are
permitted to practice in all federal courts in that state

1
  This is another way that federal courts regulate lawyers—making them apply to
the federal court
 You must be admitted to that federal court in order to practice there
 Have the authority to regulate lawyers who appear before them (just like lower state
courts)
 Admit lawyers to practice before them
 Adopt procedural rules and ethical rules
 Impose sanctions for misconduct under their rules
 Disqualify lawyers based on conflicts of interest
 Review and decide petitions for fees pursuant to fee-shifting statutes
o Legislatures
 Pass numerous statutes that govern lawyers. May impose ethical or procedural rules on
lawyers who appear before them.
 Adopt:
 Criminal laws
 Consumer Protection laws
 Securities laws
 Unauthorized practice laws
o Employers
 Law Firms have ethics partners:
 They will have general counsel for the firm—communications may be protected
 Malpractice exposure—when things go wrong, client will look to you as
guarantor
o Prosecutors
 Bring criminal charges against lawyers (among others) for crimes committed in or out
of practice
o Malpractice Insurers
 Companies that provide malpractice insurance to lawyers set conditions for obtaining
insurance. These rules form a body of “private law” that governs lawyers who contract
with these companies
 May require:
 Conflicts checking system
 Review of opinion letters by senior people
 Tickler system
o Clients
 Many impose rules of conduct on the lawyers they employ
 Prohibit block billing
 Disallow billing for the time of a second or third lawyer at a deposition
 Use auditors to monitor the work of lawyers
 They pay the bill—control billing hours
 Clients do not want to pay for new attorneys to be trained—discourages firms from
hiring new attorneys

Sources of the Law governing Lawyers—The Law of Lawyering

 Court Decisions
o Common Law
 Ethics Rules

2
 o State code or set of rules that applies (creates problems for multi-jurisdictional
practices)
 ABA
o Adopted Model Codes and Rules over the years
o Started in 1908—general aspiration canons of ethics
o Model Code of Professional Responsibility—adopted in 1969
 States adopted their own versions but realized this was out-of-date by the
early 1980s
 ABA appointed a new commission to make major revisions and ended up
coming up with a whole new set of rules—MRPC
 The format is as follows:
 Model Rules (disciplinary rules that are mandatory)
 Comments that explain or articulate particular points
o If a Florida Lawyer violates an ABA Model Rule, is the attorney subject to discipline
in Florida?
 No—only subject to discipline for violating your own state’s rules; not the
ABA rules
 Court Decisions
o Malpractice – ex. Clients Negligence claim against a lawyer
o Contracts – ex. Breached Implied agreement that lawyer is competent
o Agency
o Disqualification
 Court Rules
o FRCP 11
 Statutory Rules
o Sarbanes-Oxley Act
 Agency Rules
o I.R.S. or S.E.C. have their own rules for lawyers who want to practice in that
particular agency
 Ethics Opinions
o NYC Bar Association
o State Bar Association

Admission to the Practice of Law

This is the first area of lawyering that is regulated and is done on a state-by-state basis

General Requirements:

 Education
 Graduation from an ABA accredited law school
 Examination
 Comprehensive Bar Examination
 Good Moral Character
 Must currently possess good moral character
o This is the standard and basis for admission to the practice

 Constitutional Limitation

3
 o There must be a rational connection between the requirement and the practice
of law
 Should a NY resident who wants to apply for admission in the NJ bar be
denied admission because the applicant is not a resident of that state?
 No—zero rational connection
 Should a non-US-citizen be denied admission?
 No
 Should an applicant who is an undocumented immigrant be denied
admission because the applicant is an undocumented immigrant?
 No clear answer. Sometimes it isn’t the applicant’s fault that they
are undocumented and for that reason it isn’t fair to prevent
someone from becoming a lawyer. Others, however, say that if
you are unwilling to live within the bounds of the law, this would
seem to be a good reason to block admission.
 Should an applicant be denied admission for refusing to take an oath to
support the Constitution?
 Yes—rational relation
 Should an applicant be denied admission because the applicant is a
member of Al Qaeda?
 Yes—the ultimate goal is the violent overthrow of the
government itself. Tension between this and right to freedom of
association.

 What is “good moral character” though?

o The character we expect of a lawyer—position of trust
 Should an applicant be denied admission for failing to appear on a
warrant related to a minor traffic ticket?
 Look to see if there is a pattern of repeated violations of this type
 Should an applicant be denied admission because he is a member of a
Communist party?
 No
o The nature of the inquiry for admission to the bar allows unfettered discretion
to the biases of the examiners
o The lack of clear standards for fitness to practice results in a strikingly
idiosyncratic body of case law
o Some types of cases that have come up include:
 International Drug Smuggling
 Court found that seven years of a credible work history,
successful completion of law school, and compliance with the
terms of a five year probationary period were insufficient to
show good moral character when weighed against 16 years of
marijuana use, international smuggling, and living as a fugitive
 Declaration of Bankruptcy
 Applicant had lived on student loans and charged a wedding, a
move, and other expenses to credit cards during law school.
Filed for bankruptcy during last semester of law school because
of $109,000 worth of debt
 Court said that although the board could be concerned with the
morality of a person who continues to incur large debts with

4
 little or no prospect of repayment, the court could not agree that
the evidence sufficiently demonstrated financial irresponsibility
 Cheating on a law school exam
 Court held that this demonstrated a sufficient lack of moral
character
o When dealing with character and fitness questionnaires (which ask very
detailed and personal questions about one’s past), the applicant should be very
candid and sincere
o Should examiners ask questions that relate to financial dealings related to
financial support, debt, student loans, etc.?
 Lawyer—fiduciary duty to clients and their funds
 Gets to the point of whether people are responsible enough to be in this
profession
 In situations dealing with bankruptcy, depending on the circumstances,
one could be denied admission to the bar. It can show that one is not
responsible enough to manage one’s own finances; but it can also result
from extraordinary hardship.
o Remember—be candid and FULLY DISCLOSE; prove to the examiners that this
will not happen again; show remorse for your past actions

 What are the consequences for failing to candidly answer questions on the bar
application?
o The applicant can be denied admission
 Lying is a good indicator of your current character—dishonesty flies in
the face of the legal profession
 Non-disclosure is the biggest problem faced by newly-minted lawyers
o The applicant could face perjury charges if the application is under oath
o The applicant could be disciplined under rule 8.1
 R. 8.1: Bar Admission and Disciplinary Matters
 An applicant for admission to the bar, or a lawyer in
connection with a bar admission application or in
connection with a disciplinary matter, shall not:
o Knowingly make a false statement of material fact; or
o Fail to disclose a fact necessary to correct a
misapprehension known by the person to have
arisen in the matter, or knowingly fail to respond to a
lawful demand for information from an admissions
or disciplinary authority, except that this Rule does
not require disclosure of information otherwise
protected by Rule 1.6

 Criminal Conduct of the Applicant:

o If you have smoked pot each of the three years that you have been in law school,
how will you answer a question relating to that use?
 You can disclose:
 One can elaborate on the circumstances and frequency of the use
 It is honest and truthful to do so
 It could come out later that you were lying and you could be
disciplined

5
  It is only a rumor that you will be denied admission for smoking
pot—seek professional advice from a lawyer or from the bar
examiners
 You can not disclose:
 If you have an unblemished record otherwise, why would you
want to tarnish it by disclosing this sort of information?
 People would rather be disciplined later than be denied
admission right now
 The risks of being discovered—reputation
 Plead the 5th:
 The examiners can infer guilt, however. You forfeit the
opportunity to explain something away and this could lead to
denial. This allows the examiners to use their imagination.
 Do not decide to do this without consulting with counsel—
specialized practice area
 If a lawyer is hired by the pot smoker, the lawyer may not reveal
the false statement made to him by the pot smoker because that
is protected by the attorney-client relationship.

 Misconduct during law school

o Remember—the examiners are trying to determine your current moral
character and fitness, so any conduct that has recently occurred is going to be
extremely relevant
 DWI, cheating on a law school exam, arrests, etc.
o Law students have an ongoing duty to disclose any and all misconduct to the law
school because the school has to verify your conduct to the bar. If you do not
inform the school of any misconduct that occurs during your time there, then it
will be providing inaccurate information to the bar
 School will try to help you, but it cannot do that if you are not completely
candid/honest with them
 The underlying conduct is not necessarily the problem—but what you
do to mitigate/rectify the problem is what matters
o The Doctored Resume—p. 69
 What would be an appropriate response from the school?
 This is an extreme misrepresentation of personal history by the
student on her resume.
 Mitigating factors?
o Foreigner, high student loan debt, worried about failure,
reliance on someone else, remorseful
 BUT—this is a profession of honesty and integrity; being a
foreigner is no excuse for lying
 I think finding an honor code violation and requiring extra ethics
education would be appropriate, but other thought that
suspension would be more appropriate
o She fudged up some facts on her resume in order to get a
job—she didn’t really do anything all that different from
what any other student would do in drafting a resume

 In the end, ALL conduct associated with bar application is governed by Rule 8.1

6
 o Liability under this rule extends to lawyers who help an applicant lie in their
application or knowingly assist a fraud in relation to application to the bar
o Even if you don’t get caught lying during your bar application, you are subject to
discipline afterwards if its determined that you knowingly provided false
information to the examiners

Lessons on Applying for Admission

 Obtain law school app. & bar app.
 Study character & fitness questions
 Be honest
 Report problems to law school administrators
 Obtain guidance from bar examiners/counsel (It’s privileged)
 Proactively deal with concerns—demonstrating that you are currently fit

II. Lawyer Liability

 Lawyer Discipline focuses on who has already been admitted to the bar
o Remember: if you lied on your bar application at all, you are subject to discipline
under Rule 8.1
o Are you fit to remain as a professional who abides by the rules?
 Some general principles:
o Policy underlying discipline and self-regulation
o Each state applies its own ethics rules as the minimum standard for professional
conduct
o Each state applies its own state disciplinary procedures in processing
complaints
o Discipline for violating ethics rules ranges from reprimands to disbarment
 These are baseline rules—ethical lawyers comply with more than just the bare
minimum the ethics rules require
 Consequences for violating the disciplinary rules
o Professional Discipline
o May be used in legal malpractice cases
 Your conduct may be used as evidence when opining about your
standard of care
o May affect legal malpractice insurance
 Both availability and rates
o May affect employment
 Hiring and firing
o May affect reputation
o May affect future business
 Rule 8.4
o It is professional Misconduct for a lawyer to:
 Violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of
another;
 Commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects;

7
  Engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
 Engage in conduct that is prejudicial to the administration of justice;
 State or imply an ability to influence improperly a government agency or
official or to achieve results by means that violate the Rules of
Professional Conduct or other law; or
 Knowingly assist a judge or judicial officer in conduct that is a violation
of applicable rules of judicial conduct or other law.

o A lawyer can be disciplined for conduct that has nothing to do with the practice
of law
 Ex. A lawyer is subject to discipline if they misappropriate band
funds from other band members—dishonest
 A lawyer may be disciplined for any conduct that is dishonest or
prejudicial to the administration of justice or that reflects lack of fitness
to practice
 Ex. Domestic violence, failure to pay child support, drunk
driving, etc.
o A lawyer can be disciplined for misconduct that took place while the lawyer was
serving in an elected/appointed government position
 Nixon—unrebutted evidence that he improperly obstructed an FBI
investigation
 Disbarred even though he wasn’t acting as a lawyer in doing
these things
o A lawyer can be disciplined for commission of any criminal act that violates an
ethical rule or that reflects dishonesty, untrustworthiness, or lack of fitness to
practice
 Subject to discipline if convicted of the crime of indecency with a child
for having sexual relations with a 16 year old
 Part-time prosecutor disciplined for domestic violence in light of his role
as a prosecutor in the system of justice
 Even if not convicted or charged with a crime, the lawyer may still be
subject to discipline
o A lawyer can be disciplined based on the actions of an employee
 Telling paralegal to shred a document that opposing counsel has
requested in discovery
o A lawyer can be disciplined for something they do outside the state in which
they are licensed to practice
 Some states allow for discipline of the out-of-state lawyer in the state in
which they are not licensed
 Idaho lawyer subject to discipline in Idaho and in California
despite the fact that the lawyer was not licensed to practice in
California
o If a lawyer is suspended or disbarred in one state, the lawyer cannot continue
their practice in another state—they must disclose their discipline to the
authorities of another state; generally receive the same sanction in each state
o Lawyers can be disciplined for conduct that occurs while they are employed by a
law school

8
 How will anyone actually know whether a lawyer actually violates these rules?
o Rule 8.3 Duty to report
 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
 Does not require disclosure of information that is protected by Rule 1.6
o There must be more than mere suspicion—the relevant inquiry is whether a
reasonable lawyer in the circumstances would have a firm opinion that the
conduct in question more likely than not occurred.
o This rule applies even if you are a subordinate lawyer—blow the whistle on
your boss if their conduct raises a substantial question about the honesty,
trustworthiness or fitness of them.
o The confidentiality exception does not require that a lawyer get client approval
before reporting misconduct of another lawyer; neither does it allow a client to
veto a lawyer’s reporting of misconduct
 Shields lawyers from reporting confidential client information
o If you fail to report another lawyer’s misconduct, you can be subject to discipline
yourself
o Rule 5.2 – Responsibilities of a Subordinate Lawyer
 A lawyer is bound by the Rules of Professional Conduct notwithstanding
that the lawyer acted at the direction of another person
 A subordinate lawyer does not violate the Rules of Professional Conduct
if that lawyer acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty
 Problem 2-1 (pp. 109-110)
o What should the lawyer do?
 Quit her job immediately and report her former
employer
 Tell them about experience at the hearing
and the other hearings to come
 Rule 5.2(b) would not provide any protection if
she continued to work there
o Reporting would be mandatory under Rule 8.3(a)
because it creates a substantial question as to the other
lawyer’s fitness to practice
 If the violation were not serious, then there
would be no obligation to report the misconduct,
but this IS a serious violation
 Do not have to report if you have consulted with another lawyer
and it is covered by Rule 1.6 (client confidence)
o In relation to Problem 2-1, however, this situation would
not be covered by Rule 1.6 because you wouldn’t be
sharing any client confidences but instead information
about how the supervisor runs the office
 Many junior lawyers are afraid to report ethical misconduct that
occurs at their places of work for fear of reprimand. Until
recently, the law provided no protection for lawyers who were
fired because they refused to participate in unethical conduct or

9
 because they reported misconduct or other lawyers to the
disciplinary authorities.
o In NY, following the Wieder case, ethics rules are read
into the contract of employment and the attorney who
follows the rules may sue for retaliation
o Rule 5.1 – Responsibilities of Partners, Managers and Supervising Lawyers
 A partner . . . and a lawyer who . . . possess comparable managerial
authority in a law firm, shall make reasonable efforts to ensure that the
firm has in effect measures giving reasonable assurance that all lawyers
in the firm conform to the Rules of Professional Conduct
 A lawyer having direct supervisory authority . . . shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of
Professional Conduct
 A lawyer shall be responsible for another lawyer’s violation . . . if:
 The lawyer orders or, with knowledge of the specific conduct,
ratifies the conduct involved; or
 The lawyer is a partner or has comparable managerial authority
in the law firm in which the other lawyer practices, or has direct
supervisory authority over the other lawyer, and knows of the
conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action
 Supervising lawyers are liable for the unethical acts of lawyers they are
supervising if they direct the act or know of the proposed act and do not
prevent it. Other managers of the organization are also responsible if
they know of the proposed actions
 In NY and NJ, entire firms may be disciplined for certain misconduct,
such as failure to supervise employees or failure to maintain a system
for checking new matters to identify conflicts of interest.
 If someone bills so many hours that would make it questionable
whether they are even competent anymore

III. The Duty to Protect Client Confidences

 Lawyers are obligated to keep clients’ secrets and to keep confidential much of what they
learn during the course of representing clients.
 Purpose of the rule?
o To facilitate open communication between lawyers and their clients
o Encourages full and frank communication between attorneys and their clients
 What are the legal sources for this rule?
o Ethical rules
o Agency principles
 Client—principal
 Lawyer—agent-fiduciary
 Duty to preserve the confidentiality of the principal
o Evidence Law
 Attorney-Client Privilege
 R. 1.6(a)
o A lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized in

10
 order to carry out the representation or the disclosure is permitted by paragraph
(b) (exceptions to this rule). Section (c): a lawyer shall make reasonable efforts to
prevent the inadvertent or unauthorized disclosure of, or unauthorized access to,
information relating to the representation of a client

Analyzing confidentiality:
 Does the information relate to the representation of a client?
 Is disclosure permissible?
o Because “Informed Consent” – the client understands the consequences
of revealing the information
o Because “Impliedly Authorized” – there is a type of consent that is
deemed to have been given because of the circumstances of your
representation .Ex. Need an outside consultant / plea bargain
 Because it’s covered by an exception
 Ex. Lawyer defending himself from threat of malpractice claim
 Ex. 1.6-b-1: Disclosure to prevent reasonably certain death or
substantial bodily harm

 What types of information must be protected as confidential?

 All information relating to the matter on which the lawyer is
representing the client, except information that is “generally known”
 Personal information relating to the client that the client would not
want disclosed
 Information learned from the client, and information learned from
interviews, documents, photographs, observation, or other sources
 Information acquired before representation begins (such as during a
preliminary consultation) and after the representation
terminates
 Notes or memoranda that the lawyer creates relating to the matter

 What are the consequences of disclosing confidential information?

 Professional Discipline
 Disqualification
o Other side is taking the position that you have confidential
information about their client and you should be disqualified
 Injunction
o If you are threatening disclosure
 Civil Liability
 Fee Forfeiture
 Damages Clients
 Damages Lawyer’s Reputation

 You can reveal general information about your representation of a client---

just make sure it is VERY GENERAL (no names, locations, dates, specific
facts, etc.)

 Problem 3-2: Meeting with Anna (pp. 157-158)

 Has the lawyer violated Rule 1.6?
o Most likely, yes

11
 o A lot of specifics of the case were given and the most
troubling aspect of this whole encounter was that the lawyer
shared the thoughts of her boss about the case
o Should cut back on certain information—name, drinking,
fighting, location, type of case, etc.
o Rule requires lawyer to keep confidential all information
relating to the case regardless of its source.
o Leaving the last name out—doesn’t matter because now
Anna knows all this information and when the case goes
public, Anna will be able to piece it all together

 Comment 4 to Rule 1.6 authorizes the use of hypotheticals when discussing

cases with others—so long as there is no reasonable likelihood that the
listener will be able to ascertain the identity of the client or the situation
involved.
 Clearly, the lawyer’s conversation with Anna is not protected by
Comment 4 given the depth of information revealed to the third
party

 Rule 1.6(b) – Exceptions

o A lawyer may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary:
 To prevent reasonably certain death or substantial bodily harm;
 To prevent the client from committing a crime or fraud that is reasonably
certain to result in substantial injury to the financial interests or property of
another and in furtherance of which the client has used or is using the
lawyer’s services;
 To prevent, mitigate or rectify substantial injury to the financial interests or
property of another that is reasonably certain to result or has resulted from
the client’s commission of a crime or fraud in furtherance of which the
client has used the lawyer’s services;
 To secure legal advice about the lawyer’s compliance with these Rules;
 To establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge
or civil claim against the lawyer based upon conduct in which the client was
involved, or to respond to allegations in any proceeding concerning the
lawyer’s representation of the client; or
 To comply with other law or a court order

 Missing person’s case—if you know the location of the bodies and a
state health law requires reporting the discovery.
 Before resorting to this provision, a lawyer should try to persuade
their client to take action that will obviate the need for disclosure
 If that fails, disclosure should be not greater than the lawyer
reasonably believes necessary to accomplish the purpose
 If it involves a tribunal, there also is then the step of disclosing in
camera (in the judge’s chambers) to the tribunal
 NB: You may disclose, but you are not required to disclose under the Model
Rules

12
  If your client tells you the location of the bodies, but doesn’t consent
to disclosure, what can you do?
o Nothing—confidentiality prohibits you from disclosing this
information
 5th Amendment concerns—privilege against self-
incrimination
 Levels of ethical decision-making:
 Is it legal?
 Is it ethical under applicable rules of conduct?
 How does it make me feel about myself?
 Consider the Spaulding case
 Plaintiff has an aneurism and the defense team knew about it, but
did not disclose this to the plaintiff
o Plaintiff could die from the aneurism
 Comment 6:
o Disclosure of confidential information is permissible if
necessary to prevent reasonably certain death or substantial
bodily harm. Harm is reasonably certain to occur if it will
be suffered imminently or if there is a present and
substantial threat that a person will suffer such harm at
a later date if the lawyer fails to take action necessary to
eliminate the threat.
 First, appeal to the morality of the matter
 Next, make a practical appeal
o The court is approving a settlement based on the limited
facts we are giving to the judge and if we do not disclose this,
then it could re-open the case later on
o It gives a sense of finality
 Disclose to your friend the information about diet Kola?
o No—there is no reasonable certainty that harm will occur to
the woman and her fetus
o If you, as a lawyer, seek legal advice on a dilemma, you may reveal confidential
information to the advisor.
 The reason is because they want you to be able to navigate the rules
properly.
 Rule 1.6(b)(4)
o Rules 1.6(b)(2) (plans to commit or is committing) and (3) (past crime or fraud)
authorize disclosure of confidential information when necessary to prevent
substantial financial injury to another person in furtherance of which the client used
the lawyer’s services
 NB: If the client has not used the lawyer’s services at all to commit this
financial crime, then the lawyer cannot disclose the confidential
information.
 So, if the lawyer is hired by the client for representation relating to
the fraudulent conduct that is past, the lawyer may not reveal any
information about that fraud.
 1.6(b)(2)&(3) are convenient tools for lawyers to use in the event that they
do not realize until after they have begun representation of a client that the
client has been engaging in fraudulent activity

13
 Problem 3-7 (pp. 202-205)
 If you represent the executive, what do the Model Rules require?
o (1) Reveal the fraud to the bank or DA if the client refuses to
do so.
 Permitted by Rules 1.6(b)(2)&(3)
 Mandated by Rule 4.1(b)
 In the course of representing a client, a
lawyer shall not knowingly . . . fail to disclose
a material fact when disclosure is necessary
to avoid assisting a criminal or fraudulent act
by a client, unless disclosure is prohibited by
Rule 1.6.
o Even if nondisclosure would not
result in financial harm to another
person, Rule 4.1 mandates disclosure
if not doing so would constitute
“assisting a criminal or fraudulent
act.” - MUST DISCLOSE
o (2) Do not reveal the fraud but stop representing Executive
Leasing Services.
 Rule 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 . . .
 Rule 1.16(b)(2): Except as stated in paragraph (c), a
lawyer may withdraw from representing a client if . . .
the client persists in a course of action involving the
lawyer’s services that the lawyer reasonably believes
is criminal or fraudulent
 Rule 1.16(a)(1): A lawyer shall not represent a
client or, where representation has commenced, shall
withdraw from the representation of a client if . . . the
representation will result in violation of the Rules of
Professional Conduct or other law
o (3) Do not reveal the fraud, but take more care in
representing the client so that the client does not engage in
fraud in the future
 The lawyer did not actually do anything to
perpetuate the fraud—ethics rules do not permit a
lawyer to reveal information about a client’s crime or
fraud if the lawyer had nothing to do with it
 The lawyer did not actually draft the
documents or anything like that, etc.
 BUT—the lawyer drafted the opinion letters and
different states might infer knowledge that the
assistance was used for fraudulent purposes; other
law might require the lawyer to verify the
information that the client provides

14
 The permissive exceptions under Rule 1.6(b) may result in mandated disclosure under Rule
4.1
o A duty to disclose nonconfidential material facts when disclosure is necessary to
avoid assisting a criminal or fraudulent act by a client, unless Rule 1.6 prohibits
disclosure.
o You represent a client selling assets who is misrepresenting their value. Do you
have a duty to disclose?
 1.6(b)(2) and (3) do not give you the ability to disclose so 4.1 does not
mandate disclosure
 Basically, if you have not done anything criminal/wrong, then you have no
permissive ability to disclose
 Your services have not been used for those assets
 If you have written an opinion letter, though, now there would be an
exception under 1.6(b) and if there is an on-going fraud, then you might
have a duty to disclose under 4.1
 If the bank sues the lawyer and client, may the lawyer reveal a memo to the
client in which the lawyer warned the client to discontinue the fraud?
 Yes, if the disclosure is necessary for the lawyer to use in defending
the claim against the lawyer—Rule 1.6(b)(5)
o Always consider who you’re representing and if you end up getting involved in
situations like Reese’s Leases, check to see if you can disclose under Rule 1.6(b). If
there is an exception, then there might also be a duty to do so under Rule 4.1. If you
do not have an exception, the ability to withdraw and the notice of withdrawal will
serve as an inferential disclosure.
 NB: Any time successor counsel calls you for information concerning your
former client, do not say anything unless your former client gives you
express permission to do so
 If you are successor counsel, condition your engagement of services
on the permission of the former lawyer to talk to you
o What if you represent an elderly person and she comes into your office and she is
injured and you suspect elder abuse? Can you disclose information to Adult
Protective Services?
 1.6(b)(1) permits disclosure
 1.6(b)(6) permits disclosure when the state law or court order dictates
doing so

 Improper Use of Client Information

o Rule 1.8(b): Conflict of Interest: Current Clients: Specific Rules
 A lawyer shall not use information relating to representation of a client to
the disadvantage of the client unless the client gives informed consent,
except as permitted or required by these Rules.
 Fiduciary principles require you, as a lawyer, to be careful to not use
client information to your benefit when doing so would injure the
client
o Do not use information that is to your benefit that you have
gained from your client
 Even if using the information would not be to your client’s
disadvantage, as a fiduciary you should be careful about using this

15
 type of information to your disadvantage without your client’s
permission
o Always disclose to your client whenever you use this type of
information
 NB: The rule does not prohibit uses that do not disadvantage the
client
 Confidential information learned from one client can be used for the
benefit of another client so long as the original client gives informed
consent to do so.
 Problem 3.9: Rat Poison
o Rule 1.6(b)(1) would permit disclosure because there is a reasonable certainty of
substantial bodily harm or death that could occur.

IV. The Attorney-Client Privilege and the Work Product Doctrine

 What is the primary difference between Confidentiality and Privilege?

o Confidentiality is covered by the Ethics rules which impose a duty to protect
confidences
 Require lawyers to protect confidential information whether or not
someone is trying to compel the disclosure of information
 Disciplined if violated
 Covers all information relating to representation that the lawyer obtains
o Privilege is evidence law which governs what kinds of evidence can be admitted in
court
 Provide that neither the lawyer nor the client may be compelled to testify in
court about protected communications
 Jurisdictions often quash the request
 Rooted in 5th amendment privilege against self-incrimination and 6th
amendment right to counsel in criminal matters
 Covers only those communications between a lawyer and client in which the
client is seeking legal advice or other legal services
 This is a subset of confidentiality

 Elements of Privilege:
o Confidential Communications
 Can be face-to-face, fax, email, instant messenger, telephone call, letter, etc.
 The client must reasonably believe that the communication is confidential
 If a conversation takes place in a crowded elevator, regardless of
whether the client or the lawyer knows anyone else in the elevator,
the communication is not privileged
o No privilege for communication that takes place in the
presence of other people
o Between Lawyer and client (and their agents or representatives)
 Self-explanatory – it can be with people other than a lawyer (Secretaries,
paralegals, investigators, etc.)
 Includes notes written by secretaries/paralegals as well

16
  Can also cover interpreters if needed; a psychologist who is present in order
to help the client be more open about certain things; a minor child’s parents
who are present at the interview
 If a lawyer interviews the plaintiff’s neighbors then those communications
are not privileged because it is a conversation with a third party. But if an
investigator conducts an interview with the client then that conversation is
privileged because the lawyer’s agent was speaking with the client.
o Made to facilitate the rendition of legal services
 In order for the privilege to apply, the conversation must be for the sole
purpose of gaining legal advice
 If a client asks for business advice, then the conversation is not
privileged
 A promise or exchange of money isn’t necessary to create a lawyer-client
relationship
 If the conversation is partially legal advice and partially personal advice,
only the portion about legal advice is privileged
 The privilege goes both ways—protects client to lawyer and lawyer to client
 Encourages open and candid communication with attorneys
 Clients work best when they can speak openly to their attorneys
 Assumption that without the privilege, clients wouldn’t consult
lawyers so freely and therefore wouldn’t get the advice they need
 Only protects documents that are used for the purpose of obtaining legal
advice—not documents that simply relate to the matter being litigated about
 Protects a letter from the client to the lawyer seeking advice, but
does not protect a contract that is the basis of the claim that is being
litigated because that is a piece of evidence.
 Privilege does not cover the basic underlying facts that make up the communication
o Facts might be protected by some other type of privilege—such as privilege against
self-incrimination
o E.g., client confesses to lawyer that she had taken more than the prescribed dosage
of pain killer medication on the day that she caused a motor vehicle accident.
Neither client nor lawyer could be compelled to testify about what the client told the
lawyer but if asked whether she took any medicine that day and how much, the
client would have to tell the truth and answer the question because the privilege
does not protect the fact that she took more medicine than she should have.
 Why have the privilege if it doesn’t protect basic facts?
o Sometimes lawyers talk to their clients about theories and tactics that they will use
for the case
o Obtaining disclosure of underlying facts isn’t so easy in cases—especially in criminal
cases
 The prosecutor cannot force defendants to take depositions or to take the
stand so if there weren’t any sort of attorney-client privilege then the
prosecutor could force the attorney to take the stand and ask what the
defense lawyer and the defendant talked about with regard to certain
aspects of the case
 Privilege survives the death of a client—Vince Foster

 Privilege for Entity Clients

17
 o Upjohn— Corporations may assert attorney-client privilege with respect to
communications with employees; however, employees may not claim that privilege.
 Upjohn Warning
 We represent the company, not you.
 As part of our investigation, we need to gather information. We do
so by speaking with employees. We gather this information for the
purpose of providing legal advice to our client, the company. As
such, this means that our conversation with you is protected by the
attorney-client privilege.
 However, the privilege is between the lawyers and the company, not
you. The privilege is controlled by the company, and the company
may decide to share any information it learns through this interview
with third parties, including the government, without your
permission or notice.
 Finally, as an employee, we ask that you keep everything discussed
here confidential. Please do not share this conversation with
anyone, including other employees. This is what keeps the
conversation privileged.
 Attorney-client privilege attaches to the client (the corporation), not the
employee. The company can assert attorney-client privilege, not the
employee—not the employee’s privilege. The company, if it wants to, can
disclose information discovered in its interview; the employee cannot.
Hence, the employee should get outside counsel.

o Control Group Test

 Limits the privilege to communications from persons in the organization
who have authority to mold organizational policy or to take action in
accordance with the lawyer’s advice. (Ex. Gen. Counsel/ CEO)
o Subject Matter Test
 Extends the privilege to communications with any management or lower-
echelon employee or agent so long as the communication relates to the
subject matter of the representation
o Attorney-client privilege would apply to and protect the conversation that the
lawyer has with the president of a company if it relates to a defense strategy
regardless of the test the court applies
o Attorney-client privilege would apply to an attorney’s communications with a
secretary who overheard discriminatory statements by a manager provided the
court applies the subject matter test
o
 Exceptions to the Attorney-Client Privilege
o Crime-Fraud Exception
 No privilege if a client seeks assistance with a crime or fraud
 If client asks lawyer for help to commit a crime or fraud then there is
no protection offered by the attorney-client privilege
o Doesn’t matter if all the criteria for a privileged conversation
applies

18
  There is a privilege if a client asks about the legality of a course of action
they propose to take, but not if they ask for advice that would help them to
commit a crime or avoid apprehension
 If a client asks a lawyer for advice about a past act that was criminal or
fraudulent that communication would be privileged so long as the past act is
really past.
 Continuing crimes or frauds do not receive the benefit of the
privilege
 Even if a client is unaware that a particular act is criminal, consultation with
a lawyer about a planned crime is not privileged
 If the client later learns that the conduct is criminal and decides not
to go through with the plan then the conversation is privileged
 Similarly, it doesn’t matter whether the lawyer is aware of the
legality of the future acts—all that matters is the client’s intentions
 Even if attorney-client privilege applies, there might be an exception that also applies that
would allow disclosing the otherwise privileged information
o Defending claims against yourself as a lawyer

 Work-Product Doctrine
o Covers material the lawyer prepared in anticipation of litigation
 Protects certain documents that might not otherwise be protected by the
attorney-client privilege
 Protects a lawyer’s private notes and mental impressions
 Cannot simply collect a bunch of documents over the course of your
business in the off-chance that someone might sue and then you claim work-
product
 If information is collected routinely but also because litigation was
anticipated, then courts will likely deny the protection that the
doctrine provides
 If a client hands the lawyer a bunch of documents those documents are
generally not protected by work-product doctrine unless the lawyer can
demonstrate that the were assembled in such a fashion that they reflect the
lawyer’s litigation strategy
o Purpose is to encourage thorough preparation of the case
o Qualified Protection
 Ordinary work product—disclosure may be ordered for ordinary work
product if the opposing party shows substantial need and undue hardship in
obtaining the substantial equivalent of the material
 Lawyer’s mental impressions—generally immune from discovery
 If the witness dies, the opposing party may discover the paralegal’s notes of
the witness interview
 Ordinary work product
 Other party cannot reconstruct this
 Claim it’s work product and try to resist discovery, the other side
will say that they have a substantial need and cannot reconstruct,
and therefore this is a qualified situation and you should order the
discovery
 Protects the work product, not the underlying information

19
  If the opposing party can get the information by interviewing the
witnesses themselves, then that is fine

V. Relationships Between Lawyers and Clients

 When does the privilege commence?

o Whenever a prospective client consults with a lawyer for the purpose of getting
legal services, then there will be protection from the beginning
 Questions to ask during the screening process
o Are there potential conflicts of interest?
o Do you, as a lawyer, have the competence and resources to handle the matter—
R 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
 Subject to discipline for charging too much money for “research”
o Cannot charge the client for the time that it takes you to learn
the subject matter
 Rule 1.3—Diligence
 A lawyer shall act with reasonable diligence and promptness in
representing a client

o Does the case lack merit?

 Rule 3.1
 A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith argument
for an extension, modification or reversal of existing law. A lawyer
for the defendant in a criminal proceeding, or the respondent in a
proceeding that could result in incarceration, may nevertheless so
defend the proceeding as to require that every element of the case be
established.

o Does the prospective client appear to be uncontrollable, unreasonable or

questionable in some other respect?
o Is this a situation that will potentially hurt my other clients?
 Documenting the relationship/fee
o May be required by ethics rules or other law
 Rule 1.5(c)
 Governs contingent fees
o Use engagement letters
o Two general ways of documenting the terms of the relationship
 Written agreement that looks like a contract
 Have your writing take the form of an engagement letter
 At the end of the letter there should be a place for the client to sign
and acknowledge that he accepts the terms of the letter
o Define the terms of the relationship
 Rule 1.2(c)

20
  A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed
consent.
o Cannot narrow the scope of the representation in such a way
that you would be incompetent and no reasonable lawyer
would think that you could do the work
 Clarify the identity of the client
 Corporations—Rule 1.13
 Clarify the fee terms—amount and due date
 If the client doesn’t pay by the due date then you are in a better
position to withdraw from representation
o Do not include impermissible provisions such as:
 Prospectively limiting liability
 Rule 1.8(h)
o (1) A lawyer shall not make an agreement prospectively
limiting the lawyer’s liability to a client for malpractice
unless the client is independently represented in making the
agreement . . .
 Allowing the commingling of funds
 Rule 1.15(a)
o Basically prohibits a lawyer from keeping the client’s
property/funds in an account with his own funds, etc.
 Giving the attorney literary or media rights
 Rule 1.8(d)
 Giving the attorney the right to determine settlement
 Rule 1.2(a)
 Prohibiting the client from firing the attorney
 Rule 1.16(a)(3)
o What duties does the attorney owe the client?
 Competence
 Rule 1.1
o A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for
the representation
 Includes diligence, thoroughness, preparation, and analysis of the
factual and legal elements of the problem
 Strickland v. Washington
o In criminal case, defendant must show that counsel’s
performance was deficient.
 Counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.
o The defendant must also show that the deficient
performance prejudiced the defense.
 Requires showing that the errors were so serious as
to deprive the defendant of a fair trial, a trial whose
result is reliable

21
 o Defendant must show BOTH conditions in order to prove
that his counsel was ineffective
 Diligence
 Rule 1.3
o A lawyer shall act with reasonable diligence and promptness
in representing a client
 Cmt. 1 0 a lawyer should pursue a matter for a client
despite opposition or personal inconvenience and
take “whatever measures are required” to vindicate a
client’s cause.
 Must act with zeal on behalf of the client
 Procrastination is very widely resented
 Zeal has been replaced with “diligence” on behalf of the client
 Communication
 Rule 1.4
o Basically, before you do anything, consult with the client
about what you are going to be doing
 Candid
 Rule 8.4(c)
o It is professional misconduct for a lawyer to engage in
conduct involving dishonesty, fraud, deceit or
misrepresentation
 Candor in Counseling
 Rule 2.1
o In representing a client, a lawyer shall exercise
independent professional judgment and render candid
advice. 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
 Divide responsibility between lawyer and client
 Rule 1.2
o Duty to Accept Representation
 Rule 6.1
 Aspirational—pro bono services (50 hours per year)
 Yet it claims that it is the duty of all lawyers to provide this type
of service
 Rule 6.2
 Must accept court appointed representation except for good
cause, such as
o Representing client likely to result in rule violation
o Representation likely to result in unreasonable financial
burden
o Client/cause so repugnant as to impair
relationship/representation
o Duty to reject or withdraw from representation
 Rule 1.16(a)
 When representation would result in a rule violation, e.g. Rule
1.1 (competence) or Rule 3.1 when client’s position is frivolous

22
  When physical or mental condition impairs representation
 Client discharges attorney
o When declining representation—avoid imputed representation
 Beware of circumstances that create a reasonable belief of representation
 Use non-engagement letters
 Have client sign them and send them back
 Do not give advice to non-clients
 If you give advice—be competent
 Urge consulting another lawyer anytime you turn someone down and tell
the person about deadlines (be careful to speak in general terms, otherwise
you might be viewed as giving advice)
o Beware of inadvertent Relationships—Restatement 14
 A relationship of client-lawyer arises when
 A person manifests to a lawyer the person’s intent that lawyer
provide legal services . . . and either
o The lawyer manifests to the person consent to do so or
o The lawyer fails to manifest lack of consent to do so, and the
lawyer knows or reasonably should know that the person
reasonably relies on the person to provide services
o Types of authority under agency law
 Express
 Client tells lawyer specifically to take a certain course of action
 Implied
 Client gives lawyer general instructions that implicitly allows the
lawyer to take certain actions on the client’s behalf.
 Authority of the agent to do certain things that are impliedly
authorized due to the nature of the representation
 Apparent
 When a client tells a third party that the client’s lawyer has the
authority to settle a claim in his behalf, the third party may rely on
the lawyer’s subsequent actions, even if the client did not actually
authorize those actions
 Found if a principal places an agent in a position that causes a third
person reasonably to believe that the principal had given the agent
express authority
o Duty to fulfill additional duties assumed by contract
o Division of responsibility between lawyer/client
 Rule 1.2—competent clients determine objectives
 “Calls the Shots”
 Client is the principal and is entitled to determine what shall be
accomplished in their representation
 Restatement—unless agreed otherwise, the lawyer shall make decisions that
involve technical, legal and strategic consideration
o Problem 5-4 – p. 321 (The Package Bomber)
 Which option would you choose?
 Option three requires the lawyer to lie; the client does not want this
and the lawyer is manipulating him into using this mental illness
defense because it is in the lawyer’s best interests

23
 o Rule 8.4—Lawyer shall not participate in fraud, deceit, or
dishonesty
 Option two—while the judge may not agree with you, at least you
are doing it openly in front of the client as opposed to deceptively
o Tries to accomplish option three in the open
 Option one—won’t work, but at least you are letting your client
decide
o Clients with diminished capacity
 Rule 1.14
 Try to maintain a normal relationship
 May need to take reasonably necessary protective actions if:
o Lawyer reasonably believes client has diminished
capacity
o That client is at risk of substantial harm, AND
o Client cannot adequately act in her own interests
 May disclose confidential information if reasonably necessary to
protect client’s interests
 Problem 5-5—p. 331 (Vinyl Windows)
 Try to appoint guardian ad litem under Rule 1.14 because she seems
to have diminished capacity
 If neighbor is appointed guardian ad litem, may you reveal such
information in these situations?
o Yes, part (c) of the Rule says that you can.
o Terminating the Relationship
 Can you just simply withdraw from representation?
 No—once the relationship has been commenced, the relationship is
deemed to continue until the matter is resolved
 Under Rule 1.16(a)—Mandatory Withdrawal
o When continued representation will result in a violation of a
rule
 Would it result in unethical conduct?
o When mental/physical condition materially impairs the
attorney’s ability to effectively represent a client
o When lawyer is discharged
o Lawyer can sue client for breach of k or sue for fees, but
cannot simply leave the client
o Lawyers also protect themselves by getting security interests
and retainer fees up front
 If client still owes money to the lawyer, the lawyer can withhold the
documents from the client unless it would unreasonably harm the
client’s interests
 If the client doesn’t pay the lawyer’s fee, the lawyer may withdraw
but the lawyer must first want the client that nonpayment will lead
to withdrawal (or to a motion to withdraw from a matter that is in
litigation)
 After determining whether withdrawal is mandatory, ask whether
withdrawal is permissive
 Rule 1.16(b)(1)

24
 o When withdrawal can be accomplished without material
adverse effect on the client’s interests
o (f) When other good cause for withdrawal exists
 Think about it—you cannot just withdraw on the eve
of trial or just before closing a complex business deal
—material adverse effects are likely
 If a lawyer has already filed suit on behalf of a client or entered an
appearance in a matter in litigation, the lawyer generally cannot
withdraw from representation of the client without permission from
the court that is to hear the case
o Rule 1.16(c) – “a lawyer must comply with applicable law
requiring notice to or permission of a tribunal when
terminating representation.”
o Court must approve the withdrawal
 After withdrawal, certain duties continue to the client:
 Protect the client’s confidences
 Fiduciary Duties
 Return Client funds or files
o But if client owes money to the lawyer, the lawyer should
never hold the file hostage—Fortney thinks this is the case
despite what the book says
VI. Concurrent Conflicts of Interest: General Principles

 The most pervasive type of issue that lawyers face

 Principles underlying conflict rules:
o Duty to exercise independent judgment
o Duty to be loyal and diligent in representation
o Duty to preserve client confidences
 All duties can be compromised by competing interests
 Three categories:
o Those that are so serious that the lawyer should turn down the second client
o Those that are adequately addressed by obtaining informed consent from the
clients affected
o Those that are not serious enough even to require informed consent
 Three types of conflicts:
o Concurrent
 Rule 1.7
 (a) A lawyer is not permitted to represent a client if the
representation involves a concurrent conflict of interest:
 A concurrent conflict of interest is one between
two current obligations of the lawyer—two
clients, a client and another person, or a client
and the lawyer’s own interests
o The representation of one client will be directly adverse
to another client
o There is a significant risk that the representation of one
or more clients ill be materially limited by the lawyer’s

25
 responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer
 A material limitation includes other
responsibilities including duties to former clients,
current clients, duties to third parties as a
fiduciary in the position as a trustee, etc.,
someone other than the client who is paying the
client’s fee, or the lawyer’s own financial,
employment, personal, or other interests
 If a client would get less rigorous representation
from the lawyer because of the lawyer’s other
responsibilities, there might be a material
limitation
 (b) Despite the above prohibitions, a lawyer may represent a
client if:
o The lawyer reasonably believes that the lawyer will be
able to provide competent and diligent representation to
each affected client
o The representation is not prohibited by law
o 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
o Each affected client gives informed consent, confirmed in
writing.
 “informed consent”—idea that prospective
clients understand the risks and consequences
and advantages/disadvantages of the
representation
o Successive
o Imputed
 The interests are such that the conflict of one lawyer is imputed to the
entire organization
 How to evaluate conflicts
o Under Rule 1.7, a lawyer must:
 Clearly identify the client or clients, and determine whether each is a
present client or a former client;
 Determine whether a conflict of interest exists;
 Decide whether the lawyer is permitted to represent the client despite
the existence of a conflict
 If so, consult with the clients affected under paragraph (a), obtain their
informed consent, and send written confirmation to the client of the
informed consent
 Nonconsentable conflicts
o Most conflicts are consentable
o To determine whether a conflict is consentable, a lawyer must ask:
 Whether they reasonably believe they will be able to provide competent
and diligent representation to the relevant clients
 What would a reasonable lawyer think?

26
  Is there going to be an adverse effect on the relationship with
either client?
 Would there be an adverse effect on the representation of either
client?
 Whether the representation is prohibited by law
 E.g. a federal statute prohibits government lawyers from
representing a client against the US regardless of whether the
government consents
 Whether the representation involves litigation in which the lawyer is
representing one client against another client whom the lawyer is
representing in that matter
 A lawyer cannot represent opposing parties in the same
litigation, regardless of the clients’ consent
 When gaining informed consent from clients, how much information does a lawyer have
to give a client to obtain informed consent?
o The lawyer must explain to the client the risks, advantages, and possible
alternative to the lawyer going forward with the representation.
o Material and reasonably foreseeable ways that the conflict could have adverse
effects on client interests
 Aggressive advocacy of one might have negative consequences on the
other
o Implications of common representation, including the effect on privilege
o Cannot simply assume representation if the client does not respond to the letter
 When disclosing information to a potential client about a possible conflict, you
sometimes have to divulge otherwise confidential information
o Get client consent from the other client first
 If refused, the lawyer cannot proceed with representation of the
prospective client because they will not be able to get informed consent
 Advance waivers may or may not work—certainly if the conflict is nonconsentable then
such a waiver will not work
 Opposing counsel might file a motion to disqualify if you are representing a client in the
face of a conflict and have not gained their informed consent
o You MUST withdraw from representation if you discover a nonconsentable
conflict or the other client declines to give informed consent
 Rule 1.16
Imputed Conflicts
 Rule 1.10
o (a) While lawyers are associated in a firm, none of them shall
knowingly represent a client when any one of them practicing alone
would be prohibited from doing so by Rules 1.7 or 1.9, unless the
prohibition is based on a personal interest of the prohibited lawyer
and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm . . .
o (c) A disqualification prescribed by this rule may be waived by the
affected client under the conditions stated in Rule 1.7.
 Many jurisdictions permit firms to “screen off” any affected lawyers, but the Model
Rules do not permit this and still require client consent.
 Under the Model Rules, any work you did before you became a lawyer will not be
imputed to your firm/practice

27
 o This way people pursue internships/externships after law school
 Problem 6-1 (pp. 373-374)
o Can you represent both injured passengers in their claims against the cab
company and the cab driver?
 Maybe—while both interests may seem to be in line with each other,
they may have divergent interests
 One person’s financial interests/injuries are greater than the
other’s
 In the end, though, there is nothing that would seem to preclude
your representation of either client
 Problem 6-2 (p. 377)
o Can you represent the woman in her personal injury action and
simultaneously represent her husband in a divorce action against her?
 NO. Even though litigation is separate, you will get confidential
information from each client’s assets that may be adverse to that
client in the divorce proceedings
 Problem 6-3 (p. 380)—Beware of changing circumstances
o How should you respond to this settlement offer that gives more money to
Reema than to Jill?
 Obligation to communicate to both clients in order to allow them to
determine which course of action they would like to take
 Provide as much information as you possibly can to each
o What if Jill was drunk and was distracting the driver?
 Can no longer represent both clients.
 This information would be beneficial to Reema’s case.
 One client—I had no involvement at all (show contributory
negligence)
 One client—refute that
 Risk of cross-claim
How to evaluate potential conflicts issues under Rule 1.7:
1. Clearly identify the client or clients, and determine whether each is a present client
or a former client
2. Determine whether a conflict of interest exists
3. Decide whether the lawyer is permitted to represent the client despite the existence
of a conflict (i.e., whether the conflict is consentable)
4. If so, consult with the clients affected under paragraph (a), obtain their informed
consent, and send written confirmation to the client of the informed consent
Positional Conflicts
 This is where a lawyer takes a position on behalf of one client that may adversely
affect the interests of another client
 Comment 24 to Rule 1.7 outlines a set of factors to be taken into account when
evaluating whether there is a serious problem in terms of positional conflicts:
o Are the issues before the same court?
o Are the issues substantive or procedural?
o How significant is the issue?
o Practical significance of the issue to the immediate and long-run interests of
the clients involved
o Clients’ reasonable expectations in retaining the lawyer

28
  Simply advocating a legal position on behalf of one client that might create
precedent that is adverse to the interests of a client represented by a lawyer in an
unrelated matter does not create a conflict of interest.

 Problem 6-5 (pp. 384-386)—“Top Gun”

o Success in the gun case could adversely affect the pharmaceutical company
o Do the rules require you to withdraw?
 There is only one case going on right now—no case currently against
the Pharmaceutical company
 These are substantive issues
 Conflicts with prospective clients—Rule 1.18
o You cannot represent a client in a proceeding that is materially adverse to
the interests of the prospective client
o Nevertheless, representation is permissible if the affected client and the
prospective client give informed consent, or the lawyer is screened, the
prospective client is informed

VII. Concurrent Conflicts in Particular Practice Settings

Corporate Representation
 Rule 1.13
o Always identify the client and take steps to protect entity-client when client
interests and constituent interests conflict under this rule
o You represent the organization—not any individuals within the company
 A lawyer may represent a member or an employee of the organization unless the interests
of the organization and the individual conflict, in which case the lawyer may proceed only
with the consent of the affected parties
 Who do you owe your duty of confidentiality toward?
o It depends—if an employee comes to you and seeks legal advice and you perceive a
potential conflict of interest, inform that employee immediately and tell them that
their conversations with you may have to be reported to the managers of the
organization
o If the lawyer does not give any such warning and induces the employee to think that
there is a reasonable expectation of privacy in their discussions with the lawyer
then the lawyer may have inadvertently created a lawyer-client relationship with a
duty to protect the employee’s communications
 What should you do when responding to officer/manager misconduct that threatens to
harm the organization?
o Report the misconduct to the higher authorities within the corporation
o If they refuse to act, and the lawyer believes that the misconduct will result in
substantial injury to the organization, the model rules now permit the lawyer to
reveal the misconduct to public officials
 You can also withdraw/resign
o Public issuers of securities—report to SEC

29
Representing Criminal Co-Defendants
 Special scrutiny under Rule 1.7, comment 23
o Conflicts so grave that a lawyer should ordinarily decline joint representation
o Sixth amendment implications
o Risk of third party interference
 Could involve a significant sacrifice of the interests of one client on behalf of another
 It is permitted, but generally, everyone says not to
 In federal courts, special hearings must be held in order to advise clients of their rights to
separate counsel
 Prosecution can move to disqualify the representation if it perceives a possible conflict
because they want a good conviction and don’t want any claims that they had ineffective
assistance of counsel
 If you object to representing the defendants but the judge forces you to do so anyway, the
conviction will likely be overturned
 If the defendants nevertheless agree to the joint representation, in order to overturn it on
appeal you must show that there was a conflict of interest that actually affected the
adequacy of his representation—do not need to demonstrate prejudice, only adverse
impact in the representation
 Even if you represent a homicide victim on unrelated charges, and then attempt to
represent the capital defendant the conviction could nonetheless be overturned
o Arson suspect and murderer example form practice test
 Problem 7-2 (p. 414)
o Should NOT represent one officer while your partner represents the other
 One’s defense could interfere with the other’s defense
Third Party Interference Conflicts
 Generally arise when third party interests conflict with client interests
 Concern relates to interference with the independent judgment to be exercised on behalf of
the client
 Rule 1.7 provides the general analysis
 Also arises when someone else pays the legal fees for a client
o Rule 1.8(f)—the lawyer’s independence can in some ways be affected by third party
paying fees of the client
 Have the client consent after consultation
 No interference with the lawyer’s independence or with the client-lawyer
relationship
 Client confidences are preserved
 Insurance-defense work
o Three players: insured, insurer, lawyer
 3rd arty brings claim against the insured
 The insurer pays for the lawyer/defense of the insured
 Company has 2 duties—indemnify the insured for damages that are covered
by the policy and provide a defense for covered claims
 Unity of interest—defeat the plaintiff
 Lawyer has two clients
 If the interests of the insurer and the insured ever conflict, your duty is to
the insured NOT the insurer.
o What if their interests conflict?
 Act in the best interests of the insured unless it would result in helping to
assist client fraud in which case you should withdraw from representation

30
  Lawyer may not follow direction form the insurer if it would substantially
increase the risk of liability for the insured
 If conflicts about settlement ensue (insurer wants to settle but insured does
not) listen to what insured wants and if there is disagreement then
withdraw from representation
o Insurer should disclose the potential for conflicts to the insured—use reservation of
rights letter
o Supplemental IDC Problem
 In case where IDC learns that the truck driver might have a claim against its
own company for negligence, the lawyer should advise the driver that it
should hire its own lawyer to represent him in this action
 What about the fact that the lawyer learns that the truck may not have been
covered because it wasn’t actually a part of the fleet that the insurance
covered?
 Continue to represent the insured without revealing this information
so long as continued representation does not result in committing a
fraud
o Remember 1.8—duty to insured in situations where there is
a conflict
VIII. Conflicts Involving Former Clients (Successive Clients)
 There are many concerns beyond those of current clients
o Former clients are concerned that the lawyer will betray confidences, challenge
work-product, or otherwise be disloyal
o New clients are concerned with the diligence with which the lawyer will handle
their case, whether the lawyer will decline to use the information of former clients,
and whether the lawyer will be disqualified
 Rule 1.9 governs the interests of former clients and the attorney
o Whenever a new client’s interests conflict with a former client’s interests
o Less restrictive than Rule 1.7 because it gives you much more latitude in the face of
the conflict than the current conflict rules
 What duties does an attorney owe a former client?
o They must protect their confidences!
 A lawyer must decline any new matter that presents a substantial risk that
the lawyer would make material adverse use of the former client’s
confidences, unless the former client consents
o Rule 1.9 – Duties to Former Clients
 (a) 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) 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:
 (1) Whose interests are materially adverse to that person; and
 (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.

31
  (c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in a
matter shall not thereafter:
 (1) Use information relating to the representation to the
disadvantage of the former client except as these Rules would
permit or require with respect to a client, or when the
information has become generally known; or
 (2) Reveal information relating to the representation except as
these Rules would permit or require with respect to a client.
o Note—regardless of the impact the lawyer’s representation of the new client will
have on the former client’s interests, the lawyer is always allowed to represent the
new client if informed consent, confirmed in writing, is given.
 Also—only concerned with this rule if the two matters share a substantial
relationship between the work done for the former client and the new
matter
 Who is a former client?
o Hard to tell because lawyers generally are reluctant to use severance letters to
terminate a relationship with a client
 You can look at it from the client’s point of view in terms of the
contemplated services that the lawyer was going to provide
 Once the services have ended, then you might be able to claim that
the client is a former client and get the benefit of the lax Rule 1.9
provisions
o Problem 8-1 (p. 442)
 Is Almond a current or a former client?
 Almond is a former client and thus not subject to the provisions of
Rule 1.7.
 The firm did work for it once, 5 years ago. Subsequent offers to
continue doing work Almond were refused by Almond.
 Ask whether a reasonable person would conclude whether the firm
was still representing Almond
o The firm should have drafted a formal termination letter, but
in this case its okay
 Does the law firm need to get consent from Almond to handle this other
matter?
 No. The two are not “substantially related.” Almond dealt with tax
consequences of purchasing bonds.
 This new client wants to sue Almond for unpaid bills from 5 years
ago that have nothing to do with the bond purchases.
 What does a proper Rule 1.9 analysis look like?
o Is the new matter the same matter or substantially related to the previous one?
 If yes, are the new client’s interests materially adverse to the interests of the
former client?
 If yes, the lawyer may only represent the new client if the former
client gives informed consent in writing
o Substantial Relationship Test:
 Is there a substantial risk that the lawyer in handling the first matter would
normally have obtained confidential factual information that would
materially advance the client’s position in the second matter?

32
  This test, then, indicates that the firm would be able to handle the
new client’s matter in its suit against Almond.
 Does a substantial relationship depend on common facts or common legal issues?
o Generally, courts take the approach that such a relationship depends on whether
factual information could have been learned during the first matter that could be
used adversely to the first client during the second representation
o Doesn’t matter whether the lawyer actually learned this information—as long as
they were in a position that they could have actually gained knowledge of this
information that is sufficient to find the existence of a substantial relationship
 Look at what kinds of confidences a lawyer ordinarily would have learned in
the prior matter that might be used in the second matter in a way that would
harm the former client
o If a former client moves to disqualify a lawyer from working on a new matter, the
former client may give a general description of the lawyer’s previous services and a
judge may draw inferences about the type of confidences that ordinarily would be
learned in that type of representation
o Problem 8-2 (p. 458)
 Are the two cases substantially related?
 Can the District Attorney prosecute a murder case against a former client
from when he was in private practice?
 12 years since representation; DA doesn’t remember the facts of the
case; you should have been able to conclude that there is nothing
that you can use now; information that someone ordinarily would
dig up during discovery
 Why CAN’T he go forward with the case?
o Way too much information
o Because the case turns on his mental state, his prior
representation would present an issue as the viability of his
defense
o You might have knowledge of the concussion that could
defeat their defense
 Prudent thing to do would be to step down

33
Concerns with Information that is learned from Prospective Clients
 Rule 1.18 governs this type of conflict:
o A prospective client is a person who discusses with a lawyer the possibility of
forming a client-lawyer relationship
o Even when no relationship ensues, lawyer shall not use/reveal confidential
information, except as permitted by Rule 1.9
o Lawyer shall not represent a client with interests materially adverse to those of the
prospective client in the same/substantially related matter if the lawyer received
significantly harmful information
 Rule 1.18(d)
o Representation is permissible if both the affected and prospective clients give
informed consent, confirmed in writing
o Other firm lawyers are not disqualified if:
 The lawyer took reasonable measures to avoid exposure to more
disqualifying information than was reasonably necessary to determine
whether to represent the prospective client; and
 The disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom; and
 Written notice is promptly given to the prospective client
o Problem 6-6 (pp. 388-389)
 Analyze from the perspective of a prospective client
 If the individual lawyer has received confidential information from Maria,
does the firm have to withdraw from representing Nicholas?
 Does it matter that this information was thrust upon the attorney
unsolicited?
o Yes. This is not a prospective client within the meaning of
1.18(a) according to comment 2 to Rule 1.18.
o Would it be reasonable under the circumstances for a
layperson to believe they were establishing such a
relationship?
 The links and the language on the website would
make someone believe they were establishing such a
relationship
 Other lawyers in the firm can proceed with representation provided
that the affected lawyer is screened, written notice is provided to the
clients, and he receives no fee.
Imputation of Conflicts within Organizations
 Rule 1.10(a)(1)
o While lawyers are associated in a firm, none of them shall knowingly
represent a client when any one of them practicing alone would be prohibited
from doing so by rule 1.7 or 1.9, unless the prohibition is based on a personal
interest of the prohibited lawyer and does not present a significant risk of
materially limiting the representation of the client by the remaining lawyers
in the firm
 Lawyer mobility is a HUGE issue
o Use Rule 1.9 and 1.10(a)(2) for conflicts when lateral hire joins new firm
 Rule 1.10(b)—Use to analyze conflicts that might be left at a firm when a lawyer leaves
o Conflicts analysis for former firms when lateral lawyer leaves firm

34
  If Bob leaves the defendant’s firm and joins the plaintiff’s firm, is there a
conflict of interest among the lawyers at Bob’s former firm?
 Yes, if Bob obtained confidential information
o When a lawyer has terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with interests materially
adverse to those of a client represented by the formerly associated lawyer and
not currently represented by the firm, unless:
 The matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and
 Any lawyer remaining in the firm has information protected by Rules
1.6 and 1.9(c)
 Rule 1.9(b) is used to analyze conflicts that are brought to a firm
 Clients can waive imputed conflicts under Rule 1.10
o Analysis is the same as Rule 1.7(b)
 Rule 1.10(c) allows for screening in new firm BUT NOT IN THE MODEL RULES
 If lawyers share office space together, they may have imputed conflicts among them
o Problem 8-4 (pp. 480-481)
 Is the office mate disqualified?
 Yes—the two lawyers share a receptionist and discuss the facts of
each of their clients’ cases with each other
 Is it enough from the perspective of the clients that there is simply a
risk that this information might be shared?
o Yes—secretary might get confused and accidentally disclose
information to another attorney
o There is a HUGE risk of confidences being shared
 Because lawyers did not keep their offices separate, there will be an
issue of imputed conflicts
 Convictions could be set aside
 What about lawyers who go from representing the government to private practice?
o Rule 1.11(a)
 Except as law may otherwise expressly permit, a lawyer who has
formerly served as a public officer or employee of the government:
 (1) Is subject to Rule 1.9(c); and
 (2) Shall not otherwise represent a client in connection with a
matter in which the lawyer participated personally and
substantially as a public officer or employee, unless the
appropriate government agency gives its informed consent,
confirmed in writing, to the representation
o The individual’s conflict must relate to a matter in which the person participated
personally and substantially
 The rule requires no inquiry about the degree of adversity between the new
client’s interests and the government’s interests
 You MUST get consent from the government
o Rule 1.11(b) allows other lawyers in the firm to participate in the representation as
long as the conflicted lawyer is timely screened, given no compensation in
connection with the matter, and written notice is promptly given to the appropriate
government agency in order for it to determine whether there has been compliance
with the provisions of the rule
o What is a “matter” in relation to Rule 1.11(a)?

35
  Rule 1.11(e)
 As used in this Rule, the term “matter” includes:
o (1) Any judicial or other proceeding, application, request for
a ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest or other particular
matter involving a specific party or parties, and
o (2) Any other matter covered by the conflict of interest rules
of the appropriate government agency
 Drafting regulations will not present any conflicts issues because you are not
working with specific parties
o “Personally and Substantially”
 To participate “personally” means directly, and includes the participation of
a subordinate when actually directed by the former Government employee
in the matter.
 “Substantially” means that the employee’s involvement must be of
significance to the matter, or form a basis for a reasonable appearance of
such significance.
 Requires more than official responsibility, knowledge, perfunctory
involvement, or involvement on an administrative or peripheral
issue
o Even if a lawyer is not precluded from representation under 1.11(a), the lawyer
might still be precluded on the basis of their having learned confidential
government information about a person and the new matter could involve material
adverse use of that information.
 Rule 1.11(c)
 Permits screening to avoid imputation of conflicts resulting from
possession of such information
 “Confidential government information”
 Information that has been obtained under governmental authority
and which, at the time this Rule is applied, the government is
prohibited by law from disclosing to the public or has a legal
privilege not to disclose and which is not otherwise available to the
public
 What about conflicts for government lawyers who formerly worked in private practice?
o Rule 1.11(d)
 Except as law may otherwise expressly permit, a lawyer currently
serving as a public officer or employee:
 (1) Is subject to Rules 1.7 and 1.9; and
 (2) Shall not:
o (i) Participate in a matter in which the lawyer
participated personally and substantially while in
private practice or nongovernmental employment,
unless the appropriate government agency gives its
informed consent, confirmed in writing; or
o (ii) Negotiate for private employment with any person
who is involved as a party or as lawyer for a party in a
matter in which the lawyer is participating personally
and substantially, except that a lawyer serving as a law
clerk to a judge, other adjudicative officer or arbitrator

36
 may negotiate for private employment as permitted by
Rule 1.12(b) and subject to the conditions stated in Rule
1.12(b)
o If the work would be adverse to a former client, the government lawyer must ask
whether it is both substantially related and involves material adversity
 If so, lawyer cannot do the work without the consent of the former client
o If the new work is not adverse to the interests of a former client but involves a
matter on which the lawyer did a lot of work in private practice, the government
lawyer is precluded from working on it unless the current employing agency gives
its consent
 Conflicts involving former judges, law clerks, arbitrators, and mediators
o Rule 1.12(a)
 A lawyer shall not represent anyone in connection with a matter in
which the lawyer participated personally and substantially as a judge
or other adjudicative officer or law clerk to such a person or as an
arbitrator, mediator or other third-party neutral, unless all parties to
the proceeding give informed consent, confirmed in writing.
o “Personal and Substantial” standard is the same as that used for conflicts of
government lawyers in Rule 1.11
o Rule 1.12(c) relates to the imputation of conflicts to firms.
 Even if disqualified under (a), as long as the lawyer is screened then the firm
can work on the matter.
 Screen lawyer
 Give no part of fee
 Give written notice to the parties and any appropriate tribunal in
order for them to verify that compliance with rule has been made
IX. Conflicts Between Lawyers and Clients

 Applicable Law
o Contract
o Disciplinary and Court Rules
o Fiduciary Principles
o Statutory Law—civil and criminal

37
 Conflicts that arise between the lawyer and their client
o Fees
 Not just the disciplinary rules that will apply to fee relationships…you have the
applicable legal authorities listed above that will apply
 Trade Associations have started to set standard fees for services provided by
lawyers. Problems?
 Certain areas have higher costs of living than others, etc.
 Anti-trust violation
o Horizontal control
o Price-fixing
 US Supreme Court disagreed with such a practice
 No longer have minimum fee schedules because
of this
 Traditionally, fees are a matter of negotiation between the attorney and the
prospective client
 Corporate Clients
o Since the 1990s have become concerned with the costs of outside
legal services
 Invite competitive bidding for certain matters
 Clearly state what outside counsel is permitted to bill for
 Many corporations hire several different firms to handle
their affairs
 Individual Clients
o Far less bargaining power that institutional clients
 Charge initial retainer fees
o Lawyers don’t normally provide much information about what
the projected costs of representation will be
 Requires a client to essentially sign a blank check for the
services
 Model Rules provide some guidance in this area
 Rule 1.5
o (a) A lawyer shall not make an agreement for, charge, or
collect an unreasonable fee or an unreasonable amount for
expenses
 8 factors to be taken into account when determining
whether a fee is reasonable
o (b) The scope of the representation and the basis or rate of
the fee and expenses for which the client will be responsible
shall be communicated to the client, preferably in writing,
before or within a reasonable time after commencing the
representation.
 Changes in the fee shall also be communicated to the
client
 NB: Model Rules do NOT require a writing, but best practice is always to
have something like this written down
 Fee and expense information does NOT need to be disclosed before
starting the work
o “Before or within a reasonable time”

38
  E.g., a lawyer who is representing someone who is in jail
and needs assistance immediately…not very practical to
have the lawyer discuss fees at the jail
 Not required to give written estimates about the time to be spent on the
matter or the total fee
o Generally very hard to predict how much time you will spend on
something
o You should, however, provide a client with a realistic assessment
of the possible cost of the representation
 Types of fee arrangements
 Flat Fees
o Set price for the entire representation
o Clearly describe what this fee covers
 E.g., writing a will; not any litigation expenses
o Must be reasonable and realistic in that you must be able to do
the work for the amount you charge for it
o If a lawyer agrees to handle an adoption for $5,000, is he subject
to discipline?
 No, provided the fee is reasonable
 Must be reasonable and need not be in writing
 Hourly Fees
o Cannot bill for more hours than you actually worked
o Cannot round up hours for billing purposes
o Padding hours (billing for time not actually worked) is unethical
o Cannot bill for overhead or markup costs
 CAN bill for costs incurred in the course of
representation, such as postage or messenger services
 CANNOT bill for more than the actual cost of services to
the lawyer
 E.g., charging for copies that were made in the
office, running a library, purchasing malpractice
insurance, paying for office space, heating, air
conditioning, etc.
 “The lawyer’s stock in trade is the sale of legal
services, not photocopy paper, tuna fish
sandwiches, computer time or messenger
services.”
o You cannot bill two clients for one period of time
 If you do work that benefits two clients at once, you may
bill each for half the time
 Cannot bill each client separately for the same hour
o You cannot bill a client for recycled work
 Doing research for one client that turns out to be useful
for another client later on—cannot charge the second
client the same amount that it charged the first client
o Cannot do trivial or meaningless work for a client
o In Colorado, you cannot bill clients your normal rate for doing
clerical/administrative work

39
 o What about changing your fees in the middle of your
representation?
 Problem 9-2 (p. 506)
 Technically this is a contract modification
 You could try to provide for fee increases at the
outset
o The client would be on notice and you are
technically not modifying the relationship
because this is a term
o Once they become your client, they rely
on you
o You are not arms length anymore
o Very important to deal with increasing
costs and fees rather than having to
modify the fee
 Consider applicable ethics rules
 1.5, 1.7, 1.8(a)
 Recognize that fee modifications trigger fiduciary
principles
 Consider the client relations consequences of unilateral
increases
 At the outset of representation, take precautions to
address fee increases
 Recommendations:
 Include modification provisions in the original fee
agreement
 Reserve the right to modify the flat fee if defined
conditions occur
 Only modify fee agreements with sophisticated
clients
 Don’t modify if any possibility of perceived
duress
 No single lawyer should be able to modify
 Understand that lawyers’ conduct will be
scrutinized—presumption of unfairness
 Contingent Fees
o Based on the amount of recovery that the lawyer gets on behalf
of the client
o Ordinarily doesn’t get paid unless the client obtains a settlement
o Governed by Rule 1.5(c)
 In general, contingent fees are permitted unless
expressly stated otherwise (d)
 Must be in writing (Signed by client and specifying the
method that the fee is being determined)
o Impermissible contingency fees—Rule 1.5(d)
 Any domestic relations matters, the payment or amount
of which is contingent upon the securing of a divorce of
upon the amount of alimony or support, or property
settlement in lieu thereof

40
  Representing a defendant in a criminal case
o Is it fair for a lawyer to take 30 or 40 percent of a client’s
recovery as a contingent fee?
 It depends. If the case is very risky and the lawyer may
very well lose, the 1/3 fee is a reasonable amount to pay.
If there is a low chance that the lawyer will lose, then
maybe such a fee is impermissible
o Lawyer has agreed to represent client in a property dispute. In a
conversation with lawyer, client agrees to pay lawyer 1/3 of the
value of the property that client recovers. Is this arrangement
proper?
 No, because the arrangement doesn’t comply with the
requirements for a contingency fee
 Must be in writing
 Signed by client
 State method by which fee was determined
o Including not only lawyer’s percentage
o Expenses to be deducted from recovery
o Whether expenses are deducted before or
after fee is calculated
 Generally, you want this
calculated before fee is calculated
o Shall state the outcome
o Any remittance
o Method for determination
 Consider this as a type of
accounting
o Paula, a criminal defendant, claims that a guard hit her while she
was incarcerated. Is it proper for the lawyer to charge a
contingency fee for handling the claim against the guard?
 Yes. Even though the rule says you can’t charge a
contingency fee for a criminal defendant, the nature of
this representation is a civil case/claim against the jail
guard
o Is it ethical for an attorney to agree to take a fee equal to 1/3 the
amount that the attorney collects for client on an alimony
judgment that client obtained when represented by another
lawyer?
 Yes, if the attorney uses a written fee agreement and
accounting as required by the rules. Comment 6 to rule
1.5(d) states that using contingency fees in domestic
relations matters doesn’t apply to collection matters
 Rule 1.8—Forbidden and Restricted Fee and Expense
Arrangements
o 1.8(e)—cannot provide financial assistance to a client in
connection with pending or contemplated litigation
 CAN advance court costs and expenses of
litigation, the repayment of which may be
contingent on the outcome of the matter

41
  CAN pay court costs and litigation expenses on
behalf of an indigent client
 Problem 9-3 (p. 533) – Impoverished Client
 Can you help the client pay for living expenses?
o No. These costs are not in any way
associated with the costs of litigation
 Advise them to get public assistance
o 1.8(h)(1)—cannot prospectively limit your liability to a client for
malpractice unless the client is independently represented in
making the agreement
o 1.8(h)(2)—cannot settle a claim or potential claim for
malpractice with an unrepresented or former client unless you
put in writing that it is desirable for the client to be represented
by counsel as to the desirability of such a settlement
 Do not have your friends advise the client—conflict!
o 1.8(d)—prior to the conclusion of representation of a client, a
lawyer shall not make or negotiate an agreement giving the
lawyer literary or media rights to a portrayal or account based in
substantial part on information relating to the representation
 Dharun Ravi needs a lawyer to handle his appeal. May an
attorney represent Ravi in exchange for the right to
produce a movie relating to the representation?
 No. This is a prohibited transaction under 1.8(h)
 Why not?
o It would incentivize the attorney to
represent the client in a way that is best
for the book/movie
o We want lawyers representing clients’
best interests—not influencing their
media rights
 Kim Kardashian wants to have a lawyer represent her in
a contract dispute with her former agent. May the
attorney ask Kim to sign an agreement giving the
attorney the right to write a novel about Kim’s marriage?
 Yes. This has nothing to do with the
representation of the client.
o Rule 1.8(i)—prohibits lawyers from obtaining a proprietary
interest in a client’s claim
 E.g., if you want to help a homeless person in pursuing
his claim, but know that he won’t stick around for you to
handle the case, it is not proper for you to offer any
consideration in exchange for their claim against a
defendant.
 Exceptions: Liens to secure the lawyer’s fee or expenses;
contracting with clients for a reasonable contingency fee
o Rule 1.8(j)—sexual relations with clients are prohibited. A
lawyer shall not have sexual relationships with a client even if
they are consensual unless the consensual sexual relationship
existed before the attorney-client relationship was commenced

42
  If you represent a major corporation, is it proper for you
to have sexual relations with an employee of the
company?
 If the person makes decisions on hiring/firing the
attorney—no
o E.g., president, vice president, etc.
 If you have sexual relations with the president of a major
corporation, is it a problem for the lawyer’s partner to
represent the corporation?
 General imputation rules
o No, because Rule 1.8(k) says that all
prohibitions from (a)-(i) are imputed to
all lawyers in the firm
o Sexual relations are contained in
subsection (j) and is therefore not
imputed to the rest of the firm
 Is a lawyer subject to discipline in agreeing to handle a legal name change for a
client in exchange for client providing landscaping services for the lawyer’s
office?
 No, provided that the lawyer takes precautions to establish the
reasonableness of the fee
o Want to calculate the costs of the legal services to see if the
landscaping is a reasonable amount
 Compare the value of both services
 Figure out the value of what you, as a lawyer, are
receiving
 Get an independent estimate of the value of the
landscaping services and then establish if this is
not an unconscionable arrangement
 Dividing Fees with other Firms or with Non-lawyers
 Rule 1.5(e)
o Division of fee between lawyers no in the same firm is only
permitted if:
 (1) The division is in proportion to the services
performed by each lawyer or each lawyer assumes
joint responsibility for the representation;
 (2) The client agrees to the arrangement and the
agreement is in writing; and
 (3) The total fee is reasonable
o Two lawyers, then, can split a fee under this rule
o This rule also permits referral fees
o Not permitted to share fees with non-lawyers
 Rule 5.4(a)
 “A lawyer or law firm shall not share legal fees
with a non-lawyer, except that . . . (3) a lawyer
or law firm may include non-lawyer
employees in a compensation or retirement
plan, even though the plan is based in whole
or in part on a profit-sharing arrangement.”

43
 Types of Retainers
 Recall, above, that lawyers sometimes require advance payment of fees
from clients. These can be broken into three categories:
1. Availability Retainers
a. Where a lawyer may charge a modest amount to be, in effect,
available for representation
2. Refundable Retainers
a. Advanced payments of fees that is held for the lawyer to bill
against. If the client terminates the relationship, the client
gets what is left of the money. This type of retainer is
permissible.
3. Non-refundable Retainers (beware)
a. In NY, a case where there was a large non-refundable
retainer and the court held the retainer unenforceable.
b. In this type of arrangement, the client is charged a large
amount and the client cannot get it back. The NY court held
this type of arrangement impermissible and so, in NY, these
types of retainers are prohibited.
c. Under the Model Rules, there is no provision expressly
dealing with this type of arrangement, but they may be
treated as excessive.
 Client Trust Accounts—Where retainers go…
 Rule 1.15(a) A lawyer shall hold property of clients or third persons
that is in a lawyer’s possession in connection with a representation
separate from the lawyer’s own property.
o Must be kept in the state where the lawyer maintains his
office or elsewhere with the consent of the client or third
party.
 Must keep your funds completely and unequivocally separate from those
of your clients
 Settlement proceeds are placed in these trust accounts
 Third parties may have an interest as well and the whole idea is so that
the lawyer is able to protect the client and in some cases, non-client
funds
 You CAN commingle client funds with other clients’ funds as long as that
money is separate from your own
 Cannot deposit your own funds into the account—designed so that
lawyers do not try to cheat creditors
 The lawyer must provide an accounting to client of their trust account
funds whenever the client asks
 Interest on Lawyers’ Trust Accounts (IOLTA)
 Small sums of money go into trust accounts and the income on those
accounts go into helping others
 Accumulate all the small sums from your clients and they go into this
account and the interest that is earned goes into this legal services
account in the state
 Trust Account can be audited
 Requirements that financial regulator advise authorities if there is an
overdraft

44
 o Shows that you are not administering a trust properly
o An overdraft in itself communicates that you have problems
 If a third-party creditor comes asking for client funds that are due to him,
generally the lawyer should not give up any money unless there is a legitimate
claim against the money
o Business Transactions with Clients
 This arises in a number of contexts:
 Receiving stock in a client’s company, real estate purchased for/from
client, loaning money to a client, borrowing money from a client;
anything that the lawyer is wearing some hat other than “lawyer”
 General analysis under Rule 1.7
 Tells you the analysis you go through when there may be conflicts
between an attorney’s interests and those of the client
 Specific Analysis under Rule 1.8(a)
 A lawyer shall not enter into a business transaction with a client or
knowingly acquire an ownership, possessory, security or other
pecuniary interest adverse to a client unless:
o (1) The transaction and terms on which the lawyer acquires
the interest are fair and reasonable to the client and are
fully disclosed and transmitted in writing in a manner that
can be reasonably understood by the client;
o (2) The client is advised in writing of the desirability of
seeking and is given a reasonable opportunity to seek the
advice of independent legal counsel on the transaction; and
o (3) The client gives informed consent, in a writing signed by
the client, to the essential terms of the transaction and the
lawyer’s role in the transaction, including whether the
lawyer is representing the client in the transaction
 Not permitted unless certain conditions are satisfied
 Transaction must be fair and reasonable to the client; must be fully
disclosed to the client in writing; client must be advised in the writing of
the desirability of seeking the advice of outside counsel
 Client must give informed consent in writing
o Must lay out the terms of the transaction and the lawyer’s role in
the transaction
 This provision does not concern contracts to provide legal services; nor
does it pertain to a contract where the client sells the lawyer a product
that the client normally sells to others (e.g., a lawyer can go see a doctor
who happens to be his client and pay for the services without worrying
about 1.8(a))
 Only applies to contracts where one party is a client
 Lawyer has the burden to prove that the transaction was fair and
reasonable
o Make a “burden of proof” file so that you can discharge any
potential liability in the future
 These cases are hard to defend—malpractice insurers now have broad
exclusions that eliminate coverage for business transactions with clients
 Transaction may be rescinded
o Gifts from Clients

45
  Rule 1.8(c) – General Prohibition on Solicitation of Gifts from Clients
 A lawyer is prohibited from soliciting a substantial gift from the
client or preparing an instrument giving the lawyer or a person
related to the lawyer any substantial gift unless the lawyer or other
recipient of the gift is related to the client
o Includes spouse, children, grandchildren, parent,
grandparent, or other relative or individual with whom the
lawyer or the client maintains a close, familial relationship
 Example—lawyer cannot draft a will where the client gives the lawyer an
expensive car.
 A lawyer may, however, draft a will that names the attorney as executor of the
estate
 Attorney should get written consent
o You receive fees and direct the legal work
o General Conflicts Rule covers this—Rule 1.7
o Intimate or family relationships with adverse lawyers
 Two lawyers who are related to one another and who represent clients with
adverse interests
 If the relationship is parent, child, sibling, or spouse they cannot represent the
clients in the matter unless the clients have been informed of the relationship,
advised of the possible problems, and given informed consent
 Not imputed to other lawyers in the firm
 Covered in comments to Rule 1.7—Cmt. 11
o Multiple Clients
 Rule 1.8(g)
 A lawyer who represents two or more clients shall not participate
in making an aggregate settlement of the claims of or against the
clients, or in a criminal case an aggregated agreement as to guilty
or nolo contendere pleas, unless each client gives informed
consent, in a writing signed by the client. The lawyer’s disclosure
shall include the existence and nature of all the claims or pleas
involved and of the participation of each person in the settlement.
 If a lawyer represents 100 plaintiffs in one products case against a drug
company, is it proper for the lawyer to enter an agreement in which the
defendant pays $5 million to settle all claims brought by the 100 clients?
 No—the other clients must know the amount they will receive
 You are representing these people individually and you must treat them
as individuals—not as a package
X. Lawyers’ Duties to Courts

 Investigation before filing a complaint

o Rule 3.1
 A lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so that
is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law. A lawyer for the defendant in
a criminal proceeding, or the respondent in a proceeding that could
result in incarceration, may nevertheless so defend the proceeding as
to require that every element of the case be established.

46
 o Lawyers don’t have to only file cases that are “sure winners” but they do have to
make sure that the suits they file aren’t frivolous
o Lawyers cannot file suit merely because they think that a prospective defendant has
done something wrong
o Cmt. 2—not all facts must be substantiated at the time of filing the suit, but lawyers
must inform themselves about the facts of their clients’ cases and the applicable law
and determine that they can make good faith arguments in support of their clients’
positions
o Cf. FRCP 11(b)
 A party’s legal theory must be warranted by existing law or by a non-
frivolous argument for the extension, modification, or reversal of existing
law or the establishment of new law.
 Must have evidentiary support for factual allegations
 Safe Harbor provision
 Lawyer can withdraw allegedly frivolous plea within 21 days of
opposing counsel motion and suffer no sanction
o Rule 3.1
 Sanctions
 Bar disciplinary action
 Liability for malicious prosecution
o If a defendant has been sued on the basis of virtually no evidence, some states
permit that individual to sue the plaintiff or the plaintiff’s lawyer for the tort of
malicious prosecution
o Elements:
 She won the previous suit in which she was a defendant
 The prior suit was brought without probable cause
 The prior suit was brought with malice (a motivation other than obtaining a
proper adjudication of the case), and
 The plaintiff was injured despite having won the prior suit
o Rule 3.8(a)—Similar provision for prosecutors
 Prohibits prosecuting charge that the prosecutor knows is not supported by
probable cause
 Minister of Justice
 Truth and Falsity in Litigation
o After filing of suit—must be honest with tribunal
o Rule 3.3—Candor Toward the Tribunal
 (a) A lawyer shall not knowingly:
 (1) Make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer;
 (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. 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. A lawyer may refuse to

47
offer evidence, other than the testimony of a defendant in a
criminal matter, that the lawyer reasonably believes is false.
o Prohibits lawyer from knowingly offering evidence that the
lawyer knows is false
 Partial truths are okay—intentionally misleading
answers are not materially false statements
(Bronston)
 Nothing in the ethics code speaks to half-
truths
o Requires reasonable remedial measures when the lawyer has
offered material evidence and the attorney comes to know of
its falsity
o Allows lawyer to refuse to offer evidence, other than the
testimony of a criminal defendant, that the lawyer
reasonably believes is false
 Monroe Freedman refers to this as the “trilemma”
 We want lawyers to investigate cases
thoroughly
 We want to preserve lawyer-client
confidentiality
 We don’t want lawyers to become a part of a
system that makes decisions on the basis of
false evidence
o Nix
 Lawyer threatens to tell the court if the client
perjures himself on the stand. Client tells the truth
and gets convicted. The client appeals claiming that
his 6th Amendment right to effective assistance of
counsel was violated.
 Supreme Court holds that the lawyer’s conduct was
well within the accepted standards of professional
conduct because lawyers must take their duties
seriously.
o What should you do if you know that your client intends to
perjure himself?
 Try to talk the client out of doing this—client could
face perjury charges
 Hopefully, the client will think twice
 Clients do not have the right to testify falsely
 If the client still tries to go forward with his
testimony, you should attempt to withdraw
 Limit questions to matters that the client will
testify truthfully about
 If the client still tries to lie—report, report, report
o If your client insists on you calling his wife to testify, what do
you do if you know the wife will testify falsely?
 Refuse to call the wife as a witness
 Rule 3.3(a)(3)

48
  The wife is not your client—she is not a
criminal defendant who has the right to
testify
o If two months before trial, you learn that the client intends to
testify falsely, what do you do?
 Take steps to avoid assisting with client perjury
 Some jurisdictions allow a narrative approach
 Ask very open-ended questions and let the
witness speak
o Why would this be acceptable
behavior?
 Because you aren’t assisting
them with questions
o If you DO NOT KNOW that your client intends to testify
falsely, you cannot report anything
o Selective ignorance—from the very beginning, you are
communicating with the client not to talk to you
 You need to know what the real facts are, so this
shouldn’t occur
 When you go through this type of lecture at the
beginning, you are telling the client to lie from the
beginning
o What do you do if you discover the perjury after the acquittal
(no appeal)?
 Remain silent and do not disclose the perjury
 Why?
o DURATION of the duty of candor
o Only until the proceeding is
concluded
o 3.3(c)
 Also see, cmt. 13
o Would otherwise violate
confidentiality
o In Jones v. Clinton, you file an affidavit from Lewinsky in
which she swears she did not have relations with Clinton.
What do you do if you later learn that the affidavit is false?
 Withdraw the affidavit
 3.3(a)(3)
o Take reasonable remedial measures
 Try to get the client to recant
their testimony—correct the
record
 If that is unsuccessful,
withdraw it
o Remember, duty to reveal adverse authority
 Rule 3.3(a)(2)
 Is the authority from a controlling
jurisdiction?

49
  Is the authority directly adverse and not
disclosed by opposing counsel?
 If you do not KNOW of existing adverse legal
authority, then you have no risk of being disciplined
(aka, if you overlook something)
o Rule 8.4(c)
 It is professional misconduct for a lawyer to engage in conduct
involving dishonesty, fraud, deceit or misrepresentation
o So:
 Lawyer is considering making a false statement of fact or law to the judge
 Cannot do it under 3.3(a)(1) and 8.4
 Lawyer knows that client is considering testifying falsely in court or in a
deposition
 Must counsel client and refrain from asking questions that would
elicit a false response
o 3.3(a)(3)
 Lawyer suspects that civil client may give false testimony
 If lawyer “reasonably believes” it is false, lawyer may refuse to offer
the testimony
o Rule 3.3(a)(3)
 Lawyer suspects that criminal defendant/client plans to give false testimony
 If defendant insists on testifying, the lawyer must allow it even if the
lawyer “reasonably believes it is false”
o Rule 3.3(a)(3)
 Lawyer knows that client or other witness has testified falsely during direct
or cross
 Counsel client to correct the mistake; consider withdrawing; correct
record if necessary to undo the effect of the false evidence
o 3.3(b) and (c) and cmt. 10
 Witness has misled the court by making statements that are literally true but
deceptive
 Lawyer may have duty to counsel client and correct the record
o 3.3(b) and 8.4(c)
 Lawyer knows of directly adverse controlling legal authority that has not
been disclosed by opposing counsel
 Lawyer must bring it to the attention (and distinguish it or explain
why it is not authoritative)
o 3.3(a)(2)
 Lawyer knows of facts adverse to client’s interest, not requested in
discovery or required to be disclosed by a court rule
 No need to disclose unless the proceeding is ex parte
o 3.3(d)
o What about the duty to reveal adverse facts?
 If you have a nurse who will testify that she saw the defendant surgeon leave
a sponge in the patient, does defense counsel have a duty to tell the court
about the nurse’s testimony?
 No—civil case and defense counsel has no duty to provide the
plaintiff with information to pursue their claim

50
  Rule 3.4—we assume that each side will competently marshal the
facts necessary
 In ex parte proceedings, where one party is absent, the lawyer has to tell the
court of all facts necessary for it to make an informed decision, regardless of
whether that information is adverse—Rule 3.3(d)
 Overrides duty of confidentiality under Rule 1.6
o Ex Parte communications with judges
 Rule 3.5(b) prohibits a lawyer from communicating with a judge outside of
proceedings unless required by law or court order
 BUT, lawyers can be friends with judges, etc.
 The rule only prohibits communications about particular proceedings
 Witness Preparation
o Tell witnesses to be truthful, only answer the question asked, etc.
o You’re going to prepare them to give the best testimony possible for your client
o When you’re working with them, when does ethical witness preparation become
unethical woodshedding?
 Beating them into doing what is necessary to win
o 11-6: Lawyer doesn’t want to run afoul of Rule 3.4
 Prohibits a lawyer from falsifying evidence, counseling or assisting a witness
to testify falsely, or offer an inducement to a witness that is prohibited by
law
 First question is proper because you are asking them a basic question—not
asking them to do anything untruthful
 Can you tell the witness that other cases have settles favorably because
other borrowers remember that Agent said that Superior’s rates were
lowest?
 It is proper to tell the witness about what other borrowers have
indicated, but what went beyond that was telling them that others
have gotten big settlements
 This is almost like inducement
 If client was uncertain about statements by Agent, may you advise her to be
forceful and confident when she testifies?
 Is this crossing the line in offering false testimony?
 No. You would be helping them to falsify their testimony.
 When you start to put words in someone’s mouth you have crossed
the line.

51
XI. Lawyers’ Duties to Adversaries and Third Persons

 May a lawyer hire a paralegal to interview prospective jurors to discover their feelings
about sexual misconduct?
o No. Rule 3.5—A lawyer shall not engage in ex parte communications with a
juror during proceedings unless authorized by law or court order
o Rule 8.4(a) – Misconduct for a lawyer to violate these rules or knowingly assist
another to do so, or do so through the acts of another
 What if you run into a juror who asks you if you have any exciting testimony that would
keep him awake?
o Just avoid the appearance of communications as much as possible
o Judge could declare a mistrial in situations like this
o Lawyers have been disciplined not for what they said but for speaking to a juror
at all during proceedings—disciplined not for WHAT he said but for saying
ANYTHING at all
 Because no one is there to monitor what the lawyer has said the lawyer
can be disciplined
o But also, if you ignore them you might alienate yourself
 What if a juror wanted to talk about a sports game?
o Politely, but firmly, disengage
o Disclose this to the opposing party and then go with the opposing party to the
judge
 Is it proper to interview an employee with the state labor commission? Assume that
counsel represents neither the commission nor the employee.
o Investigations are okay.
o Rule 4.2—once a person has counsel, you cannot speak with the client unless
you get the consent of the other lawyer or is authorized to do so by law or court
order.
 Is it proper to interview an employee of a corporation if that employee directs the
litigation?
o Rule 4.2, cmt. 7—represented entities rules prohibits communications with
persons who supervise, direct or regularly consult with the organization’s
lawyer concerning the matter
o Persons who have the authority to obligate the organization with respect to the
matter
o Persons whose acts or omissions in connection with the matter may be imputed
to the organization
 Is it proper to interview former employees of the defendant company?
o Yes. Comments to MR make clear that you do not need consent of organization’s
lawyer to communicate with former employees.
 May you pay travel expenses of a witness?
o Yes. This is legitimate in most jurisdictions.
o Rule 3.4(b), cmt. 3—proper to pay witness expenses or to compensate an expert
witness on terms permitted by law
 Rule: A lawyer shall not falsify evidence, counsel, or assist a witness to
testify falsely, or offer an inducement to a witness that is prohibited by
law.
o Be careful about this—contingency fees

52
 May you pay a fact witness an additional $100?
o NO.
 If a witness is not a relative, employee or other agent of the lawyer’s client, may the
lawyer ask the witness not to speak to the adversary?
o Rule 3.4(f)—dealings with unrepresented persons. Cannot request that a
person other than the client refrain from providing relevant information to a
third party unless:
 The person is a relative or an employee or agent of a client AND
 The lawyer reasonably believes that the persons interest will not be
adversely affected by refraining from giving such information
o Rule 4.3—Lawyer shall not state or imply that the lawyer is disinterested
 Lawyer should clarify her role if the lawyer knows or reasonably should
know that the unrepresented person misunderstands the lawyer’s role.
 LAWYER SHALL NOT GIVE LEGAL ADVICE TO AN UNREPRESENTED
PERSON, OTHER THAN THE ADVICE TO SECURE COUNSEL, IF THE
LAWYER KNOWS OR REASONABLY SHOULD KNOW THAT THE
INTERESTS OF SUCH A PERSON ARE OR HAVE A REASONABLE
POSSIBILITY OF BEING IN CONFLICT WITH THE INTERESTS OF THE
CLIENT
 Assume that after a case is submitted to the appellate court, you discover adverse
authority. What should you do?
o Rule 3.5—ex parte contacts with the court. Always cc the other party
 Assume you receive an email from opposing counsel that was not intended for you—it
was intended for that lawyer’s client. Is it proper for you to do nothing?
o No.
o Rule 4.4(b) says that the lawyer who receives a doc relating to the
representation and knows or reasonably should know that the document was
inadvertently sent shall promptly notify the sender
o What about metadata?
 Rules 1.7 and 3.7—Advocate-witness conflicts
o Client-harming testimony lawyer must withdraw because of nonconsentable
conflict
o Other testimony—must analyze and obtain consent under Rule 1.7 and satisfy
the requirements under 3.7
o A client wants a lawyer who is going to be the most effective advocate out there
o What about fairness to other people?
 First analyze these dual hat problems under 1.7
 Under 1.7 typically the lawyer is able to analyze the conflict, discuss with
client, and get consent if the lawyer’s testimony will help the client
 What if testimony will hurt your client?
 Probably won’t be able to get consent
 AKA you will not get past 1.7
 If you do get past 1.7, the other side is concerned with your role as a
lawyer wearing two hats
 Under 3.7, there are different exceptions that allow the lawyer to
go forward and be an advocate and a witness
o Testimony relates to an uncontested issue
o The testimony relates to the nature and value of legal
services rendered in the case or

53
 o Disqualification would work a substantial hardship on
the client
 Another lawyer in the firm may act as advocate and your lawyer
can act as witness—analyze under 1.7 and 1.9 though
 Advertising and Solicitation
o Constitutional standards on general advertising
 Rules 7.1 (restrictions on content), 7.2(restrictions on manner of
advertising), and 7.3(restrictions on solicitation)
 Advertising traditionally prohibited
o All of this changed in the 1970s
 There were various events that came together where computers were
being used where lawyers could mass produce divorce petitions and
advertising was becoming more prevalent in other professions
 Wanted to provide low income people with legal services
o Model Rule 7.1—lawyer shall not make false or misleading communications
about the lawyer’s services. Communication is false or misleading if it contains
a material misrepresentation or omits a fact necessary to make a statement as a
whole materially misleading
 False or misleading:
 Omission of material fact
 Creates unjustified expectation—“you are guaranteed to win”
 Makes an unsubstantiated comparison
 States or implies lawyer’s ability to get results through illegal or
unethical means
o Model Rule 7.2—HOW to advertise
 Lawyers may advertise through written, recorded or electronic
communication including public media
 (b) Lawyer shall not give anything of value for recommending the
lawyer’s services, except may
 pay the reasonable costs of advertisements or communications
 pay usual charges of a legal service plan, non-profit or qualified
referral services
o MUST BE A NON-PROFIT
 pay for a law practice under rule 1.17
 refer clients to another lawyer/non-lawyer subject to certain
conditions
 (c) Ad shall include the name/office address of at least one lawyer or law
firm responsible for the content
o Rule 7.3—direct contact with prospective clients
 (a) Lawyer shall not by in person, live telephone or real-time electronic
contact solicit when a significant motive is the lawyer’s pecuniary gain
unless the person is
 a lawyer
 has a family, close personal, or prior professional relationship
with the lawyer
o Direct Mail advertising
 Prospective client who has a particular legal need
 A lawyer interested in representing workers exposed to a particular
chemical and the lawyer wants to reach out to these individuals.

54
 Lawyer gets list of workers
 Can lawyer send a letter to them inviting the workers to contact the
lawyer for further information?
 It is okay so long as you follow the guideline set forth in the rule
 Follow 7.3


55