Table of Contents

Introduction................................................................................................................................................................................ 2

Client Perjury............................................................................................................................................................................. 3

Appeals to Bias.......................................................................................................................................................................... 4

Attorney-Client Relationship................................................................................................................................................... 4

Admissions in Litigation.......................................................................................................................................................... 6

Clients with Diminished Capacity........................................................................................................................................... 8

Competency............................................................................................................................................................................... 8

Duty of Confidentiality.............................................................................................................................................................. 9

Attorney-Client Privilege........................................................................................................................................................ 11

Other Privileges and Protections.......................................................................................................................................... 13

Contact with Parties Other Than Client................................................................................................................................ 14

Improper Acquisition of Information.................................................................................................................................... 16

Conflicts of Interest................................................................................................................................................................. 16
With Other Clients..............................................................................................................................................................................16
Client Trust Accounts........................................................................................................................................................................17
Business Dealings with Clients........................................................................................................................................................17
Media Rights.......................................................................................................................................................................................18
Sexual Relations................................................................................................................................................................................18
Related Lawyers................................................................................................................................................................................19
Concurrent Conflicts..........................................................................................................................................................................19
Successive Conflicts.........................................................................................................................................................................22

Fees........................................................................................................................................................................................... 24
Fee Structures....................................................................................................................................................................................24
Fee Shifting.........................................................................................................................................................................................27
Pro Bono.............................................................................................................................................................................................28

Government Attorneys........................................................................................................................................................... 29
Government to Private Sector.........................................................................................................................................................29
Private Sector to Government.........................................................................................................................................................30
Introduction
I. The model rules have been adopted as positive law in all but one state (California) and represent
the substance of pretty much all of the states regulations
II. Professional Responsibility classes required to get accredited, which is necessary if an institution
wants to receive funds:
a. ABA Accreditation Standard 302(a)(5): a law school shall require that each student receive
substantial instruction in . . . the history, goals, structure, values, rules and responsibilities of the
legal profession and its members.
b. ABA Accreditation Interpretation 302-9: the substantial instruction in the history, structure,
values, rules, and responsibilities of the legal profession and its members required by Standard
302(a)(5) includes instruction in matters such as the law of lawyering and the Model Rules of
Professional Conduct of the American Bar Association.
III. Three images of the lawyer:

Lord Brougham Client comes first and they are the focus of the
[champion] lawyer’s responsibility.
Fox-hunt metaphor: we can impose harm as long as
we are trying to also eliminate some sort of societal
harm.
Roscoe Pound [public Public service is central, law is only incidentally a
servant] means of livelihood.
Eliot Freidsen Compendium definition: lawyers have special
[fiduciary] privileges and are trustees who have an ability to act
in ways that others are not permitted to. Lawyer
should serve both the client’s interest and the public
good. Occupation must be self-regulating such that
lawyers do not violate their client’s trust and
transcend their own self-interest.
ABA [multitasker] MR Preamble: A lawyer, as a member of the legal
profession, is a representative of clients, an officer of
the legal system and a public citizen having special
responsibility for the quality of justice.

As advisor, a lawyer provides a client with an

informed understanding of the client's legal rights
and obligations and explains their practical
implications.

As advocate, a lawyer zealously asserts the client’s

position under the rules of the adversary system.

I. MR Preamble: A lawyer, as a member of the legal profession, is a representative of clients, an

officer of the legal system and a public citizen having special responsibility for the quality of justice.
a. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights
and obligations and explains their practical implications.
b. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary
system.

Client Perjury
I. The Attorney’s Responsibility:
 a. MR 3.3(a)(3): A lawyer shall not knowingly offer evidence that the lawyer knows to be false.
i. Rule 1.0(f): “knowingly” denotes actual knowledge of the fact in question. Knowledge
may be inferred from circumstances.
ii. Can you intentionally avoid knowledge (give client a lecture about the possible defenses
for a murder, leading him to claim that he was insane at the time?)
1. Grey area: this might be standard lawyer behavior, but it also might be intentional
avoidance of the truth.
b. MR 3.3(a): If the 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.
c. MR 3.3(b): A lawyer who represents a client in an adjudicative proceeding and who knows that
a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonably remedial measures, including, if necessary,
disclosure to the tribunal.
d. MR 8.4: It is professional misconduct for a lawyer to: . . . (c) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the
administration of justice…
i. In some jurisdictions, courts have required counsel to present the accused as a witness
or give a narrative statement even if the court knows the testimony/statement will be
false  this takes precedence over the Model Rules.
e. A lawyer may refuse to offer evidence other than testimony of a defendant in a criminal
matter that the lawyer reasonably believes is false. MR 3.3(a)(3)
i. Evading the question (a literally true, non-responsive answer) is not perjury. Bronston
v. U.S. (do you have a Swiss bank account?)
1. Rely on this case when the person’s answer isn’t responsive to the question; it is
not perjury but the lawyer should probe further
2. Only applies if there is no other interpretation of the question being asked – if there
are multiple interpretations of the question and the answer is true based on one
reading but false under another, the fact finder must determine whether answer
was false.
f. In a criminal matter, 6th Amendment right of a criminal defendant to assistance of counsel is not
violated when the lawyer refuses to cooperate and present perjured testimony at trial.
i. Nix v. Whiteside (SCOTUS 1986)
1. Facts: Client stabbed someone. Client told lawyer that he intended to testify to the
effect that he had seen a gun (“something metallic”) when he had been telling the
lawyer all along that he hadn’t. Lawyer threatened that he would withdraw from the
representation if the client so testified. The client back down, was convicted, and
then claimed ineffective assistance of counsel.
2. Holding: No violation of 6th Amendment, lawyer was adhering to his professional
responsibility.
a. Lawyer’s first duty when client wants to commit perjury is to try to
dissuade the client
b. Lawyer is permitted to withdraw from representation
ii. Strickland Test (applied in Nix)
1. In order to succeed at an ineffective assistance of counsel claim, a criminal
defendant must show two things:
a. Counsel’s performance fell below a standard of reasonableness
b. Counsel’s performance gave rise to a reasonable probability that if
counsel had performed adequately, the result would have been different.
II. Counseling Perjury:
a. MR 1.4(b): A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.
b. MR 3.4(b): A lawyer shall not:… counsel or assist a witness to testify falsely…
 c. MR 1.4(b), Comment [7]: “In some circumstances, a lawyer may be justified in delaying
transmission of information when the client would be likely to react imprudently to an immediate
communication.
d. MR 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.
i. A lawyer for the defendant in a criminal proceeding… may nevertheless so defend the
proceeding as to require that every element of the case be established.
e. TL;DR: lawyer is bound by confidentiality to client, and has an obligation to tell the truth, but a
client has the constitutional right to testify. Lawyer should:
i. Not knowingly offer evidence he knows to be false.
ii. If she finds out after the fact, lawyer must take remedial measures (disclosure to
tribunal) but lawyer should first talk to dissuade (as in Nix).
iii. If lawyer knows that client will lie, options include:
1. Cooperate w/ D’s testimony  rejected
2. Persuade client not to perjure  ideal (Nix)
3. Withdraw from representation  doesn’t solve problem, but protects lawyer
4. Disclose to court  BUT compromises a lawyer’s duty
5. Refuse to allow D to testify  denies D’s 6th Amendment right.
6. Narrative by D  Allow D to just narrate w/o help from lawyer, maybe least bad
route

Appeals to Bias
I. MR 8.4(g): Misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably
should know is harassment or discrimination on the basis of race, sex, religion, national origin,
ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status
in conduct related to the practice of law.
II. However, nothing explicitly prevents a lawyer from making an appeal to bias.
III. Excessive zeal by attorneys in manipulating the system is permitted (for example, attorney picking a
pro-plaintiff jurisdiction county)

Attorney-Client Relationship
I. Attorney is the client’s agent, which means that the agent acts on behalf of the client and subject to
the principal’s control.
a. Agency = fiduciary relationship that arises when one-person (a “principal”) manifests assent to
another person (an “agent”) that the agent shall act on the principal’s behalf and subject to the
principal’s control, and the agent manifests assent otherwise consents to so act. Restatement
(Third) of Agency §1.01
II. Basic duties of agents:
a. Duty of care
b. Duty of loyalty: lawyer must do everything legally & ethically possible that client would do for
himself if he knew how
III. How is an attorney client relationship formed?
a. Formal: client formally asks for legal representation and client gives it
i. Retainer + money  mutual agreement through manifestation.
b. Informal: agreement to form relationship may be implied from conduct of parties.
i. Perez v. Kirk & Carrigan:
1. Facts: Perez drives a truck for Coca-Cola, its brakes fail, and the truck hits a
school bus, killing 21 children. Perez is visited in the hospital by K&C, his
employer’s lawyers. He gives them a statement, believing they are his lawyers.
The company turns his statement over to the DA. He’s indicted, eventually
acquitted, and sues the lawyers for breach of fiduciary duty. No money changed
hands.
 2. Holding: Agreement to form relationship may be implied from conduct of the
parties and interaction here sufficient to create relationship
a. Duty not to disclose can arise even during a preliminary consultation
b. Even if their communication wasn’t privileged, it was still confidential
because of the nature of the relationship.
ii. Togstad v. Vesely Otto:
1. Facts: Lawyer and client met once for about an hour, discussed client’s
husband’s medical case and possible legal claims. The client never provided any
medical records to the attorney, attorney never sent a bill.
2. Holding: Miller was liable for malpractice because he told her that she probably
did not have a claim – this is a consequential legal opinion. He should have done
factual/legal research before doing this and should have informed her about the
possibility of SoL running out. But for Miller’s negligence, P would have had s
successful med mal claim.
c. To make it clear that you are not creating an attorney-client relationship, include an Upjohn
warning that explicitly states “we are not your personal counsel and cannot give you legal
advice.”
IV. Termination of an attorney-client relationship
a. An attorney-client relationship ends when:
i. The attorney withdraws
1. Withdrawal is required
a. MR 1.16(a): Lawyer must withdraw if:
i. Representation will result in violation of the rules of professional conduct
or any other law
ii. The lawyer’s physical/mental condition materially impairs the lawyer’s
ability to represent the client
iii. The lawyer is discharged.
2. Withdrawal is permitted
a. MR 1.16(b): lawyer may withdraw if:
i. there will not be a material adverse effect on the interests of the client
ii. client persists in a course of action that the lawyer reasonably believes is
criminal or fraudulent
iii. client has used lawyer’s services to perpetrate a crime or fraud
iv. client insists on pursuing an objective that the lawyer considers
repugnant or imprudent
v. client fails to fulfill an obligation to the lawyer and gets notice that the
lawyer will withdraw unless obligation is fulfilled
vi. representation will result in an unreasonable financial burden on the
lawyer
vii. other good cause
3. Withdrawal may not be allowed
i. MR 1.16(c): “[W]hen ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding good cause for terminating the
representation.”
ii. The attorney is fired/removed
1. Client is presumptively entitled to the lawyers file on the represented matter at
termination MR. 1.16(d)
2. Client can fire for any reason
3. If court appointed lawyer, client can just ask for a new one
iii. The relationship ends by drift
1. Moving to another firm doesn’t mean that the relationship has ened
iv. The attorney is disqualified
v. The attorney dies
V. Power of attorney to bind a client:
a. Where does the authority come from?
 i. Actual: express or implied by retainer or description of the scope of work
ii. Inherent: certain kinds of agency relationships that give an agent authority merely by
entering into the relationship unless you negate this authority expressly. This hasn’t
caught on a lot
iii. Apparent: form of estoppel. There may not be apparent or implied authority, there may
even be an express statement that there is no such authority. But a third person could rely
on the appearance of the authority that the client is estopped from denying its existence
iv. The law can bind the lawyer to the client and make the client responsible for the lawyer’s
conduct
b. Short of ineffective assistance to counsel, a client will be bound by the decisions his lawyer
makes with regards to conduct of the trial.
c. Taylor v. Illinois:
i. Facts: Taylor’s lawyer in tactic move failed to reveal the identity of a perspective witness
as required by the IL discovery rules. Trial court refused to allow the witness to testify.
Taylor claimed he didn’t know of his lawyer’s actions and depriving him of this violated his
6th amendment rights.
ii. Holding: Lawyer acted willfully/tactically so preclusion was allowed even if prejudice to the
prosecution could have been avoided w/ a less harsh remedy
1. Necessary for efficiency of trial because otherwise lawyer would need to get client
consent for every decision
2. Ineffective assistance of counsel is rare because you choose your lawyer at your
own peril
d. Bakery Machinery & Fabridcation v. Traditional Banking:
i. Holding: Clients are principals, attorney is an agent and principal is bound by a chosen
agent’s deeds. Attorney’s misconduct (except in the cases where the act is outside the
scope of employment or in cases of excusable neglect) becomes the problem of the client;
misconduct is imputed to the client.

Admissions in Litigation
I. Duty to inform: attorney should provide the client with professional information in the amount,
circumstances, and form that best serves the client’s autonomy.
a. MR 1.4(a): a lawyer must:
i. promptly inform the client of any decision or circumstance with respect to which the
client’s informed consent is required
ii. reasonably consult with the client about the means by which the client’s objectives are
to be accomplished;
iii. keep the client reasonably informed about the status of a matter;
iv. promptly comply with reasonable requests for information; and
v. consult with the client about any relevant limitation on the lawyer’s conduct when
the lawyer knows that the client expects assistance not permitted by the Rules of
Professional Conduct or other law.

II. Duty to advise: attorney should provide the client with professional advice in the amount,
circumstances and form that best serves the client’s autonomy.
a. MR 1.4(b): A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.
b. Civil cases:
i. Nichols v. Keller:
1. Facts: Man injured on job went to worker’s comp lawyer. Although representation
successful for the workers comp issue, lawyers failed to tell him he also had a tort
claim against third parties and SOL ran out
2. Holding: lawyers should have told him about the tort claim so that he could have
known to seek out another lawyer for that claim.
 a. Firms should be clear about the scope of representation to avoid this.
b. Court likely wanted to deter workers comp attorneys who wanted to guide
the client in a certain direction.
ii. Clients have a right to know all settlement offers. MR 1.2(a)
c. Criminal cases:
i. Padilla v. Kentucky:
1. Facts: lawful permanent resident pleads guilty to drug distribution charges in state
court. His attorney fails to advise him of potential immigration consequences of a
guilty plea, the U.S then seeks to deport him – he wants to vacate his plea on
grounds of ineffective assistance to counsel.
2. Holding: criminal defense attorneys must inform clients of the risk of deportation
under some circumstances.
a. At least some collateral consequences of a guilty plea need to be explained
to a client
III. Duty to defer: attorney should defer to the client’s objectives and decisions, subject to the
attorney’s overriding duty as officer of the court.
a. MR 1.2(a): A lawyer shall [generally] abide by a client’s decisions concerning the objectives of
the representation
b. Settlement: lawyer should abide by client’s decision re: settlement. MR 1.2(a)
i. Lawyer must promptly inform client of substance of settlement offer unless the client has
previously indicated that the proposal will be acceptable/unacceptable or has authorized
the lawyer to accept or reject the offer. MR 1.3, Comment 2
c. Plea bargains: In a criminal case, the lawyer shall abide by the client's decision, after
consultation w/ the lawyer as to plea to be entered, whether to waive jury trial and whether the
client will testify. MR 1.2(a)
d. Argument style: In general, the client has a right to instruct the lawyer to make good or bad
arguments, but not ugly arguments (arguments made in bad faith)
i. A lawyer for the defendant in a criminal proceeding may nevertheless so defend the
proceeding as to require that every element of the case be established. MR 3.1
ii. Anders v. California:
1. Facts: Counsel appointed to represent an indigent criminal defendant on appeal,
concludes that there is no bona fide basis for the appeal.
2. Holding: counsel must at least file a brief referring to anything in the record that
might arguably support the appeal.
iii. Jones v. Barnes:
1. Facts: Defendant’s court-appointed lawyer refused the client’s request that he
make claims the attorney thought would be inadvisable, including claims of
ineffective assistance of trial counsel.
2. Holding: Defendant does not have a 6th Amendment right to insist that attorney
make all possible non-frivolous arguments + conviction is upheld on appeal.
a. POLICY:
i. Seems right: we don’t want to undermine the lawyer’s professional
autonomy and their role as officer of the court.
ii. Seems wrong: an alternative could be when the lawyer explains to the
client that he thinks it would be better to focus on the best arguments to
product the clearest/most effective brief. Then, if the client understood
the lawyer’s position and still insisted that all the points be raised, client
wouldn’t later be able to claim lawyer have provided ineffective
assistance.
iv. McCoy v. Louisiana:
1. Facts: Defense counsel admits to jury that client has killed victims in order to
develop a diminished capacity defense.
2. Holding: 6th Amendment guarantees a defendant the right to decide that he wants
to maintain innocence, even if counsel believes that admitting guilt offers
defendant the best chance to avoid the death penalty.
Clients with Diminished Capacity
I. Lawyer should maintain a normal client-lawyer relationship with the client. MR 1.14(a)
II. Unless authorized to do so, lawyer should not disclose client’s diminished capacity. MR 1.14,
Comment [8]
III. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. MR
1.14, Comment [6]
IV. If lawyer reasonably believes that the client has diminished capacity + is at risk of substantial
physical, financial or other harm unless action is taken and cannot adequately act in the client’s own
interest:
a. Lawyer may take reasonably necessary protective action, including consulting with individuals
or entities that have the ability to take action to protect the client and, in appropriate cases,
seeking the appointment of a guardian. MR 1.14(b)
b. So first course of action: go to the judge and say that your client has diminished capacity and
needs a guardian to be appointed.

Competency
I. Mechanisms that exist for ensuring competent representation include: education, the bar
exam, continuing legal education, market discipline, professional identity, professional discipline,
malpractice liability, Sixth Amendment.
II. Definition of competency: having the legal knowledge, skill, thoroughness and preparation
reasonably necessary for representation. MR 1.1
a. Basis for malpractice claims
b. Reasonableness standard: a basic error is not enough, egregious mistake needs to be present.
III. Requirement of reasonable diligence and promptness. MR 1.3
IV. Legal malpractice:
a. Simpson v. James:
i. Facts: Simpson is the owner of a restaurant, dies and his wife wants to sell the
business. Oliver has been their attorney for some time, and investors approach him to
buy. Oliver sets up corporation for potential buyers to purchase the restaurant, and then
fails to obtain adequate security for seller financing.
ii. Holding: Malpractice found; if an unconflicted lawyer had tried to get more, they would
have succeeded.
1. Business transaction with client is not a problem under MR 1.8,
2. Oliver drawing up papers for sale: representation of both sides of the deal is
directly adverse under MR 1.7
3. Oliver setting up corporation for potential buyers: possible violation under MR
1.7(a)(2) as there is a significant risk of materially limiting representation of
Simpson. Risks:
a. Oliver now has duties to buyers bc of establishment of A-C relationship
b. Setup of corporation involved giving Oliver confidential information,
buyers are making it known that they wish to limit their liability.
b. Strickland v. Washington:
i. To establish constitutionally ineffective counsel:
1. defendant must show that counsel’s conduct was deficient, or “outside the wide
range of professionally competent assistance.”
2. the defendant must show that there is a reasonable probability that, but for
counsel’s errors, the result would have been different (that there is prejudice)
Duty of Confidentiality
Current Clients
I. Ethical protections relating to presentation of the client MR 1.6
a. Broad scope: cannot reveal information relating to the representation of the client unless the
client gives informed consent. MR 1.6a
i. Policy: this benefits the lawyer because it safeguards privacy of the attorney and also
gives them a professional promise that is reliable because it is enforced by the bar
association.
b. Cannot use information relating to the representation of a client to the disadvantage of the
client. MR 1.8(b)
c. You have a duty not to use . . . confidential information of the principal for your own purposes or
those of a third party. Restatement (Third) of Agency § 8.05(2)
II. There are exceptions to the ethical duty of confidentiality
a. Express consent: like a waiver, satisfies the “informed consent” part of MR 1.6A
b. Implied consent: disclosure may be impliedly authorized, for example when the lawyer writes a
complaint and files it in court – technically revealing information
c. Preventing death or serious bodily harm: “to the extent the lawyer reasonably believes
necessary…to prevent reasonably certain death or bodily harm” MR 1.6(b)(1)
i. Lawyer may reveal information; is not required to.
1. [POLICY] for flexibility: we don’t want to hold lawyer accountable for such a
tough CALL
2. [POLICY] for requiring disclosure: stakes are high; may be a life and death
situation
d. Preventing crime or fraud: to prevent client from committing a crime/fraud that is (1)
reasonably certain to result in (2) substantial injury to the (3) financial interests/property of
another, in furtherance of which client has used lawyer’s services. MR 1.6(b)(2)  crime here
must be prospective.
i. If you reasonably believes it is necessary 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 MR 1.6(b)(3)  might
have to rectify it if you know it’s happened
e. Self-defense
i. To establish a defense to a criminal charge/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. MR 1.6(b)(5)
1. Lawyer has a right to respond when an assertion of wrongdoing has been made,
can invoke this defense even if charges have not yet been made.
2. Can reveal: lawyer discovers complaint has a false statement, D brings action
for Rule 11 sanctions  lawyer wants to defend that client told him otherwise
3. Cannot reveal: lawyer at firm thinks SEC registration is misleading, but is
overruled by partner  lawyer wants to tell SEC because concerned about being
disbarred (not a crime)  NO ASSERTION OF CRIME OR WRONGDOING
a. But this would be addressed by MR 1.13(b) for illegality in orgs.
f. Illegality in organizations
i. Best interest : If a lawyer for an organization knows that an officer, employee or other
person associated with the organization is engaged in action, intends to act or refuses to
act in a matter related to the representation that is a violation of a legal obligation to the
organization, or a violation of law that reasonably might be imputed to the organization,
and that is likely to result in substantial injury to the organization, then the lawyer shall
proceed as is reasonably necessary in the best interest of the organization. . . .
1. Knowledge = actual, not constructive
ii. Lawyer should refer matter to higher authority in the organization, hopefully someone
who can act on it. MR 1.13(b) “up the ladder” reporting
 iii. If the highest authority does not act in a timely and appropriate manner or refuses to
act + lawyer believes that violation is reasonably certain to result in substantial injury
 reveal
1. Does not apply to internal investigations MR 1.13(d)
iv. Noisy withdrawal: if counsel reasonably believes that material violation is either
happening or about to happen, she has to withdraw from representation and tell the SEC
that withdrawal is based on professional considerations.
1. If no action at the top of the ladder, can withdraw and notify the SEC.

Former Clients
I. Cannot use disadvantageous information or reveal information about past client. MR 1.9(c)
II. Must take reasonable efforts to prevent inadvertent disclosure. MR 1.6(c)
III. If you get an email that you know or reasonably should know was inadvertently sent, must
promptly notify the sender. MR 4.4(b)
a. What you should do with the document is beyond the scope of the rules; you can return it if you
want to.
IV. After terminating representation, lawyer is supposed to surrender all papers and property to which
the client is entitled. MR 1.16(d)

Misappropriated Client Information

I. Must take reasonable efforts to prevent the unauthorized disclosure of/unauthorized access to
information relating to representation of a client. MR 1.6
a. If you took reasonable efforts, unauthorized disclosure is not a violation
II. Two kinds of data breaches:
a. Data in transit:
i. No duty to use special security measures if method of communication affords a
reasonable expectation of privacy. Comment to Rule 1.6
b. Data in storage:
i. Must keep clients’ property separately from lawyer’s property (separate account, etc) MR
1.15(a)
ii. Should hold property of others w/ the care required of a professional fiduciary.
III. Attorney action in response to data breach:
a. Have to notify the client if data breach involves or has a substantial likelihood of involving
material client confidential information. ABA Formal Opinion 483 (2018)
b. Even if no, lawyer has to keep client reasonably informed about the status of a matter MR 1.4(a)
i. And explain a matter to the extent reasonably necessary to allow client to make an
informed decision about representation. MR 1.4(b)
c. MR 1.16(d): Upon termination of representation, a lawyer shall [surrender] papers and property
to which the client is entitled . . . . The lawyer may retain papers relating to the client to the
extent permitted by other law.
d. Must tell client if you cannot ascertain extent of information affected by breach
e. Continuing duty to keep clients apprised of material developments in post-breach investigations
affecting clients’ information
f. You could also inform the government.

Attorney-Client Privilege
Remember: ethical duty is broader than privilege. Some confidential information “related to the representation”
of the parties is not privileged.

I. Requirements:
a. There has to be a communication
b. Between attorney and client
c. Of confidential information
 d. Made for purposes of facilitating the representation
II. If client is an organization
a. Subject Matter Test [Upjohn]: protects communications between counsel and employees
regarding matters within the scope of employment, where the purpose of the communication is
to facilitate the formulation of legal advice to the corporation.
i. History: arises out of bribery scandals of the 1970s
ii. Test adopted by federal courts; states do not have to follow it, but must do.
b. Control group test: protects communications between counsel and officers who play a
substantial role in formulating legal strategy regarding matters within the scope of their
employment and are made to assist the lawyer in assessing or responding to the legal
consequences of that conduct for the corporate client.
i. Extends only to high level corporate officers’ communications with counsel
ii. Test available only in state cases.
c. Witness v. participant [Goodfarb, middle ground]: protects communications between
employees and corporate counsel (other than those initiated by the employee) if they
concern the employee’s own conduct within the scope of their employment and are made to
assist the lawyer in assessing or responding to the legal consequences of that conduct for the
corporate client.
d. Example: botched operation at hospital. Corporate lawyer interviews a) head of hospital (COO)
(re: formulating general policies for screening out bad doctors), b) anesthesiologist (re:
operation), c) nurse (re: policies, an EE, but not participating in operation), and d) neighbor, who
is an EE, (re: witness of P walking post-operation).
i. under Upjohn: all protected except for d. Interview with d is not about a matter within the
scope of their employment.
ii. under Goodfarb: all protected but c and d. C not about legal consequences of the
conduct.
iii. under control group: only a protected.
III. Government A-C privilege:
a. Reasons for narrower scope:
i. Public interest: government employee serves the public and should not be able to inhibit
search for truth
ii. Lower expectation of privacy for public officials
iii. Gover
IV. Common interest privilege: [if C1 and C2 have the same attorney; multiple defendants with
overlapping interests]
a. Sharing of information is allowed, courts will recognize common interest privilege if it looks like
parties are sharing information, but a written document can better guide the scope/limitations of
privilege for the court.
i. Advantages:
1. Helps two defs present a common defense to plaintiff
2. Preserves against possibility that one defendant will change sides.
ii. Disadvantages:
1. If the defs don’t trust each other, the attorney will be put in a difficult spot.
b. Example: P sues in tort for boiler explosion by manufacturer of boiler and manufacturer of part.
i. Ds here have common interest in mounting common defense, but also want separate
representation as interests not perfectly aligned. The two Ds still want to consult on the
defense.
c. If two separate lawyers, the defs cannot communicate with each other’s counsel; if C1 says
something to A2 that might be an inadvertent waiver of privilege.
V. Internal investigations:
a. Lawyers should include Upjohn warning that an investigation is happening + specifying that
they are not acting for all the employees.
b. Example: “as the company is our client, the attorney-client privilege belongs solely to the
Company”
i. Upjohn v. U.S:
 1. Facts: Company investigates bribery of foreign authorities. Corporate counsel
talks to all levels of employees (workers, low management, line management,
senior management). IRS subpoenas records and company claims privilege. 6th
circuit applied control group test (only officers + agents responsible for directing
the company are protected)
2. Holding: SCOTUS rejects the control group test and grants privilege to the
company if the lawyer’s conversation concerned “matters within the scope of the
duties of employees”
c. Do not: say “we could represent you as well as long as no conflict appeared” weak Upjohn
warning.
i. In re: Grand Jury Subpoena:
1. Facts: Three AOL employees sought to quash a subpoena seeking written
records of an internal investigation during which they were interviewed by
counsel for their company, but court denied their request
2. Holding: The person seeking to invoke the A/C privilege must prove that he is a
client or that he affirmatively sought to become a client
a. Watered down/sloppy UpJohn warning because lawyers said they “could”
represent them – thus the employee is not a client of the attorney.
Although employee is privy to confidential attorney-client info, third party
exposure does not result in waiver as it does in other cases
VI. Waivers of A-C privilege:
a. Means of waiver:
i. Express waiver: client agrees explicitly to waive the privilege
ii. Waiver by putting matters in issue: when client acts in reliance on advice of counsel //
communicated to previous counsel but not current one – e.g. suit is for tax fraud, client
says “tax counsel told me it was ok”
iii. Waiver by disclosure to 3rd parties: presence of a 3rd party (PR company) may be an
implied waiver
1. Less 3rd party is necessary and hired by the attorney (translator, therapist,
accountant)
iv. Waiver by inadvertent disclosure
1. Disclosure does not operate as a waiver in a federal/state proceeding if:
a. Disclosure is inadvertent
b. Holder of the privilege/protection took reasonable steps to prevent
disclosure
c. Holder took reasonable steps to rectify the error
b. Coercive waivers:
i. “Take it or leave it propositions” – prosecutors are directed not to ask for such waivers.
ii. “[W]hile a corporation remains free to convey non-factual or “core” attorney-client
communications or work product – if and only if the corporation voluntarily chooses to do
so – prosecutors should not ask for such waivers and are directed not to do so. The
critical factor is whether the corporation has provided the facts about the events . . . .”
(US Attorneys Manual: Principles of Federal Prosecution of Business
Organizations §9-28.710)
VII. Exceptions to A-C Privilege:
a. Crime-Fraud Exception:
i. No privilege when AC communication is in furtherance of ongoing planned crime, fraud,
other misconduct.
1. Example: “I need legal advice re: cheating on my taxes”
ii. [POLICY]: prevention of crime outweighs reasons for protection
1. Distinct from 1.6(2)  exception will be asserted by an outside 3rd party who
wants to get rid of the privilege on the lawyer-client communication. Lawyer
doesn’t need to know, no substantial financial injury requirement.
iii. Party opposing privilege must introduce evidence sufficient to support a finding that
lawyer’s services were intended to advance crime/fraud.
Other Privileges and Protections
I. Work product privilege:
a. Memoranda, statements and mental impressions of attorney developed or prepared in
contemplation of litigation enjoy a limited privilege against compelled discovery. (Hickman v.
Taylor)
b. Ordinarily, a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative (including the
other party's attorney, consultant, surety, indemnitor, insurer, or agent). FRCP 26(b)(3)
c. However, materials may be discovered if they are discoverable under Rule 26(b)(1) and the
party shows that it has substantial need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means
i. Rule 26(b)(1): outlines scope of discovery and its limits.
d. FRCP 26(b)(4)(c) -- Communications between party’s attorney and any testifying witness =
protected UNLESS the communications:
i. Relate to compensation for the expert's study or testimony;
ii. Identify facts or data that the party's attorney provided and that the expert considered in
forming the opinions to be expressed; or
iii. Identify assumptions that the party's attorney provided and that the expert relied on in
forming the opinions to be expressed.
II. Deliberative process privilege//executive privilege: Internal processes of the executive branch
of a government are immune from normal disclosure or discovery in civil litigations
a. Judges also protected, see In the Matter of Enforcement of a Subpoena:
i. Facts: SC appointed by the state’s commission on judicial conduct investigated
allegations that a judge displayed a pattern of impermissible bias in decisionmaking. The
special counsel served the judge with a subpoena demanding “notes, notebooks, bench
books, diaries, memoranda . . . or other written recollections of any of the cases
described in the Complaint.”
ii. Holding: the documents in question were protected by a privilege, “deeply rooted” in the
common law, for judicial deliberations. Privilege justified by concerns for finality, fairness,
independence, and impartiality. But limited to the judge’s mental impressions and actual
evidence of deliberations.
b. [POLICY]: comes from contest between executive branch and legislative branch. Not giving the
executive privilege may inhibit the candor of their deliberations + impair ability to respond
independently/effectively to congressional oversight. Separation of power concerns//imbalance
between executive and legislative. Confidentiality means that ideas can be honestly debated
without fear of later being used against parties.

Contact with Parties Other Than Client

I. MR 4.3 Unrepresented parties:
a. Lawyer should not state or imply that she is disinterested
b. If lawyer knows/reasonably should know that the unrepresented person misunderstands the
lawyers role in a matter, lawyer should make reasonable efforts to correct a misunderstanding.
c. If lawyer knows/reasonably should know that interests of such a person might be in conflict with
the interests of the client  no giving legal advice to unrepresented person
II. MR 4.2 Represented parties:
a. Lawyer cannot communicate about subject of representation with a person that the lawyer
knows to be represented by another lawyer
i. Unless the lawyer has consent of the other lawyer/is authorized to do so
III. Special settings for the no-contact rule [which prohibits a lawyer from communicating with a
represented party unless the lawyer is authorized by law to do so or has obtained advance consent
from the represented party’s lawyer]
a. Unresponsive attorney: if opposing counsel is unresponsive
i. MR 8.4: lawyer cannot make a call himself and cannot “do so through the acts of
another” aka through a paralegal
ii. MR 4.2: Parties can also communicate directly with each other and the lawyer is allowed
to advise a client to make a communication if the client is legally entitled to do this.
b. Undercover investigators and discrimination testers:
i. Courts are usually receptive to investigators/testers despite MR 8.4, because it is
otherwise difficult to get evidence of discrimination, esp. in civil rights cases. No contact
rule isn’t intended to prohibit this kind of conduct. (Gidatex).
c. Corporate parties [governs contact that an attorney can have with employees of a corporation
where the attorney knows that the corporation is being represented by counsel]
i. Three rules (mention that the 4.2 comment is available)

MR 4.2 Nieseg MR 4.2 [Comment]

In representing a client, a The no-contract rule In the case of a
lawyer shall not applies to corporate represented organization,
communicate about the employees whose acts or this Rule prohibits
subject of the omissions in the matter communications with a
representation with a under inquiry are: constituent of the
person the lawyer knows -binding on the organization who
to be represented by corporation supervises, directs or
another lawyer in the - imputed to the regularly consults with the
matter, unless the lawyer corporation, or organization’s lawyer
has the consent of the - implementing the advice concerning the matter or
other lawyer or is of counsel has authority to obligate the
authorized by law to do so. organization with respect to
the matter or whose act or
omission in connection with
the matter may be imputed
to the organization for
purposes of civil or criminal
liability.

 Example 1: CEO determines safety policies of the company, and there was an accident
 MR: ? depends on whether there is counsel’s consent
 Niesig: not permitted
 MR 4.2 comment: not permitted
 Example 2: Assembly worker that made a mistake and may have contributed to the
accident
 MR: ? depends on whether there is counsel’s consent
 Niesig: not permitted
 MR 4.2 comment: not permitted
 Example 3: Employee who was a witness to the accident but had nothing to do with
harm occurred
 MR: ? depends on whether there is counsel’s consent
 Niesig: not permitted
 MR 4.2 comment: permitted
d. Government parties:
i. Contacts with government employees:
1. People have a First Amendment right to communicate with the government
(“petition the Government for a redress of grievances”)
 2. MR 4.2: lawyer is allowed to communicate on behalf of a client who is exercising
a constitutional or other legal right to communicate with the government.
ii. Contacts by government employees (where the government employee is an attorney or
works for an attorney)
1. Interrogations: 6th Amendment no contact rule only applies if suspect is in
custody/indicted.
a. Miranda rule: warning is required and there can be no interrogation of
suspects in custody after they have invoked the right to counsel
b. Afrer judicial proceedings have commenced, police cannot interrogate a
suspect represented by counsel, whether or not in custody, absent
knowing waiver of the right to counsel (Brewer v. Williams)
2. Undercover operations:
a. If undercover operative is authorized by law, then can contact (MR 4.2)
i. Legal authorization is implicit in the enforcement of federal law.
b. However, state ethics rules apply to U.S. federal prosecutors (example:
DOJ subject to state ethics rules) under the McDade Amendment unless
there is superseding federal law.
c. Use of informants and wires in investigations are okay but a prosecutor
can be subject to discipline if she oversteps authority.
i. U.S. v. Hammad
1. Facts: During an ongoing investigation, H was represented by
an attorney. Government made deal w/ his accomplice who
then recorded statements without H’s knowledge.
Government gave accomplice sham grand jury subpoena to
show to H, trial court says that government conduct violated
the no contact rule
2. Holding: can’t use a fake subpoena because this turns the
accomplice into the agent of the government.
3. Generally speaking the use of informants by government
prosecutors in pre-indictment, noncustodial situations, absent
the type of misconduct that occurred in this case will generally
fall w/in the authorized by law exception to the DR and wont
be subject to sanctions
d. Government can use deception in its investigation in order to induce
suspects into making incriminating statements.
i. US v. Corona:
1. Facts: At government request, Haidl recorded conversation w/
D Carona about bribes he had paid to Carona and used fake
subpoena as a prop to get Carona to talk about the bribes;
Carona argued the conversations couldn’t be used against him
because the government knew he was represented at that
time
2. Holding: Conversations could be used; would be antithetical
to justice to allow a wrongdoer to immunize himself against
such undercover operations by just telling the government that
he had obtained counsel.
3. Organized crime: shadow counsel, who doesn’t appear on the record, will be
used to negotiate the deal.

Improper Acquisition of Information

I. Through fraud or abuse of process  doesn’t apply to criminal prosecutors:
a. MR 8.4c: Lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.”
b. MR 8.4d: Lawyer shall not “engage in conduct that is prejudicial to the administration of justice.”
 II. By another person in a criminal case:
a. MR 4.4(a): Can’t obtain information a way that would violate the rights of another person.
III. By another person in a civil case:
a. MR 4.4(b) Same as above, but additionally – lawyer who receives a document relating to
representation of a client, knowing/should know that the document was inadvertently sent
should promptly notify the sender.
i. Whether or not to send it back depends on professional judgement; suggests you could
return it without violating advocacy duties + that you could read it without violating ethical
rules
b. As a result of inadvertent disclosure:
i. See above.
IV. [POLICY] Significant tension between the adversarial system and a lawyer’s duty to be a zealous
advocate AND the concept of fairness/attorney-client privilege.

Conflicts of Interest
With Other Clients

I. Definition: if there is a substantial risk that the lawyer’s representation of the client would be
materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another
client, a former client or a third person. Restatements §121
II. MR 1.7: Lawyer shall not represent a client if the representation involves a concurrent conflict of
interest
a. Concurrent conflict of interest = if there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer's responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer.
b. See below [concurrent conflicts of interest]
III. [POLICY] Three concerns about conflict of interest:
a. Vigor: we don’t want counsel to defend less vigorously because they have competing concerns.
b. Confidence: we want to discourage breaches of confidence, also want to encourage client
candor and clients might be reluctant to give information if they think their lawyer without telling
them will accept conflicting work while representing them/later.

Client Trust Accounts

I. MR 1.15 Funds received from clients have to go into a lawyer’s trust account, maintained
separately
a. Other property shall also be appropriately safeguarded.
b. Records have to be kept by the lawyer and preserved for 5 years after termination of the
representation.
c. Have to use GAAP + comply with any recordkeeping rules established by law or court order

Business Dealings with Clients

I. MR 1.8(a) A lawyer may not enter into a business transaction with a client unless:
a. (1) the terms are fair and reasonable and fully disclosed
b. (2) the client is advised of desirability of independent counsel;
c. (3) the client gives informed consent in writing.
II. [POLICY]
a. Clients rely on confidentiality + fairness of their counsel which doesn’t just go away at the end of
every transaction
b. Don’t want the exploitation of a trust relationship.
 III. DR 5-104(A): A lawyer shall not enter in to a business transaction with a client if they have differing
interests therein and if the client expects the lawyer to exercise his professional judgment, unless
the client has consented after full disclosure
IV. Lawyer cannot get the better of the bargain unless he can show that the client was fully aware of
consequences.
a. In re: Neville:
i. Facts: Neville represents Bly. Both get an interest in a piece of real estate. The real
estate is sold to a third party, though Neville makes clear that he was not representing
the client in this transaction. Client complains that he got a bad deal.
1. Client was a sophisticated party, a real estate investor.
2. Neville tells client that he was not representing him, advised him to get indepdent
counsel, informed there was a conflict of interest.
3. When client consents to something, we want them to have all the possible
information.
ii. Holding: Disclosure not enough. Neville has to give the client all of the information that
the client should know to make a decision; transaction should be equally favorable as an
arms-length transaction. Lawyer should have called disadvantageous terms to the
client’s attention and explained them.
b. In re: Hager:
i. Facts: Hager cuts a deal with opposing client for a confidential payment as part of
settlement – if he had rejected the confidentiality agreement and waived his fee , client
still would have gotten relief from the settlement agreement
ii. Holding: Court says that Hager's financial interest would have affected his professional
judgement + was suspended for a year
V. MR 1.8, Comment 4: If client is represented, can get a written disclosure from their lawyer + the
fact that they were represented is relevant in deciding whether agreement was fair/reasonable
VI. Having a referral agreement may be an interest adverse to the client
a. Hausman:
i. Facts: Plaintiff would refer clients to a chiropracter and get 20% of fees from referral
ii. Holding: convicted of conspiracy to commit mail and wire fraud because he used mail to
deprive clients of honest services in violation of his fiduciary duty.
VII. However, the mere fact that an attorney has knowledge of the claims and defenses in one action
against a party cannot serve as a basis of disqualification in another action where the facts seem
similar.
a. Gellman v. Hilal:
i. Facts: Defendants allege that plaintiff's counsel's wife represented the defendants in an
unrelated malpractice action and therefore learnt the acts of the case. Prior lawsuit was
similar to current one as they both involve the same medical procedure.
ii. Holding: Two actions involve a claim of malpractice but the nature of claims differs.
Here, danger of inadvertent revelation of confidences was not considered fatal; attorney
spouses just have to adhere to ethical guidelines. No per se rule of disqualification
based on marital status.
Media Rights

I. MR 1.8(d): Prior to the conclusion of the 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.
a. Where a lawyer has taken media rights in a criminal defendant's story, courts say that while a
lawyer may have had a potential conflict of interest, the client gets no relief unless he can show
that conflict affected the lawyer's performance.
II. [POLICY] Why limit media representation?
a. State has interest in accurate verdicts in criminal cases; a conflicted defense lawyer may
undermine that confidence by casting doubt on accuracy of verdict
b. Lawyer's incentives may be skewed in favor of going to trial
Sexual Relations

I. MR 1.8(j): A lawyer shall not have a sexual relations with a client unless a consensual sexual
relationship existed between them when the client-lawyer relationship commenced.
II. Still have to comply with MR 1.7(a) which prohibits a concurrent conflict of interest.
a. MR 1.7:
i. Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest.
1. A concurrent conflict of interest exists if . . .
a. (2) there is a significant risk that the representation of one or more clients
will be materially limited by the lawyer's responsibilities to another client, a
former client or a third person or by a personal interest of the lawyer.
III. Sexual conflicts are not imputed
a. MR 1.9(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a)
through (i) that applies to any one of them shall apply to all of them.
i. If attorney removes himself from the matter, firm can continue representation
IV. [POLICY]
a. We don’t want exploitation of power and trust relationship
b. No informed consent exception
c. Want to allow attorneys to represent people they have pre-existing relationships with.

Related Lawyers

I. Lawyers related to each other cannot be opposing counsel.

a. MR 1.7, Comment [11]: “A lawyer related to another lawyer, e.g., as parent, child, sibling or
spouse, ordinarily may not represent a client in a matter where that lawyer is representing
another party, unless each client gives informed consent.
i. The disqualification arising from a close family relationship is personal and ordinarily is
not imputed to members of firms with whom the lawyers are associated.”
b. NY Rule 1.10(h): A lawyer related to another lawyer as parent, child, sibling or spouse shall not
represent in any matter a client whose interests differ from those of another party to the matter
who the lawyer knows is represented by the other lawyer
i. unless the client consents to the representation after full disclosure and the lawyer
concludes that the lawyer can adequately represent the interests of the client.
c. MR 1.7(a) still applies
i. Didn’t cover Gellman v. Hilal because the conflict wasn’t current.

Concurrent Conflicts

I. Concurrent conflicts are when the lawyer represents another client with adverse interests or has wil
be limited by responsibilities to another client. Two current clients.
II. MR 1.7(b) Despite MR 1.7, lawyer can represent a client if:
a. (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
b. (2) the representation is not prohibited by law;
c. (3) the representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
d. (4) each affected client gives informed consent, confirmed in writing
III. Related matters:
a. Fiandaca v. Cunningham:
i. Facts: New Hampshire Legal Assistance has two class actions: 1) representing female
prisoners, claiming conditions in prisons are unequal, constituting sex discrimination; 2)
 state school students at Laconia School for disabled, claiming conditions in school are
bad.
1. Proferred settlement in Suit 1 would give female prisoners a new prison on the
school grounds  conflict created, since one representation would adversely
affect the other’s interests.
ii. Holding: state should have disqualified NHLA
iii. [POLICY] should public interest attorneys be held to a higher standard?
1. No: less people would take up these cases
2. Yes: stakes are higher
IV. Unrelated matters: the rule makes no distinction between related and unrelated matters, although
the risk is lower when the two matters are unrelated.
a. IBM v. Levin:
i. Facts: Firm represents IBM on labor disputes. Another partner in firm wants to represent
Levin in unrelated antitrust lawsuit against IBM. IBM moves to disqualify.
ii. Holding: court holds that lawyer may not represent a party in a lawsuit against an
existing client unless the existing client will not be prejudiced + both clients consent.
Directly adverse to MR 1.7(a)(1).
iii. Note: could solve conflict through consent + waiver, but unlikely that IBM would give its
consent because they don’t want Levin to sue.
V. Insurance litigation:
a. In most liability insurance policies (like medical malpractice insurance), the insurance company
takes on two obligations:
i. Indemnification: will pay judgement if held liable
ii. Defense: will provide representation for the defense (typically picks the attorney)
b. Policy limits:
i. Lawyer’s duty will be to the insured, who is the client.
1. Does this violate MR 5.4(c): A lawyer shall not permit a person who . . . pays the
lawyer to render legal services for another to direct or regulate the lawyer's
professional judgment in rendering such legal services?
a. NO: If claim is below the policy’s limit: insurer doesn’t care
b. YES: If claim is above the policy’s limit: insurer still doesn’t care because
it is on the hook for the same amount regardless  diverging interest
from client, who we would want to exercise control in this instance
c. Policy exclusions:
i. If exclusion applies, insurer has no more obligation to defend/pay judgement.
1. Goldfarb:
a. Facts: Dentist who had sexually molested patients when they were
unconscious in the dentist’s chair, question was punitive damages.
Insurance company wasn’t incentivized to spend on defense because
they didn’t have to pay – they would have had to pay compensatory, so
they had an incentive to let the punitive damages stand
VI. Negotiation:
a. As negotiator, a lawyer seeks a result advantageous to the client but consistent with
requirements of honest dealings with others.
b. But also have to stay in compliance with MR 1.7 – no conflicts.
VII. Criminal matters:
a. Multiple representation
i. If trial judge refuses to consider objection
1. Per se violation of a criminal defendant’s Sixth Amendment rights for a state
court judge to refuse to investigate timely objections to multiple representation.
Halloway vs. Arkansas.
ii. If defense counsel fails to object: 6th amendment reversal is only available if can show
“actual conflict of interest adversely affected lawyer’s performance”
1. Cuyler v. Sullivan:
 a. Facts: 3 defs indicted for murder, one def (Sullivan) accepts
representation by co-defs lawyer – no objection to multiple
representation. Defense rests without putting on a case.
b. Holding: The 6th Amendment does not impose a per se rule on the trial
court to inquire sua sponte into the effective assistance of counsel in
multiple representation situations.
c. Note: standard is easier than Strickland because don’t have to show but
for causation; Strickland you have to show different outcome but for the
incompetence.
2. In some states, federal district judges in a criminal case must make inquiries w/r/t
joint representation and personally advise each def. of his right to effective
assistance of counsel…court shall take such measures as may be appropriate to
protect each defendant’s right to counsel. FRCP 44(C)
iii. If prosecutor objects:
1. Judge has discretion to deny a conflict waiver when prosecutor objects.
a. Wheat v. United States
i. Facts: 3 defs, charged with a drug conspiracy. One def asks for
the same lawyer defending the other two and the prosecutor
objects; waives right to conflict free counsel.
ii. Holding: court says that defense counsel has the broad latitude to
determine whether to accept a waiver of conflict, but have to keep
in mind 6th amendment. Here, no violation of 6th amdt right to
effective counsel.
iii. Note: If uphold counsel: D can later claim conflict under Cuyler. If
deny substitution, D can claim he was denied counsel of choice.
b. Private prosecutions
i. Interested private parties cannot be appointed as special prosecutors
1. Young v. United States:
a. Facts: Louis Vuitton sues someone making fake bags, wants US to
pursue criminal case, but US is busy so Vuitton’s lawyers are appointed
as special prosecutors
b. Holding: private attorney cannot provide assurance that she will be
guided by sense of public responsibility for attaining justice, there is a
conflict between serving court that appointed her and private client who
pays the bills.
2. [POLICY]
a. Prosecutors often use discretion to not prosecute, in interests of justice, if
don’t think it is in public interest.
c. Abuse of prosecutorial discretion
i. Justifications for prosecutorial discretion:
1. US Constitution Art. II § 3 (“The President shall “shall take Care that the Laws
be faithfully executed”): prosecutors are members of the executive branch. Gives
implicit authorization to exercise discretion  implicit authorization of duty of care
and duty of loyalty.
2. US DOJ Manual Principles of Federal Prosecution 9-27.001: These principles
of federal prosecution . . . promote the reasoned exercise of prosecutorial
authority and contribute to the fair, evenhanded administration of the federal
criminal laws.
ii. Normally, objector to prosecutor should demonstrate actual prejudice + risk so
substantial it cannot be ignored. In some situations, appearance of impropriety = enough
for disqualification.
1. People v. Adams:
a. Facts: City court judge gets into a fight with a former lover who happens
to be a neighbor. Neighbor sends judge vulgar/insulting text messages
and judge is not happy about this, files a complaint with the police dept.
 Neighbor charged w/ misdemeanor of harassment/ BUT the complaint is
filed in the judge's court and so the prosecutor rejects the plea deal.
b. Holding: Appearance of impropriety enough to disqualify; we do not want
to discourage public confidence in our government and system of law to
which it is dedicated.’
VIII. Conflict waivers: Under 1.7b, a lawyer can represent a client even if there is a concurrent conflict if
each affected client gives informed consent, confirmed in writing:
a. Class actions
[POLICY] Reasons i. why
Might involve conflicts of interest:
1.9 is less strict than 1.7:1. Amchem Products Inc v. Windsor:
 Vigor: Firm may a. Facts: Class counsel in asbestos personal injury case faced a disabling
want a former conflict of interest in simultaneously representing (a) clients who were
client back, and so living with current illness due to asbestos, and (b) clients who had been
sacrifice vigor to exposed to asbestos but who had not yet manifested serious health
please them but problems.
less of a concern
ii. Lawyer with 2+ clients cannot make an aggregate settlement of the claims of or against
than when there’s
the clients…unless each client gives informed consent, in a writing signed by the client.
a conflict withMRa 1.8(g)
current client 1. Lawyer’s disclosure must include existence/nature of all claims or please
 Confidence: Less involved and of the participation of each person in the settlement.
b. Prospective
concern with waivers
i. as
former client MR 1.7, Comment 22 Effectiveness of future waivers depends on whether client
information isunderstands
older material risks that the waiver entails.
and less relevant1. More comprehensive the explanation of possible adverse consequences + type
 Perception: Less of future representation = the greater the likelihood that client will have requisite
concern with understanding.
former client 2. Consent cannot be general and open-ended, must be limited.
 Costs: if we have Consent is likely to be effective if:
3.
incredibly strict a. client is an experienced user of the legal services involved
rules about b. client is independently represented by other counsel in giving consent
successive
Successive Conflicts
conflicts
o Scope
Conflict between a formerof client and a current client
disqualificat
ion will Severity of Concerns
Concerns increase, Current Client Former Client
getting
Vigor of Representation More Less
waivers
Sharing of Confidence will More Less
Appearance of be more
Impropriety More Less
difficult
Market Distortions Less More
o It will be
more
difficult for I. Successive conflict = materially adverse interests + substantially
new clients related matters + no consent
to get a. MR 1.9(a): A lawyer who has formerly represented a client in a
representat matter shall not thereafter represent another person in
ion i. the same or a substantially related matter in which
o Law firms ii. that person’s interests are materially adverse to the
will not be interests of the former client
able to take iii. unless the former client gives informed consent,
on laterals confirmed in writing.
and will II. Even if no successive conflict, you must not exploit confidences of a
have to former client.
grow
internally
o The size of
law firms
will be
affected.
 a. MR 1.9(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:
i. (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
ii. (2) Reveal information relating to the representation except as these Rules would permit
or require with respect to a client.
III. Defining “Substantially related”
a. MR 1.9 Comment 2: "A lawyer who recurrently handled a type of problem for a former client is
not precluded from later representing another client on a factually distinct problem of that type
even though the subsequent representation involves a position adverse to the prior client."
b. Substantially related test = if the lawyer could have obtained confidential information in the first
representation that would have been relevant in the second. Analytica. Don’t have to show that
attorney received the information, just have to show that they could have received it.
i. Issues: the more broadly we define substantially related, the more the scope of
disqualification/interference with the client’s choice of counsel.
ii. Asking whether 2 matters could be related is a proxy for actually checking. We don’t do
this because:
1. That would involve revealing the information we want to keep confidential
2. Admin costs for courts to review files in a prior presentation
3. Will be impossible to predict how a new, adverse matter will develop
4. Want to protect loyalty to prior client.
c. Analytica Inc v. NPD:
i. Facts: NPD hired S&F to handle a stock transfer involving taxes and the employee in
question quit, formed his own company, and hired S&F for an anti-trust claim against
NPD
ii. Holding: A lawyer may not represent the adversary of a former client if the subject of the
2 representations are substantially related
a. Here they are related because a tax case and an anti-trust case are both about
finances
b. Doesn’t matter that Malec was technically the client in the first matter and not NPD
 because still got the same financial info he would have gotten in NPD had
retained him
i. There was still trust and confidence involved in providing this info
c. Came up w/ the substantial relationship test
IV. Under MR 1.10(a) all MR 1.9 conflicts are imputed to the entire firm. But if a conflicted lawyer quits,
the firm can still represent the client unless matter is substantially related and any lawyer remaining
at the firm might have information.
i. MR 1.10(b): 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:
1. (1) The matter is the same or substantially related to that in which the formerly
associated lawyer represented the client; and
2. (2) Any lawyer remaining in the firm has information protected by Rules 1.6 and
1.9(c) that is material to the matter.
V. Dropping client:
a. A firm cannot drop a client like a “hot potato” especially in order to keep happy a far more
lucrative client. Picker International.  violates duty of loyalty
b. [POLICY] Don’t want lawyer to be opportunistic/manipulative and turn a current client into a
former client so they can take they case
c. Exception for when, through no fault of your own, a client becomes adverse (happens through
unilateral actions like M&A or the operation of the law)  court says you have to drop one of the
clients.
d. Example:
 i. IBM v. Levin variant. Firm representing IBM on unrelated matter. When Levin
approaches firm, seeking to sue IBM, firm wishes to drop IBM in order to take the case.
1. Can’t drop client like hot potato to avoid conflict
ii. Law firms represents public employees unions, argues publicly and adamantly for
unionization rights. Next represents Wal-mart (whose very anti-union). Switches from a
union to management firm.
1. fine under MR 1.9(a), cmt. 2; “factually distinct problem of that type”
VI. Migrating attorneys and imputed disqualification: should a lateral lawyer’s personal and client
conflicts be imputed to his new firm?
a. MR 1.10(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 . . . (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the
disqualified lawyer’s association with a prior firm, and
i. (i) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom;
1. Screening = isolating lawyer from any participation in a matter through
procedures that are reasonably adequate to protect information that the lawyer is
obliged to protect. MR 1.0(k)
2. Elements of a conflict screen:
a. Instructions not to share information
b. Technological methods
c. Limits on sharing of fees
ii. (ii) written notice is promptly given to any affected former client to enable the former
client to ascertain compliance with the provisions of this Rule, . . . ; and
iii. (iii) certifications of compliance . . . are provided to the former client.

Fees
Fee Structures
I. MR 1.5(a): A lawyer shall not make an arrangement for, charge, or collect an unreasonable fee or
an unreasonable amount for expenses.
a. Factors bearing on the reasonableness of a fee:
i. The time and labor required
ii. The novelty and difficulty of the questions involved
iii. The skill requisite to perform the legal service properly
iv. The likelihood, if apparent to the client, that the acceptance of the particular employment
will preclude other employment by the lawyer
v. The fee customarily charged in the locality for similar legal services
vi. The amount involved and the results obtained
vii. The time limitations imposed by the client or by the circumstances
viii. The nature and length of the professional relationship with the client
ix. The experience, reputation, and ability of the lawyer or lawyers performing the services
x. Whether the fee is fixed or contingent
II. MR 1.5(b): Scope of representation (including fees) should be communicated to client, preferably in
writing…except when the lawyer will charge a regularly represented client on the same basis or
rate.
III. Hourly fees (most common)
a. MR 1.5, Comment [5]: Lawyer should not exploit a fee arrangement based primary on hourly
charges by using wasteful procedures.
i. Some think this isn’t efficient and supports dishonestly; argument for value billing where
fee is commensurate for value.
 ii. Fordham: drunk driving case where father hires a corporate lawyer who agrees to take
it at his usual hourly rate. The total fee came to 50k – was held to be unreasonable even
though it was based on the number of hours worked.
IV. Contingent fees (most unreasonable fee claims are brought for contingency fee cases)
a. [POLICY] Rationale:

Advantages Disadvantages
Gives representation to people who Stirring up litigation/bringing frivolous
cannot afford it cases (Gillers think this is ridiculous
because lawyers would go out of business
if they kept bringing frivolous cases)
Gives lawyer an incentive to zealously Selectivity: attorneys will avoid cases that
advocate for client they believe are not easy victories, which
impedes access to justice
Gives an incentive to settle quickly, even
for an amount that might be sub-optimal
for a client, because it would maximize a
lawyer’s hourly return (fewer hours, higher
returns)  conflict of interest. [however,
this might be efficient]

b. MR 1.8(i): Lawyer shall not acquire a proprietary interest in the cause of action or subject matter
of the litigation the lawyer is conducting for a client EXCEPT that a lawyer may contract with a
client for a reasonable contingent fee in a civil case.
c. MR 1.5, Comment 3: Contingent fees are subject to a reasonableness standard; lawyers must
consider “the factors that are relevant under the circumstances”
d. No contingent fee structures allowed in matrimonial or criminal cases.
i. MR 1.5(d)(1): A lawyer shall not enter into an arrangement for, charge, or collect “any
fee in a domestic relations matter, the payment or amount of which is contingent upon
the securing of a divorce or upon the amount of alimony or support, or property
settlement in lieu thereof.”
1. Rationale: we don’t want lawyers to be incentivized not to encourage familial
reconciliation.
ii. MR 1.5(d)(2): A lawyer shall not enter into an arrangement for, charge, or collect “a
contingent fee for representing a defendant in a criminal case.”
1. Rationale: we don’t want misaligned incentives, where attorney will accept a fee
earlier if they know they will lose.
V. Pre-judgement litigation support:
a. Lawyer can advance court costs and expense of litigation, repayment of which can be
contingent on the outcome of the matter. MR 1.8e(1)
b. Lawyer cannot provide financial assistance to client in connection with pending/contemplated
litigation, except for above. MR 1.8(e)
c. Lawyer cannot subsidize lawsuits brought on behalf of clients, including making loans.
i. [POLICY] Might encourage clients to bring lawsuits that might otherwise not be brought.
But also could increase access to justice.
d. Leads to the existence of litigation funding companies which invest in lawsuits in exchange for
profit if the case is successful.
VI. Fixed fees: for DUI representation, parking tickets, name changes, incorporation.
a. MR 1.5, Comment 5: Lawyer should not enter into an agreement whereby services are to be
provided only up to a stated amount when it is foreseeable that more extensive services
probably will be required, unless the situation is adequately explained to the client.
VII. Salaried attorneys:
a. MR 2.1: in representing a client, a lawyer shall exercise independent professional judgment and
render candid advice
VIII. Barter
 a. MR 1.5: can accept property (like an ownership interest in an enterprise) in payment for
services, as long as this does not involve acquiring a propriety interest in the cause of
action/subject matter of litigation.
i. Fee paid in property might have the qualities of a business transaction – check if
compliance with Rule 1.8(a).
IX. Litigation funding:
a. Client funding: In exchange for funding, the client provides an interest in the expected recovery
as equity or as security for a loan.
b. Attorney funding: In exchange for funding, the attorney provides an interest in the attorney’s
expected fee as equity or as security for a loan.
i. Not allowed: a funding arrangement in which lawyer’s future payments to the funder are
contingent on lawyer’s receipt of legal fees.
1. Not ok: non-recourse loan secured by legal fees
2. Not ok: financing in which lawyer’s payments varies with the amount of fees in
one or more matters.
X. Referrals:
a. MR 5.4c: Lawyer cannot permit a person who recommends, employs, or pays the lawyer to
render legal services for another or regulate the lawyer’s professional judgement in rendering
such legal services.
b. MR 5.4(a): Lawyer/law firm cannot share legal fees with a non-lawyer.
XI. Common fund cases: in which fee is deducted from a fund that the lawyer would have created; for
class actions
a. Trends: increasingly, judges are awarding fees based on the size of the class (proportional
relationship)
b. Ways to calculate attorneys’ fee awards in common fund class actions: district courts have
discretion to pick between either method as long as the fee awarded is reasonable
i. Lodestar:
1. Fee = Reasonable Hours * Reasonable Hourly Rate * Multiplier
2. F = H * R * M
3. Multiplier = adjustment upwards to compensate for risk, but can also be to
compensate for time and labor.
a. [POLICY] we need the multiplier because not adjusting for risk tends to
undermine the incentives to prosecute these cases. If we did not have a
multiplier, we are raising the possibility that plaintiff will win a small
judgement but there will be a large fee.
ii. Percentage of the fund:
1. Fee = applicable fee percentage * benefit recovered for the class
2. F = X * B
iii. [POLICY] which is better?
1. Lodestar is often more attractive because it can in theory exceed the amount of
the client receives  this is good because we are incentivizing lawyers to take up
cases + deterrent for defs to know that they might have to shell out for attys fees.
2. However, lodestar increases cost of administration – requires court to do
separate finding and check the books for reasonableness and if, there is a
multiplier, risk.
3. Lodestar might also create an incentive for attorneys to bill as many hours as
possible
4. Lodestar might encourage attorneys to settle before trial – lawyers share the
downside risk of the trial (possibility of adverse judgement + no fee) but do not
share in the potential economic upside (fees as a % of a large common fund)
5. Alignment of interests: percentage method aligns interests of plaintiffs and their
attorneys by allowing the latter to share in both the upside and downside risks of
litigation.
c. Shareholders’ derivative suit: case brought in the name of the company against the
company’s managers (for mismanagement)
 i. Common benefit doctrine: you create a benefit for the corporation and the fee is taken
out of that benefit.
ii. Fees can be very large.
1. In re Southern Peru: Plaintiffs’ attorneys awarded a fee of $285 million, equal to
$35,000 per hour.
XII. Division of fees:
a. MR 1.5e If between firms, division is only allowed if
i. It is in proportion to the services performed by each lawyer OR if each lawyer assumes
joint responsibility for the representation
ii. Client agrees to the arrangement including the share each lawyer will receive
1. Agreement has to be in writing
iii. Total fee is reasonable
b. MR 1.5, Comment 7: Joint responsibility for representation entails financial + ethical
responsibility for representation as if lawyers were associated in a partnership.
c. If within the firm, it will depend on the partnership agreement
d. Referral fees are not prevented explicitly because they’re difficult to regulate and would just be
pushed underground.
i. Also addressed MR 1.1 for competency; logic is that if you can’t refer someone, you
might do the work yourself and then you are screwing up your primary obligation of
competence.

Fee Shifting

I. One-way fee shifting: in certain types of litigation, losing defendants pay winning plaintiffs’
(reasonable) fees.
a. Authorized by 42 USC §1988(b)
b. This is the “English Rule”
II. [POLICY] Fee shifting
a. Applies in cases where there is a power imbalance, we want to encourage public interest
litigation; typically done in a civil rights/constitutional case.
b. Deters frivolous litigation as def. in a frivolous suit needn’t worry about paying his/her attorney’s
fees.
c. May also deter people of limited means from lawsuits as they have to also pay the winning
plaintiff
d. May also encourage settlement because the English rule creates more risk, and parties will be
more likely to settle
e. If both parties are very optimistic about their chances of success, the English Rule will actually
discourage settlement.
f. Fees may be disproportionate to results
III. How fee-shifting is calculated:
a. Fee = Reasonable Hours * Reasonable Hourly Rate
IV. Fee waiving: attorneys fees can be waived as part of the settlement in fee-shifting cases
a. Evans v. Jeff:
i. Facts: Civil Rights class action suit was settled w/ a provision calling for the class to
waive their right to seek attorney fees, even though the statute authorized fees to
prevailing party. Lawyer accepts the offer.
ii. Holding:
1. Permissible to make settlement contingent on a fee waiver
2. Permissible to negotiate merits and fees simultaneously
iii. However, there are issues with settlement conditioned on a fee waiver (suggests
that we should separate out the fees and the settlement price)

Settlement Effects Incentive Effects

 Waivers induce more and better Waivers increase risk and reduce
settlement offers because they reduce the expected fees for plaintiffs’ counsel,
defendant’s risk and costs. thus reducing their incentive to bring
socially beneficial cases (lawyer won’t
be paid)
Reasonable fee = $50k
Expected class recovery = $10M
Defendant’s offer = $5M on merits +
$150k in fees.

Def is better off by $4.9M (10.05 – 5.15)

Plaintiff’s attorney is better off by 100k

(150 – 50)

Class is worse off by $5M

V. Two-way fee shifting: loser pays winner’s fees.

VI.
Pro Bono

I. MR 6.1: Every lawyer has a professional responsibility to provide legal services to those unable to
pay. A lawyer should aspire to render at least fifty (50) hours of pro bono publico legal services per
year.
a. Aspirational, not a binding pro bono rule
II. Definition of pro bono:
a. MR 6.1 (a) Persons of limited means (most of 50 hours)
b. MR 6.1(a) Underfunded charities, churches, civic organizations, educational institutions, NGOs
(that are designed primarily to address the needs of persons of limited means.
i. Individuals, groups or organizations seeking to secure or protect civil rights, civil liberties
or public rights, or charitable, religious, civic, community, governmental and educational
organizations in matters in furtherance of their organizational purposes;
ii. Where payment of standard legal fees would deplete the organization’s economic
resources.
c. MR 6.1(b)(3) Law-improvement activities
III. Rule 6.1, Comment B: Lawyer can fulfill pro bono responsibility by providing financial support to
orgs providing free legal services to persons of limited means; such support should be equivalent to
the value of the hours of services that would otherwise have been provided.
IV. Rule 6.1, Comment B: Can satisfy pro bono responsibility collectively through firm’s aggregate pro
bono activities.
V. Disclosure rules in NY [NY Courts Administrative Rule 118(e)]
a. Every two years attorney must file a registration statement disclosing:
i. Voluntary unpaid pro bono services
ii. Voluntary financial contributions made to organizations primarily or substantially
engaged in the provision of legal services to the underserved and to the poor during the
previous biennial registration period.
b. Registration statement can be made public upon submission of a written request
VI. [POLICY] Should we have a mandatory pro bono program at all?
a. Yes:
i. Give back b/c of the privilege of lawyers
ii. Equal access to justice
iii. Civil legal services don’t meet the need of all indigent defendants
iv. Promotes public image for lawyers
b. No: there should be voluntary PBR w/ voluntary or mandatory PBR
 [Link] might lead lawyers to do a poor job
[Link] courts with frivolous lawsuits since cost of brining claim will be zero
[Link] lawyers might not have the expertise to do the work (specialization problem)
iv. Takings Clause & 13A (forced servitude) à courts reject this view
v. Might actually benefit the wealth because could increase need for more defense work for
wealthy clients (e.g. landlords against tenant claims)
vi. Might be detrimental to some careers for lawyers (e.g. a solo practitioner who needs
cash)
vii. Maybe a better solution like investing in public defenders
viii. Incompetence of lawyers à people could be getting sub par legal services

Government Attorneys
Government to Private Sector

I. We are concerned about lawyers going from government to private practice because we don’t want
lawyers to exploit the information they learned in government service to benefit private clients. So
lawyers cannot represent clients whose interests are adverse to the client they got info from.
a. MR 1.11c Except as law may otherwise expressly permit, a lawyer having information that the
lawyer knows is confidential government information about a person acquired when the lawyer
was a public officer or employee, may not represent a private client whose interests are adverse
to that person in a matter in which the information could be used to the material disadvantage of
that person.
b. MR 1.11c Firm with which the lawyer is associated can continue representation if lawyer is
screened.
i. [POLICY]
1. Want to encourage government service
2. If consent and screening weren’t allowed firms wouldn’t hire former government
lawyers because of concerns about imputation of conflicts
II. Disqualification ensures government lawyers don’t chose subject of investigation to improve
employment prospects in the private sector + don’t abuse information.
a. MR 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 . . . 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.
i. Someone’s name can on a lot of papers and documents but this limitation makes it so
you are only restricted from the few matters that you really worked on

Private Sector to Government

I. MR 1.11(d) Government lawyer cannot:

a. 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
b. Negotiate for private employment with any person who is involved as a party or as a lawyer for a
party in a matter in which the lawyer is participating personally and substantially…